Law of Constitution

Imp
Art 311.
Nature of Indian Constitution.
Power position of Presedent.
Art 368 and amendment procedure.
Trade comer and intercourse.
FR. Art 14,21
Q-1

Comment on Art 12 of Constitution of India.

The constitution of India has defined the word STATE for the purpose
of Part III and Part IV.
In STATE OF WEST BANGAL V/S SUBODH GOPAL BOSE, the SC
observed that the object of Part III is to provide protection to the
rights and freedoms guaranteed under this part by the invasion of
State.
Part III and Part IV carry a theme of Human Rights, Dignity of
Individual and also of the unity and dignity of the nation.
These parts respectively as a Negative Obligation of the State
and not to Interfere with the Liberty of the Individual, and Positive
Obligation of the State to take steps for the welfare of the
Individual.
Sate under Art 12 of the constitution has Four Components:
1. The Government and Parliament of India
Government means any department or institution of department;
Parliament shall consist of the President, the House of People and
Council of State.
2. The Government and Legislature of each State.
State Legislatures of each State consist of the Governor,
Legislative Council, and Legislative Assembly or any of them.
3. All Local Authorities and;
It means, Municipal boards Panchayats, Body of Port
Commissioner, and other legally entitled to or entrusted by the
government.
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4. Other Authorities within the territory of India or under

the control of Government of India.
The first two categories included the legislative and executive
wings of the Union and State in all their possible varieties. They
are quite specific and self explanatory.
Judicial Scrutiny
The letter two categories, particularly the last are not so specific
and require some explanation. To give a wider dimension to FR
the Judiciary has interpreted State in different context at
different time.

Principle of Ejusdem Generis:

In University of Madras v/s Santa Bai ,the Madras High Court evolved
the principle of ejusdem generis i.e. of the like nature. It means
that those authorities are covered under the expression other authorities
which perform governmental or sovereign functions.
In Ujjam Bai v/s Union of India the Supreme Court rejected the
principle of ejusdem generis .It observed that there is no common
genus between the authorities mentioned in Article 12. And by giving the
reference of Art 19 (1) (g), and Art 298 which contemplated engagement
of state in the performance of commercial activity, and Art 46 promotion
of education or economic interest.
In Rajasthan State Electricity Board v/s Mohan Lals it was held that
to be State, it is not necessary that the authority must be performing
governmental or sovereign functions .It should( i ) Be created by the Constitution of India;
(ii ) Have power to make laws;
In R.D.Shetty v/s International Airport Authority, the Court laid
down five tests to be an other authority( i ) Entire share capital is owned or managed by State.
( ii ) Enjoys monopoly status.
( iii ) Department of Government is transferred to Corporation.
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( iv ) Functional character governmental in essence.

( v ) Deep and pervasive State control.
( f ) Object of Authority
In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know
whether a juristic person is State is not how it has been brought but why it
has been brought.
( g ) Clearance of five tests
In Union of India v/s R.C.Jain , to be a local authority, an authority must
fulfill the following tests( i ) Separate legal existence.
( ii ) Function in a defined area.
( iii ) Has power to raise funds.
( iv ) Enjoys autonomy.
( v ) Entrusted by a statute with functions which are usually entrusted to
municipalities.

In Prem Garg v/s Excise Commissioner H.P. the Supreme Court held
that when rule making power of judiciary is concerned, it is State.
Other jurists say that since judiciary has not been specifically mentioned
in Article 12, it is not State, therefore if the Judge or magistrates are not
note State while there are functioning as a Judiciary. But if they are
also functioning as Administrator then they will be treated as
State within the meaning of Art 12. The Chief Justice of High court
shall have functions in dual role :
1. Chief Justice of High Court
2. Chief Administrative of High Court.
If any citizen aggrieved by the act of the Chief Justice , while he was
function as chief administrator of the high court then that chief justice has
no remedy and he shall be treated as a State under the Art 12.
Conclusion
The word State under Article 12 has been interpreted by the courts as
per the changing times .It has gained wider meaning which ensures that

Part-III can be applied to a larger extent. We hope that it would continue

to extent its width in coming times.

Q-2 Doctrines
1. Severability (Post constitutional laws ) Art 13 (2)
Art 13 provides that Act is void which is inconsistent with the Part III
of the constitution. Art 13 is having a flexible nature; it does not
make the whole Act inoperative. It makes inoperative only such
provisions of it as are inconsistent with or violative of fundamental
right. Sometimes valid and invalid portion of the Act are so
intertwined that they cannot be separated from one another. In such
cases, the invalidity of the portion must result in the invalidity of the
Act in its entirety, the reason is that the valid part cannot survive
independently. In determining whether the valid parts of a statue
are severable from the invalid parts. In intention of the Legislature is
the determining factor. In other words it should be asked whether
the legislature would have enacted at all that which survive without
the part found ultra virus.

The rule of severability applies as much clause (2) as to

Clause (1) of Art 13
Jia Lal v/s Delhi Administration AIR 1962
The appellant was prosecuted for an office u/s 19 (f) of the Arm Act
1878. In fact, section 29 of this Act provides that in certain area in
which the petitioner did not obtain any license in which the
petitioner was residing, it was not necessary to obtain the said
license for possession fire arm. Section 29 was challenged as ultra
virus and unconstitutional as offending Art 14 and also section 19(f)
of the Arms Act 1878 on the ground that two sections were not
severable, on the question of severability the SC held that the
section 29 of the Arms Act 1878 was ultra virus.
2.
Doctrine of Eclipse (Pre Constitutional Laws) Art 13 (1)
Art 13 provides that any law which made before the
commencement of constitution must be consistent with the part III
of the constitution . if any statue is inconsistence with the provisions
of part III of the constitution such statue shall become void. At the
same time such statue shall not be treat as Dead unless it is abolish
by Parliament. It will be treated as dormant or remains eclipsed to
the extent it comes under the shadow of the fundamental rights.
Regarding the doctrine of eclips few points need to be consider.
It is held to be applied only the Pre Constitutional Laws, and not
to be post constitutional laws.
Bhikaji
5

v/s State of MP AIR 1955

The MP Government passed an Act in the year 1950 for

nationalizing the motor transport before commencement of the
constitution. The statue was challenge by the petitioner under Art
19(1)(g). The Center Govt. Amended Act 1955 on 27-4-1955
enabling the state to nationalize the motor transport. That SC held
that the statue of MP sate State nationalizing the motor transport
1950 was cured by the 4th Amendment Act 1955 and therefore the
Doctrine of Eclipse has been applied and the such Act is valid.
doctrine of eclipse
this basically relates to the fact that some laws are held unconstitutional
by the courts.
now in this scenario, the legal position that remains is that though the law
exists in statute
books, because of a court decision they are inoperable. therefore in law
there is an eclipse
cast upon their implementation.
however this does not imply that such laws cease to exist, for another
decision may hold
such law valid and in which case the eclipse cast upon the law would be
removed and it
would be implementable again.
an example of this is Section 309 of the Indian Penal Code which the
Supreme Court in
the case of P. Ratinam held as unconstitutional. however it remained in
the IPC and
therefore it was under eclipse. However when a constitutional bench
in Gian Kaur case
reversed this decision and held Section 309 as constitutional, the eclipse
was removed
and it because operable again.
an example of a provision which remains in eclipse presently is of Section
301 which has
been declared as unconstitutional by the Supreme Court. now till the time
this decision is
reversed or the provision is removed from IPC, it will remain under eclipse.

3. Doctrine of Waiver
The Fundamental rights (FR) under Part III Art 12 to 35 of the
constitution are conferred to every citizen of India by the
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constitution. These constitutional rights are not absolute. There are

reasonable restriction impose by the constitution. The primary
objective of these FR are based on public policy. Therefore no
individual can waive off such RF rights.
The doctrine of waiver of right is based on the premise that a
person is his best judge and that he has the liberty to waive the
enjoyment of such right as are conferred on him by the state.
However the person must have the knowledge of his rights and that
the waiver should be voluntary.
Basheshr Nath v/s Income Tax commissioner AIR 1959 SC
149
In this case the petitioner whose matter had been referred to the
Investigation commissioner u/s 5(1) of the Taxation of Income Act
1947 was found to have concealed a settlement u/s 8 A to pay Rs 3
Lakhs in monthly installments, by way of arrears of tax and
penalty. In the meanwhile the SC in another case held that section
5(1) is ultra vires the constitution, as it was inconsistence with Art
14. So the appellant cannot his waive off his FR.
Conclusion- It means "a person from denying or asserting anything
to the contrary of that which has, in contemplation of law, been
established as the truth, either by the acts of judicial or legislative
officers, or by his own deed, acts, or representations, either express
or implied.

Q 3.
India.

Comment on Basic Structure of Constitution of

Amendments in constitution at time become necessary to adapt

to the changing needs of national development and strength, to
overcome the difficulties which may encounter in future in
working of the constitution and to realize any popular demand
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for changing the political system e.g State reorganization,

provisions of ST SCs, lowering of age for voting etc.
However the amendment of constitution often been used to
achieve political purposes or to override judicial verdicts.
For providing the compatibility of Constitution with the changing
society needs , constitution maker provide the Art 368- Power
of Parliament to amend the Constitution and procedure
therefor
for the purpose of amendment the provisions of constitution fall
under 3 categories.
(a)

Amendment by Simple Majority.

(b)

Amendment by special Majority.

(c)
Amendment by special majority and rectification by
states.
Sankari parsad V/s Union of India AIR 1951 SC 455
This is the case which in route the theory of Basic Structure, in
this case SC held that

The power to amend the Constitution including the

fundamental rights is contained in the Art 368,

And that the world Law in Art 13 includes only an

ordinary law and does not include constitutional
amendment which is made in exercise of constituent
power.

In Sajjan Singh v/s State of Punjab, SC held that the world

amendment of constitution means amendment of all the
provisions of constitution.

Golak Nath V/s State of Punjab AIR 1971 SC 1643

SC held that Parliament cannot amend the FR,

Rejection of argument- Amendment of Constitution

was a Sovereign Power and that did not permit any
implied limitation.

Keshavanand Bhartis V/s State of kerela AIR 1973 SC

1461
This is the case which emerge the theory of Basic Structure first
time.

The Golak Nath Case was overruled in this case, and SC

held that Art 368 ever before 24th Amendment
contained the power as well as procedure of
amendment.

The Parliament has a wide powers of amending the

constitution but these powers has not the unlimited
nature, and does not include the power to destroy or
abrogate the Basic feature of constitution under article
368.

Basic Structure TheoryAc to Sikri , CJ, the basic structure was build on the basic
foundation i.e. the freedom and dignity of the individual, the
feature of BS T are:
a. Supremacy of Constitution.
b. Republican and Democratic form of Government
and sovereign of the country.
c. Secular and federal character of Constitution and
d. Separation of power between Legislature,
executive and Judiciary.
Ac to Shelat and Grover, J.J also included :
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a. Fundamental Right
b. Directive Principle.

Indira Gandhi V/s Raj Narain AIR 1975 SC 2299

In this case 39th Amendment 1975 was passed by parliament for
validating with retrospective effect the election of PM Indira
Gandhi which was declared invalid by Allahabad High Court on
the ground of having committed corrupt practice. Anew article
329 A has been added that provided that the election of
a person who hold the office of PM can be challenged only
before such a body or forum as may be established by
Parliament by law and not in court.
The SC in this case enhance the list of Basic Structure which was
emergence in Keshavanand Bhartis Case :
a. Sovereign democratic republic status
b. Equality of status and opportunity of an
individual
c. Secularism and freedom of conscience and
religion
d.

'government of laws and not of men' i.e. the

rule of law

Minerva Mills V/s Union of India AIR 1980 SC 1789

Struck down clauses (4) and (5) of the article 368 inserted by 42nd
Amendment, on the ground that these clauses destroyed the
essential feature of the basic structure of the constitution. It was
ruled by court that a limited amending power itself is a basic
feature of the Constitution
L. Chandra Kumar case
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"That the power of judicial review over legislative action vested in the
High Courts under Article 226 and in the Supreme Court under Article
32 of the Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure".
Conclusion
Now we can say, there is no hard and fast rule for basic feature of the
Constitution. Different judge keep different views regarding to theory of
basis structure. No law can be enacted or amended in a manner
that violates the spirit of the preamble.

Q- 4 Equality before Law and equal protection of law explain both

the term under Art 14
Art 14 Declares the State shall not deny to any person equality
before the law or the equal protection of the laws within the
territory of India.
Thus Art 14 used the two expression equality before the Law and equal
protection of the law
As such this right was considered generally a negative right of an
individual not to be discriminate in access to public offices or places or
in public matter generally. It did not take account of existing inequalities
arising even from the public policies with that kind of undertaking of the
right to equality.
This first expression equality before the law, is a somewhat
negative concept which is said to be have taken from English common
law, is a declaration of equality of all person within the territory
of India, implying there by the absence of any special privilege in
favor of any individual. Ever person whatever be his rank or position is
subject to the jurisdiction of the ordinary court. Prof. Dicey, explain the
concept of equality as it operated in England said with us every official
from the PM down to a constable or collector of taxes is under the same
responsibility for every act done without any legal justification as any
other citizen.
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The second expression the equal protection of the law which is rather
a corollary of the first and is to be taken from US, it is a more positive
concept implying equality or treatment in equal circumstances.
These two expression under this article to make the concept of equal
treatment a binding principle of State action . The word Law in the former
expression is used in a generic sense a philosophical sense, whereas the
word Laws in the latter expression denotes specific laws. It has not
explained this statement any further, but it means that equality for all is
the law or standard norm of the land.
Equal protection of the laws is now being read as a positive obligation on
the State to ensure equal protection of the Laws by bringing in necessary
social and economic changes so that every one may enjoy equal
protection of the laws and nobody is denied such protections.
Underlying Principle
As no human being are equal in all respect the same treatment to them in
every respect would result in unequal treatment. For example the same
treatment to a child as to an adult or to a physically challenge or healthy
person, will result in unequal treatment.
Therefore the underlying principle of equality is: not the uniformity of
treatment to all in all respect, but rather equal must be treated
equally while unequal must be treated differently.
But this does not mean the unequal treatment for all, while the later
Article of this part ( Part III) especially Art 15 and 16, equality not only
prohibited unequal treatment but it also demands equal treatment.
Therefore state must not only treat people unequally but it must also take
positive steps to remove existing inequalities, especially those inequalities
which treat human being less then human being.
Test of Valid Classification
This article forbids the legislature classification, but it does not
forbid reasonable classification of person, objects and
transactions by the legislature for the purpose of achieving
specific ends. And differentia must have a rational relation to the
object sought to be achieved by the Act.
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There must be an nexus between the basis of classification and

the object of the Act which makes the classification.
In Kedar Nath Bajoria V/s State of WB
It said
The equal protection of the Laws guaranteed by the Article 14 of the
Constitution does not mean that all the Laws must be general in
character and universal in application and that the State is no longer
to have the power of distinguishing and classifying persons or things for
the purpose of legislation.
In E.P Yoyappa v/s State of TN
Propounded a new approach to Article 14 in the following words:
Equality is a dynamic concept with many aspects and dimensions and it is
cannot be cribbed, cabined and confined within traditional and doctrinaire
limits. For a positive point of view equality is antithetic to arbitrariness.
In Maneka Gandhi v/s Union of India
Article 14 strikes at arbitrariness in state action and ensure fairness and
equality of treatment, the principle of reasonableness, which logically as
well as philosophically is an essential element of equality or non
arbitrariness pervades Article 14 like a brooding omnipresence.
Amendment in Constitution- Art 368 and Art 13
Shankari Prasad V/s Union of India
Sajjan Singh V/s State of Rajashthan
Golaknath V/s State of Punjab
24th Amendment
Theory of Basic Structure (Keshvanad Bharti V/s State of kerala)
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42ed Amendment
Minarva Mills V/s Union of India

In Shankari Prasad V/s UOI- The court held that the word LAW in
clause 2 of Art 13 did not include the law made by the Parliament of India
under Art 368. The word LAW in Art 13 must be taken to mean Rules or
Regulations make in exercise of constitutional power and therefore Art
13(2) did not affect amendment make under Art 368.
Means Art 368 superseded the Art 13.
Sajjan Singh v/s State of Rajashtan- in this case the SC also uphold
the decision which has been made in Shankari Prasad V/s UOI.
Golaknath v/s Sate of Punjab- Court held that Art 13(2), the
definitions of Law which has been interrelated by Art 13(2), it is justifiable
and it should be law.
This is the first time when court check the power of Parliament to Amend
the constitution which has been given by Art 368 of Constitution of India,
and applied the Doctrine of prospective Over Ruling. SC over ruled
its decision in the aforesaid cases and held that the word LAW in Art
13(2), includes every branch of law, whether it is statutory or
constitutional amend mend.
And it is necessary Art 368 r/w Art 13(2).
24th Amendments- to intact his amending power and to show its
supremacy made the 24th amendments in the constitution and add the
word- Power- in art 386 which is
Power & Procedure. And add a new clause 4 in Art 13 which
provide that- nothing in this Art shall apply to any amendment to
this art made under Art 368.
Keshvanad Bharti V/s State of Kerala- Sc propound the theory of
basic structure.
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42ed Amendment Add the clause 4 and 5 in Art 368.

Minarva Mills V/s UOI- Doctrine of basic structure, that it is the
illustrative list and not the exhaustive list. And Clause 4 & 5 of Art
368 declared void.

Q- The preamble of constitution sets out the main objectives,

which the constitution makers wanted to achieve. Discuss this
statement. Can preamble be amended under Art 368 of the
constitution? (2009) (2008).

Preamble useful to interpretation the constitution.

The principle generally sets the ideas and goal of constitution maker
which then intended to achieve through that constitution. In Golaknath
v.s State of Punjab court held that- the Preamble contained in
nutshell the idea and aspiration of the constitution.
In Berubari Union and Exchange of Enclaves- it was held that the constitution is the key to open the mind of the constitution
makers. And it is not the part of the constitution.
Preamble also a legitimate aid in the interpretation of the
constitution.
In Keshvanad Bharti v.s State of Kerala it was held that-

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Constitution is extremely important and it should be read and

interpretive in the light of the grand and noble vision of
preamble. And preamble is the part of the constitution.
The purpose serve by preamble.
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a SOVEREIGN, SOCIALIST, SECULAR DEMOCRATIC REPUBLIC and to
secure to all its citizens:
JUSCTICE, social, economic, political;
LIBERTY of thought ,expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of individual and the unity of the nation.
It indicate the following purpose1. Source of constitution.- the source of the constitution is the
people of India which denote form the word in the preamble We
the People of India no subordinate or external source of power
other than people of India.
2. Enacting clause -which brings into force the constitution- having
solemnly resolved India Into- which shows the enactment clause
of constitution.
3. Right and freedom of the people, type of Government and
polity- to secure every citizen justice, liberty, and equality and
fraternity right. And there would be sovereign, socialist and
democratic ( head of the State is elected, direct and indirect
democracy.)nature of government.
Objective of Preamble16

JUSCTICE, social, economic, political;

LIBERTY of thought ,expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of individual and the unity of the nation
Amendment of Preamble- controversy in this point, some are agree
and other are not agree. But the evidence shows that it can be amended
which has been shown in 42ed Amendment of Constitution which add
Secularism, Socialism, and integrity.
Q. What is the nature of Indian Constitution? On what grounds is
its spirit of federalism challenged? Mention its important
features.
Typically, democratic constitutions are classified into two categories Unitary and Federal. In a unitary constitution, all the powers are
concentrated in a central authority. The states or the constituents of the
country are subordinate to such central authority. In a federal constitution,
powers are distributed among the center and the states. States are not
subordinates of the center. According to Prof. Wheare, the constitutions of
USA, Australia, and Switzerland are prime examples of a federal
constitution.
Dr. Ambedkar has categorically said in Constituent Assembly discussions
that notwithstanding certain provisions that centralize the powers, Indian
Constitution is essentially federal. Prof. Wheare and some other
academicians, however, are hesitant in calling it a federal constitution and
prefer to term it as "quasi-federal" or "federal with strong centralizing
tendency".
Though, it should be noted that even prof. Wheare accepts the existence
of certain provisions in the American constitution, such as dependence of
Senate on States, that are contrary to federal character. However, he says
that while the principles of federalism should be rigid, the terminology of
"federal constitution" should be wide. A constitution should be called
federal if it displays federal character predominantly.
The following are the defining features of federalism.
1. Distribution of Powers between center and states.
2. Supremacy of the Constitution.
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3. Written Constitution.
4. Rigidity of the Constitution.
5. Independent Judiciary.
All the above characteristics are present in the Indian Constitution.
However, there are certain provisions that affect its federal character.
1. Appointment of the Governor of a State
Art 155 and 156 provide that the Governor, who is the constitutional head
of a State, is to be appointed by the President and stays only until the
pleasure of the President. Further, that the Governor can send the laws
made by the state for assent from the President, who can veto the law.
It should be noted that Governor is only a ceremonial held and he works
on the advice of council of ministers. In past 50 yrs, there has been only
one case (re Kerala Education Bill), where amendments to a state law
were asked by the center and that too after the opinion of the Supreme
Court. Thus, it does not tarnish the federal character and states are quite
free from outside control.
2. Power of the parliament to make laws on subjects in the State
list.
Under art 249, center is empowered to make laws on subjects in the state
list. On the face of it, it looks a direct assault on the power of the states.
However, this power is not unlimited. It is exercised only on the matters of
national importance and that too if the Rajya Sabha agrees with 2/3
majority. It should be noted that Rajya Sabha is nothing but the
representative of the states. So an approval by Rajya Sabha means that
States themselves are giving the power to the center to make law on that
subject.
3. Power to form new states and to change existing boundaries
Under Art 3, center can change the boundaries of existing states and can
carve out new states. This should be seen in the perspective of the
historical situation at the time of independence. At that time there were
no independent states. There were only provinces that were formed by
the British based on administrative convenience. At that time States were
artificially created and a provision to alter the boundaries and to create
new states was kept so that appropriate changes could be made as per
requirement. It should be noted that British India did not have states
similar to the States in the USA.
4. Emergency Provisions
Center has the power to take complete control of the State in the
following 3 situations :
1. An act of foreign aggression or internal armed rebellion (Art 352)
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2. Failure of constitutional machinery in a state (art 356)

3. Financial Emergency (art 360)
In all the above cases, an elected state government can lose control of
the state and a central rule can be established. In the first case, it is very
clear that such a provision is not only justified but necessary to protect
the existence of a state. A state cannot be left alone to defend itself from
outside aggression. In the third case also, it is justified because a financial
emergency could cause severe stress among the population, plunge
the country into chaos and jeopardize the existence of the whole country.
Such provisions exist even in USA. The second provision is most
controversial. It gives the center the power to take over the control of a
state. However, such an action can be taken only upon the advice of the
governor and such an advice is not beyond the purview of the Supreme
Court. In a recent case, Supreme court ruled that the imposition of
Presidential rule in the state of Bihar was unconstitutional.
Thus, it can be safely said that Indian Constitution is primarily federal in
nature even though it has unique features that enable it to assume
unitary features upon the time of need.
Features of Indian Constitution
Constitution was written by a committee headed by Dr Ambedkar. Took 2
yrs, 11 mos, 18 days. Adopted on 26th Nov (celebrated as Law Day),
enforced fully on 26th Jan.
1. Longest written constitution - 447 articles, 26 parts, 12 schedules.
Original US constitution had 7 articles and Australia had 128.
2. Establishment of sovereign, socialist, secular, democratic, republic.
3. Parliamentary form of govt.
4. Unique blend of Federal and Unitary features
1. Independent and supreme Judiciary - Keshavand Bharati vs
State of Kerala & L Chandra Kumar vs Union of India
2. Advisory Jurisdiction of SC - Art 143 - Does not exist in US
constitution.
3. Rigidity and flexibility
4. Emergency Provisions
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5. Single Citizenship
6. Single Electorate / Adult Suffrage
5. Positive Secularism - St. Xavier's College vs State of Gujarat , S
R Bommai vs Union of India, Aruna Rai vs Union of India
6. Indian Socialism - Combination of Marxist and Gandhian ideology.
Right to work is absent.
7. Economic Democracy
8. Other features
1. Fundamental rights - J Bhagvati in Menaka Gandhi vs Union
of India
2. Directive Principles - Unnikrishnan vs State of AP Directive Principles are as good as fundamental rights.
3. Fundamental Duties
Q. What do you understand by fundamental rights? Discuss with
respect to Indian Constitution.
The general concept of fundamental rights
The rights that are basic to the advancement of the human race are called
Fundamental Rights. All other rights are derived from these rights as
direct implications or application of their principles. It is an accepted belief
among the philosophers that these rights are nothing but "natural human
rights", which distinguish between humans and animals and which have
been so instrumental in bringing humans from the stone age to the
present age. Among all, the right to life and liberty is considered to be the
most basic.
The history of legally enforceable fundamental rights probably starts from
Magna Carta, which was a list of rights extracted from Kind John by the
people of England in 1214 AD. This was followed by the "Bill of Rights" in
1689 in which Englishmen were given certain civil and political rights that
could not be taken away. Later on the French compiled the "Declaration
of the rights of Man and of the Citizen" after the French Revolution in
1789.
The most important advancement in history of fundamental rights
occurred when the USA incorporated certain fundamental rights in the
form on "Bill of Rights" in their constitution by the way of first 10
20

amendments. These rights were deemed to be beyond the vagaries of

politics. The protection by the constitution meant that these rights could
not be put to vote and were not dependent on the whims of politicians or
of the majority.
After this, nearly all democracies of the world have given a constitutional
sanctity to certain inalienable rights available to their citizens.
Need for Fundamental Rights
1. Rule of Law
These rights are a protection to the citizens against the govt and are
necessary for having the rule of law and not of a a govt or a person. Since
explicitly given by the constitution to the people, these rights dare not be
transgressed by the authority. The govt. is fully answerable to the courts
and is fully required to uphold these rights.
2. First fruits of the freedom struggle
After living in subjugation for such a long time, people had forgotten what
is meant by freedom. These rights give people hope and belief that there
is no stopping to their growth. They are free from the whims of the rulers.
In that sense, they are first fruits of the lengthy freedom struggle and
bring a sense of satisfaction and fulfillment.
3. Quantification of Freedom
Even citizens in gulf countries or communist countries are free. Then how
is our freedom different from theirs? The list of fundamental rights is a
clear measurement for how free we really are. As an example, every
Indian citizen in free to practice a religion of his choice, but that is not so
in the gulf countries. Our right to speech and expression allows us to
freely criticize the govt. but this is not so in China.
Fundamental Rights in India
Technically speaking, the rights specified in Part III (Art 12 to 35) of
the constitution are the fundamental rights available to the citizens of
India. In the case of Menaka Gandhi vs Union of India AIR 1978, J.
Bhagvati has said that these rights represent the values that are
cherished by the people of this country since the vedic ages and are
calculated to protect the dignity of individual and to create conditions in
which every human being is able to develop his personality to the fullest.
These rights are necessary for a human being for attaining full social,
intellectual, and spiritual status.
These rights can be grouped into 6 categories 1. Articles 14-18 Right to Equality
Art. 14 ensures that all citizens are treated equally. It enshrines the
21

principle of "Equality before law and Equal protection of law". However,

this brings us to an important question. Should people living in unequal
circumstance be treated equally? In Indian Constitution, the answer is a
resounding no. We have adopted the mantra of "equal treatment under
equal circumstances". This is reflected in Art 15, which, while prohibits the
state from discriminating between the citizens only on the grounds of
Caste, Race, Religion, Sex, and Place of Birth or all of them[ Art 15(1) ],
also allows the state to make special provisions for Women and Children
[Art 15(3)] and for Backward classes [Art 15(4)].
Art. 16 takes the same principle further to employment in govt. jobs.
Art. 17 abolishes untouchability and Art. 18 abolishes various titles such
as Rai Bahadur that used to be given in the British rule.
The cases of Lindsley v Natural Carbonic Gas Co, US SC
1910 and Chiranjit Lal v Union of India SC AIR 1951 are important
cases that illustrate the concept of equal protection of the laws. In these
cases, the SC of both the countries held that all persons similarly
circumstanced should be treated equally. Only like should be treated alike
and thus a reasonable classification can be done.
Several cases such as Randhir Singh vs Union of India 1982 (Equal
pay for equal work) illustrate the principle of equality.
The SC judgment in Indra Sawhney vs Union of India AIR
1993 incorporates the element of fairness in dealing with inequalities in
the society, while balancing the aspirations of the socially forward classes.
2. Artticles 19-22 Right to Freedom
A citizen of India is given freedom of Speech and Expression, freedom of
Assembly, freedom of Association, freedom of Movement, freedom of
Residence, and Freedom of Profession and Occupation through Art. 19.
Art. 20 gives protection with respect to conviction of offenses. This
includes the principles of

ex-post facto law : A person can only be with charged with an

offence of an action if the said action was illegal as per the law of
the time when the action was committed.

double jeopardy: A person cannot be charged with the same crime if

he has already been produced before the court and a verdict has
been pronounced.

self incrimination: A person will not be forced to testify against

himself.

Art. 21, which is the most important and diverse of all the rights to
freedom, is the Protection of Life and Personal Liberty. SC in Menaka
Gandhi v Union of India AIR 1978 was a landmark case that gave wide
interpretation of this right. In this case the SC held that his right is not
22

only about having any kind of life but a life of dignity. The freedom is not
just physical but mental as well as spiritual. This encompasses several
rights such as right to travel abroad ( Satvant Singh v Ass. Passport
Office AIR 1967) and right to pollution free water and air ( Subhash
Kumar vs State of Bihar AIR 1991) . Further, Constitution Amendment
Act 86, 2002 makes free and compulsory education to children under 14 a
fundamental right.
Art. 22 gives protection from illegal arrest or detention. It provides that a
person must be informed of the grounds of arrest as soon as possible, be
allowed to speak to a lawyer of his choice, and be produced before a
magistrate within 24 hrs of detention.
3. Art 23-24 Right Against Exploitation
Under Art. 23, the govt. has banned trade in human beings. This includes
flesh trade and forced work or work without pay (begar system).
Art. 24 prohibits children from being employed in factories and hazardous
conditions.
4. Art 25-28 Freedom of Religion
Unlike several countries of the world, we are free to practice, profess, and
propagate any religion under Art. 25. Art. 26 allows us to establish and
maintain institutions for religious and charitable purposes. It also gives
the right to manage our own religious matters. Art. 27 provides tax
benefits for promotion of religion and art. 28 prohibits religious teaching in
govt and govt aided schools.
5. Art 29-30 Cultural and Educational Rights
Art. 29 allows any section of citizens living anywhere in India who have a
distinct language, script, or culture, to preserve the same. Art. 30 allows
minorities to establish and maintain educational institutions. To prevent
discrimination, however, art 29(2) prohibits them from discrimination
in admissions only on the grounds of religion, race, caste, language, or
any of them.
6. Art 32 Right to Constitutional Remedies
Dr. Ambedkar, the chief architect of our constitution, has said that Article
32 is the soul of our constitution. All the talk of rights is useless if there is
no recourse against their transgression. Under this article, a citizen is free
to go to the Supreme Court for violation of his rights.

23

Scope of Fundamental Rights

Widest Possible Interpretation
SC in A K Gopalan vs State of Madras AIR 1950 had held that the
various rights given under part III talk about different things and are not
be interlinked. This view, however, has been rightly rejected by the SC
in Menaka Gandhi vs. Union of India AIR 1978 case. In this case, J
Bhagvati said that the role of SC should be to interpret these rights in the
widest possible manner and it should not attenuate these rights by being
confined to their narrow definition. All these rights are not mutually
exclusive and form an integrated theme of the constitution. J Beg said
that their waters must mix to form a grand flow of unimpeded and
impartial justice. Thus, any law that takes away the life or liberty of a
person, must also satisfy the test of reasonableness under art. 14.
Natural Justice and Due Process
In Menaka Gandhi's case, SC has held that any law that takes away the
life or liberty of a person under art. 21, must be just, fair, and reasonable.
It must satisfy the principle of natural justice, which is a basic component
of fair procedure under Art. 21. While Art 21 does not contain the "due
process" clause of the American Constitution, the effect is the same
because natural justice is a distillate of due process i.e. natural
justices can only be delivered through due process.
Expanding the role of writ of Habeas Corpus
The case of Sunil Batra vs Delhi Admin AIR 1980 has given tremendous
power to the writ of Habeas Corpus. It allows the judiciary to even enforce
the fundamental rights in a prison. Even prisoners are humans and must
be treated with dignity. They cannot be stripped off of their fundamental
rights, thus menial or forced work without pay, solitary confinement,
degrading punishment, is not allowed. This case has also allowed people
who are not directly involved but have any kind of interest to approach
the court. The objective is to remove injustice wherever it is found in the
society.

Absoluteness of Fundamental Rights

"Your freedom ends where my freedom starts" is a well known saying. The
constitution gives you the right to propagate your religion. But does that
mean you should force me to hear religious activities over the
loudspeaker? The constitution gives you the freedom of speech and
24

expression. But does that mean you can publish and sell pornography
freely in open market?
These things clearly tell us that no right is absolute. Indian Constitution
also takes the same stand and specifies the limits of these rights. These
rights extend only until they do not affect security of the state, public
order, and social decency. The constitution allows reasonable restrictions
to be placed on these rights. SC in A K Gopalan vs State of Madras
1950has also held that Fundamental Rights are not absolute.
Suspension of Fundamental Rights
Under art 358, freedoms given under art 19 are suspended when the
president proclaims emergency. Further, under art 359, president may
suspend the right to move courts for violation of rights given in part III
except art 20 and 21.
Critical Analysis
Indian Constitution was written after a through analysis of existing
constitution of the world. The framers of the constitution have
incorporated the good things from all the places. As such it is more fair
and consistent than religious books. It is for the foresight of the framers of
the constitution that the country is integrated and has progressed. While
the framers had thought about a lot of things, the one thing that they
probably missed was the safeguards against the degrading morality of
politicians.
Q. What do you understand by freedom of speech and
expression? What restrictions can be applied on it?
Freedom of speech and expression is the most basic of all freedoms
granted to the citizens of India. J Patanjali Shastri has said in the case
of Romesh Thaper vs State of Madras AIR 1950 SC that freedom of
speech and that of the press lay at the foundation of a democratic
society, for without free political discussions, no public education is
possible, which is so important for the proper functioning of the govt.
It allows us to freely express our ideas and thoughts through any medium
such as print, visual, and voice. One can use any communication medium
of visual representation such as signs, pictures, or movies. Freedom of
speech would amount to nothing if it were not possible to propagate the
ideas. Th us, the freedom of publication is also covered under freedom of
speech. Freedom of speech serves 4 purposes
25

allows an individual to attain self fulfillment.

assists in the discovery of truth.

it strengthens the capacity of a person to make decisions.

it facilitates a balance between stability and social change.

This right is not only about communicating your ideas to others but also
about being able to publish and propagate other people's views as well.
Thus, freedom of speech and expression is linked to the people's right to
know. Freedom of speech and expression is a broad term and
encompasses several things. The following are important cases that have
determined the extent of this right from time to time.
Right to Know
Prabhu Datt vs Union of India SC AIR 1982 : SC held that right to
know news and information about the functioning of the govt. is included
in the freedom of press.
Union of India vs Association for Democratic Reforms SC AIR 2002
: SC held that people have right to know about the candidate before
voting. Thus, the law preventing the Election Commission from asking for
a candidates wealth, assets, liabilities, education and other such
information, is invalid.
Right to tell and propagate
LIC vs Manubhai D Shah SC AIR 1992 : In this case, Manubhai wrote
an article in LIC's magazie about the problems with LIC that affected
policy holders. LIC published a response to that but did not give a chance
to public a rejoinder. SC held that LIC being a State as per Art 12, must
publish his response. It also held that it does not mean every body has a
right to publish in a magazine and this right should be determined on a
case by case basis.
Secretary, Ministary of I & B vs Cricket Association of Bengal SC
AIR 1995 : In this historic judgment, SC has held that one has the right to
publicize his expression as well. A game of cricket is an expression and
the organizers have a right to propagate it every where in the world. So
Doordarshan must provide its uplinking facilities to CAB for transmitting
the signals out of country. Art 19 (2) does not allow restrictions on 19 (1)
(a) on the grounds of creating monopoly of the govt.
Tata Press Ltd. vs MTNL SCC 1995 SC: In this case, SC held that
commercial advertisement is protected under freedom of speech.
26

Restrictions on Freedom of Speech and Expression

Every human desires to do many things. However, in a civil society such
desires must be curbed to certain extent in respect of similar desires of
other human beings. Thus, no right is an absolute right. Art 19 (2) says
that nothing in Art 19 (1) (a) shall affect the operation of any law or
prevent the state from making any law, in so far as such law imposes
reasonable restrictions on exercise of the right conferred by the said
clause in the interest of

sovereignty and integrity of the country.

security of the state

friendly relations with foreign states.

public order

decency and morality

defamation

contempt of court

incitement of an offence.

In the original version of this article several grounds such as public order,
friendly relations with foreign states, incitement of an offences were not
there. After the historic judgement in the case of Romesh Thaper vs
State of Madras SC AIR 1950, these grounds were added. In that case,
Madras Govt. prevented the entry an circulation of the new paper 'Cross
Roads' published by Romesh Thaper, in the state of Madras. It argued
that the circulation of the paper affects public safety. However, SC held
that the public safety falls outside the scope of 19 (2) and thus the govt
action was invalid. This decision prompted the govt. to amend the
constitution to include additional grounds as mentioned above.
It is important to note that the current clause mentions the words
"reasonable restrictions". Thus, any law restricting the freedom of speech
and expression must satisfy the grounds mentioned in 19(2) and must
also satisfy the criteria of reasonableness. Reasonable restriction means
intelligent care and discussion that the restriction is not beyond what is
required for public interest. It should not be arbitrary and excessive.
Further, the restriction can only be imposed by law and not by executive
or departmental decision.
27

Test of reasonable restrictions

Spanning several cases, SC has laid down the following guidelines :
1. It is the courts and not the legislature that will decide whether a law
is reasonable or not.
2. Reasonable means that the law is not arbitrary and the restriction is
not beyond what is required in public interest. The time and
duration of the restriction cannot be unlimited.
3. There is no fixed standard for reasonableness. Each case must be
decided on its own merits.
4. The restriction must be reasonable from substantiative as well as
procedural stand point.
5. Restrictions imposed due to implementation of Directive Principles
may deemed to be reasonable.
6. The test of reasonability must be objective in the sense that it does
not matter what a Judge or Court thinks what is reasonable but what
a normal reasonable person would think.
7. The restriction must have a relation to the object that is sought
through the law and must not be excessive.
8. It is the reasonableness of the restriction that a count has to
determine and not the reasonableness of the law itself.
9. Restriction may amount to prohibition.
The following are important cases that have attenuated the scope of this
right.
CPI (M) vs Bharat Kumar AIR 1998 SC : In this case SC has held that
bundhs called by various political parties are illegal because they prevent
the citizens from exercising their right to freedom. I
Ranjit Udeshi vs State of Mah. AIR 1965 SC : In this case, a
bookseller was prohibited from selling book containing obscene material.
Hamdard Dawakhana vs Union of India AIR 1960 SC : In this case,
SC held that obnoxious and fraudulent advertising is not protected under
28

freedom of speech.
Critical Analysis
Freedom of speech and expression is indeed the most important of all
freedoms. However, today, this right is being routinely suppressed under
the guise of morality and decency or public order. Even a slight criticism
of a public leader or past king causes the political parties to involve in
damage of public property. Any book that talks about problems in a
religion is banned in the name of public order. It is extremely unfortunate
that the executive, instead of the upholding peoples' right to speech and
expression by preventing unscrupulous element from hurting the author,
is more interested in stifling the voice by banning their works. By doing
this they are not doing their job responsibility.
Q. How is the independence of the judiciary ensured? Describe
the various jurisdictions of the Supreme Court of India. Explain
the writ jurisdiction of a High Court. What is meant by Judicial
Review?
India has adopted a federal constitution with distribution of powers
between center and the states. An independent judiciary is the essence
of the federal character of the constitution. It is imperative that the
judiciary be impartial and independent of the legislative and executive
branches of the country to ensure the functioning of the government in
accordance with the constitution. The supreme court, being the guardian
of the constitution, ensures that the fundamental rights of the citizens are
not violated. To let the judiciary fulfill this big responsibility efficiently, the
constitution has provided several measures that ensure the independence
of the judiciary. However, owing to the nature of Indian politics, there
have been several attempts by the govt. to extend its supremacy over the
judiciary and to reduce its independence. To understand the dynamics
between the govt. and the judiciary, we need to look at the provisions
present in the constitution.
Composition of the Supreme Court
Art 124 specifies that the SC will be composed of a Chief Justice and at
most 7 other judges. The number of other judges has now been increased
to 25.
To be appointed as a judge of the supreme court, a person must be a
citizen of India and
a) has been a Judge of a High Court for 5 yrs .
b) has been an advocate of a High Court for 10 yrs.
c) in the opinion of the president, a distinguished Jurist.
Appointment of the Judges
The procedure of appointment of the Chief Justice and other judges has
29

created a lot of controversy because it is the key aspect of the

independence of the judiciary. Art 124 specifies that the Chief Justice is
appointed by the president after consulting with the judges of the
supreme court and the high courts. Further, that while appointing other
judges, the CJ must be consulted. Thus, the constitution clearly tried to
prevent the executive from having complete discretionary powers in the
appointment of the judges.
Until 1973, the senior most judge of the supreme court was appointed as
the Chief Justice. However, this convention was broken when Justice AN
Ray was appointed as the CJ by passing 3 more senior judges. This was
seen as a blatant assault on the independence of the judiciary. The govt.
pleaded that the word "consult" does not mean that the president is
bound by the advise. He is free to make his own decision.
In 1977, in the case of Union of India vs Sankalchand Seth, which was
related to the transfer of a Judge from one high court to another under art
222, SC held that the President has the right to differ from the advice
provided by the consultants.
Judges Transfer Case 1
In the case of S P Gupta vs Union of India, 1982 SC unanimously
agreed with the meaning of the word 'consultation' as determined in the
Sankalchand's case. It further held that the only ground on which the
decision of the govt. can be challenged is that it is based on mala fide and
irrelevant consideration. In doing so, it substantially reduced its own
power in appointing the judges and gave control to the executive.
Judges Transfer Case 2
This matter was raised again in the case of SC Advocates on Record
Association vs Union of India, AIR 1982. In this case, the SC overruled
the decision of the S P Gupta case and held that in the matter of
appointment of judges of high courts and supreme court, the CJ should
have the primacy and the appointment of the CJ should be based on
seniority. It further held that the CJ must consult his two senior most
judges and the recommendation must be made only if there is a
consensus among them.
Judges Transfer Case 3
A controversy arose again when the CJ recommended the names for
appointment without consulting with other judges in 1999. The president
sought advice from the SC (re Presidential Reference 1999) and a 9
member bench held that an advice given by the CJ without proper
consultation with other judges is not binding on the govt.
As of now, due to the decision in Judges Transfer Case 2, the appointment
30

of the judges in SC and High Courts are fairly free from executive control.
This is an important factor that ensure the independence of the judiciary.
The following are other provisions that work towards the same goal:
1. Fixed Tenure
A SC Judge has a fixed tenure until retirement age. He cannot be removed
except by a presidential order passed with a simple majority as well as by
2/3 majority of each house of the parliament present and voting.
No judge has ever been removed by a presidential order in India. The
proceedings to remove were started to Justice V Ramaswamy, but the
motion was not approved because lack of required majority.
In the case of C Ramachandran Iyer vs A N Bhattacharjee 1995,
pressure was put the the local bar association on the judge to resign. In
this case, the SC held that only the Chief Justice of the SC can be the
prime mover of the action against erring judges. Thus, after this case,
action against judges was allowed only through in-house procedures of
the judiciary.
2. Salary
The salary of the judges cannot be changed after the appointment for
their disadvantage.
3. Jurisdiction of the courts
The jurisdiction of the SC can be increased but not decreased i.e. their
power cannot be curtailed.
4. Art 121
No discussion about the judges in the parliament is permitted as per art
121 except for the discussion about his removal.
5. Art 129 and 215
Power to punish for its contempt.
The SC and the High Courts have the power to punish anybody for civil
and criminal contempt of itself under art 129 and 215.
6. Art 50 Separation of judiciary from executive
Art 50 urges the state to take steps to separate the judiciary from the
executive in the public service of the state.
7. Appointment of the judges only after consultation with legal
experts.
As discussed above, the executive does not have unlimited power over
appointment of judges.
8. Art 124(7) Prohibition on practicing before any court
Art 124 prohibits a retired judge from appearing and pleading before any
31

court or tribunal.
Jurisdictions of Supreme Court
Art 129 Court of Record
SC is a court of record and has all the powers including power to punish
for civil or criminal contempt of court. In the case of Delhi Judicial
Service Asso. vs State of Gujarat 1991, SC held that It can even
punish for contempt of any subordinate court in India as well.
In the aftermath of babri masjid demolition, UP CM Kalyan Singh was
punished for contempt of court for failing to deliver on his promise not to
allow any construction in disputed area.
Art 131 Original Jurisdiction
The SC has original jurisdiction in any dispute arising between:
a) Center and one or more states.
b) Center and one or more states on one side and one or more states on
another.
c.) two or more states.
Under original jurisdiction, individuals cannot bring a suit again Govt. of
India. The suit must involves a question of law or fact on which a legal
right depends. Further, the suit cannot be because of any commercial
relation or political relation between the two parties.
In the case of State of Karnataka vs Union of India 1978, SC held
that the suit filed by State of Karnataka against the Govt. regarding its
objection to the appointment of an inquiry commission is maintainable.
In the case of Union of India vs State of Rajasthan 1984, it was held
that a suit to recover damages under Railway Act is not maintainable.
SC's original jurisdiction is not attracted for ordinary commercial disputes.
The following are some exceptions under which SC does not have
jurisdiction:
1. Any treaty, covenant, sanad, agreement, or any such instrument that
was executed before the commencement of the constitution, and which is
still in operation or provides that the jurisdiction of SC does not extend to
such a dispute.
2. The parliament by law may restriction the jurisdiction of SC in disputes
related to use, distribution, or control of the water or an interstate river or
river valley.
3. Any matter referred to the Financial Commission.
4. Matters related to the adjustment of the expenses between the center
and the state.
Enforcement of Fundamental Rights Art 32
32

SC is the guardian of the constitution. It is the supreme defender of the

people's fundamental rights. This position has been enforced by Art 32
that given any citizen to petition the SC if his fundamental rights are
violated. The SC is empowered to give directions, orders, or writs
including the writs of habeas corpus, mandamus, prohibition, and
certiorari for the enforcement of the rights given in part III.
L Chandra Kumar vs Union of India AIR 1997 - Power of judicial
review vested in HC by art 226 and in SC by art 32 is a basic feature on
the constitution and cannot be amended.
Art 132 Appellate Jurisdiction - Constitutional
The SC is the highest court of appeal in the country. The writs and the
decrees of the SC run throughout the country. A person can appeal to the
SC under its appellate jurisdiction if he is not satisfied with the decision of
the lower courts. Art 132(1) allows an appeal to be filed in the SC if three
conditions are satisfied:
1. The order appealed must be against the judgement of a high court in
civil, criminal, or other proceedings.
2. The case involves a question of law as to the interpretation of the
constitution.
3. The High Court, under 134A certifies that the case be heard by the SC.
Krishnaswamy vs Governer General in Council 1947 - If there is a
difference of opinion among High Courts and if there is no direct decision
by SC on that point, it is a substantial question of law that can permit
appeal in SC.
Art 133 Appellate Jurisdiction - Civil
An appeal shall lie to SC from any judgement, decree, or a final order
in civil proceedings of a High Court only if the High Court certifies under
134A that
1. the case involves an substantial question of law of general importance.
2. in the opinion of the High Court, the said question needs to be decided
by the SC.
Madan Gopal vs State of Orrisa 1956 - The pecuniary value of a
dispute is immaterial. There may be matters which cannot be measured in
money but the decision could have a far reaching effect and such cases
can be permitted to be appealed in SC.
Art 134 Appellate Jurisdiction - Criminal
An appeal shall lie to SC from any judgement, decree, or a final order in
criminal proceedings of a High Court in two ways - with or without a
certificate from High Court.
1. Without Certificate
a) If the High Court, on appeal, has reversed an order of acquittal of an
33

accused and sentenced him to death

b) if the High Court has withdrawn a case before itself from any
subordinate court and in such a case has convicted the accused and
sentenced him to death.
2. With Certificate
If the High Court certifies that this is a fit case for appeal to SC.
Siddheshwar Ganguly vs State of WB 1958 - In this case SC issued
guidelines for issuing certificated under 134A. A mere question of fact is
not enough but it must also involve a substantial question of law.
Art 135 Federal Court's (the one that existed before the commencement
of the constitution) jurisdiction to be exercised by the SC.
Art 136 Special Leave to appeal by SC
Under this article, the SC is authorized to grant, on its discretion, special
leave to appeal from any judgement, decree, determination, sentence, or
order, in any case or matter, passed or made by any court or tribunal in
the territory of India.
Ramakant Rai vs Madan Rai AIR 2004 - Private party can appeal
against the acquittal even if the state govt. hasn't. SC cannot refrain from
doing its duty just because a private party and not the state has appealed
against the order.
Pritam Singh vs State AIR 1950 -SC explained how this discretionary
power is to be used - Since the power is exceptional is very wide, it must
be used sparingly and in exceptional circumstances. Beyond this point it is
not possible to fetter the exercise of this power by any set formula.
Art 137 Power to review its judgement.
Under exceptional circumstance, the SC may review its judgement.
Art 139 A
Under this article the SC has the power to withdraw before itself any case
or cases from High Courts if it feels that these cases involves the same or
similar question of law that is of general importance.
Union of India vs SGPC 1986 - SC may transfer a case from one High
Court to another under art 136 if it feels that the case cannot be dealt
with fairly in one High Court due to exceptional circumstances.
Art 143 Advisory Jurisdiction
Art 143 provides that if at any time it appears to the president that a
question of law or fact has arisen or is likely to arise and that the question
is of such public importance that expedient opinion of the SC is required,
then he may refer it to the SC. The SC, after such hearing as it may deem
fit, will report back to the president. Under 143(2), the SC is can be asked
34

to give opinion even on matters not permitted under art 131.

There is no similar provision in the American constitution. In US, the court
can give ruling only on concrete cases.
In re Kerala Education Bill 1953, SC has interpreted the word "may" in
clause 1 as it is not bound to give its opinion. If it has a good reason, it
may refuse to express its opinion.
In re Special Courts Bill 1979 case, SC has held that opinions given by
it under this jurisdiction are binding on all courts in the country.
In re Cauvery Disputes Tribunal 1992, SC declared that the ordinance
passed by the State of Karnataka to not follow the order of the tribunal to
release water to TN, is unconstitutional.
In the landmark case of Ayodhya Dispute and Advisory opinion 1994,
the SC refused to express its opinion on whether a temple existed on the
disputed location because it was superfluous, unnecessary, and favors a
particular religion.
Art 141
Judgement of the SC is binding on all courts, except itself. In the case
of Bengal Immunity Co vs State of Bihar. 1955, SC held that the
principle of Stare decisis is not an inflexible rule of law and cannot be
used to perpetuate errors.
Writ Jurisdiction of High Courts
The constitution gives wide powers to all High Courts to ensure that
injustice is not tolerated in any sphere. Art 226 provides that
notwithstanding anything in article 32 every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to
issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any of them, for the enforcement of any of the
rights conferred by Part III and for any other purpose.
It is important to note that the power is not only to enforce fundamental
rights but for any other purpose, which makes its powers even wider than
Supreme Court. Here, any other purpose means any legal right of legal
duty.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997,
SC has held that the power of judiciary over legislative action vested in a
High Court is a basic feature of the constitution and cannot be removed
through constitutional amendment.
Locus Standi : Who can apply
In general, the person whose constitutional right or legal right has been
35

infringed has the right to apply. However, due to judicial activism, the
"doctrine of sufficient interest" has originated. According to this, any
person who is even remotely affected can petition the High Court. It also
allows public spirited persons to file a writ petition for any person or class
if that person or class is not able to do so himself due to poverty or any
other reason.
In ABSK Sangh vs Union of India AIR 1991, SC held that even an
unregistered trade union has right to file a petition for redressal of a
common grievance.
In the case of Chairman, Railway Board vs. Chandrima Das AIR
2000, SC held that an advocate of Cal. High Court has sufficient interest
in making a public place like a railway station a safe place and so she has
right to demand compensation for the bangladeshi woman gang raped by
railway employees.
Scope of Art 226
In the case of Basappa vs Naggapa, AIR 1954, SC has held that the art
226 confers wide powers to remedy injustice where ever it is found. Art
226 says, "...or writs or the kind of...", which means that it is not limited
only the mentioned types of writs. It can issue orders orders of any kind
that the situation may require. Thus, it makes the scope of Art 226 a lot
wider than art 32.
Court Martial and art 226
In a significant case (which case?), Delhi High Court held that section 18
of India Army Act is not beyond the scope of High Court. While High Court
may not interfere in the sentence awarded in a court martial, such an
order cannot be arbitrary and mala fide. Thus, it is open to judicial review.
In the case of Union of India vs R K Sharma, AIR 2001 SC has held
that court should not interfere only on compassionate grounds. Only when
there is a perverseness or gross injustice on the face of it, there can be
judicial review.
Dispute between private parties - No Jurisdiction
In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC held that the
extraordinary jurisdiction of High Court cannot be exercised in the private
party disputes relating to property rights unless there is a violation of
statutory rights by statutory authorities.
Natural Justice
Natural Justice is not exclusively the principle of administrative law. The
courts are also bound by the same principle. Every administrative action
must be supported by reasons. The reasons must be recorded to ensure
that there is no arbitrariness.
Territorial extent of writ jurisdictions
36

Art 226 imposes two limits on HC's writ. First, it can run only in the
territorial jurisdiction of the High Court and secondly the person or
authority must lie in that jurisdiction.
In the case of Election Commision of India vs Venkata Rao, AIR
1975 SC held that Madras High Court cannot issue a writ to ECI because it
is based in New Delhi and so is out of its jurisdiction. The law commission
recommended that these are serious limitations and they defeat the very
purpose of this article. So it was amended by 15th amendment in 1963.
High Court can now issue a writ even to a central authority if the cause of
action in whole or part arises in its jurisdiction.
In the case of ONGC vs Utpal Kumar Basu SCC 1994, it was held that
the averment in the petition did not disclose that a part of the cause of
action arose in the jurisdiction of Calcutta and so High Court does not
have any jurisdiction to entertain the writ petition.
Discretionary Remedy - Not to be exercised if alternate remedy is
available
The remedy available in 226 is a discretionary remedy and the High Court
has the discretion to accept or refuse a petition. In general, if a remedy is
available elsewhere, writs under 226 are discourages. However, this does
not mean that any remedy available can be a ground for not entertaining
the petition under 226. The remedy must be effective and sufficient. In
the case of Vellaswamy v IG Police, Madras 1982, SC held that the
remedy under Police Rules of TN was not sufficient and so High Court was
wrong in dismissing the petition.
Effect of Laches or delay
Remedy under 226 should be sought with in a reasonable time. However,
High Court may accept a petition is there is a reasonable cause for delay
in seeking justice. Poverty has been held to be reasonable ground.
Judicial Review
The concept of Judicial Review started from the case of Marbury vs
Madison in 1800 in the USA. In this case, justice John Marshall held that
judiciary has inherent power to review actions by legislature even if no
explicit provision is given in the constitution.
Indian Situation
By adopting a written constitution and an independent judiciary, India has
provided the rule of law instead of rule on men to the citizens. However,
the rule of law will be rendered useless if the legislature is able to make
laws that violate the fundamental rights of the citizen. Thus, the
constitution in Art 13 has provided the judiciary with the power to review
laws made by the legislature. This is called Judicial Review.
Art 13 says:
37

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

commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of
such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void.
3. In this article, unless the context otherwise requires,
o (a) law includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the
territory of India the force of law;
o laws in force includes laws passed or made by a Legislature
or other competent authority in the territory of India before
the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part
thereof may not be then in operation either at all or in
particular areas.
4. Nothing in this article shall apply to any amendment of this
Constitution made under article 368.
In the case of L Chandra Kumar vs Union of India SC AIR 1997 held
that the power vested in SC by art 32 and High Court by art 226 over
legislative action is a basic feature.
Doctrine of Severability
AK Gopalan vs State of Madras SC AIR 1950 : Only section 14 of
Preventive detention act is void and not the whole act.
Doctrine of Eclipse
Bhikaji vs State of MP SC AIR 1955: Applies to pre-constitutional law
Deep Chand vs State of UP SC AIR 1959: Does not apply to post constitutional law.
State of Gujrat vs Ambika Mills SC AIR 1974 : Applies to post
constitutional law for non-citizens.
Dulare Lodh vs 3rd additional district judge SC AIR 1984: Applies to
post constitutional law as well.
Doctrine of Waiver
Basheshar Nath vs Income tax commissioner SC AIR 1959 : Citizen
38

cannot waive right.

Meaning of Law
Keshavanand Bharati vs State of Kerala SC AIR 1973: Rules and
regulations made under legislative power and not amendments.

Q. What is the procedure for amending the constitution? On what

grounds an amendment may be held ultra vires by the Supreme
Court?
A rigid constitution is a must in a federal system of governance. In case of
Indian constitution, it has been argued that it is not rigid enough. That
there have been 93 amendments in last 50 years proves this fact. As a
comparison, there have been only 27 amendments in the constitution
of USA in the past 200 years. This has been done deliberately to ensure
that the constitution can be changed as per the needs of the times.
However, to prevent excessive changes on the whims of the ruling party,
sufficient safeguards have been put.
The procedure of amending the constitution is given in Article 368. It says
that the parliament can amend the constitution under its constituent
power. A bill must be presented in either house of the parliament and
must be approved by a majority of each houses and not less than 2/3
majority of each house present and voting. After such approval the bill is
presented to the president for his assent, upon whose assent the
constitution shall stand amended as per the provisions of this article.
However, if the amendment seeks to make a change in

Articles 54, 55, 73, 162, or 241

Chapter 4 of part 5, chapter 5 of chapter 6, or chapter 1 of part 11

any of the lists in the 7th schedule

representation of the states in the parliament

in this article itself

the bill must also be ratified by not less than half of the states before it is
presented to the president for his assent.
For amending articles 5, 169, or 239-A, only a simple majority of both the
houses of the parliament is required.
39

Power of the parliament to amend the constitution

There has been a lot of controversy on the power of the parliament to
amend the constitution. Article 13 of the original constitution said that
the state shall not make any law that takes away or abridges the rights
given to the citizens in Part III and any such law made in contravention of
this article shall be deemed void to the extent of contravention. Thus, it
seemed that parliament cannot amend the constitution in a way that
takes away the fundamental rights of the citizens.
This logic was first tested by the Supreme Court in the case of Shankari
Prasad vs Union of India AIR 1951. In this case, an amendment to add
art 31 A and 31 B to the constitution was challenged on the ground that
they take away fundamental right of the citizens and therefore not
allowed by article 13. It was argued that "State" includes parliament and
"Law" includes Constitutional Amendments. However, SC rejected the
arguments and held that power to amend the constitution including
fundamental rights is given to the parliament by art 368 and that "Law" is
art 13 refers only to ordinary law made under the legislative powers.
In the case of Sajjan Singh vs State of Raj. AIR 1965, SC followed the
judgement given in the case of Shankari Prasad and held that the words
"amendment of the constitution" means amendment of all provisions of
the constitution.
However, in the case of Golak Nath vs State of Punjab, AIR 1971, SC
reversed its previous judgement and held that parliament has no power
from the date of this judgement to amend part III of the constitution so as
to take away any fundamental right. It held that "amendment" is a law as
meant under art 13 and so is limited by art 13(2).
To overcome the judgement in the case of Golak Nath, the parliament
added another clause in art 13by the 24th amendment in 1971 It says
that this article does not apply to the amendment of the constitution done
under art 368. A similar clause was added in art 368 for clarity in the
same amendment, which says that amendment done under art 368 shall
not come under the purview of art 13.
This amendment itself was challenged in the case of Keshavanand
Bharati vs State of Kerala AIR 1973. In this case, SC reversed its
40

judgement again and held that "Law" in art 13 only means ordinary law
made under legislative power, The 24th amendment is only clarifying that
position and so it is valid. However, it further held that "amendment"
means that the original spirit of the constitution must remain intact after
the amendment. Thus, the basic structure or features of the constitution
cannot be changed. According to C J Sikri, the basic structure of the
constitution includes - Supremacy of the Judiciary, democratic republic,
secularism, separation of powers among judiciary, legislative, and the
executive, and the federal character of the constitution.
This judgement was delivered by 7:6 majority and is one of the most
important judgements in the history of independent India. The effect of
this judgement can be seen in the case ofIndra Sawhney vs Union of
India 1993, where SC prevented the politicians from running amok in the
matter of reservation. It this case it held that inclusion of creamy layer
violates the fundamental right of equality, which is a basic feature of the
constitution and so its inclusion cannot be permitted even by
constitutional amendment.
Conclusion
During Constituent Assembly Discussions, it was noted that rigid
constitutions such as that of USA cause a lot of problems and is
undesirable. Dr. Ambedkar said that flexible federation is a distinguished
feature of the constitution. In the hindsight, it can be said that the
safeguards to prevent the spirit of the constitution were not enough.
Politicians have time and again shown that they can modify it easily to
serve their vote based politics.

Q. Explain the emergency provisions of the constitution. What do

you understand by proclamation of Emergency? Describe various
types. What are the effects of emergency on fundamental rights?
What are the effects of emergency arisen out of the failure of the
constitutional machinery in a state? What changes have been
made by the 44th amendment regarding emergency provisions?
Emergency is a unique feature of Indian Constitution that allows the
center to assume wide powers so as to handle special situations. In
emergency, the center can take full legislative and executive control of
any state. It also allows the center to curtail or suspend freedom of the
citizens. Existence of emergency is a big reason why academicians are
hesitant to call Indian constitution as fully federal. Emergency can be of
41

three types - Due to war, external aggression or armed rebellion, failure of

constitutional machinery in a state, or financial emergency. However,
technically, Proclamation of Emergency is only done upon external
aggression or armed rebellion. In the second case, it is called Presidential
Rule, and in the third case it is called "Proclamation of Financial
Emergency:
Proclamation of Emergency
Art 352 says that if the President is satisfied that a grave emergency
exists whereby the security of India or any part of India is threatened due
to outside aggression or armed rebellion, he may make a proclamation to
that effect regarding whole of India or a part thereof.
However, sub clause 3 says that President can make such a proclamation
only upon the written advise of the Union Cabinet. Such a proclamation
must be placed before each house of the parliament and must be
approved by each house with in one month otherwise the proclamation
will expire.
An explanation to art 352 says that it is not necessary that external
aggression or armed rebellion has actually happened to proclaim
emergency. It can be proclaimed even if there is a possibility of such thing
happening.

In the case of Minerva Mills vs Union of India AIR 1980,

SC held that there is no bar to judicial review of the validity of the
proclamation of emergency issued by the president under 352(1).
However, court's power is limited only to examining whether the
limitations conferred by the constitution have been observed or not.
It can check if the satisfaction of the president is valid or not. If the
satisfaction is based on mala fide or absurd or irrelevant grounds, it
is no satisfaction at all.

Prior to 44th amendment, duration of emergency was two months

initially and then after approval by the houses, it would continue
indefinitely until ended by another proclamation. However after
44th amendment, the period is reduced to 1 month and then 6
months after approval.

Effects of Proclamation of emergency

The following are the effects arising out of proclamation of emergency in
art 352.
Art 353
1. executive power of the Union shall extend to giving directions to
any state.
42

2. parliament will get power to make laws on subjects that are not in
Union list.
3. if the emergency is declared only a part of the count, the powers in
1 and 2 shall extend to any other part if that is also threatened.
Art 354
Provisions of art 268 to 279, which are related to taxation, can be
subjected to exceptions as deem fit by the president. Every law such
made shall be laid before each house of the parliament.
Art 355 says that it is the duty of the Union to protect States against
external aggression.
Art 358
While proclamation of emergency declaring that security of India or any
part of the territory of India is threatened due to war or external
aggression, is in operation, the state shall not be limited by art 19. In
other words, govt may make laws that transgress upon the freedoms
given under art 19 during such emergency. However, such a law will
cease to have effect as soon as emergency ends. Further, every such law
or very executive action that transgresses upon freedoms granted by art
19 must recite that it is in relation to the emergency otherwise, it cannot
be immune from art 19.
It also says that any acts done or omitted to be done under this provision
cannot be challenged in the courts after the end of emergency.
In the case of M M Pathak vs Union of India AIR 1978, SC held that
the rights rights granted by 14 to 19 are not suspended during emergency
but only their operation is suspended. This means that as soon as
emergency is over, rights transgressed by a law will revive and can be
enforced. In this case, a settlement that was reached before emergency
between LIC and its employees was rendered ineffective by a law during
emergency. After emergency was over, SC held that the previous
settlement will revive. This is because the emergency law only suspended
the operation of the existing laws. It cannot completely wash away the
liabilities that preexisted the emergency.
Art 359
This article provides additional power to the president while proclamation
of emergency is in operation, using which the president can, by an order,
declare that the right to move any court for the enforcement of rights
conferred by part III except art 20 and 21, shall be suspended for the
period the proclamation is in operation of a shorter period as mentioned
in the order. Further, every such law or every executive action recite that
it is in relation to the emergency.
43

In the case of Makhan Singh vs State of Punjab AIR 1964, SC

distinguished between art 358 and 359 as shown below:
Art 358

Art 359

Freedoms given by art 19 are suspended.

Fundamental rights are not suspende

moved to enforce fundamental rights

Any actions done or omitted to be done cannot

be challenged even after emergency.

Any action done by the legislature or

the suspension is over.

Art 19 is suspended for the period of

emergency.

Right to move courts is suspended fo

the proclamation of the president to r

Effective all over the country.

May be confined to an area.

Art 83(2) While the proclamation is in operation, the president may

extend the normal life of the Lok Sabha by one year each time up to a
period not exceeding beyond 6 months after proclamation ceases to
expire.
Provisions in case of failure of constitutional machinery is States
Art 356 says that if, upon the report of the Governor of a state, the
president is satisfied that the govt. of the state is cannot function
according to the provisions of the constitution, he may, by proclamation,
assume to himself all or any of the functions of the govt, or all or any of
the powers vested in the governor, or anybody or any authority in the
state except the legislature of the state. The power of the legislature of
the state shall be exercised by the authority of the parliament.
Under this article, president can also make such incidental and
consequential provisions which are necessary to give effect to the
objectives of the proclamation. This includes suspension of any provision
of this constitution relating to any body or authority in the state.
However, this article does not authorize the president to assume the
powers vested in the High Courts.
Art 357 provides that in the case of proclamation under art 356

parliament can confer upon the president the power of legislature of

the state to make laws or the power to delegate the power to make
laws to anybody else.

the parliament or the president can confer power or impose duties

on the Union or Union officers or Union authorities.

44

president can authorize the expenditure from the consolidated fund

of the stat pending sanction of such expenditure by the parliament.

Important instances of invocation of Art 356

This article has been invoked over a hundred times.
1. Dissolution of 9 state assemblies in 1977 by Janata Party govt..
This was challenged in the case of State of Rajasthan vs Union of
India AIR 1977. In this case, SC held that the the decision of the
president is not only dependent on the report of the governor but also on
other information. The decision is entirely political and rests with the
executive. So it is not unconstitutional per se. However, courts can
validate the satisfaction of the president that it is no mala fide.
2. Dissolution of 9 state assemblies in 1980 by Congress party govt.
3. Dissolution of BJP govt in MP, HP, and Raj. in 1992.
This was challenged in the case of SR Bommai vs Union of India AIR
1994. In this case SC held that secularism is a basic feature of the
constitution and a state govt. can be dismissed on this ground. It further
observed that no party can simultaneously be a religious party as well as
a political party.
Financial Emergency
Art 360 provides that if the president is satisfied that a situation has
arisen whereby the financial security of India or the credit of India or of
any part of India is threatened, he may make a declaration to that effect.
Under such situation, the executive and legislative powers will go to the
center.
This article has never been invoked.
Changes made by 44th Amendment
44th amendment substantially altered the emergency provisions of the
constitution to ensure that it is not abused by the executive as done by
Indira Gandhi in 1975. It also restored certain changes that were done by
42nd amendment. The following are important points of this
amendments

"Internal disturbance" was replaced by "armed rebellion" under art

352.

The decision of proclamation of emergency must be communicated

by the Cabinet in writing.

45

Proclamation of emergency must be by the houses within one

month.

To continue emergency, it must be re approved by the houses every

six month.

Emergency can be revoked by passing resolution to that effect by a

simple majority of the houses present and voting. 1/10 of the
members of a house can move such a resolution.

Art 358 - Under this article art 19 will be suspended only upon war
or external aggression and not upon armed rebellion. Further, every
such law that transgresses art 19 must recite that it is connected to
art 358. All other laws can still be challenged if they violate art 19.

Art 359, under this article, suspension of the right to move courts
for violation of part III will not include art 20 and 21.

Reversed back the term of Lok Sabha from 6 to 5 years.

46