1 Constitution of India

Introduction
The Constitution of India is created by the people of India and for the people of India as emphasised
in the Preamble by the phrase “WE, THE PEOPLE OF INDIA”. The Preamble to the Constitution sets
the tone of the introduction to the document, highlighting its principles and fundamental values. The
articles and provisions therein promise to ensure Justice, Liberty, Equality, and Fraternity to the people
of India.
The Constitution contains 448 Articles and 12 Schedules. The first schedule has two parts, while the
second consists of five. The fifth and seventh schedules have four and three parts, respectively. The
remaining schedules have one part each.

History
The Constitution of India was adopted and enacted on 26 November 1949.

1946
y The Constituent Assembly was formed on 6 December 1946.
y The first sitting of the Constituent Assembly was held on 9 December 1946.
y Rajendra Prasad was appointed the President by the Assembly on 11 December 1946.
y Jawaharlal Nehru presented the Objective Resolution (now, Preamble to the Constitution) on 13
December 1946.

1947–49
y An Objective Resolution (Presented by Jawaharlal Nehru) was unanimously adopted by the Constituent
Assembly on 22 January 1947.
y The Indian National Flag was adopted on 22 July 1947.
y India gained Independence on 15 August 1947.
y The Drafting Committee was constituted on 29 August 1947 and BR Ambedkar was appointed its
chairman. Further, the Committee prepared the ‘Draft Constitution’. It took more than 100 days on
the consideration of the Draft Constitution.
y The Constitution of India was adopted and enacted by the Constituent Assembly on 26 November
1949.

1950
y In the last meeting of Constituent Assembly, the Constitution was signed and received assent on 24
January 1950.
y The Constitution came into force on 26 January 1950.

Objectives and Applicability of the Constitution

The Constitution of India extends to the whole of India. The Preamble to the Constitution is a reflection
of the core constitutional values that embody the Constitution. It declares India to be a Sovereign
Socialist Secular Democratic Republic committed to Justice, Equality, and Liberty for the people. The

Constitution of India 1
 Preamble does not grant substantive rights and is not enforceable in the courts, but various Indian
courts have engaged with the Preamble and have treated it as guiding light in the interpretation of the
Constitution.
The Constitution provides for various rights, such as the Right of Citizenship, Right to Equality, Right
to Freedom, Right against Exploitation, Right to Freedom of Religion, Right to Constitutional Remedies,
Educational Rights, Right to Live with Dignity, Right to Move, Right to Move the Supreme Court, etc.
It also contains inherent rights, such as the Right to Shelter, Right to Employment, Right to Live as
Transgender, Right to Property, Right to Access the Internet, Right to Marry, Right to Choose, Right to
Privacy, Right to Compensation, Right to Sleep, Right to Elect, Right of Speedy Trial, Right to Clean
Environment, Right to Reputation, Right to Choice, Right to Consult, etc.

Points to Remember !
y The Constitution of India was adopted on 26 November 1949.
y The Constitution of India came into force on 26 January 1950.
y The original Constitution of India consisted of 395 Articles in 22 Parts and 8 Schedules. Now, it
contains 448 Articles in 25 parts and 12 schedules.
y BR Ambedkar was the chairman of the Drafting Committee.
y Rajendra Prasad was the President of the Constituent Assembly.
y The final draft of the Constitution was prepared by SN Mukherjee.
y The design of the National Flag was adopted by the Constituent Assembly on 22 July 1947.
y BR Ambedkar is also known as the ‘Chief Architect of the Indian Constitution’.
y BR Ambedkar described the Directive Principles of State Policy (DPSP) as the ‘Novel Feature of
the Indian Constitution’.
y The Right to Constitutional Remedies is the “heart and soul of the Constitution”, said BR Ambedkar.
y The Doctrine of Colourable Legislation means what cannot be done directly cannot be done
indirectly.
y The Doctrine of Pith and Substance means the true nature and character of the Legislation.
y The Doctrine of Severability means the part of the statute, which is bad and can be severed from
the rest.
y The Doctrine of double jeopardy means no one can be tried and punished more than once for the
same offence.
y The Doctrine of Eclipse applies to all laws, pre-constitutional or post-constitutional.
y Ex-post facto law means a law, which imposes penalty retrospectively.
y The power of the Supreme Court under Article 32 is not restricted to five writs only.
y The Right to Strike is not a fundamental right.
y The Fundamental Rights from Articles 12 to 35 can be amended.
y The Fundamental Rights are justiciable, whereas the DPSP are not.
y Fundamental Duties were inserted in the Constitution by the 42nd Amendment with
recommendations of the Swaran Singh Committee.
y Fundamental Duties are applicable only to citizens and not to aliens.

2 Constitution of India
 y President’s rule remains valid for six months under Article 356.
y The Indian Parliament consists of the Lok Sabha, the Rajya Sabha, and the President.
y The President can nominate 12 members to the Rajya Sabha.
y Article 368 deals with the power and procedure for amendment to the Constitution.
y Money bill can be introduced in the House of the People, i.e., the Lok Sabha.
y The Doctrine of Pleasure is introduced in Article 310.
y The Supreme Court has original, appellate, and advisory jurisdiction.
y Article 141 states that law declared by the Supreme Court is binding upon all courts in India.
y The power of judicial review is enjoyed by the Supreme Court, as well as, the High Court.
y The Supreme Court is the highest court within the hierarchy of courts.
y Residuary powers are vested in Parliament.
y Legislative section is divided into three lists, i.e., the union, state, and concurrent list.
y The President can declare three types of Emergencies—National (Article 352), State (Article 356),
and Financial emergency (Article 360).
y In India, Financial emergency under Article 360 has never been imposed.
y The 42nd amendment of the Indian Constitution is also known as Mini Constitution.
y Amendment can be done by two ways—amendment by simple majority of the Parliament and
amendment by special majority of the Parliament.
y The power of the Indian Parliament to amend the Constitution of India is a constituent power laid
down in Article 368 by the 24th Amendment Act of 1971.
y The constituent power of the Parliament to amend the Constitution includes the power to amend
by way of addition, variation, or repeal of the provisions of the Constitution.
y The Planning Commission is quasi political body.
y Article 20 and 21 cannot be suspended during the proclamation of national emergency.
y Parliamentary form of government, rule of law, legislative procedure, single citizenship, cabinet
system, prerogative writs, parliamentary privileges, bicameralism, and equality before law have
been borrowed from the UK.
y The Directive Principles of State Policy, method of election of the President, and members’
nomination to the Rajya Sabha by the President have been borrowed from Ireland.
y Impeachment of the President, Functions of the President and Vice-President, removal of Supreme
Court and High Court judges, Fundamental Rights, Judicial review, independence of judiciary,
Preamble to the Constitution, and equal protection of law have been borrowed from the United
States of America.
y The centrifugal form of federalism, where the Centre is stronger than the states, residuary powers
vest with the Centre, Centre appoints the Governors in the states, and advisory jurisdiction of the
Supreme Court have been borrowed from Canada.
y The concepts of concurrent list, Article 108, i.e., joint sitting of the two houses, and freedom of
trade and commerce have been borrowed from Australia.
y Fundamental duties, the ideals of justice (social, economic, and political) expressed in the
Preamble, and Five Year Plan have been borrowed from the USSR (Now Russia).

Constitution of India 3
 y The concepts of ‘Republic’, and ideals of liberty, equality, and fraternity (contained in the Preamble)
have been borrowed from France.
y The concept that Fundamental Rights stand suspended during Emergency has been borrowed
from Germany.
y The election of members of the Rajya Sabha and amendment of the Constitution have been
borrowed from South Africa.
y The concept of ‘procedure established by law’ has been borrowed from Japan.
y Legal sovereignty rests on the Constitution of India.
y Political sovereignty rests on the People of India.
y The Indian Constitution has a single judiciary called ‘Quasi Federal’.
y Untouchability was legally abolished in India in 1950.
y The Right to Property is made a constitutional right under Article 300A.
y The Right to Property was abolished by the 44th Amendment Act, 1978.
y The seventh Schedule is concerned with the ‘partition of powers’ between the Centre and the
States.

Subjective Theory

Preamble, Fundamental Rights and Duties, and Directive Principles of State Policy
The Preamble
In the Re Berubari case (AIR 1960 SC 845), the Supreme Court had held that the Preamble was not a
part of the Constitution, and therefore, it could never be regarded as a source of any substantive power.
It was said that if the terms used in the Constitution were ambiguous or capable of two meanings,
some assistance may be taken from the objectives enshrined in the Constitution and the construction
which fit the Preamble could be preferred. But in the Kesavananda Bharati versus State of Kerela (AIR
1973 SC 1461), the Supreme Court rejected the above view and held that the Preamble was very much a
part of the Constitution. It was said that the Constitution of our country had to be interpreted in light
of the grand and noble vision, as has been expressed in the Preamble. The Preamble certainly serves
the following purposes.
y It indicates the source from which the Constitution comes, i.e., the people of India.
y It contains the enacting clause, which brings the Constitution into force.
y It declares the rights and freedoms, which the peoples of India intended to secure for all citizens and
the basic type of government and polity that was to be established.
y The Preamble to the Constitution declares India to be a “Sovereign, Socialist, Secular, Democratic,
and Republic”.
‘Sovereign’ means that the Constitution of India does not recognise the legal supremacy of any other
country. India is not subject to interference of any other state or external power, concerning its internal
and external affairs and policies. The sovereign power lies with the people of India, who have enacted
the Constitution and recognised it as the supreme law of land.
The term, ‘socialist’, was inserted in the Constitution by the 42nd Amendment Act, 1976. Socialism
implies the control of the state over all means of production. In the context of the Constitution, it
means ‘democratic socialism’.

4 Constitution of India
The term, ‘secular’, was also added in the Constitution by the 42nd Amendment Act, 1976. It implies the
absence of state-sponsored or state-favoured religion, i.e., the state being neutral towards all religions.
It embodies the concept of sarva dharma sambhav.
‘Democratic’ means that the Constitution has provided for a form of government that derives its
authority from none other than the ‘people of India’. The government is elected by the people of
the country, which is thereby, responsible to them. This notion is also implicit in Article 326 of the
Constitution, which provides for the rule of adult suffrage. Under this provision, each individual above
18 years of age shall have the right to vote in the State Assembly and election to the House of the
People.
‘Republic’ implies that there shall be an elected Head of the State, who will function as the Chief
Executive Head, i.e., the President in the case of India.
The following are the objectives that the Preamble secures to every citizen.
y Justice: Social, economic, and political
y Liberty: Of thought, expression, belief, faith, and worship
y Equality: Of status and of opportunity and to promote among them all
y Fraternity: Assuring the dignity of the individual and the unity and integrity of the Nation

Can the Preamble Be Amended under Article 368?

This question was raised for the first time before the Supreme Court in the historic case of Kesavananda
Bharati versus State of Kerela (AIR 1973 SC 1461). In that case, the Attorney General argued that by
virtue of the amending power in Article 368, even the Preamble could be amended like any other
provision of the Constitution. The petitioners, however, contended that the amending power in Article
368 was limited. The Preamble creates an implied limitation on the power of amendment. It contained
the basic elements or fundamental features of the Constitution. Consequently, the amending power
could not be used to destroy or damage the basic features mentioned in the Preamble. It was urged
that the Preamble could not be amended as it is not a part of the Constitution. The Supreme Court,
however, upheld the Preamble to be a part of the Constitution and, therefore, the decision held in Re
Berubari case (AIR 1960 SC 845) was set aside. Upon the question as to whether the Preamble could be
amended or not, the 13th Judges bench held that since the Preamble was a part of the Constitution, it
could be amended, but subject to this condition that the ‘basic features’ therein could not be amended.

Fundamental Rights
The aim of having a declaration of the Fundamental Rights is that certain basic rights, such as the right
to life and liberty, freedom of speech and expression, freedom of religion and so on, should be regarded
as inviolable under all conditions and that the shifting majority in legislature of the country should not
have a free hand in interfering with them. The Fundamental Rights are significant because they protect
the rights and liberties of the citizens against the encroachment of power delegated by them to their
government. They are limitations upon all powers of the government, i.e., legislative and executive,
and that they are essential for the preservation of public and private rights. The importance of the
Fundamental Rights was emphasised in the historic judgement of Maneka Gandhi versus Union of India
(AIR 1978 SC 597). It was said that the Fundamental Rights represent the basic values cherished by the
people—the dignity of the individual and create conditions in which every human being could develop
one’s personality to the fullest extent. They weaved a ‘pattern of guarantee’ on the basic structure of
human rights and imposed obligations on the State to not to encroach on the liberty of individual. In

Constitution of India 5
 this case, the Supreme Court held that the provisions of Part III should be given the widest possible
interpretation.
The Constitution permits ‘reasonable’ restrictions to be imposed on the liberties of an individual(s)
in the interest of society. In the AK Gopalan versus State of Madras, (AIR 1950 SC 27) the Court held:
“There cannot be any such thing as absolute and uncontrolled liberty wholly freed form restraint, for
that would lead to anarchy and disorder. The possession and enjoyment of all rights are subject to such
reasonable restrictions and have to be placed upon the free exercise of individual rights to safeguard
the interest of society. What the Constitution, therefore, attempts to do by declaring the rights of the
people is to strike a balance between individual liberty and social control.”
To be a fundamental right, it is not necessary that a right must be specifically mentioned in a particular
article. A right may be a fundamental right if it is an integral part of a named fundamental right or
partakes of the same basic nature and character as the fundamental right. For example, it has been
held that the right to travel aboard, speedy trial, free legal aid, protection to prisoners in jail for
designating and inhuman treatment, etc., are not especially mentioned in the Constitution, but they
are the Fundamental Rights guaranteed under Article 21 of the Constitution.

Classification of Fundamental Rights

The Fundamental Rights are classified under the following six groups.
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)

Article 12: Meaning of the State for the Purposes of Fundamental Rights and Directive
Principles for State Policy
Article 12 defines the term ‘State’ as used in different articles of Part III of the Constitution. It says that
unless the context otherwise requires, the term ‘State’ includes the following.
y The Government and the Parliament of India (executive and legislature of the Union)
y The Government and the Legislature of each State (executive and legislature of States)
y All local and other authorities under the control of the Government of India
y All local or other authorities within the territory of India
‘Local authorities’ as defined in Section 3(31) of the General Clauses Act refers to authorities like
Municipalities, District Boards, Panchayats, Improvement Trusts, and Mining Settlement Boards. The
problem that is being faced by courts time and again is the interpretation of the term ‘other authorities’.
In this Article, initially, the expression could only indicate authorities of a like nature, i.e., the term had
to be read ejusdem generis. So, it could include persons, natural or juristic, such as a university, unless
it was maintained by the State. But later, it was held that the ejusdem generis rule could not resorted
to in interpreting this expression. In Article 12, the bodies specifically named were the Government of
the Union and the State, the Legislature of the Union, and the Government of the Union and the States.
In the Rajasthan State Electricity Board versus Mohan Lal (AIR 1967 SC 1857), the Supreme Court
held that the expression ‘other authorities’ was wide enough to include all authorities created by the

6 Constitution of India
Constitution or statute on whom powers are conferred by law. It was not necessary that the statutory
authority could be engaged in performing governmental or sovereign functions.
But in subsequent decisions, the Supreme Court has given a broad and liberal interpretation to the
expression, ‘other authorities’.
In the case of Ramana Dayaram Shetty versus The International Airport Authority of India, 1979 SCR (3)
1014, the Apex Court held that if a body was an agency or instrumentality of government, it could be
an ‘authority’ within the meaning of Article 12 whether it was a statutory corporation, a government
company, or even a registered society. The Court laid down the following tests for determining whether
a body is an agency or instrumentality of the government.
y Financial resources of the State should be the chief funding source, i.e., if the entire share capital of
the corporation is held by the government
y Existence of deep and pervasive State control
y Functional character being governmental in essence
y Whether a department of government is transferred to a corporation
y Whether the corporation enjoys monopoly status, which is State conferred or State protected
However, the above-mentioned tests were held not to be conclusive but merely illustrative that would
have to be used with care and caution. The test was not as to how the juristic person was created but
why it had been brought into existence.
The phrase ‘Authorities under the control of the Government of India’ needs to be understood. The
phrase intends to bring into the definition of State all areas outside the territory of India, but which
were under or may come under the control of the Government of India, such as mandatory or trustee
territories.

Whether Judiciary Is Included in the Word ‘State’?

Judiciary, though not expressly mentioned, should be included within the expression ‘other authorities’
as courts have been set up by the statue and exercise power as conferred by law. The question whether
judiciary was included with in definition of the ‘State’ under Article 12 came up for consideration before
the Supreme Court in the Naresh versus State of Maharashtra case (1967, SC). It was held that even
if a Court was the State, a writ under Article 32 could not be issued to a High Court of competent
jurisdiction against its judicial orders because such orders could not be said to violate the Fundamental
Rights. Renowned Indian Jurist, HM Seervai is of the opinion that ‘judiciary’ should be included in
the definition of the ‘State’ and a judge acting as a judge is subject to the writ jurisdiction of the
Supreme Court. Courts, like any other organ of the State, are limited by the mandatory provisions of the
Constitution and they can hardly be allowed to override the Fundamental Rights under the shield that
they have within their jurisdiction the right to make an erroneous decision. In view of the judgement of
the seven-judge Bench of the Supreme Court in the AR Antulay versus RS Nayak, 1988 SCR Supp (1) 1,
where it has been held that the court cannot pass an order or issue a direction that would be violative
of the Fundamental Rights of citizens, it can be said that the expression ‘State’ as defined in Article 12
of the Constitution includes judiciary also.
The following are held to be a ‘state’ within the ambit of Article 12 of the Constitution.

y State Electricity Boards (Rajasthan and Bihar)

y Cochin Devaswom Board

Constitution of India 7
 y Co-operative Societies

y The President (while making an order under Article 359)

y Oil and Natural Gas Commission

y Life Insurance Corporation of India

y Industrial Finance Corporation

y University

y International Airport Authority

y Bharat Petroleum Corporation

y Uttar Pradesh Warehousing Corporation

y Society registered under the Societies Registration Act, 1898

y Indian Statistical Institute

y Indian Council of Agricultural Research

y Food Corporation of India

y Steel Authority of India

y Indian Oil Corporation

y Central Inland Water Transport Corporation Limited

y Council of Scientific and Industrial Research

The following are not held to be a ‘state’ within the ambit of Article 12 of the Constitution.
y Institution of Constitution and Parliamentary Studies
y Co-operative Bank registered under Andhra Pradesh Co-operative Societies Act
y National Council of Educational Research and Training (NCERT)
y International Crop Research Institute
y Co-operative Sugar Mill
(The above lists are not exhaustive but merely illustrative)

Article 13: Law Inconsistent with Fundamental Rights

Article 13(1) declares that all laws in force in the territory of India immediately before the commencement
of this Constitution shall be void to the extent to which they are inconsistent with the provisions of
Part III of the Constitution. Clause (2) provides that the State shall make any law, which takes away
or abridges the Fundamental Rights conferred by Part III of the Constitution; and any law made in
contravention of Fundamental Rights shall, to the extent of contravention, be void. Clause (3) accords
the term, ‘law’, a broad connotation, which includes any ordinance, order, bye-law, rule, regulation,
notification, custom, or usage having the force of law. Thus, not only legislative enactment, but anything
mentioned herein can be challenged as infringing a Fundamental Right.
Article 13(1) is prospective in nature. All pre-Constitution laws, inconsistent with Fundamental Rights,
will become void after the enforcement and enactment of the Constitution. Therefore, these provisions
cannot be said to be void ab initio.

8 Constitution of India
When a part of a 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 means if an offending provision can be separated from something which is constitutional, then only
that part which is offending is to be declared as void and not the entire statute. The words, “to the
extent of such inconsistency be void”, as mentioned in Article 13 mean that when some provision of
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. However, it is to be noted that if a valid portion
is closely mixed with an invalid portion that it cannot be separated without leaving an incomplete or
more or less mingled remainder, then the courts will hold the entire act void. Where it is not possible to
separate the two, the whole law is to be struck down. So, as long as the possibility of it being applied
for purposes not sanctioned by the Constitution cannot be ruled out, it must be held as wholly void.
The ‘doctrine of eclipse’ is based on the principle that a law, which violates the Fundamental Rights is
not nullity or void ab initio but becomes only unenforceable, i.e., remains in a moribund condition. It is
overshadowed by the Fundamental Rights and remains dormant but is not dead.
In the case of Bhikaji Narain Dhakras versus State of Madhya Pradesh, AIR 1955 SC 781, wherein the
MP Government passed an Act in the year 1950 for nationalising the motor transport and the Act was
passed before the commencement of Constitution. The statute was challenged by the petitioner under
Article 19(1)(g) of the Constitution. The Supreme Court held, “the effect of the Amendment was to
remove the shadow and to make the impugned Act free from all blemish or infirmity”. This law was
merely eclipsed for the time being by the Fundamental Rights. As soon the eclipse was removed, the
law became operational from the date of such removal.

Application of the Doctrine of Eclipse to Post-Constitutional Laws

In Deep Chand versus State of UP, [1959 SCR Supp (2) 8], the Supreme Court held that a post-
constitutional law under Article 13(2), which contravenes a Fundamental Right, is nullity from its
inception and a stillborn law. It is void ab-initio. The doctrine of eclipse does not apply to post-
constitutional laws, and therefore, a subsequent constitutional amendment cannot revive it.
Subsequently, in State of Gujarat versus Ambika Mills, [1974 SCR (3) 760], the Apex Court held that a
post-constitutional law, inconsistent with Fundamental Rights, was not nullity or non-existent in all
cases and for all purposes. The ‘doctrine of absolute nullity’ was not a universal rule and there were
many exceptions to it. A post-Constitution law, which took away or abridged the right conferred by
Article 19, will be operative as regards to non-citizens because Fundamental Rights were not available
to non-citizens. However, such a law would become void or non-existent only against citizens because
Fundamental Rights were conferred on them. The voidness as mentioned in Article 13(2) could only
mean void against persons, whose Fundamental Rights have been taken away or abridged by law. Non-
citizens could not take advantage of the voidness of the law.

Doctrine of Waiver (Can a Fundamental Right guaranteed by Constitution be waived?)

The ‘doctrine of waiver’ has no application to the provision of the law enshrined in Part III of the
Constitution. It is not open to an accused to waive or give up constitutional rights and get convicted.
The question of waiver directly arose in Basheshar Nath versus The Commissioner of Income Tax, AIR
1959 SC 149, wherein it was held that the Fundamental Rights were incorporated in the Constitution
not merely for the benefit of an individual but as a matter of public policy for the benefit of the general
public. It is an obligation imposed upon the State by the Constitution. The Court held that no person

Constitution of India 9
 could relieve the State of this obligation because a large majority of our people are poor, educationally
backward, and politically not yet conscious of their rights. In such circumstances, it is the duty of this
Court to protect their rights against themselves.

Article 14: Right to Equality

Article 14 declares that “the State shall not deny to any person: Equality before the law or Equal
protection of the law within the territory of India”.
Equality before law: It is a concept implying the absence of any special privilege by reason of birth,
creed or any such fact in favour of an individual. It means that no man is above law and that every
person, whatever be his/her rank or conditions, is subject to the jurisdiction of ordinary courts.
Equal protection of the laws: It means that all persons under similar circumstances shall be treated
alike both in the privileges conferred and liabilities imposed by the law. The rule of law embodied
in Article 14 is held to be a part of the ‘basic feature’ of the Indian Constitution in the case of Indira
Gandhi versus Raj Narain, 1975 SCR (3) 333, and hence, it cannot be destroyed even by an amendment
under Article 368 of the Constitution. The words, ‘any person’, in the Article denotes that every person,
which includes a company of association or a body of individuals, shall get equal protection under the
law. The protection of provision extends to citizens, non-citizens, and natural and legal persons.
However, the concept of the rule of law can be said to have some exceptions. For example, ‘equality
before the law’ does not mean that the powers of private citizens are the same as those of public
officials. In addition to this, the rule of law does not prevent certain classes of persons being subject to
special rules, e.g., members of the armed forces, medical practitioners, lawyers, etc. The Constitution
itself contains provisions that put certain limitations upon Article 14, which are as follows.
1. Article 359(1) provides that where a proclamation of emergency is in operation, the President may
by order declare that the right to move any court for the enforcement of such rights conferred by
Part III (except Article 20 and 21) shall remain suspended. Thus, if the President of India issues an
order, where a proclamation of emergency is in operation, the enforcement of Article 14 may be
suspended for the period during which the proclamation is in force.
2. Article 361 lays down that the President and the Governors are exempted from any criminal
proceeding during the tenure of their office.
3. Under the international law, foreign sovereign and ambassadors enjoy immunity from any judicial
process. This is also available to enemy claims for acts of war.
Thus, Article 14 forbids class legislation. But it does not forbid reasonable classification. The
classification, however, must not be arbitrary, artificial, or evasive. It should instead be based on
some real and substantial distinction bearing a just and reasonable relation to the object sought
to be achieved by the legislation. Article 14 applies where equals are treated differently without any
reasonable basis. But where equals and unequals are treated differently, Article 14 does not apply. For
the classification to be reasonable, it must fulfil the following two conditions.
y The classification must be founded on an intelligible differentia, which distinguishes persons or
things that are grouped together from others left out of the group.
y The differentia must have a rational relation with the object ought to be achieved under Article 21.
Also, important is the existence of some nexus between the basis of classification and the object of
the Act, which makes the classification.
In the EP Royappa versus State of Tamil Nadu case (1974, SC), the Supreme Court challenged the
traditional concept of equality based on reasonable classification and laid down a new concept.

10 Constitution of India
The court held that “Equality is antithesis to arbitrariness.” It further held that in fact, equality and
arbitrariness were sworn enemies; one belonged to the rule of law in a republic, while the other to the
whim and caprice of an absolute monarch. According to this doctrine, the content and reach of Article
14 could not be determined on the basis of the doctrine of classification. The new doctrine stated that
the doctrine of classification “was merely a judicial formula for determining whether the legislative or
executive action was arbitrary and, therefore, constituted a denial of equality”. It was held that Article
14 had right activist magnitude and embodied a guarantee against arbitrariness. The conclusion was
that if the action of the State was arbitrary, it could not be justified even on the basis of the doctrine
of classification.
In the Ajay Hasia versus Khalid Mujib, (1981) 1 SCC 722, the Regional Engineering College, Srinagar,
admitted candidates based on a viva voce after a written test. The result of viva voce test or interview
was challenged on the ground that it was arbitrary and unreasonable because high percentage of marks
were allocated for the viva voce and the candidates were interviewed for only two-three minutes. The
Court struck down the rule prescribing high percentage of marks for the viva voce, i.e., allocation of
one–third of the total marks for the interview was arbitrary and unreasonable and violate Article 14 of
the Constitution.
In the Air India versus Nargesh Meerza, 1982 SCR (1) 438, a regulation provided that an air hostess
would retire from service of the corporation upon attaining the age of 35 years or on marriage, if it took
place within four years of service, or on first pregnancy, whichever occurred earlier. The Court upheld
that the condition that the services of the air hostesses would be terminated on first pregnancy was
the most unreasonable and arbitrary provision, and hence, was liable to be struck down. The Court
held it to be clearly violative of Article 14 of the Constitution.
In the Deepak Sibal versus Punjab University, 1989 SCR (1) 689, the appellants challenged the
constitutional validity of the admission rule in the evening classes of the three-year LLB course of
Punjab University on the ground that it was violative of Article 14 of the Constitution. By the rule,
admission to evening classes was restricted only to that regular employee of government/semi-
government institutions, etc., and not to employees in general, including those working in the private
sector. It was held that there was no reasonable basis for the classification of employees for the
purpose of admission to the LLB course as both stood on the same footing and therefore, the rule was
struck down as discriminatory and violative of Article 14.
In the Charan Lal Sahu versus Union of India, 1989 SCR Supp (2) 597, the constitutional validity of the
Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, was challenged. The Act empowered the
Central government to take over the conduct of all litigations on behalf of the victims of the Bhopal
Gas Tragedy. The validity of the Act was challenged on the ground that the deprivation of the claimant’s
individual rights to legal remedy against the Union Carbide Company was violative of Article 14. The
Court held that the Act was valid for protecting the disabled victims of the Bhopal Gas Tragedy as the
State, in capacity of parens patriae (parent of the country), was competent to represent the victims.
It was the duty of the State to protect the rights and privileges of its citizens, and where the citizens
were not able to assert and secure their rights, it was the duty of the State to intervene, protect, and
fight for their rights.
In the Indian Express Newspapers versus Union of India, 1985 SCR (2) 287, it was held that the
classification of newspapers into small, medium, and big on the basis of circulation for the purpose of
levying customs duty on newsprint was not violative of Article 14. The object for exempting all small
and medium newspapers was only to assist them in bringing down their cost of production. The Court

Constitution of India 11
 held that such newspapers did not command large advertisement revenue. Their area of circulation
was limited and majority of them were in Indian languages, catering to the rural sector.

Article 15: Prohibition of Discrimination on the Grounds of Religion, Race, Caste, Sex, or Place
of Birth
Article 15 provides for the specific application of the general principle embodied in Article 14 relating
to the right to equality. However, it is important to note that the guarantee under Article 15 is available
to citizens only and not to every person, whether a citizen or a non-citizen, as under Article 14. Clause
(1) provides for a general prohibition upon the State to not to discriminate against any citizen only on
the grounds of religion, race, caste, sex, place of birth, or any of them. According to Article 15(2), 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:
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) 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.
Further, under Clause (3) of the Article, the State has been empowered to make special provision for
women and children.
For the reservation of appointments or posts in favour of any socially and economically backward
class of citizens or for the Scheduled Castes and the Scheduled Tribes which in its opinion are not
adequately represented in the services under the State [Article 15(4)].
For the advancement of any socially and educationally backward classes of citizens; Scheduled Castes
or the Scheduled Tribes or economically weaker sections of citizens (maximum allowed is 10% in this
case) relating to their admission to educational institutions, including private educational institutions,
whether aided or unaided by the State, other than the minority educational institutions. For such
purposes, ‘economically weaker sections shall be notified by the State from time to time on the basis
of family income and other indicators of economic disadvantage [Article 15(5–6)].
A clause to Article 15 was added by the 1st Amendment Act, 1951, to the Constitution as the result of
the case of the State of Madras versus Champakam Dorairajan (1951, SC), which empowered the State
to make special provision for the advancement of any socially and educationally backward class(es)
of citizens or for the Scheduled Castes and Scheduled Tribes. In this case, the Madras government
had reserved seats in the State Medical and Engineering Colleges for different communities in certain
proportions based on religion, race, and caste. The State defended the law on the ground that it was
enacted with a view to promote social justice for all sections of people as required by Article 46 (DPSP).
The Supreme Court held the law to be void as the classified students on the basis of caste and religion,
instead of merit. The Court held that the DPSPs could not override the Fundamental Rights.
Thereafter, in the Jagwant Kaur versus State of Bombay, AIR 1952 Bom 461, an order requisitioning a
land for the construction of a Harijan colony was held to be void under Article 15(1). The amendment
was, thereby, made to nullify the effect of the above two decisions by the Apex Court.
Later, in the Balaji versus State of Mysore, 1962 SCR Supp (1) 439, the Mysore government issued an
order under Article 15(4) reserving seats in the medical and engineering colleges of the State. The
validity of the order was challenged by candidates, who had secured more marks than those who had
been admitted under the order. Though qualified on merit, they had failed to get admission only by
reason of the order passed by the government. The Court held that the sub-classification made by
the order between the ‘backward classes’ and ‘more backward classes’ was not justified under Article

12 Constitution of India
15(4). Also, ‘backwardness’, as envisaged under the Article, had to be both social and educational, and
not merely one of the two. However, later in the Indra Sawhney versus Union of India, AIR 1993 SC 477
the Court held that sub-classification of backward classes into more backward classes for Article 16(4)
could be done. But it was said that the classification should not be arbitrary and unreasonable.

Article 16: Equality of Opportunity in Matters of Public Employment

Article 16(1) guarantees equality of opportunity to all citizens in matters of ‘employment’ or ‘appointment’
to any post under the State. Clause (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. Clause 1 and 2 of Article 16 apply only in
respect of employment or office under the State. Clauses 3, 4, 4(A), and 5 of the Article provide four
exceptions to this general rule of equality of opportunity. It must be noted that two additional grounds,
i.e., ‘decent’ and ‘place of residence’ present in Article 16(2) are not included in Article 15.
Article 16 guarantees equality of opportunity in matters of appointment in State services. It does not,
however, prevent the State from prescribing the necessary qualifications and conducting of selective
tests for recruitment in government services. Where the appointment requires technical knowledge,
technical qualification may be prescribed. Article 16(1) emphasises equality between members of the
same class of employees and not equality between members of separate independent classes.
In the CB Muthamma versus Union of India, [1979] SCC (4) 260, a provision in service rule required
a female employee to obtain the permission of the government in writing before her marriage was
solemnised and also denied her the right to be promoted on the ground that the candidate was a
married woman. It was held to be discriminatory against women, and hence, unconstitutional.
In the Randhir Singh versus Union of India, 1982 SCR (3) 298, it has been held that equal pay for equal
work, although not expressly declared to be a Fundamental Right is clearly a constitutional goal under
Articles 14, 16 and 39(c), and can be enforced by courts in case of unequal scales of pay based on
irrational classification.
The expression, “matters relating to employment”, in Article 16 is not confined to initial matters only but
will apply to matters after appointment as well, for example, promotion to select posts, termination of
employment, matters relating to salary, periodical increments, leave, gratuity, pension and the age of
superannuation, etc. Similarly, the rule of equality is not denied if under the service rule a government
servant it prematurely retired.
Under this provision, the State is empowered to:
y make any law regarding 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 Union territory, any requirement as
to residence within that State or Union territory prior to such employment or appointment [Article
16(3)].
y make any provision for the reservation of appointments or posts in favour of any backward class of
citizens which in its opinion is not adequately represented in the services under the State [Article
16(4)].
The scope of this provision was considered by the Supreme Court in the Devadasan versus Union of
India, (1964) SC 179. In this case, the constitutional validity of the ‘carry forward rule’ framed by the
government to regulate the appointment of persons belonging to the backward classes in government
services was involved. This rule provided that if enough candidates belonging to the Scheduled Castes
and Scheduled Tribes were not available for appointment to the reserved quota, the vacancies that

Constitution of India 13
 remained unfilled would be treated as unreserved and filled by the fresh available candidates, but
a corresponding number of posts would be reserved the next year for candidates belonging to the
Scheduled Castes and Scheduled Tribes, in addition to their reserved quota for the next year. The
Supreme Court by a majority of four to one struck down the ‘carry-forward rule’ as unconstitutional.
However, later in the Mandal case, the Supreme Court overruled the Devadasan case, stating that the
‘carry forward rule’ was valid for so long as it did not in that particular year exceed 50 per cent of the
vacancies.
In the KC Vasanth Kumar versus Karnataka, (1988) 4 SCC 590 the, State of Karnataka had asked the
Supreme Court to give clear guidelines to be followed in the matter of reservation for SCs and STs.
Although the judges expressed separate opinions, a clear guideline is evident in their opinion, which is
as follows.
“The reservation in favour of SCs and STs must continue as at present, i.e., without the application of a
mean’s test (the test of economic backwardness), for a further period of 15 years. Another 15 years will
make it 50 from the commencement of the Constitution, a period reasonably long for these classes to
overcome the baneful effects of social oppression, isolation, and humiliation.
So far other backward classes are concerned, two tests should be applied.
(a) That they should be comparable to the SCs and STs in matter of their backwardness
(b) That they should satisfy the mean’s test such as the State government may lay down, in the
context of the prevailing economic conditions
The policy of reservations in employment, education and legislative institutes should be reviewed
every five years or so. This will afford an opportunity to the State to rectify distortions arising out of
particular facts of the reservation policy.”
In the Indra Sawhney versus Union of India, AIR 1993 SC 477 (popularly known as Mandal Commission
case), the Government headed by Prime Minister Morarji Desai on 1 January 1979 appointed the second
Backward Classes Commission under Article 340 of the Constitution under the chairmanship of BP
Mandal (MP) to investigate the socially and educationally backward classes within the territory of India
and recommend steps to be taken for their advancement, including desirability of making provisions for
reservation of seats for them in government jobs. The Commission submitted its report in December
1980. It identified as many as 3743 castes as socially and educationally backward and recommended 27
per cent reservation for them in government jobs. In the meantime, the Janata government collapsed
due to internal dissensions and the Congress, headed by Prime Minister Indira Gandhi, came to power
at the Centre. The Congress government did not implement the Mandal Commission’s recommendation
till 1989. In 1989, the Congress was defeated in the Parliamentary elections and the Janata Dal (a party
formed by merging various factions of the Janata Party) came to power. It decided to implement the
Mandal Commission’s recommendation as promised to the electorate. Accordingly, the government,
headed by Prime Minister VP Singh, issued an office memoranda on 13 August 1990, reserving 27 per
cent of the seats for backward classes in government services. This led to a national turmoil and
anti-reservation protests jolted the nation for nearly three months, resulting in huge loss of life and
property. A writ petition on behalf of the Supreme Court Bar Association, challenging the validity of the
office memoranda and for staying its operation, was filed. A five-judge Bench of the Supreme Court
stayed the operation of the office memoranda till the final disposal of the case on 1 October 1990. But
the Janata Dal government collapsed, and in the 1991 Parliamentary elections, the Congress returned
to power at the Centre.

14 Constitution of India
The Congress government, headed by PV Narsimha Rao, issued another office memoranda on
25 September 1991 but with two changes in the office memoranda of Janata Dal government, which
was issued on 13 August 1990. The changes proposed by the Congress government were—(i) introducing
the economic criterion in granting reservation by giving preference to the poorer sections of SEBCs
in the 27 per cent quota, and (ii) reserving another 10 per cent of the vacancies for other Socially
and Educationally Backward Classes (SEBCs) and economically backward sections of higher castes.
The matter was referred to a Special Constitution Bench consisting of nine judges to settle the legal
position relating to reservations. Despite several adjournments the Union Government failed to submit
the economic criteria as mentioned in official memoranda of 25 September 1991. The nine-judge
Constitution Bench of the Supreme Court by a majority of six to three held that the decision of the Union
Government to reserve 27 per cent government jobs for backward classes provided socially advanced
persons and creamy layer among them being eliminated, as constitutionally valid. The majority opinion
on various aspects of reservation provided in Article 16(4) may be summarised as follows.
y Backward classes of citizens as mentioned in Article 16(4) can be identified on the basis of caste and
not only on economic criterion.
y Article 16(4) is not an exception to Article 16(1). It is an instance of classification. Reservation can be
made under Article 16(1).
y Backward classes as mentioned in Article 16(4) are not similar to socially and educationally backward
as mentioned in Article 15(4).
y The creamy layer must be excluded from backward classes.
y Article 16(4) permits classification of backward classes into backward and more backward classes.
This means sub-classification was possible.
y A backward class of citizens could not be identified only and exclusively with reference to the
economic criteria.
y Reservation in no case should exceed 50 per cent. However, an exception to this rule was carved out
when it was said that in extraordinary situations the said rule could be relaxed in favour of people
living in far-flung and remote areas of the country, who because of their peculiar conditions and
characteristics needed a different treatment.
y The court also overruled the decision in the Devadasan case and held that the ‘carry forward rule’
was valid, provided it should not result in breach of 50 per cent rule.
y Reservations could not be given in promotions but only in the initial appointments.
y The case called for the formation of a permanent statutory body to examine the complaint of over
or under inclusion.
y The Court held that disputes regarding new criteria, challenging the validity, operation, or
implementation of the office memoranda could be raised only in the Supreme Court and not before
any High Court or tribunal.
y Further, the State has also been empowered to make special provisions.

Article 17: Abolition of Untouchability

Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The Article states that if
untouchability is practiced in any form, it shall be dealt with as an offence punishable in accordance
with the law. For the protection of the rights of the ‘untouchables’, in exercise of the powers conferred
by Article 35, the Parliament enacted the Protection of Civil Rights Act, 1955. The expression,

Constitution of India 15
 ‘civil rights’, under the Act have been defined as: “any right accruing to a person by reason of the
abolition of untouchability by Article 17”. Under the amended Act, any discrimination on the ground of
untouchability will be considered an offence. The 1955 Act prescribes punishment, which may extend
to imprisonment for up to six months, or a fine of ₹500, or both on anyone enforcing on the ground
of ‘untouchability’ religious disabilities like preventing any person from entering any place of public
worship, or worshipping or offering prayers therein (Section 3); or social disabilities like (Section 7);
access to any shop, public restaurants, hotels or places of public entertainment (Section 4); refusing to
admit a person in a hospital (Section 5); to sell goods or render services to any person (Section 6); or
for other offences arising out of ‘untouchability’ (Section 7). Article 15(2) also helps in the eradication of
untouchability. Thus, no person can be denied access to shops, public restaurants, hotels and places
of entertainment, or 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 on the grounds of
untouchability. The right is available against private individuals as well.

Article 18: Abolition of Titles

Article 18 prohibits the State to confer titles on anybody—whether a citizen or a non-citizen. Military
and academic distinctions are, however, exempted from the prohibition for they are incentive to further
efforts in the perfection of the military power of the State necessary for its existence. Clause (2)
prohibits a citizen of India from accepting any title from any foreign State. Clause (3) provides that a
foreigner holding any office of profit or trust under the State cannot accept any title from any foreign
State without the consent of the President. Clause (4) provides that no person holding any office
of profit or trust under the State shall accept, without the consent of the President, any present,
emolument or office of any kind from or under any foreign State. Another exception that has been
carved out for the provisions is the conferment of titles like ‘Bharat Ratna’, ‘Padma Vibhushan’, ‘Padma
Shri’, etc., as they denote State recognition of the contributions made by citizens in various fields.

Article 19: Right to Freedom

Article 19 of the Constitution guarantees to the citizens of India the following six freedoms.
1. Freedom of speech and expression
2. Freedom of assembly
3. Freedom to form associations, unions or cooperative societies
4. Freedom of movement
5. Freedom to reside and to settle
6. Freedom of profession, occupation, trade, or business
The restriction that may be imposed under any of the clauses must be a reasonable restriction and
not arbitrary. Thus, for a restriction to be constitutionally valid, it must satisfy the following two tests.
y The restriction must be for the purposes mentioned in Clauses 2 to 6 of Article 19.
y The restriction must be a reasonable restriction.
The phrase, ‘reasonable restrictions’, as mentioned in Article 19(6) means that the restrictions imposed
on a person in the enjoyment of one’s right should not be arbitrary or of an excessive nature beyond
what is required in the interest of the public. It is for the courts to determine whether a restriction is
reasonable or not. If they find that a particular restriction is unreasonable, it will be declared ‘void’.
The following guidelines have been laid down by the Supreme Court of India for determining the
reasonableness of restrictions.

16 Constitution of India
1. It is the Court and not the Legislature, which is entitled to judge if a restriction is reasonable or
not.
2. The word, ‘reasonable’, implies intelligent care and deliberation, i.e., the choice of a course which
reason dictates. The restriction must have a reasonable relation with the object that the legislation
seeks to achieve and must never exceed it.
3. The restriction must be reasonable form both substantive and procedural standpoints.
4. The question of reasonableness is not if the court feels the restriction to be reasonable but where
a normal reasonable person would regard the restriction to be reasonable.
5. The restriction must have a rational relation with the object which the Legislature seeks to achieve
and must not be in excess of it.
6. The test of reasonableness depends on case to case and each case is to be judged on its own
merit.
7. The reasonableness of restriction is to be determined by the court and not by law.
8. A law depriving a citizen of his/her fundamental right may be regarded as reasonable restriction,
i.e., in the nature of prohibition, for example, prohibiting a citizen from carrying out dangerous
trade like trade in liquor, or cultivation of narcotic plants, or trafficking of women and children, etc.
Note: The rights guaranteed under Article 19 are available only to citizens and not to an alien or a
foreigner. Also, a corporation or a company cannot claim these rights because they are not natural
persons. Citizens under Article 19 mean only natural persons and not legal persons.

Article 19(1)(a) Read with Article 19(2): Right to Freedom of Speech and Expression
The ‘freedom of speech and expression’ means the right to express one’s convictions and opinions
freely verbally or orally, or by way of writing, printing, pictures, or any other mode. In other words, this
right includes the expression of one’s ideas through any communicable means or visible representation,
such as gestures, signs, etc., for example, the freedom of the press. The fundamental principle involved
in this right is the people’s right to know. The right to freedom of expression has four broad purposes
to serve.
1. It helps an individual to attain self-fulfilment.
2. It assists in the discovery of truth.
3. It strengthens the capacity of an individual to participate in decision-making.
4. It provides a mechanism by which it would be possible to establish a reasonable balance between
stability and social change.

Freedom of Silence
In the Bijoe Emmanuel versus State of Kerala case (1986, SC), also referred to as the National Anthem
case, three children were expelled from school for refusing to sing the National Anthem. The circular
issued by the Director of Public Instructions, Kerala, had made it obligatory for students in schools to
sing the National Anthem. The children, in this case, stood up respectfully when the National Anthem
was being sung at their school, but they did not join in singing it. They refused to sing the anthem
as according to them it was against their faith, which did not permit them to join in any other ritual,
except their prayer to the Jehovah, their God. The validity of their expulsion was challenged before the
Kerala High Court, which upheld their expulsion as valid on the ground that it was their fundamental
duty to sing the National Anthem. However, the Court also ruled that they did not commit any offence

Constitution of India 17
 under the Prevention of Insults to National Honour Act, 1971, as they had stood up respectfully when
the National Anthem was being sung. Accordingly, it was held that the children’s expulsion from the
school was a violation of their fundamental right under Article 19(1)(a), which includes the freedom of
silence.

Commercial Advertisement
In the Tata Press Ltd versus Mahanagar Telephone Nigam Ltd case (1995, SC), the Apex Court held
that commercial speech (advertisement) was a part of the freedom of speech, a ground specified in
Article 19(2) as such in the interest of the security of the State, friendly relations with a foreign state,
public order, decency or morality, or in relation to contempt of court, and defamation or incitement to
an offence. The Court, however, made it clear that commercial advertisements, which were deceptive,
unfair, misleading, and untruthful could be regulated by the Government.
In the Hamdard Dawakhana versus Union of India case (1995, SC), the validity of the Drug and Magic
Remedies (Objectionable Advertisement) Act, which put restriction on advertisement, abridged the
freedom of speech. Every advertisement was not a matter dealing with the freedom of speech and
expression of ideas. In the present case, the advertisement was held to be dealing with trade or
commerce and not propagating ideas. The advertisement of prohibited drugs would, thus, not fall
within the scope of Article 19(1)(a).

Freedom of the Press

In the Indian Express Newspapers versus Union of India case (1985, SC), it was held by the Apex Court
that the expression meant freedom from interference from the authority, which would interfere with
the content and circulation of newspapers. There could not be any interference with that freedom
in the name of public interest. The Court held that the purpose of the press was to advance public
interest by publishing facts and opinions without which a democratic electorate could not make
responsible judgements.
In the Sakal Papers Ltd versus Union of India case (1962, SC), the Daily Newspapers (Price and Control)
Order, 1960, which fixed the minimum price and number of pages that a newspaper was entitled to
publish, was challenged as unconstitutional by the petitioner on the ground that it infringed the liberty
of the press. The petitioners needed to increase the price of their newspaper without increasing the
number of pages. But this would lead to a reduction in the volume of its circulation. The State argued
it to be a reasonable restriction on the business activity of the newspaper in the interest of the general
public. However, the Court struck down the order, rejecting the State’s argument.

Article 19(2): Grounds of Restrictions

1. Security of the state: The term, ‘security of the state’, refers only to serious and aggravated forms
of public disorder, for example, rebellion, waging war against the State, insurrection, and not
ordinary breaches of public safety like unlawful assembly, riot, affray, etc.
2. Friendly relations with foreign states: The primary purpose is to prohibit unrestrained malicious
propaganda against a friendly foreign state, which may jeopardise the cordial relations between
India and that state.
3. Public order: The test for determining whether an act affects law and order or public order is to
see if it leads to a disturbance in the existing life of a community that amounts to disturbance in
public order or if it affects merely an individual.

18 Constitution of India
4. Decency of morality: This clause means that obscenity shall not be allowed and shall be deemed
to be a part of reasonable restriction.
5. Contempt of court: Freedom of speech and expression can in no case exceed the reasonable and
fair limits in courts, and if done so, it amounts to contempt of court. According to the Contempt
of Court Act, 1971, ‘contempt of court’ may be either civil or criminal. Civil contempt means wilful
disobedience to any judgement, decree, direction, order, writ, or other process of a court, or wilful
breach of an undertaking given to a court. Criminal contempt means the publication (whether by
words spoken or written, or by signs by visible representations, or otherwise) of any matter or the
doing of any other act whatsoever, which:
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or
(ii) prejudices, or interferes, or tends to interfere with the due course of any judicial proceedings;
or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct the administration of
justice in any other manner.
6. Defamation: Any statement that injures a person’s reputation amounts to defamation.
7. Incitement of an offence: This must be determined by the court with reference to facts and
circumstances of each case.
8. Sovereignty and integrity of India: No one can challenge the sovereignty or integrity of India, or
preach cession of any part of India from the Union.

Article 19(1)(b) Read with Article 19(3): Freedom of Assembly

Article 19(1)(b) guarantees to all citizens of India the right to assemble peaceably and without arms.
This right includes the right to hold meetings and take out processions. This right is, however, subject
to the following restrictions.
1. The assembly must be peaceable.
2. It must be unarmed.
3. Reasonable restrictions must be imposed under Article 19(3), i.e., sovereignty and integrity of India
and public order must be maintained.

Article 19(1)(c) Read with Article 19(4): Freedom of Association

Article 19(1)(c) of the Constitution of India guarantees to all its citizens the right to form associations
and unions. Article 19(4) says the reasonable restrictions shall be in the interest of public order, or
morality or sovereignty and integrity of India.

Article 19(1)(d) Read with Article 19(5): Freedom of Movement

Article 19(1)(d) guarantees to all citizens of India the right to move freely throughout the territory of
India. Reasonable restrictions may be imposed under Article 19(5) in the interest of the general public
or of any Scheduled Tribe.

Article 19(1)(e) Read with Article 19(5): Freedom of Residence

This fundamental right assures to every citizen of India right “to reside and settle in any part of the
territory of India.” Article 19(5) imposes the reasonable restrictions of interests of the general public
or that of any Scheduled Tribe.

Constitution of India 19
 Article 19(1)(g) Read with Article 19(6): Freedom of Profession, Occupation, Trade, or Business
Article 19(1)(g) guarantees that all citizens shall have the right to practice any profession, or carry on
any occupation, trade, or business. It can be restricted and regulated on the grounds mentioned under
Clause (6) that is in the interest of the general public. Also, as a matter of restriction, the State can
make any law relating to:
1. the professional or technical qualifications necessary for practising any profession or carrying out
any occupation, trade, or business; or
2. the carrying on, by the State or by a corporation owned or controlled by the State, of any trade,
business, industry, or service, whether to the exclusion, complete or partial of citizens or otherwise.

Sodan Singh versus New Delhi Municipal Committee (1989, SC)

In this case, the petitioners were poor hawkers who carried on their business on pavements in Delhi
and New Delhi. They alleged that they were permitted by the respondent Municipal authorities to carry
on their business by occupying a particular area on the pavements in lieu of certain charges described
as tehbazari. But eventually, they were prevented from carrying out their business, which violated their
fundamental right guaranteed under Article 19(1)(g) and 21 of the Constitution. The Supreme Court held
that the right to carry on trade or business, as mentioned in Article 19(1)(g), on pavements and roads,
if properly regulated, could not be denied on the ground that the streets were meant exclusively for
passing or re-passing and for no other use. Thus, the right had been violated.
In the Dr Haniraj L Chulani versus Bar Council of Maharashtra case (1996, SC), the appellant, a doctor,
had applied for enrolment as an advocate. The rule made by the Bar Council prevented him from being
enrolled as an advocate. The appellant challenged the validity of the rule on the ground that it was
violative of his fundamental right under Article 19(1)(g). The Supreme Court upheld the validity of the
impugned rule, stating that the right to practice any profession, or to carry on any occupation, trade
or business was not an absolute right but subject to reasonable restrictions as specified in Clause (6)
of Article 19.
In the Om Prakash versus State of UP case (2004, SC), the appellants challenged the validity of the
Gazette Notification under Section 298(2) of the UP Municipalities Act (as amended) prohibiting the
sale of eggs within the municipal limits of Rishikesh on the ground that it imposed unreasonable
restriction on their right to carry on a business under Article 19(1)(g). The Supreme Court held that the
notification was valid as it imposed reasonable restrictions on the trade of non-vegetarian food items,
which had to be viewed from the cultural and religious background of the three municipal towns.

Article 20: Protection in Respect of Conviction for Offences

Article 20 of the Constitution provides the following safeguards to persons accused of crimes.
1. Ex post facto law: Clause (1) of Article 20
2. Double jeopardy: Clause (2) of Article 20
3. Prohibition against self-incrimination: Clause (3) of Article 20

Protection against Ex Post Facto Law

Clause (1) of Article 20 prohibits the Legislature from making retrospective criminal laws. An ex post
facto law is a law that imposes penalties retrospectively, i.e., on acts already done and increases the
penalty for such acts. This means that if an act is not an offence at the date of its commission, then
it cannot be an offence at a subsequent date. The second part of Clause (1) protects a person from

20 Constitution of India
a penalty greater than what he might have been subjected to at the time of the commission of the
offence.

Protection against Double Jeopardy

Article 20(2) embodies the common law rule of nemo debet bis vexari, which means that no man
should be put in peril twice for the same offence. Under Article 20(2), protection against double
punishment is given only when an accused has not only been prosecuted but has also been punished
and is sought to be prosecuted for the second time for the same offence. Here, it is important to
note that the use of the word, ‘prosecution’, limits the scope of protection under Clause (1) of Article
20. If there is no punishment for the offence as a result of the prosecution, then Clause (2) has no
application and an appeal against acquittal, if provided by the procedure, is in substance a continuance
of the prosecution. The word, ‘prosecution’, as used along with the word, ‘punishment’, embodies the
following essentials for the application of double jeopardy rule.
1. The person must be accused of an ‘offence’. The word, ‘offence’, as defined in the General Clauses
Act means any act or omission made punishable by law for the time being in force.
2. The proceeding or the prosecution must have taken place before a court or judicial tribunal.
3. The person must have been prosecuted and punished in the previous proceeding.
4. The offence must be the same for which s/he was prosecuted and punished in the previous
proceedings.
In the Maqbool Hussain George versus State of Bombay case (1953, SC), the appellant brought some
gold to India. He did not declare that he had brought gold with him to the customs authorities at
the airport. The customs authorities confiscated the gold under the Sea Customs Act. Later, he was
charged with having committed an offence under the Foreign Exchange Regulations Act. The appellant
contended that the second prosecution was in violation of Article 20(2) as it was for the same offence,
i.e., for importing gold in contravention of the government notification, he had already been prosecuted
and punished. It was held by the Bench that as those authorities were not a court or judicial tribunal
and the adjudging of confiscation under the Sea Customs Act did not constitute a judgement of the
judicial tribunal and the adjudging of confiscation under the plea of the double jeopardy. Hence, the
prosecution under the Foreign Exchange Regulation Act was not barred.
Article 20(2) will have no application where the subsequent punishment is not for the same offence.
Thus, if the offences are distinct, the rule of double jeopardy will not apply. Also, this clause will not
apply where a person is prosecuted and punished for the second time, and the subsequent proceeding
is a mere continuation of the previous proceeding, for example, in a case of an appeal against acquittal.

Prohibition against Self-Incrimination

Article 20(3) provides that no person accused of an offence shall be compelled to be a witness against
himself. This is based on the basic principle of criminal law that an accused must be presumed to be
innocent till the contrary is proved. The following are the essentials for the application of the Article.
1. It is a right pertaining to a person accused of an offence.
2. It is protection against the compulsion to be a witness, and includes oral, documentary, and
testimonial evidence.
3. It is protection against such compulsion relating to his giving evidence against himself. But left
to himself, he may voluntarily wave his privilege by entering the witness box or by giving evidence

Constitution of India 21
 voluntarily on request. Request implies no compulsion. Therefore, evidence given on request is
admissible against the person giving it.

Article 21: Protection of Life and Personal Liberty

According to Article 21 of the Constitution, “No person shall be deprived of his life or personal liberty
except according to procedure established by law.” Prior to Maneka Gandhi versus Union of India case
(1978) , Article 21 guaranteed the right to life and personal liberty to all citizens only against the arbitrary
action of the executive and not from legislative action. This means that the State could interfere with
the liberty of citizens if it could support its action by a valid law. But after the judgement in this case,
Article 21 now protects the right of life and personal liberty of all citizens not only from executive
action but also from legislative action. A person can be deprived of his life and personal liberty if two
conditions are complied with, i.e., firstly, there must be a law; and secondly, there must be a procedure
prescribed by that law, provided that the procedure is just, fair, and reasonable.
Note: The right guaranteed in Article 21 is available to both citizens and non-citizens.
In the AK Gopalan versus Union of India case (1950, SC), the Supreme Court by a majority held that the
Articles 19 and 21 dealt with different aspects of ‘liberty’. Article 21 was a guarantee against deprivation
of personal liberty, while Article 19 guaranteed protection against unreasonable restrictions. The
Supreme Court interpreted the ‘law’ as a ‘state-made law’ and rejected the plea that the term, ‘law’,
as mentioned in Article 21, means not only the State-made law but jus natural or the principles of
natural justice as well.
In the Govind versus State of UP case (1975, SC) and Kharak Singh versus State of UP case (1963, SC),
it was held that ‘personal liberty’ was not only limited to bodily restraint or confinement to prisons
only but was used as a compendious term, including all varieties of rights that constitute the personal
liberty of a person other than those dealt with within Article 19(1). It was held that the expression,
‘life’, was not limited to bodily restraint or confinement to prison only but something more than mere
animal existence.
Finally, in the Maneka Gandhi versus Union of India case (1978, SC), it was said that the expression,
‘personal liberty’, as mentioned in Article 21, covered a variety of rights, which went on to constitute
the personal liberty of a person, and some of them had raised to the status of distinct fundamental
rights and given additional protection to citizens under Article 19. The Court emphasised procedural
safeguards, i.e., the procedure must satisfy the requirement of natural justice, i.e., it must be just,
fair, and reasonable. In this case, the petitioner’s passport was impounded by the Central Government
under Section 10(3)(c). It was held to be violative of Article 14 as conferring an arbitrary power as it did
not provide for a hearing of the holder before impounding. The law was violative of Article 19(1)(a) and
19(1)(g) since it permitted the imposition of restrictions not provided in Clauses (2) or (6) of Article 19.
Any procedure, which permitted the impairment of an individual’s right to go abroad without giving
him/her a reasonable opportunity to be heard, could not but be condemned as unfair and unjust. Thus,
Article 21 requires the following conditions to be fulfilled before a person is deprived of one’s liberty.
1. There must be a valid law.
2. The law must provide a procedure.
3. The procedure must be just, fair, and reasonable.
In the Francis Coralie versus Union Territory of Delhi case (1980, SC), the Apex Court said that the
right to live was not restricted to mere animal existence. It meant something more than just physical
survival. The right to live was not confined to the protection of any faculty or limb through which life

22 Constitution of India
was enjoyed or the soul communicated with the outside world. But it also included the right to live
with human dignity and all that goes along with it, namely, the bare necessities of life like adequate
nutrition, clothing, shelter, and facilities for reading, writing, and expressing oneself in diverse forms,
moving about freely, and mixing and commingling with fellow human beings.
In the Olga Tellis versus Bombay Municipal Corporation case (1986, SC), also referred to as the Pavement
Dwellers’ case, the Court ruled that the word, ‘life’, as mentioned in Article 21 also included the ‘right to
livelihood’. In this case, the petitioners had challenged the validity of the sections, which empowered
the municipal authorities to remove their huts from pavements and public places, on the ground that
their right to livelihood was being infringed, thereby, infringing their right to life and personal liberty as
mentioned in Article 21. The Court held that it could be curbed or curtailed by following a just and fair
procedure. The impugned provisions were constitutional as they imposed reasonable restrictions in the
interest of the general public.
In the People’s Union for Civil Liberties versus Union of India case (1996, SC), also referred to as the
Phone Tapping case, the Supreme Court upheld that telephone tapping was a serious invasion of an
individual’s right to privacy, a part of the right to life and personal liberty as enshrined under Article
21; and it should not be resorted to by the State, unless in case of public emergency or public safety.
In the R Rajagopal versus State Tamil Nadu case (1994, SC), also referred to as the Auto Shankar case,
the Apex Court held that the ‘right to privacy’ or the ‘right to be left alone’ was guaranteed by Article
21 of the Constitution. A citizen has the right to safeguard the privacy of his/her own, family, marriage,
procreation, motherhood, childbearing and education, among other matters. No one could publish
anything concerning the above matters without his/her consent, whether truthful or otherwise, and
whether laudatory or critical; and if someone did so, s/he would be violating the right of the person
concerned, and hence, be liable in action for damages.
However, this rule is subject to an exception that if the publication of any such matter is based on
public record, including court record, then it would be unobjectionable. If a matter becomes a matter
of public record, the right to privacy no longer exists and it becomes a legitimate subject for comment
by press and media, among others. Also, an exception was taken to be applicable in the interest of
decency under Article 12(2) in the following cases, for example, a female victim of sexual assault,
kidnapping, abduction, or a like offence should not further be subjected to the indignity of her name
and the incident being published in press or media.
In the Mr ‘X’ versus Hospital ‘Z’ case (1999, SC), the appellant was found to be HIV positive. The
appellant settled his marriage with one Miss ‘Y’. But the marriage was called off on the ground of him
being diagnosed with HIV positive. As a result of this, he contended that his prestige among his family
members was damaged. The appellant filed a writ petition in the High Court of Bombay for damages
against the respondents on the ground that the information about his disease was required to be
kept a secret. He contended that the respondents were under a duty to maintain confidentiality on
account of medical ethics formulated by the Indian Medical Council. He contended that the appellant’s
‘right to privacy’ had been infringed. The Supreme Court held that although the ‘right to privacy’ was a
fundamental right under Article 21, it was not an absolute right and restrictions could be imposed on
it for the prevention of crime, disorder, or protection of health or morals, or protection of rights and
freedom of others. The Court held that the disclosure did not violate either the rule of confidentiality
or the appellant’s right to privacy as the woman with whom he was likely to get married was saved,
else she, too, would have got infected.
In the Parmanand Katara versus Union of India case (Right to Health and Medical Assistance; 1989, SC),
the Court held that it is the professional obligation of all doctors, whether government or private, to

Constitution of India 23
 immediately extend medical aid to the injured in order to preserve their life, without waiting for the
legal formalities to get completed by the police under the Code of Criminal Procedure (CrPC).
In the Paschim Banga Khet Mazdoor Samity versus State of West Bengal case (1996, SC), the petitioner,
Hakim Singh, a member or the Paschim Banga Khet Mazdoor Samity, fell off a train and suffered
serious head injuries and haemorrhage. He was taken to several government hospitals in the city of
Calcutta but was not admitted because of non-availability of beds. Finally, he was admitted to a private
hospital, where he had to spend Rs 17000. The Supreme Court held that the failure to provide medical
assistance to the petitioner by the State hospitals amounted to violation of the right to life under
Article 21 and directed the government to pay Rs 25000 to the petitioner as compensation as providing
medical facilities to people is an essential obligation of the government.
In the Re: Noise Pollution or Freedom from Noise Pollution case (2005, SC), the petitioner, Anil K Mittal,
an engineer, filed a Public Interest Litigation (PIL) and requested the Court to direct the government(s)
to strictly enforce laws enacted for restricting the use of loudspeakers and high-volume, noise-
producing audio-video systems. The incident that led to the filing of the petition was that a 13-year
old girl became a victim of rape (as reported in newspapers in January 1998) as her cries for help went
unheard due to the blaring noise (music) produced by loudspeakers in the neighbourhood. Subsequently,
she set herself ablaze and died of burns. The petitioner, citing many such examples, complained
that due to the noise produced by loudspeakers used in religious performances in residential areas,
weddings and other ceremonies, use of loudspeakers by political parties, and use of firecrackers
caused unprecedented inconvenience to all sections of society, such as students, infants, patients, the
elderly, etc. The Supreme Court held that freedom from noise pollution was a part of the right to life
under Article 21 of the Constitution.
In the Mohini Jain versus State of Karnataka or the Capitation Fee case (right to education; 1992, SC),
the Supreme Court held that the right to education is a fundamental right under Article 21, which could
not be denied to a citizen by charging higher fee, known as capitation fee. In the Unni Krishnan versus
State of AP (1993, SC) case, the Apex Court was asked to examine the correctness of the decision made
by the Court in the Mohini Jain case. The Court held that the right to education is a fundamental right
under Article 21 as “it directly flowed” from the right to life. But at the same time, the Court held that
the right to free education is available only to children until they completed the age of 14 years. After
that, it is the obligation of the State to provide education, which is subject to the limits of its economic
capacity and development.
In the Murli S Deora versus Union of India or the Ban on Smoking in Public Places case (2001, SC), the
petitioner filed a PIL in the Supreme Court, seeking the Court to pass an order banning smoking in
public places. The Court considered the adverse effect of smoking on smokers and other persons, and
directed the Central and State/Union Territories governments to immediately issue orders banning
smoking in public places like hospitals, health institutes, public offices, public transport (including
railways), court buildings, educational institutions, libraries, and auditoriums.

Article 21A: Right to Free and Compulsory Education

The Constitution (86th Amendment) Act, 2002, added Article 21A that made education for all children
in the age group of 6 to 14 years a fundamental right, imposing a duty upon the State to provide free
and compulsory education to all children in the age group.

24 Constitution of India
Article 22: Safeguards against Arbitrary Arrest and Detention
According to Article 22, no person can be deprived of life or personal liberty, except according to a
procedure as established by law. This means that a person can be deprived of life or personal liberty,
provided the deprivation is brought about in accordance with the procedure as prescribed by the law.
Article 22 prescribes the minimum procedural requirements that must be included in any law enacted
by the Legislature in accordance with which a person may be deprived of one’s life and personal liberty.
It deals with two matters.

Article 22(1) and (2): The Rights of Arrested Persons under Ordinary Laws
The two provisions guarantee four rights to a person arrested for an offence under an ordinary law.
They are as follows.
1. The right to be informed ‘as soon as may be’ of the grounds of arrest: It is necessary to enable the
arrested person to know the grounds of his/her arrest and to prepare for his/her defence.
2. The right to consult and to be represented by a lawyer of choice: Prior to the decision in the Maneka
Gandhi versus Union of India case (1978 SC), the view of the Court was that it was not bound to
provide the help of a lawyer to the arrested person, unless a request was made by him. However,
at present, the courts are bound to provide the assistance of a lawyer to a person arrested even
under ordinary law.
In the Hussainara Khatoon versus Home Secretary, State of Bihar case (1979, SC), the Apex Court
held that it is the constitutional right of every accused person unable to engage a lawyer and secure
legal services on account of reasons, such as poverty, indigence, or incommunicado situation, to
have free legal services, which is to be provided to him/her by the State. Thus, the State is under
the constitutional duty to provide a lawyer to such a person if so required for justice. The Court
ruled that if free legal services are not provided, the trial itself may be vitiated as contravening
Article 21.
3. The right to be produced before a Magistrate within 24 hours.
4. The freedom from beyond the said period except by the order of the Magistrate.
Exceptions to Clause (1) and (2): Article 22(3) provides two exceptions to the laws given under Article
22(1) and (2), which are as follows.
1. An enemy alien
2. A person arrested and detained under the preventive detention law

Article 22, Clause (4)–(7): Preventive Detention Laws

Article 22(4)–(7) provide for the procedure that need to be followed if a person is arrested under the
law of preventive detention. The object of preventive detention is not to punish a person for having
committed something but to intercept her/him before s/he does it and prevent her/him from doing so.
These clauses guarantee the following safeguards to a person arrested under preventive detention law.
1. Review by advisory board [Article 22(4)]: The maximum period for which a person may be detained
without obtaining the opinion of an Advisory Board is three months. The detention for a further
period may only be sought after obtaining the opinion of the Advisory Board, which shall consist
of a Chairperson and persons qualified to be appointed as judges of a High Court, and a sitting or
retired Judge of any High Court. It is important to note that the Advisory Board is bound to submit
its report before the expiration of the said period of three months. The failure to do so would
render the detention illegal.

Constitution of India 25
 2. Grounds of detention must be communicated to the detenu and reasonable opportunity of
representation [Article 22(5)]: The detenu enjoys two rights—(a) the authority making the order of
detention must, as soon as may be, subjectively satisfied with the detaining authority; and (b) to
give the detenu the earliest opportunity of making a representation against the order of detention
that is to be furnished with sufficient particulars to enable him to make a representation. It is
pertinent that the grounds of detention should be clear and easily understandable by the detenu.
The communication shall be done in a language that he understands to enable him to make a
purposeful and effective representation.
The word, ‘grounds’, under Article 22(5) means all basic facts and material that have been taken
into account by the detaining authority in making the order of detention and on which the order of
detention is based. Such communication of the grounds of detention acts as a check against arbitrary
and capricious exercise or power. The detaining authority cannot whisk away a person and put him
behind bars at its own will. Moreover, the detenu must be accorded an opportunity of making a
representation against the order of detention.
Exception: Under Article 22(6), an exception has been carved out to the aforementioned rule that if the
disclosure of facts is considered to be against public interest, the information may not be furnished
to the detenu.

Articles 23 and 24: Right against Exploitation

Article 23 of the Constitution prohibits human trafficking, begar, and other similar forms of forced
labour. The second part of this Article declares that any contravention of this provision shall be an
offence punishable in accordance with the law. Clause (2), however, permits the State to impose
compulsory services for public purposes, provided that in making so, it shall not discriminate on
grounds of religion, race, caste, class, or any of them. ‘Trafficking in human beings’ means selling and
buying men and women like goods, and includes trafficking in women and children for immoral or other
purposes. It shall be noted that protection under this Article is available to both citizens as well as
non-citizens. Begar means involuntary work without payment.
Exception [Article 23(2)]: Under this clause, the State is empowered to impose compulsory service for
public purposes. But in such cases, it cannot make a discrimination on the grounds of religion, race,
caste, class, or any of them. For example, compulsory military service or social service can be imposed
because they are neither begar nor trafficking in human beings.
The MC Mehta versus State of Tamil Nadu case (1996, SC) is concerned with the plight of children
engaged in certain firecracker factories. The Supreme Court held that children below the age of 14
years could not be employed in any hazardous industry, mines, or other such works. The Court issued
the following directions to be implemented in this regard.
1. The Court identified nine industries first where the work could be taken up, namely, the match
industry; diamond polishing; precious stone polishing; handmade carpets and lock-making Industry.
2. In cases where alternative employment is unavailable to an adult member or parent of a child’s
family, the parent would be paid some amount for the welfare of the child. The employment given
or payment made would cease if the parents fail to send the child for education.
3. In so far as non-hazardous jobs are concerned, the inspector shall have to see to it that the working
hours of the child are not more than four to six hours a day and that they received education for
at least two hours every day. The cost of education shall be borne by the employer.

26 Constitution of India
Section 24: Prohibition of employment of children in factories, etc:
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in
any other hazardous employment Provided that nothing in this sub clause shall authorise the detention
of any person beyond the maximum period prescribed by any law made by Parliament under sub clause
(b) of clause (7); or such person is detained in accordance with the provisions of any law made by
Parliament under sub clauses (a) and (b) of clause (7).

Articles 25–28: Right to Freedom of Religion

Articles 25 and 26 embodies the principle of religious toleration and emphasise the secular nature
of the Indian democracy. The provisions make it clear that India is a secular state. The distinguishing
features of a secular democracy as contemplated by the Constitution are:
1. that the State will not identify itself with or be controlled by any religion;
2. that while the State guarantees to everyone the right to profess whatever religion one chooses
to follow (which also includes the right to be an agnostic or an atheist), it will not accord any
preferential treatment to any of them;
3. that no discrimination will be shown by the State against any person based on his religion and
faith; and
4. that the right of every citizen, subject to any general condition to enter any office under the state
will be equal to that of his fellow citizens.
The Constitution of India under Article 25(1) recognises the freedom to profess, practise, and propagate
one’s religion. The term, ‘propagate’, means to spread one’s religion from person to person or from
place to place, to disseminate and diffuse (a statement, belief, practice, etc.). The ‘freedom of religion’
extends to all persons including aliens. The Constitution, thus, declares that every person enjoys the
fundamental right to not only hold and practise one’s religious beliefs but also to express one’s beliefs
in such acts or omissions as are prescribed by his religion and propagate its tenets among others.
However, the exercise of this right has been subjected to public order, morality, and public health.
Accordingly, Article 25(2) provides that the state shall not be prevented from making any law that
regulates or restricts any economic, financial, political, or other secular activity, which may be
associated with religious practice or provides for social welfare and reform, or the throwing open of
Hindu religious institutions of a public character to all classes and sections of Hindus. The extensive
modification of the Hindu Personal Law (marriage, divorce, adoption, succession, etc.) has been affected
by the legislation based on the provision permitting measures of social welfare and social reform. This
provision has enabled legislations for the opening of Hindu religious institutions of public character to
all classes and sections of India.
By virtue of Explanation I to the Section, wearing and carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion. Also, the second explanation says that the reference to
Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist
religion, and the reference to Hindu religious institutions shall be construed accordingly.

Article 26: Freedom to Manage Religious Affairs

This Article guarantees certain important rights to religious denominations and individuals. The term,
‘religious denomination’, is said to mean a group of individuals classed together under the name a
religious sect of body having a common faith and organisation, and designated by a distinctive name.
The following rights have been granted under the provision.

Constitution of India 27
 1. To establish and maintain institutions for religious and charitable purposes
2. To manage its own affairs in matters of religion (the expression, ‘matters of religion’, includes
religious practices, rites, and ceremonies essential for the practicing of religion)
3. To own, acquire, and administer movable and immovable property in accordance with the law
In the SR Bommai versus Union of India and Kesavananda Bharati versus State of Kerala cases, the
Supreme Court held that secularism is a part of the basic structure of the Constitution. This has made
the nature of polity as promised in the Preamble being incapable of alteration even in the exercise of
the power to amend the Constitution under Article 368 [See: Bijoe Emmanuel versus State of Kerala
(National Anthem case); Om Prakash versus State of Uttar Pradesh].

Article 27: Freedom from Taxes for Promotion of Any Particular Religion
Under this provision, no person shall be compelled to pay a tax for promotion or maintenance of any
particular religion or religious denomination. The public money collected by the way of tax cannot be
spent by the State for the promotion of a particular religion.

Article 28: Prohibition of Religious Instruction in State-Aided Institution

According to Article 28(1), no religious instruction shall be imparted in any educational institution wholly
maintained out of State funds. However, this clause shall not apply to an educational institution, which
is administered by the State but has been established under an endowment or trust that requires
religious instruction to be imparted there. Article 28 mentions four types of educational institution.
(a) Institutions wholly maintained by the State
(b) Institutions receiving aid out of the State fund
(c) Institutions administered by the State but established under any trust or endowment
(d) Institutions not maintained privately with no State interference
In institutions of (a) type, no religious instruction can be imparted. In (b) and (c) type of institutions,
religious instruction may be imparted but only with the consent of the individuals. In the (d) type of
institution, there is no restriction on religious instructions.

Articles 29-30: Cultural and Educational Rights

Article 29(1) guarantees any section of citizens residing in any part of India having a distinct language,
script, or culture of its own the right to conserve the language, script, or culture. Thus, according
to this provision, a minority community can preserve its language, script, or culture by and through
educational institutions. Therefore, the right to establish and maintain institutions of choice relates
to the right to preserve one’s distinctive language, script, or culture. This right is guaranteed to the
citizens under Article 30(1), which states that all communities shall have the right to establish and
administer educational institutions as per their choice. This right is further protected by Article 30(2),
which prohibits the State from discriminating against an educational institution on the ground that it is
under the management of a minority, whether based on religion or language, in granting aid. This right
is, however, subject to Article 29(2), according to which no citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out of State funds on the grounds of
religion, race, caste, language, or any of them.
It is important to note here that Article 29 applies only to citizens, while Article 30 applies to both
citizens and non-citizens.

28 Constitution of India
In the St Stephen’s College versus University of Delhi case (1992, SC), the validity of the admission
programme and the preference given to Christian students by the college was challenged as violative
of Delhi University circulars for admission to BA and B. Com Courses. The college filed a writ petition
before the Supreme Court, challenging the validity of the university circulars on the ground that they
were violative of their fundamental right to manage the college under Article 30 of the Constitution.
The Supreme Court held that the college was not bound to follow the university circulars as it would
deprive it of its minority character. The Court said that the right to select students for admission was
an important facet of administration and conducive to the minority institution. The Apex Court allowed
the minority-aided educational institutes to reserve 50 per cent seats for their community candidates,
along with preference in admissions, which were necessary to maintain the minority character of
institutions. However, the admission of other community candidates was said to be done purely the
basis of merit.
In the TMA Pai Foundation versus State of Karnataka case (2002, SC), several petitions were filed by
the managements of minority educational institutions, challenging the unnecessary control exercised
by the government through various rules and regulations and hampering their progress of quality
education. They contended that the right enshrined in Article 30 granted them autonomy in running
their institutions. The following questions were framed, which were considered by the Court.
1. What was the extent of control of state on minority institutions?
2. What should be the procedure for admission of a student?
3. Whether eligibility would be confined to minority students or students of other communities also?
4. Who was minority and how was it to be determined?
5. Whether these rights were available to minorities only or other communities?
The Court held that State governments and universities could not regulate the admission policies
of unaided educational institutions run by linguistic and religious minorities. However, they could
prescribe academic qualifications for teachers and other staff and make rules and regulations to
maintain academic standards. Admissions were said to be based on merit that had to be conducted
in a transparent manner. Further, the Apex Court held that minority educational institutions could not
lose their minority character simply because they received aid from the government. At the same time,
the Court made it clear that they would have to admit non-minority students, whose constitutional
right under Article 29(2) cannot be infringed. Regarding the question as to “who is a minority”, the court
held that the minority status of a community would be determined on the basis of their demographic
composition in a state, i.e., their position in the population in different states and not on all-India basis.
However, the above case led to certain controversies. These came up to be settled in the case of
Islamic Academy of Education versus State of Karnataka (2003, SC) and PA Inamdar versus State
of Maharashtra (2005, SC). Several petitions, challenging the direction for setting up a permanent
committee for regulating admissions and fixing the fee structure in unaided minority and non-minority
institutions, were filed in the Court. It was contended that the directions were contrary to the decision
made in the TMA Pai case. The Court held that the directions for setting up a permanent committee for
fixing quota and fee structure impinge the constitutional right of the autonomy guaranteed to minority
institutions under Article 30 and to unaided non-minority institutions under Article 19(1)(g). It was
submitted that taking over the right to regulate admission and fee structure of unaided professional
institutions was not a reasonable restriction under Article 19(6) of the Constitution. The TMA Pai case
had not accepted the reservation policy. Thus, private unaided professional institutions (minority and

Constitution of India 29
 non-minority) could not be forced to accept the reservation policy of the State as it would amount to
nationalisation of seats. The Court’s decision can be summarised as follows.
Reservation: In unaided private professional institutions (minority or majority), the Court held that
the scheme for reservation of seats was violative of Articles 30 and 19(1)(g). It affected the autonomy
of such institutions. However, a reservation of 15 per cent may be made for NRIs, depending on the
discretion of the management subject to two conditions—firstly, such seats should be utilised for NRI
wards, and secondly, the money collected should be utilised for the benefit of students belonging to
the economically weaker section category.
Admission procedure: The Court held that there was nothing wrong in having a centralised entrance
test being conducted for one group of institutions imparting same or similar education. Admissions
were to be made from the list of successful candidates without altering the inter se merit.
Fee structure: Every institution is free to devise its own fee structure, subject to the condition that
there could be no profiteering and no capitation fee directly or indirectly, or in any form that could be
charged from students or their parents/guardians. The fee structure could be regulated for preventing
profiteering. The right to establish and administer an institution was held to be inclusive of the right
to fix a reasonable fee structure.
Capitation: The charging of capitation fee is not to be permitted. ‘Profession’ has to be distinguished
from ‘business’ or ‘occupation’. While in business, and to some extent in occupation, there is a profit
motive, ‘profession’ is primarily a service to the society, wherein earning is secondary or incidental.

Article 31A, 31B, and 31C: Saving of Certain Laws

According to Article 31A (added to the Constitution by the 1st Amendment Act, 1951), no law providing
for the acquisition of any ‘estate’ or any right therein, extinguishment or modification of any such
rights, shall be deemed to be void on the ground that it is inconsistent with, or takes away, or abridges
any of the rights conferred by Article 14 or 19 the Constitution. The object of this Article was primarily
to facilitate agrarian reforms.
Article 31B (as added to the Constitution by the 1st Amendment Act, 1951) provides that none of the acts
and regulations mentioned in the Ninth Schedule to the Constitution shall be deemed to be void on
the ground that they are inconsistent with any of the rights conferred under Part III of the Constitution.
In the Waman Rao versus Union of India case (1981, SC), it was held that amendments made to
acts, which were already in place in the Ninth Schedule were not automatically immunised from
legal challenge, and hence, their validity could be challenged. Thus, after their inclusion in the Ninth
Schedule, the protection of Article 31B was only available to the original acts included in the Ninth
Schedule.
Article 31C (as added to the Constitution by the 25th Amendment Act) empowers the Parliament and
State Legislatures to enact laws towards securing the directive principles specified in Article 39(b) and
(c) of the Constitution. Such laws cannot be challenged on the ground that they infringe Article 14 and
19 of the Constitution. This provision, thus, bars the judicial review of such laws completely.

Article 32: Right to Constitutional Remedies

A declaration of the Fundamental Rights is meaningless, unless there is an effective machinery for the
enforcement of the rights. Article 32 is itself a fundamental right. It guarantees the right to move the
Supreme Court by ‘appropriate proceedings’ for the enforcement of the Fundamental Rights conferred
under Part III of the Constitution. Further, it confers power on the Supreme Court to issue appropriate

30 Constitution of India
directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition,
quo-warranto, and certiorari for the enforcement of any of the rights conferred under Part III of the
Constitution. Under Article 32(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
for granting the writs. However, no particular from of proceeding for the enforcement of Fundamental
Rights has been laid down.
The traditional view regarding locus standi in a writ jurisdiction has been that only such person who:
1. has suffered a legal injury by reason of violation of his legal right or legally protected interest; or
2. is likely to suffer a legal injury by reason of violation of his legal right or legally protected interest.
But now this rule has been relaxed and any a public-spirited person can file a PIL in a court. Thus,
before a person acquired locus standi, his personal or individual right must have been violated or
threatened to be violated. He should have been a person aggrieved in the sense that he had suffered
or was likely to suffer from prejudice, pecuniary, or otherwise.
The first reported case of PIL in 1979 focused on the inhuman condition of prisons and undertrial
prisoners [Hussainara Khatoon versus State of Bihar case (1979, SC)]. Some examples of protection to
citizens in the form of PILs are as follows.
y Parmanand Katara versus Union of India (1989, SC)
y Murli S Deora versus Union of India (2002, SC)
y Bandhua Mukti Morcha versus Union of India (1997, SC): In this case, the Supreme Court ordered for
the release of bonded labourers.
y Vishaka versus State of Rajasthan (1997, SC): In this case, the Supreme Court laid down exhaustive
guidelines for preventing sexual harassment of working women at workplace.
The scope of Article 32 includes the power to grant compensation for the violation of a fundamental
right. For example, in the Rudal Sah versus State of Bihar case (1983, SC), the court awarded Rs 30000
as compensation to the petitioner, who had to remain in jail for 14 years because of the irresponsible
conduct of the State authorities. Similarly, in the Bhim Singh versus State of J&K case (1984, SC), the
petitioner was awarded a compensation of Rs 50000 for the violation of his constitutional right.

Distinction between Article 32 and Article 226

Under Article 226, the High Courts have been administered with the power of issuing writs. While the
right guaranteed under Article 32 can be exercised for the enforcement of Fundamental Rights only, the
right conferred under Article 226 can be exercised not only for the enforcement of Fundamental Rights
but for “any other purpose” as is clear from the wordings of the provision. Thus, the power of the High
Courts under Article 226 is much wider than the power conferred on the Supreme Court under Article
32. However, the power of the High Courts to issue writs cannot be in derogation of the Supreme Court.
It means an order under Article 32 will supersede the orders passed by the High Courts previously.
If a question has been decided by the Supreme Court under Article 32, it cannot be re-opened under
Article 226. Thus, where a matter has been heard and decided finally by the High Court under Article
226, the writ under Article 32 on the same issue is barred as hit by the rule of res judicata and cannot
be entertained and adjudicated upon. But the rule of res judicata is not applicable in the writ of habeas
corpus, and in cases where a petitioner has been refused a writ from the High Court, he may file a
petition for the same writ under Article 32.

Constitution of India 31
 Article 33: Power of the Parliament to Modify the Rights Conferred by Part III in Their
Application to Forces, etc.
The section empowers the Parliament to restrict or abrogate the Fundamental Rights in the application
to:
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of
intelligence or counter-intelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes
of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so
as to ensure the proper discharge of their duties and the maintenance of discipline among them.

Article 34: Restriction of Fundamental Rights while Martial Law Is in Force in Any Area
This provision provides that notwithstanding anything in the foregoing provisions of this Part, the
Parliament may by law indemnify any person in the service of the Union, or of a State, or any other
person in respect of an act done by him for the maintenance or restoration of order in an area where
the martial law is in force.

Article 35: Legislation to Give Effect to the Provisions of This Part

Only the Parliament shall have the power to make laws with respect to any of the matters, which under
Article 16(3), 32(3), 33, and 34 may be provided, and also for prescribing punishment for acts that are
declared to be offences under this Part.

Article 36–51: Directive Principles of State Policy

The Directive Principles of State Policy (DPSP) contained in Part IV of the Constitution set out the aims
and objectives to be taken up by the State in the governance of the country. These are to be taken care
of by the Union and State government while they formulate a policy or pass a law. However, DPSPs are
not enforceable by any court of law (Article 37). These lay down certain social, economic, and political
principles suitable to the peculiar conditions prevailing in India. By virtue of Article 36, a ‘State’ in this
part has been given the same meaning as defined under Article 12.
The following are the DPSPs enshrined under the Constitution.
Article 38: The State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order, in which justice, social, economic, and political, shall inform all
institutions of the national life.
Article 39: Certain principles of the policy to be followed by the State. The State shall, in particular,
direct its policy towards securing:
(a) that the citizens, men and women equally have the right to an adequate means to livelihood;
(b) that the ownership and control of the material resources of the community are so distributed as
best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and
means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women;

32 Constitution of India
(e) that the health and strength of workers, men and women, and the tender age of children are not
abused and that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions
of freedom and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment.
In the Randhir Singh versus Union of India case (1982, SC), the Supreme Court held that the principle
of ‘equal pay for equal work though not a fundamental right’ is certainly a constitutional goal, and
therefore, capable of enforcement through constitutional remedies under Article 32 of the Constitution.
Article 39A: The State shall secure the operation of a legal system that promotes justice on the basis
of equal opportunity and shall, in particular, provide free legal aid by suitable legislation, or schemes,
or in any other way to ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities.
Article 40: The State shall take steps to organise village Panchayats and endow them with such powers
and authority that are necessary to function as units of self-government.
Article 41: The State shall, within the limits of its economic capacity and development, make
effective provisions for securing the right to work, to education, and to public assistance in cases of
unemployment, old age, sickness and disablement, and in other cases of undeserved want.
Article 42: The State shall make provision for securing just and humane conditions of work and for
maternity relief.
Article 43: The State shall endeavour to secure, by suitable legislation or economic organisation or in
any other way, to all workers, agricultural, industrial, or otherwise work, a living wage, conditions of work
ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and,
in particular, the State shall endeavour to promote cottage industries on an individual or cooperative
basis in rural areas.
Article 43A: The State shall take steps, by suitable legislation or in any other way, to secure the
participation of workers in the management of undertakings, establishments or other organisations
engaged in any industry.
Article 44: The State shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India.
Article 45: The State shall make provisions for free and compulsory education for all children until
they complete the age of 14 years. The Constitution (86th Amendment Act, 2002) has now added a
new article, i.e., Article 21A, which provides that the right to education of children from 6 to 14 years of
age is a fundamental right. The Supreme Court in the Unni Krishnan versus State of AP case (1993, SC)
held that the Right to Education up to the age of 14 years is a fundamental right within the meaning of
Article 21 of the Constitution. However, the obligation of the State to provide education is subject to
the limits of its economic capacity.
Article 46: The State shall promote with special care the educational and economic interests of the
weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes,
and shall protect them from social injustice and all forms of exploitation.
Article 47: The State shall regard raising the level of nutrition and standard of living of its people and
improvement of public health as among its primary duties, and in particular, the State shall endeavour
to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks
and drugs which are injurious to health.

Constitution of India 33
 Article 48: The State shall endeavour to organise agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for preserving and improving the breeds, and
prohibiting the slaughter of cows and calves and other milch and draught cattle.
Article 48A: The State shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife of the country (added to the Constitution by the 42nd Amendment Act, 1976).
Article 49: The State shall protect every monument or place or object of artistic or historic interest,
declared by or under law made by Parliament, to be of national importance from spoliation, disfigurement,
destruction, removal, disposal, or export, as the case may be.
Article 50: The State shall take steps to separate the judiciary from the executive in the public services
of the State.
Article 51: The State shall endeavour to:
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised peoples with
one another; and
(d) encourage settlement of international disputes by arbitration.

Relationship between DPSPs and Fundamental Rights

According to Article 37, the DPSPs are fundamental in the governance of the country and it shall be the
duty of the State to apply these principles in making laws. But they are expressly made non-justifiable.
On the other hand, the Fundamental Rights are enforceable by the courts (Article 32). The courts are
bound to declare any law as void, i.e., inconsistent with the Fundamental Rights. The DPSPs are not
enforceable on the ground that they contravene any of the directives.
Initially, the Apex Court had held that in case of a conflict between the two, the Fundamental Rights
would prevail. However, later in the Re: Kerala Education Bill case (1959, SC), the Supreme Court observed
that though the DPSPs could not override the Fundamental Rights, nevertheless, in determining the
scope and ambit of the Fundamental Rights, the court may not entirely ignore the directive principles
but should adopt the principle of harmonious construction and attempt to give effect to both as much
as possible. The Court has, thereafter, been observing that there is no conflict between the Directive
Principles and the Fundamental Rights, and they supplement each other in aiming at the same goal
of bringing about a social revolution and the establishment of a welfare State as envisaged in the
Preamble [Kesvananda Bharti versus State of Kerala, (1973 SC)]. As the DPSPs have been embodied in
the Constitution, the government is bound to implement them. There may not be a legal force behind
the DPSPs. But the highest tribunal, i.e., public opinion stands behind them. No government can afford
to ignore these directives.

Directive Principles Given the Status of Fundamental Rights: A New Dimension

The Supreme Court has rendered many directive principles the status of Fundamental Rights in several
decisions. Thus, they are elevated to inalienable Fundamental Rights, and hence, made enforceable, for
example, equal pay for equal work, protection of children from exploitation, abolition of child labour in
hazardous works, free and compulsory education of children below the age of 14 years (under Article
39, 41, 45, and 47), protection of working women from sexual harassment, free legal aid to the poor and
speedy trial of undertrial prisoners, right to work and medical assistance to workers (Article 41), and
protection of ecology and environmental pollution (Article 48A).

34 Constitution of India
Article 51A (Part IVA): Fundamental Duties
The Fundamental Duties may be defined as moral obligations on all citizens of the country to help
promote the spirit of patriotism and uphold the unity of India. These duties were added to the
Constitution by the 42nd Amendment Act in 1976 upon the recommendations of the Swaran Singh
Committee. Originally, there were 10 Fundamental Duties. The number of the Fundamental Duties
was increased to 11 by the 86th Amendment Act in 2002. The citizens of India are morally obligated
by the Constitution to perform these duties. However, like the Directive Principles, these are non-
justifiable, i.e., without any legal sanction in case of their violation or non-compliance. Article 51A of
the Constitution lists the Fundamental Duties. It shall be the duty of every citizen of India:
1. to abide by the Constitution and respect its ideal and institutions;
2. to cherish and follow the noble ideals which inspired our national struggle for freedom;
3. to uphold and protect the sovereignty, unity and integrity of India;
4. to defend the country and render national service when called upon to do so;
5. to promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional diversities, to renounce practices derogatory to the
dignity of women;
6. to value and preserve the rich heritage of our composite culture;
7. to protect and improve the natural environment, including forests, lakes, rivers, and wildlife, and
to have compassion for living creatures;
8. to develop scientific temper, humanism, and the spirit of inquiry and reform;
9. to safeguard public property and to abjure violence;
10. to strive towards excellence in all spheres of individual and collective activity, so that the nation
constantly rises to higher levels of endeavour and achievement.
11. (who is a parent or guardian) to provide opportunities for education to his child, or as the case may
be, ward between the age of six and 14 years (added by the 86th Amendment Act, 2002).

The Union and State Executive and Their Interrelationship

The Head of the Centre is the President, while the Governor, who is appointed by the President, is the
Head of the State. The Head of the Centre and the States are the nominal heads. The real executive
powers are vested in the Council of Ministers, on whose advice the President or the Governor should
act. According to Article 73, the executive power of the Union (Central government) shall extend to
matters on which the Parliament has the power to make laws; and to the exercise of such rights,
authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or
agreement.

President
According to Article 52, there shall be a President of India. Article 53 provides that the executive
powers of the Union shall be vested in the President and exercised by him directly or through officers
subordinate to him in accordance with the provisions of the Constitution.
Election of the President: The President of India is elected not directly by the people but by the nature
of indirect election. According to Article 54, he shall be elected by the members of an electoral college
consisting of the elected members of both the Houses of Parliament; and the elected members of the
Legislative Assemblies of the States, in accordance with the system of proportional representation by

Constitution of India 35
 the means of single transferable vote by secret ballot. As far as practicable, there shall be uniformity
in the scale of representation of different States for the election of the President.
Qualification for the election: Article 58 provides that a person can be eligible for election as the
President of India if he fulfils the following qualifications.
1. He must be a citizen of India.
2. He must have completed 35 years of age.
3. He must be qualified for election to the House of People.
4. He must not be holding any office of profit under the Government of India, or the Government of
any State, or local, or any other authority subject to the control of the government of the Union or
any State.
Term of the office: According to Article 56, the President shall hold the office for a term of five years
from the date on which he enters upon the office. However, such a period may be shortened by the
following.
1. Resignation: The resignation has to be in writing under his hand addressed to the Vice-President;
2. Death: The death of the President can shorten one’s tenure as the Head of the State.
3. Impeachment: The President may, for violation of the Constitution, be removed from office by
impeachment in the manner provided in Article 61.
4. Re-election: Under the provisions of Article 57, a person who holds or who has held the office of
the President shall be eligible for re-election to that office.

Article 61: Procedure for the Impeachment of the President

As per the provisions of Article 61, the President can be impeached only for violation of the Constitution
and the following procedure must be observed. The charge may be preferred in either house of the
Parliament. But no charge can be preferred, unless the following four conditions are fulfilled.
1. The proposal to prefer the charge must be contained in a resolution.
2. Such a resolution must be moved after a 14-day notice in writing has been given.
3. The notice must be signed by not less than one–fourth of the total number of members of the
House.
4. Such a resolution must be passed by a majority of not less than two–third of the total membership
of the House.
When a charge has been so preferred by either House of Parliament, the other House shall investigate
the charge or cause the charge to be investigated and the President shall have the right to appear and
to be represented at such investigation.
If as a result of the investigation, a resolution is passed by a majority of not less than two–third of
the total membership of the House by which the charge was investigated or cause to be investigated,
declaring that the charge preferred against the President has been sustained, such resolution shall
have the effect of removing the President from office as from the date on which the resolution is so
passed.

Powers of the President

1. Administrative powers: The President is the head of the Union of India. All administrative actions
of the Union are carried out in his name. The appointments, transfer, and removal of high-ranking
officials are done under the power and name of the President.

36 Constitution of India
2. Military powers: Article 53(2) declares that the supreme command of defence forces of the Union
shall be vested in the President and the exercise thereof shall be regulated by law. The President
is called the Commandant-in-Chief of the Defence Forces, competent to declare war and peace.
3. Diplomatic powers: The President represents the nation in foreign countries. He sends and receives
credentials from the ambassador and other diplomatic agents.
4. Executive powers: The following shall form a part of the executive powers exercised the President.
a. The executive power of the Union vests in the President (Article 53). The executive actions of
the Government of India are to be taken in his/her name (Article 77).
b. The Prime Minister shall be appointed by the President and the other ministers shall be
appointed by the President on the advice of the Prime Minister (Article 75). The President
has been empowered to make rules for the convenient transaction of the business of the
Government of India and for the allocation of such business among the ministers [Article
77(3)]. In addition to this, the President may call for any information and it is the duty of the
Prime Minister to communicate to the President all decisions of the Council of Ministers and
to furnish information, which he calls for (Article 76).
c. The President also appoints other senior officers like the Attorney General; Comptroller and
Auditor General; Chief Election Commissioner; Election Commissioners; Chairperson and other
members of the Union Public Service Commission; Members of the Finance Commission;
Chairperson, Vice-Chairperson, and other members of the National Commission for Scheduled
Castes and Scheduled Tribes, Minorities, and Women.
5. Legislative powers: According to Article 79, there shall be a Parliament for the Union, which shall
consist of the President and two Houses to be known respectively as the Council of States and
the House of the People. Therefore, the President has various important functions to perform in
relation to the Parliament, which are as follows.
a. The President has the power to nominate 12 members in the Council of States, i.e., the Rajya
Sabha from among persons having special knowledge or practical experience in literature,
science, art, and social sciences [Article 80(1)(a)].
b. The President has the power to take decisions on questions regarding the disqualification of a
member of either House of the Parliament (Article 103). Such a question of disqualification is
referred to and decided in accordance with the advice of the Election Commission.
c. The President may address either House of the Parliament or both the Houses assembled
together, and for that purpose require the attendance of members (Article 86). At the
commencement of the first session after each general election to the House of the People
and at the commencement of the first session of each year, the President shall address both
the Houses of Parliament assembled together and inform the Parliament of the causes of its
summons (Article 87).
d. The President may send messages to either House of the Parliament with respect to pending
Bills or otherwise. This imposes the duty of the House to which any message is sent to consider
with all convenient dispatch the matter required by the President to be taken into consideration
[Article 86(2)].
e. The President is empowered to summon each House of Parliament at such time and place as
he thinks fit subject to the condition that the gap between two sessions should be less than
six months. The President may prorogue the House. He may also dissolve the House of People
but not Council of States (Article 85).

Constitution of India 37
 f. Every Bill after being passed by both the Houses of Parliament is presented to the President
and it becomes a law only after s/he gives assent to the Bill (Article 111).
g. A Financial Bill shall not be introduced or moved in the House of People, unless there is a
recommendation of the President to such a bill (Article 117).
h. Power to make rules: The Constitution confers on the President the power to make rule with
respect to the following.
i. Authentication of orders and other instruments [Article 77(2)]
ii. For convenient transaction of the business of the government and allocation of the business
among ministers [Article 77(3)]
iii. Regarding the recruitment and conditions of service of the secretarial staff of both the
Houses of Parliament [Article 98(3)]
iv. Rules of procedure with respect to joint sitting of and communication between the two
Houses [Article 118(3)]
v. Appointment of officers and servants of the Supreme Court (Article 146)
vi. Practice and procedure of the Supreme Court (Article 145)
vii. Conditions of service of all staff and members of the Union Public Service Commission
(Article 399)
viii. Power to issue ordinances: According to Article 123, if at any time, except when both Houses
of Parliament are in session, the President is satisfied that circumstances exist which render
it necessary for him to take immediate action, he may promulgate such Ordinance as the
circumstances appear to him to require. However, such power of the President is governed
by the following conditions.
(1) An ordinance can be issued only when both the Houses of Parliament are not in Session.
(2) The President must have been satisfied that under the existing circumstances immediate
action was necessary.
(3) An ordinance can be issued only in respect of those matters on which the Parliament
has the power to make laws.
(4) An ordinance must be laid before both Houses of Parliament.
(5) An ordinance can be withdrawn by the President at any time. When it is laid before both
the Houses of Parliament, it is to be approved by both the Houses in six weeks of re-
assembly of the Parliament. If the Parliament takes no action, it will lapse after an expiry
of six weeks.
i. Power in relation to state legislation: The Governor of a State may reserve a Bill for consideration
of the President, though passed by both the Houses of a State Legislature (Article 200).
6. Judicial powers: The judicial powers of the President are as follows.
a. Every judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary [Article 124 (2)].
b. The President shall appoint the person who is qualified to the appointed a Judge of the Supreme
Court to be Attorney General of India. The Attorney General shall hold office during the pleasure
of the President, and shall receive such remuneration as the President may determine (Article
76).

38 Constitution of India
 c. According to Article 72, the President may grant pardons, reprieves, respites, or remissions of
punishment, or to suspend, remit or commute the sentence of any person convicted of any
offence:
i. in all cases where the punishment or sentence is by a court martial;
ii. in all cases where the punishment or sentence is for an offence against any law relating to
a matter to which the executive power of the Union extends;
iii. in all cases where the sentence is a sentence of death.
‘To pardon’ means to forgive a person of an offence that one has committed. Pardon may be
granted at any stage after the commission of the offence, i.e., before legal proceedings are taken,
during pendency of proceedings, or after conviction. ‘Reprieve’ means temporary suspension of
the punishment fixed by law, for example, where the convicted person files a mercy petition, or a
woman pleads pregnancy. ‘Respite’ means postponement of the execution of a sentence to a future
date. ‘To commute’ means to change the nature of the punishment, for example, to commute a
death penalty to life imprisonment or a rigorous imprisonment to a simple one. ‘To remit’ means
to reduce the amount of punishment without changing the nature of the punishment, for example,
to reduce 10 years’ imprisonment to 2 years.
7. Emergency powers: Article 352 empowers the President to make a proclamation of Emergency if
he is satisfied that the security of India or any part of the territory of India is threatened by war,
external aggression, or armed rebellion. Besides, Article 356 confers power on the President to
make a proclamation of State Emergency declaring that the government in a State cannot be
carried on in accordance with the provisions of the Constitution. Under Article 360, the President
is vested with the power to proclaim Financial Emergency, if he is satisfied that the financial
stability, or credit of India, or any part of India is threatened.

Vice-President
Article 63 of the Constitution states that there shall be a Vice President of India. The Vice-President
acts as President in his absence due to death, resignation, impeachment, or other situation.

Powers, Functions, and Duties of the Vice-President

y The Vice-President shall be the ex officio Chairman of the Council of States and shall not hold any
other office of profit. However, when he acts as the President or discharges the functions of the
President in the event of his vacancy, he shall not perform the duties of the office of the Chairman
of the Council of States (Article 64).
y In the event of the occurrence of any vacancy in the office of the President by reason of his death,
resignation or removal, or otherwise, the Vice-President shall act as President until the date on
which a new President elected to fill such vacancy enters upon his office. The Vice-President shall
during, and in respect of, the period while he is so acting as, or discharging the functions of the
President, have all powers and immunities of the President and be entitled to such emoluments,
allowances and privileges as may be determined by Parliament (Article 65).
y The Vice-President shall not be a member of either House of Parliament or of a House of the Legislature
of any State, and if a member of either House of Parliament or of a House of the Legislature of any
State be elected Vice-President, he shall be deemed to have vacated his seat in that House on the
date on which he enters upon his office as Vice-President [Article 66(2)].

Constitution of India 39
 Election of the Vice-President: The Vice-President shall be elected by the members of an electoral
college consisting of the members of both Houses of Parliament in accordance with the system of
proportional representation by the means of single transferable vote and the voting at such election
shall be by secret ballot [Article 66(1)].
Qualifications for the election: No person shall be eligible for election as Vice-President unless he—
(a) is a citizen of India;
(b) has completed the age of 35 years; and
(c) is qualified for election as a member of the Council of States.
Besides these, a person seeking to be elected as the Vice-President of India must not hold any office
of profit under the Government of India, or the Government of any State, or under any local, or other
authority subject to the control of any of the said governments [Article 66(3,4)].
Term of office: The Vice-President shall hold office for a term of five years from the date on which he
enters upon his office. However, he may resign from his office as well (Article 67).
Removal of a Vice-President: A Vice-President may be removed from his office by a resolution of the
Council of States passed by a majority of all the then members of the Council and agreed to by the
House of the People; but no resolution for the purpose of this clause shall be moved unless at least 14
days’ notice has been given of the intention to move the resolution (Article 67).
All doubts and disputes arising out of or in connection with the election of a President or a Vice-
President shall be inquired into and decided by the Supreme Court, whose decision shall be final
(Article 71). The election of the Vice-President cannot be challenged on the ground of any vacancy for
whatsoever reason in the electoral college electing him.

Article 74 and 75: Council of Ministers

Article 74: Council of Ministers to Aid and Advice the President
There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President
who shall, in the exercise of his functions, act in accordance with such advice: Provided that the
President may require the Council of Ministers to reconsider such advice, either generally or otherwise,
and the President shall act in accordance with the advice tendered after such reconsideration. The
word used here is ‘shall’ and not ‘may’, which makes it mandatory for the President to act in the
manner as provided. The question whether any, and if so what, advice was tendered by Ministers to
the President shall not be inquired into in any court. Thus, the power of judicial review, concerning the
question as to the advice by the Council of Ministers, has been taken away.

Article 75: Other Provisions as to Ministers

The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by
the President on the advice of the Prime Minister. The total number of Ministers, including the Prime
Minister, in the Council of Ministers shall not exceed 15 per cent of the total number of members of the
House of the People (added to the Constitution by the 91st Amendment Act, 2003).
Principle of collective responsibility: The basic principle of the parliamentary form of government is
the principle of collective responsibility. This principle is ensured by marking specific provisions in the
Constitution. Article 75 (3) provides that the Council of Ministers shall be collectively responsible to
the House of the People, i.e., the Lok Sabha, for the general conduct of affairs of the Government. The
Council of Ministers works as a team and all decisions taken by the Cabinet are the joint decisions
of all its members. Thus, the principle of collective responsibility envisages that each minister in the

40 Constitution of India
entire government assumes responsibility for the Cabinet decision and action taken to implement the
same. This means that despite the difference of opinions in the Cabinet, it is the duty of each Minister
to stand by a decision that has been taken and support it both in the Legislature and outside. Hence,
the only alternative before a minister, who is not ready to support and defend the decision taken by
the Cabinet, is to resign. The ministers shall hold office during the pleasure of the President.

Article 76: Attorney-General for India

The Attorney-General of India is the government’s chief legal advisor and its primary lawyer in the
Supreme Court of India. He is appointed by the President of India under Article 76(1) of the Constitution
and holds office during the pleasure of the President. He is like an Advocate-General of the State. He
should be a person qualified to be appointed as a Judge of the Supreme Court. The following are the
powers and duties of the Attorney-General.
1. The Attorney-General is responsible for advising the Government of India in legal matters referred
to him.
2. He also performs other legal duties assigned to him by the President in accordance with the
Constitution.
3. The Attorney-General has the right of audience in all Courts of India, as well as, the right to
participate in the proceedings of the Parliament.
4. He appears as the counsel on behalf of the Government of India in all cases (including suits, appeals,
and other proceedings) in the Supreme Court, in which the Government of India is concerned.
5. He shall also represent the Government of India in any reference made by the President to the
Supreme Court under Article 143 of the Constitution.

Governor
A Governor is the chief executive head of the State. All executive powers of the State vest in the
Governor, and he can exercise them directly or through officers subordinate to him. The Governor of
the State is not elected but is appointed by the President of India and holds office at the pleasure of
the President. Any citizen of India, who has completed 35 years of age is eligible for the office, but he
must not hold any other office of profit or be a member of the Legislature at the Union or in any State.
The normal tenure of the Governor is five years. But he may be terminated earlier as well by dismissal
by the President, resignation, or death.

Powers and Functions of the Governor

The powers of the Governor may be classified under the following heads.
1. Executive powers: The Governor has the power to appoint his Council of Ministers [Article 164(1)];
Advocate-General; Members of the State Public Service Commission; and Judges of the State
High Court (Article 217). The Governor of a State may, if he is of the opinion that the Anglo-Indian
community needs representation in the Legislative Assembly of the State and is not adequately
represented therein, nominate one member of that community to the Assembly and also to the
Council of States.
2. Legislative powers: The Governor is a part of the State Legislature (Article 164). He has been
empowered with the following legislative powers.
a. The power of addressing and sending messages, summoning, and proroguing
b. Dissolving the State Legislature

Constitution of India 41
 c. Making demands for grants and recommending Money Bills
d. Deciding questions as to the disqualification of a member (Article 192)
e. When a Bill has been passed by the House or Houses of the Legislature in a State, it shall be
presented to the Governor, and the Governor shall declare either that he assents to the Bill
or that he withholds assent therefrom or that he reserves the Bill for the consideration of the
President (Article 200).
f. The Governor has been entrusted with the rule-making power relating to the appointment of
officers and servants of the High Court (Article 229), and for the recruitment and conditions of
service of the state public servants (Article 309).
g. The Governor has also been given the ordinance making power (Article 213). When the State
Legislative Assembly is not in session, or where the Legislature has two Houses and both the
Houses are not in session, and the Governor is satisfied that circumstances exist which made
it necessary for him to take immediate action, then he may promulgate such an ordinance as
the circumstances may require.
3. Judicial powers: The judicial powers of the Governor are as follows.
a. The Governor of a State shall have the power to grant pardons, reprieves, respites, or remissions
of punishment, or to suspend, remit, or commute the sentence of any person convicted of any
offence against any law relating to a matter to which the executive power of the State extends
(Article 161).
b. He is consulted by the President in the appointment of the Chief Justice and the judges of the
High Court of the State.
c. The Governor has the power to appoint judges of the subordinate Courts in the State (Article
233 and 234).
Emergency powers: Unlike the President under Article 352(1), the Governor has no emergency
power to meet a situation arising out of external aggression or armed rebellion. But he has the
power to submit a report to the President whenever he is satisfied that a situation has arisen in
the State, in which the Government of the State cannot be carried on in accordance with the
provisions of the Constitution under Article 356. Thereafter, the President shall undertake the
functions of the Government of the State or any of them.

Article 163 and 164: Council of Ministers

y There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the
Governor except when he is required to act in his discretion. In such matters, the decision of the
Governor shall be final. This shall not be called in question. In addition to this, the question as to
what advice was tendered by the Ministers to the Governor shall not be inquired into in any court.
y The Chief Minister shall be appointed by the Governor of the State and the other Ministers shall be
appointed by the Governor on the advice of the Chief Minister. Furthermore, the Ministers shall hold
office during the pleasure of the Governor.
y The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall
not exceed 15 per cent of the total number of members of the Legislative Assembly of that State.
However, such number, including the Chief Minister in a State, should not be less than 12.
y The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
y The salaries and allowances of the Ministers shall be such as fixed by the Legislature of the State.

42 Constitution of India
Article 165: Advocate-General for the State
The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High
Court to be the Advocate-General for the State. The Advocate-General shall hold office during the
pleasure of the Governor, and shall receive such remuneration as the Governor may determine. The
Advocate-General shall perform the following duties.
1. It shall be the duty of the Advocate-General to give advice to the Government of the State upon
such legal matters as may be referred to him by the Governor.
2. He shall perform such other duties of legal character, as may from time to time be referred or
assigned to him by the Governor.
3. He represents the State government and appears on its behalf in all cases in the Supreme Court
and the High Courts of other States, in which the State government is concerned.
4. He is to discharge the functions conferred on him by or under the Constitution or any other law
for the time being in force.
5. The Advocate-General for a State shall have the right to speak in, and otherwise to take part in the
proceedings of the Legislative Assembly of the State, or in the case of a State having a Legislative
Council, both Houses, and to speak in, and otherwise to take part in the proceedings of any
committee of the Legislature of which he may be named a member, but shall not, by virtue of this
article, be entitled to vote (Article 177).

Union and State Legislature, and Distribution of Legislative Powers

Parliament
The Parliament is the supreme legislative body of the Republic of India. India has a bicameral legislature
(Parliament), i.e., it has two Houses. According to Article 79, there shall be a Parliament for the Union,
which shall consist of the President and two Houses. The lower House is called the ‘House of People’
or ‘Lok Sabha’, and the upper House is known as the ‘Council of States’ or ‘Rajya Sabha’. The members
of the Lok Sabha are elected directly by the people. The maximum strength of the Lok Sabha has been
fixed at 550 members, of which not more than 530 are elected by voters in the States and not more
than 20 represent the Union Territories (Article 81). The term of the Lok Sabha is five years. But it can
be shortened by a dissolution of the Lok Sabha (Article 83). The maximum strength of the Rajya Sabha
has been fixed at 250 members, of which 238 are elected representatives of the States and Union
Territories, and 12 are nominated by the President from among those who have special knowledge and
practical experience in matters, such as literature, science, art, and social services (Article 80). The
seats in the Rajya Sabha are allotted on the basis of the population of the States and Union Territories
(Article 83). The members are elected indirectly, and the tenure of the elected members is six years.
The Rajya Sabha is a continuing body and is not subject to dissolution. One–third of its members retire
after every two years and their seats are filled by fresh elections and Presidential nominations.

Article 84: Qualification for Membership of Parliament

To become a Member of Parliament, i.e., a member of either the Lok Sabha or the Rajya Sabha, one
needs to possess the following qualifications.
1. S/he shall be person of sound mind.
2. S/he shall be a citizen of India.
3. In case of a seat in the Rajya Sabha, a member must not be less than 30 years of age, and for the
Lok Sabha, s/he must not less than 25 years of age.

Constitution of India 43
 4. S/he must not hold any office of profit under Union or State government.
5. S/he should make and subscribe to the prescribed oath or affirmation before a person authorised
by the Election Commission for this purpose.
6. S/he should also possess such other qualifications as the Parliament may by law prescribe for this
purpose.
7. S/he should not suffer from any disqualification prescribed by the Constitution or law made by the
Parliament.

Constitution of Legislature of the States

1. For every State there shall be a Legislature which shall consist of the Governor, and
(a) in the States of Bihar, Madhya Pradesh, Maharashtra, Karnataka, and Uttar Pradesh, two houses
(b) in other States, one House
2. Where there are two Houses of the Legislature of a State, one shall be known as the Legislative
Council and the other as the Legislative Assembly, and where there is only one House, it shall be
known as the Legislative Assembly (Article 168).
According to Article 169, “Notwithstanding anything in Article 168, Parliament may by law provide for
the abolition of the Legislative Council of a State having such a Council or for the creation of such a
Council in a State having no such Council, if the Legislative Assembly of the State passes a resolution
to that effect by a majority of the total membership of the Assembly and by a majority of not less than
two-thirds of the members of the Assembly present and voting.”
The Legislative Assembly of each State shall consist of a maximum of 500 and a minimum of 60
members chosen by direct election from the territorial constituencies within the State. For such
purposes, each State shall be divided into territorial constituencies in such a manner that the ratio
between the population of each constituency and the number of seats allotted to it shall, so far as
practicable, be the same throughout the State (Article 170).
According to Article 171, the total number of members in the Legislative Council of a State having such
a Council shall not exceed one-third of the total number of members in the Legislative Assembly of
that State: Provided that the total number of members in the Legislative Council of a State shall in no
case be less than 40. Of the total number of members of the Legislative Council of a State:
a. as nearly as may be, one-third shall be elected by electorates consisting of members of
municipalities, district boards and such other local authorities in the State as Parliament may by
law specify;
b. as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in
the State who have been for at least three years graduates of any university in the territory of India
or have been for at least three years in possession of qualifications prescribed by or under any law
made by Parliament as equivalent to that of a graduate of any such university;
c. as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have
been for at least three years engaged in teaching in such educational institutions within the State,
not lower in standard than that of a secondary school, as may be prescribed by or under any law
made by Parliament;
d. as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the
State from amongst persons who are not members of the Assembly;
e. the remainder shall be nominated by the Governor.

44 Constitution of India
Such persons shall be persons having special knowledge or practical experience in respect of matters
like literature, science, art, cooperative movement and social service.
The Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the
date appointed for its first meeting. Upon the expiration of this period, the Assembly shall dissolve.
However, if the Proclamation of Emergency is in operation, it may be extended by the Parliament by
a law for a period not exceeding one year at a time and not extending in any case beyond a period of
six months after the Proclamation has ceased to operate. The Legislative Council of a State shall not
be subject to dissolution, but one-third of the members retire as soon as may be on the expiration of
every second year (Article 172).
According to Article 173, a person shall not be qualified to be chosen to fill a seat in the Legislature of
a State unless he:
1. is a citizen of India, and makes and subscribes before some person authorised in that behalf by
the Election Commission an oath or affirmation according to the form set out for the purpose in
the Third Schedule;
2. is, in the case of a seat in the Legislative Assembly, not less than 25 years of age and, in the case
of a seat in the Legislative Council, not less than 30 years of age; and
3. possesses such other qualifications as may be prescribed in that behalf by or under any law made
by the Parliament.

Legislative Relations between the Union and the States

The Constitution of India makes a two-fold distribution of legislative powers.
1. With respect to territory
2. With respect to subject matter
Territorial jurisdiction: According to Article 245 (1), “Subject to the provisions of this Constitution,
the Parliament may make laws for the whole or any part of the territory of India, and the Legislature
of a State may make laws for the whole or any part of the State.” According to Article 245(2), no law
made by the Parliament shall be deemed to be invalid on the ground that it would have extraterritorial
operation, i.e., the law that takes effect outside the territory of India. Here, it is important to note that
the power of the Legislature under Article 245 to enact laws is a plenary power subject only to its
legislative competence and other constitutional limitations.
Doctrine of territorial nexus: This means that the State laws would be void if it has an extraterritorial
operation. However, there is one exception to general rule. A State law of extraterritorial operation
will be valid if there is sufficient nexus between the object and the State. According to this doctrine,
it is not necessary that the object to which the law is applied should be physically located within the
boundaries of the state making the law. It is enough if there is sufficient territorial nexus between the
object and the state making the law. This doctrine was first evolved by the Privy Council in the case of
Wallace versus Income tax Commissioner, Bombay (1948). In this case, a company registered in England
was a partner in a firm in India. The Indian Income Tax authorities sought to impose tax on the income
made by the company. The Privy Council applied the ‘doctrine of territorial nexus’ and held the levy of
tax valid. A Bench of Justices presiding over the case said that derivation from British India of a major
part of its income for a year gave to a company for that year sufficient territorial connection to justify
its being treated as at home in India for all purposes of tax on its income for that year from whatever
source the income may be derived.

Constitution of India 45
 In the State of Bombay versus RMDC case (1957, SC), the State of Bombay levied a tax on lotteries
and prize competitions. The tax was levied on a newspaper printed and published in Bangalore (now,
Bengaluru) but it had a wide circulation in Bombay. The respondent conducted the prize competitions
through this newspaper. The Court held that there existed sufficient territorial nexus to enable the
State of Bombay to impose a tax on the newspaper. If there was sufficient nexus between the person
sought to be charged and the State seeking to tax him, the taxing statute would be upheld. For the
application of the doctrine, there must be:
y a connection between the State and the subject matter of law, which must be real and not illusory.
y a liability sought to be imposed, which must be pertinent to that connection.
It must also be noted that whether there is sufficient connection is a question of fact and will be
determined by Courts in each case accordingly.

Parliamentary Law Having Extraterritorial Operation

The Parliament may make laws regarding an extraterritorial operation and such a law would not be void
on the ground of having extraterritorial operation. In simple words, a law made by the Parliament can
have extraterritorial operation if it has a direct connection with India or has the potential to affect and
impact the interest of India and its citizens.

Article 246: Subject Matter Jurisdiction

The Constitution of India divides the powers between the Union and the States in three lists, i.e., the
Union, State, and Concurrent list. The Union List consists of 97 subjects of national importance like
defence, foreign affairs, banking, currency, and coinage. The State List consists of subjects upon which
only the States have been empowered by the Constitution to make laws. The subjects on which both
the Centre and the States can make laws are mentioned in the Concurrent List. However, in case of a
conflict between a Central and a State law on concurrent subjects, the Central law will prevail.
Thus, the powers of the Centre and the State are divided. They cannot make laws outside their allotted
subjects. The Supreme Court has evolved the following principles of interpretation to determine the
respective powers of the Union and the States under the three lists.
1. In case of an overlapping between the Union and the State List, it is the Union List which is to
prevail over the State List. In case of an overlapping between the Union and the Concurrent List,
it is again the Union List which will prevail. In case of a conflict between the Concurrent and State
lists, it is the Concurrent List that shall prevail.
2. The Supreme Court said that the “widest possible” and “most liberal” interpretation should be
given to the language of each entry. The Court should try to reconcile entries and bring harmony
between them.
3. Within their respective spheres, the Union and the State legislatures are supreme, and they should
not encroach upon the sphere reserved for the other. If a law passed by one encroaches upon the
field assigned to the other, the Court will apply the ‘doctrine of pith and substance’ to determine
whether the legislature concerned was competent of making it. If the object of a legislation or
statute relates to a matter with the competence of the legislature which enacted it, it should be
held to be intra vires even though it might incidentally trench on matters not within the competence
of the legislature.

46 Constitution of India
Parliament’s Power to Legislate on State Subjects
The distribution of powers must be strictly maintained and neither the State nor the Centre can encroach
upon the sphere allotted to the other by the Constitution. But in certain exceptional circumstances,
this system of distribution of powers is either suspended or the powers of the Parliament are extended
over the subjects mentioned in the State List. The exceptional circumstances are as follows.
1. Power of Parliament to legislate in the national interests [Article 249(1)]
2. During the Proclamation of Emergency (Article 250)
3. Power of Parliament to legislate for two or more States by consent (Article 252)
4. Power of Parliament to legislate for giving effect to treaties and international agreements (Article
253)
5. Provisions in case of failure of constitutional machinery in States. (Article 356)
The Doctrine of Pith and Substance Clause: Thus, within their respective spheres, the Union and the
State legislatures are given the supreme status and cannot encroach upon the sphere reserved for the
other. If a law passed by one encroaches upon the field assigned to the other, the court will apply the
‘doctrine of pith and substance’ to determine whether the legislature concerned was competent to
make it. If the pith and substance of the law, i.e., the true object of a legislation or statute, relates to a
matter with the competence of legislature which enacted it, it should be held to intra vires even though
it might incidentally trench on matters not within the competence of the Legislature. To ascertain the
true character of the legislation, one must have regard for the enactment as a whole, to its object, and
to the scope and effect of its provision.
In the Prafulla Kumar Mukherjee versus Bank of Khulna case (1947 SC), the validity of the Bengal Money
Lenders Act, 1946, which limited the amount and the rate of interest recoverable by a moneylender on
any loan, was challenged on the ground that it was ultra vires of the Bengal Legislature insofar as it
related to ‘Promissory Notes’, a Central subject. The Privy Council held that the Bengal Money Lenders
Act was, in pith and substance, a law in respect of moneylending and moneylenders a State subject
and was valid even though it trenched incidentally on ‘Promissory Notes’, a Central Subject.
In the State of Bombay versus FN Balsara case (1951, SC), the Bombay Prohibition Act, which prohibited
the sale and possession of liquor in the State, was challenged on the ground that it incidentally
encroached upon import and export of liquor across custom frontier—a Central subject. It was
contended that the prohibition, purchase, use, possession, and sale of liquor will affect its import. The
Court held the Act valid because its pith and substance fell under the State List and not the Union List,
even though the Act incidentally encroached upon the Union Powers of Legislation.

Article 248 Read with Entry 97 (Union List): The Residuary Powers
According to this Article, the residuary powers vest in the Parliament. It states that the Parliament enjoys
the exclusive power to make any law with respect to any matter not enumerated in the Concurrent or
State list.

Doctrine of Colourable Legislation

This doctrine is based on the maxim, ‘what cannot be done directly, should also not be done indirectly’.
If something is colourable in appearance only but not in reality, then the Court looks into the true
nature and character of the legislation, and focuses on the object as the purpose is relevant and not
the motive. Colourability is bound with incompetency and not with any evil and bad motive, Hence, if
the Legislature has the power to make the laws, then the motive behind making the law is irrelevant.

Constitution of India 47
 Doctrine of Incidental and Ancillary Powers
This doctrine explains that when the Legislature is given the plenary power to legislate on a particular
subject, there must also be implied power to make laws incidental to the exercise of such power. The
expressions, ‘incidental’ and ‘ancillary’ powers, mean powers required for the proper and effective
exercise of legislative powers that are expressly conferred.

Article 254(1): Repugnancy between a Central and State Law

According to this Article, if any provision of a law made by the Legislature of a State is repugnant to
any provision of a law made by the Parliament, whether passed before or after the law made by the
Legislature of such a State or as the case may be, the existing law made by the Parliament shall prevail,
and the one made by the Legislature of the State shall, to the extent of the repugnancy, be void. A few
important points in this regard are as follows.
1. It must be proven that there is a clear and direct inconsistency between the two enactments
(Central and State Act), which is irreconcilable, so they cannot stand together or operate in the
same field.
2. There can be no repeal by implication, unless the inconsistency appears on the face of the two
statutes.
3. Where the two statutes occupy a particular field but there is a room or possibility of both the
statutes operating in the same field without coming into collusion with each other, then it results
in no repugnancy.
4. Where there is no inconsistency but a statute occupying the same field seeks to create distinct
and separate offences, then no question of repugnancy arises and both the statutes continue to
operate in the same field.
According to Clause (2), if a State law with respect to any matter enumerated in the Concurrent List
contains any provision repugnant to the provisions of an earlier law made by the Parliament or an
existing law with respect to that matter, then the State law, if it has been reserved for the assent of
the President and has received his assent, shall prevail notwithstanding such repugnancy. But it would
still be possible for the Parliament under a provision mentioned in Clause (2) to override such a law by
subsequently making a law on the same matter. If it makes such a law, the State law would be void to
the extent of repugnancy with the Union law.

Judiciary
Article 124 to 147: The Union Judiciary—The Supreme Court of India
The Supreme Court is the ‘Apex Court’ of the country. Being the final interpreter of the Constitution and
the laws, the Supreme Court is the final Court of appeal in all civil, criminal, and other matters, and
thus, helps in maintaining uniformity of law throughout the territory of India. Some of the important
provisions in this regard are as follows.

Article 124(1): Composition

According to this Article, there shall be a Supreme Court of India consisting of the Chief Justice of India
and, until the Parliament by law prescribes a larger number, of not more than seven other Judges. But
the Supreme Court (Number of Judges) Amendment Act, 1986, has increased the strength of other
judges to 25. Thus, now the Apex Court consists of the Chief Justice of India and 33 other judges.

48 Constitution of India
Article 124(2): Appointment
According to this Article, every Judge of the Supreme Court shall be appointed by the President by
warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and
of the High Courts in the States as the President may deem necessary for the purpose.
In the Judges Transfer case II [SC Advocate on Record Association versus Union of India (1993, SC)], the
Supreme Court overruled the SP Gupta case and held that the opinion of the Chief Justice of India
must be given the greatest importance in the selection of the judges of the Supreme Court and the
High Courts, and the transfer of the judges of the High Courts.

Article 124(2): Term of a Supreme Court Judge

A Supreme Court judge shall hold office until he attains the age of 65 years. A judge may, by writing
under his hand addressed to the President, resign from his office.

Appointment of the Chief Justice of India

In the appointment of the Chief Justice of India, the practice of appointing the senior-most judge of
the Supreme Court is being followed ever since the commencement of the Constitution.

Article 124(3): Qualifications for Appointment as a Judge of the Supreme Court

A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen
of India and has been for at least five years a Judge of a High Court or of two or more such Courts in
succession; or
has been for at least 10 years an advocate of a High Court or of two or more such Courts in succession;
or is, in the opinion of the President, a distinguished jurist.

Article 124(6): Oath and Affirmation

Every person appointed to be a judge of the Supreme Court shall, before he enters upon his office,
make and subscribe before the President, or some person appointed in that behalf by him, an oath or
affirmation according to the form set out for the purpose in the Third Schedule.

Article 124(4): Removal of a Judge

A Judge of the Supreme Court may be removed by the procedure of impeachment under the order of
the President on the ground of proved misbehaviour or incapacity. The procedure of impeachment has
to be completed by both the Houses of Parliament.

Article 125: Salaries and Allowances

The Parliament shall determine the salary to be paid to the judges of the Supreme Court. Every judge
of the Supreme Court shall be entitled to such privileges and allowances and to such rights in respect
of leave of absence and pension, as may from time to time be determined by or under law made by
the Parliament and, until so determined, to such privileges, allowances and rights as are specified in
the Second Schedule.

Article 126: Acting Chief Justice

When the office of the Chief Justice of India is vacant or when the Chief Justice is, by reason of absence
or otherwise, unable to perform the duties of his office, the duties of the office shall be performed
by such one of the other judges of the Supreme Court as the President may appoint for that purpose.

Constitution of India 49
 Article 127: Ad hoc Judges
The Chief Justice of India may, with the previous consent of the President and after consultation with
the Chief Justice of the High Court concerned, request in writing, a judge of a High Court to act as an
ad hoc judge in the Supreme Court when there is no quorum of judges to conduct proceedings, for
such period as may be necessary.

Article 128: Attendance of Retired Judges at Sittings of the Supreme Court

The Chief Justice of India may at any time, with the previous consent of the President, request a retired
judge of the Supreme Court or the High Court to sit and act as a judge of the Supreme Court. After
such an appointment, the Judge should be entitled to such allowances as the President may by order
determine. Such a person while acting as a judge shall have all jurisdiction, powers, and privileges of
a judge of that Court.
Article 129: Supreme Court Shall Be a Court of Record
The Supreme Court shall be a ‘court of record’ and shall have all powers of such a court, including the
power to punish for contempt of itself. As a Court of Record, the Supreme Court has two powers:
y The judgements, proceedings and acts of the Supreme Court are recorded for perpetual memory and
testimony. These records are admitted to be of evidentiary value and cannot be questioned when
produced before any court. They are recognised as legal precedents and legal references.
y It has the power to punish for contempt of court, either with simple imprisonment for a term up to
six months or with a fine or with both.
According to Section 2 of the Contempt of Courts Act, 1971, contempt of court includes both civil and
criminal contempt.

Jurisdiction of the Supreme Court

The jurisdiction of the Supreme Court has been classified under the following heads.

Article 32: Writ Jurisdiction

Article 32 confers writ jurisdiction on the Supreme Court for the enforcement of Fundamental Rights.
In the exercise of this jurisdiction, the Court may issue directions, orders, or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari.

Article 131: Original Jurisdiction

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other
court, have original jurisdiction in any dispute:
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more States on
the other; or
(c) between two or more States.
The Supreme Court in its original jurisdiction cannot entertain any suit brought by private individuals
against the Government of India. The original jurisdiction of the Supreme Court, however, does not
extend to the following matters.
y Disputes arising out of any treaty, agreement, covenant, engagement, sanad, or other similar
instrument which was executed before the commencement of the Constitution (Article 131, proviso)
y Disputes with respect to the use, distribution or control of the water of any interstate river or river
valley (Article 262)

50 Constitution of India
y Matters referred to the Finance Commission (Article 280)
y Adjustment of certain expenses between the Union and the State (Article 290)

Appellate Jurisdiction
Such a jurisdiction is conferred with respect to constitutional, criminal, and civil matters.

Article 132: Constitutional Matters

An appeal shall lie to the Supreme Court from any judgement, decree or final order of a High Court
in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies
under Article 134A that the case involves a substantial question of law as to the interpretation of this
Constitution.

Article 133: Civil Matters

An appeal shall lie to the Supreme Court from any judgement, decree or final order in a civil proceeding
of a High Court in the territory of India, if the High Court certifies under Article 134A:
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

Article 134: Criminal Matters

An appeal shall lie to the Supreme Court from any judgement, final order or sentence in a criminal
proceeding of a High Court in the territory of India if the High Court:
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has
in such trial convicted the accused person and sentenced him to death.

Article 135: Federal Court’s Jurisdiction

In all cases, in which the Federal Court has the jurisdiction to hear appeals from High Courts, but which
are not covered under Article 133 and 134, the Supreme Court will have the jurisdiction to hear such
matters by virtue of Article 135.

Article 136: Appeal by Special Leave

The Supreme Court has been bestowed with the discretion to grant special leave to appeal before
itself from any judgement, determination, sentence, or order in any cause or matter passed or made
by any court or tribunal in the territory of India.

Article 137: Review of Judgements or Orders by the Supreme Court

The Supreme Court shall have power to review any judgement pronounced or order made by it in case
of:
1. discovery of new and important matter or evidence;
2. any mistake or error apparent on the face of the record; and
3. any other sufficient reason.
The rules of review are provided in Order 47, Rule 1 of the Civil Procedure Code, 1908.

Article 143: Advisory Jurisdiction

If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise,
which is of such a nature and of such public importance that it is expedient to obtain the opinion

Constitution of India 51
 of the Supreme Court upon it, he may refer the question to that Court for consideration and the
Court may, after such hearing as it thinks fit, report to the President its opinion thereon. The use of
the word, ‘may’, indicates that the Supreme Court is not under obligation to express its opinion on
the reference made to it. It enjoys discretion in the matter and may for sufficient reasons decline to
express any opinion on the question submitted to it, having regard to the questions and other relevant
facts and circumstances. Also, the advisory opinion is not binding on the President as it is not judicial
pronouncement. The President may or may not act according to the opinion of the Supreme Court.

Article 148–151: Comptroller and Auditor-General of India

The Comptroller and Auditor General (CAG) of India is an authority, established by the Constitution of
India, who audits all receipts and expenditure of the Government of India and the State Governments,
including those of bodies and authorities substantially financed by the government. He is appointed by
the President of India following a recommendation by the Prime Minister. On appointment, he has to
make an oath or affirmation before the President of India.
According to Article 148, there shall be a Comptroller and Auditor-General of India who shall be
appointed by the President by warrant under his hand and seal and shall only be removed from
office in like manner and on the like grounds as a judge of the Supreme Court. The salary and other
conditions of service of the Comptroller and Auditor-General shall be such as may be determined by
the Parliament by law. It is important to note is that he shall not be eligible for further office either
under the Government of India or under the government of any State after he has ceased to hold his
office.

Article 149: Duties and Powers of the Comptroller and Auditor-General

The duties and powers of the Comptroller and Auditor-General of India are enshrined in Chapter V
of Part V of the Constitution of India and elaborated under the CAG’s (Duties, Powers, and Conditions
of Service) Act, 1971. Article 149 of the Constitution of India provides that the CAG shall perform such
duties and exercise such powers in relation to the accounts of the Union and of the States and of any
other authority or body as may be prescribed by or under any law made by Parliament.
1. To audit all expenditure from the Consolidated Fund of India of Union, of each State and of each
Union Territory having a Legislative Assembly with the objective to ascertain whether the moneys
shown in the accounts as having been disbursed were legally available for and applicable to the
service or purpose to which they have been applied or charged and whether the expenditure
conforms to the authority which governs it;
2. To audit all transactions of the Union and of the States/Union Territory having a Legislature relating
to Contingency Funds and Public Accounts;
3. To audit all trading, manufacturing, profit and loss accounts and balance sheets and other
subsidiary accounts kept in any department of the Union or of a State and in each case, to report
on the expenditure, transactions or accounts so audited by him;
4. To maintain audits of the receipts and expenditure of bodies or authorities substantially financed
from the Union or State revenues;
5. To audit grants or loans given to other authorities or bodies;
6. To audit accounts of stores and stock;
7. To audit government companies and corporations under the Company’s Act, 1956, read with CAG’s
(DPC) Act, 1971; and accounts of other authorities or bodies as per their statute or upon request
by the Governor of a State or the Administrator of a Union Territory having a Legislative Assembly

52 Constitution of India
8. To form accounts of the Union and of the States: the accounts of the Union and of the States shall
be kept in such a form as the President may on the advice of the Comptroller and Auditor-General
of India, prescribe (Article 150).
The CAG’s reports relating to the accounts of the Union are submitted to the President, who shall
cause them to be laid before each House of the Parliament. However, the CAG’s reports relating to the
accounts of a State shall be submitted to the Governor of the State, who shall cause them to be laid
before the Legislature of the State (Article 151).

High Courts in States

The State judiciary consists of a High Court (head of the judiciary in the State) and a system of courts
subordinate to the High Court within the territory of the State. By virtue of Article 214, there shall be
a High Court for each State. According to Article 231(1) in the Constitution of India, the Parliament may
by law establish a common High Court for two or more States or for two or more States and a Union
territory. Some of the important provisions in this regard are as follows.

Article 216: Constitution of the High Court

Every High Court shall consist of a Chief Justice and such other judges as the President may from time
to time deem it necessary to appoint. Thus, the Constitution does not prescribe any minimum number
of judges, which a High Court should consist of. It is the President who determines the number of
judges to be appointed in the High Court from time to time. The President has the power to appoint
additional judges for a temporary period, not exceeding two years, for the clearance of arrears of work
in a High Court.

Article 217(2): Qualifications for the Appointment of Judge

A person to be qualified for appointment of a judge of a High Court must fulfil the following conditions.
(a) He must be a citizen of India.
(b) He must have for at least 10 years held a judicial office in the territory of India.
(c) He must have for at least 10 years been an advocate of a High Court or of two or more such Courts
in succession.

Article 217(1): Appointment of Judges

Every judge of a High Court shall be appointed by the President by warrant under his hand and seal after
consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment
of a judge other than Chief Justice, the Chief Justice of the High Court. In the matter of appointment
of judges to the High Court, the opinion of the Chief Justice of India is primary.

Article 217(1): Term of Office

A judge of the High Court shall hold the office until he attains the age of 62 years. However, a judge may
resign his office before reaching the age of retirement.

Article 217(1): Removal of a Judge of the High Court

A judge of a High Court may be removed by the President in the same manner provided in clause (4) of
Article 124 for the removal of a judge of the Supreme Court, i.e., the procedure of impeachment (Article
218).

Constitution of India 53
 Article 222: Transfer of a High Court Judge
A judge of one High Court may be transferred to another High Court by the President after consultation
with the Chief Justice of India.

Article 223: Appointment of Acting Chief Justice

When the office of the Chief Justice of a High Court is vacant or when any such Chief Justice is, by
reason of absence or otherwise, unable to perform the duties of his office, the duties of the office
shall be performed by such one of the other judges of the Court as the President may appoint for the
purposes.

Article 224(2): Appointment of Acting Judges

When a judge of a High Court other than the Chief Justice is by reason of absence or for any other
reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice,
the President may appoint a duly qualified person to act as a judge of that Court until the permanent
judge has resumed his duties. Also, by the virtue of Article 224A, added by an amendment of 1963, the
Chief Justice of a High Court is empowered to request, with the previous consent of the President, a
retired judge of the High Court, to sit and act as a judge of that Court until the permanent Judge has
resumed his duties.

Article 225: Jurisdiction of Existing High Courts

The jurisdiction and the law administered in any existing High Court and the respective powers of
the judges thereof in relation with the administration of justice in the Court, including any power to
make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or
in Division Courts, shall be the same as immediately before the commencement of this Constitution.

Article 226: Writ Jurisdiction of the High Court

Every High Court shall have the power to issue writs, including habeas corpus, mandamus, prohibition,
quo warranto, and certiorari, or any of them or pass any other order to any person, authority, or any
government for the enforcement of any of the Fundamental Rights and for any other purpose.

Article 227: Power of the Superintendence over All Courts by the High Court
Every High Court shall have superintendence over all courts and tribunals throughout the territories
interrelation to which it exercises jurisdiction. Without prejudice to the generality of the foregoing
provisions, the High Court may:
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of
such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such
courts.

Article 230: Extension of Jurisdiction of High Courts to Union Territories

The Parliament may extend or exclude the jurisdiction of a High Court from any Union territory.

Article 231: Establishment of a Common High Court for Two or More States
The Parliament may by law establish a common High Court for two or more States or for two or more
States and a Union territory.

54 Constitution of India
Article 228: Power to Transfer Certain Cases
A High Court may withdraw to itself certain cases pending before subordinate courts. However, for the
exercise of this power, the High Court must be satisfied that a case pending in a court subordinate to it:
(a) involves a substantial question of law as to the interpretation of the Constitution, and
(b) determines that the said question is necessary for the disposal of the case.
Where the High Court withdraws a case to itself then:
y the High Court may dispose of the case itself; or
y the High Court may determine the said question and return the case to the court from where the
case has been so withdrawn together with a copy of its judgement on such question.
Here, a question that may arise is that when the Supreme Court is at the apex of the hierarchy of the
Indian judicial system, then how can one say that the powers of the High Courts are wider than it. In
analysing the relationship between the Supreme Court and the High Courts, the Apex Court in the case
of Tirupati Balaji Developers Pvt Ltd versus State of Bihar (2004, SC), answered this query. The Top
Court pointed out that the High Court, in general, was not subordinate to the Supreme Court. In a way,
the canvass of judicial powers vested with the High Courts was wider inasmuch as its writ jurisdiction
was concerned. The Apex Court observed that if the Supreme Court and the High Courts were to be
thought of as brothers in the administration of justice, the High Court had a larger jurisdiction but the
Supreme Court still remained the elder brother.

Emergency Provisions
The Constitution provides for three types of emergencies in India.

Article 352: National Emergency

According to this Article, if the President is satisfied that a grave emergency exists whereby the security
of India or any part of India is threatened, either by war or external aggression or armed rebellion, he
may make a Proclamation of Emergency is respect of the whole of India or any part of India as may
be specified in the Proclamation. Prior to the 44th Amendment Act, one of the grounds on which
emergency could be declared under Clause (1) was ‘internal disturbance’. This was later amended
and made armed rebellion. The Proclamation of Emergency made under Clause (1) may be varied or
revoked by the President by a subsequent Proclamation [Clause (2)]. The actual occurrence of events
is not essential. An imminent danger of war, or external aggression, or armed rebellion is enough for
the proclamation of emergency.
A Proclamation of Emergency once approved by the Parliament shall remain in force for a period of six
months from the date of the passing of the second resolution approving it under Clause (4), unless
revoked earlier. For the further continuance of the emergency beyond the period of six months, the
Parliament’s approval would be required. This approval is required every six months. The President shall
revoke a proclamation of emergency if the Lok Sabha passes a resolution disapproving it or disproving
its continuance. Where a notice in writing signed by not less than one-tenth of the total number of
members of the Lok Sabha to move a resolution for disapproving the continuance of a Proclamation of
Emergency—(a) to the Speaker, if the House is in session; or (b) to the President, if the House is not in
session; a special sitting of the Lok Sabha shall be held within 14 days from the date on which such a
notice is received by the Speaker or the President for the purpose of considering the resolution.
It is to note that the word, ‘satisfaction’, used in this Article does not mean the personal satisfaction of
the President but the satisfaction of the Council of Ministers. The power to declare an emergency can
be exercised by the President only on the advice of the Council of Ministers.

Constitution of India 55
 The following are the consequences of the proclamation of national emergency.
1. Extension of the centre’s executive power (Article 353): During the operation of the Proclamation of
Emergency, the executive power of the Union shall extend to the giving of directions to any State
as to the manner in which the executive power thereof is to be exercised.
2. Centre empowered to alter distribution of revenue between the Union and the State (Article
354): The President may, while a Proclamation of Emergency is in operation, by the order alter the
financial arrangement between the State and the Union as provided in Articles 268 to 279. Every
such order is to be laid before each House of Parliament and will come to an end by the end of
the financial year in which the Proclamation of Emergency ceases to operate.
3. Extension of life of Lok Sabha [Article 83(2)]: While the Proclamation of Emergency is in operation,
the President may extend the normal life of the Lok Sabha by a year each time up to a period not
exceeding beyond six months after the Proclamation ceases to operate.
4. Suspension of Fundamental Rights guaranteed by Article 19 (Article 358): When an Emergency
is declared, it shall abridge or take away the Fundamental Rights guaranteed to the citizens of
the country by Article 19. As soon as the Emergency ceases to operate, Article 19, which remains
suspended during Emergency, automatically comes into effect, and any law inconsistent with
Article 19 made during the Emergency ceases to have effect to the extent of inconsistency, except
as respect to things done or omitted to be done before the law.
5. Suspension of the right of enforcement of Fundamental Rights (Article 359): This Article empowers
the President to suspend the right to enforce Fundamental Rights guaranteed by Part III of the
Constitution, except Articles 20 and 21.

Article 356: State Emergency—Failure of Constitutional Machinery in a State

Under this provision, if the President, on the receipt of a report from the Governor of a State or
otherwise, is satisfied that a situation has arisen in the State, in which the government of the State
cannot be carried on in accordance with the provisions of the Constitution, he may issue a Proclamation
for the application of State emergency.
It is to be noted here that the word, ‘satisfaction’, used in Article 356(1) does not mean the personal
satisfaction of the Governor but that of the President, which can be challenged on the grounds of it
being exercised mala fide or it being based on wholly extraneous and irrelevant grounds.
The President can act even without the Governor’s report, if he is satisfied that such events occurred
in the State. If the Proclamation is approved by the Parliament, it will remain in operation for six
months. The Parliament may, at a time, extend the duration of the Proclamation by another six months.
But no such Proclamation shall in any case remain in force for more than three years.
Clause (5) provides that a resolution for the continuance of emergency beyond one year shall not be
passed by either House of the Parliament unless—(a) a Proclamation of Emergency is in operation at
the time of the passing of such a resolution; and (b) the Election Commission certifies that such a
resolution is necessary on account of difficulties in holding the general elections to the Legislative
Assembly of the State concerned. Ever since the commencement of the Constitution, President’s Rule
under Article 356 has been imposed on more than a hundred occasions.

Article 360: Financial Emergency

Under this provision, if the President is satisfied that a situation has arisen, whereby the financial
stability or credit of India or part of the territory thereof is threatened, he may by a proclamation make

56 Constitution of India
a declaration to that effect. The proclamation of financial emergency shall cease to be in operation
at the expiry of two months, unless it has been approved by both the Houses of the Parliament.
Such a proclamation may be revoked or varied by the President by a subsequent proclamation. The
executive authority of the Union shall extend to giving direction(s) to any State to observe such rules
of financial propriety as may be specified in the directions and be deemed necessary by the President
for the maintenance of financial stability and the credit of the State. Any such direction may include a
provision for the reduction of salaries and allowances of all or any class of persons serving in a State,
including the judges of the Supreme Court and the High Courts. The duration of the proclamation
of financial emergency will be two months, and unless approved by the President, it shall cease to
operate at the expiry of two months.

Temporary, Transitional, and Special Provisions with Respect to Certain States (Part XXI)
Some of the important provisions under this part are as follows.

Article 370: Temporary Provisions with Respect to the State of Jammu and Kashmir
All provisions of the Constitution, as amended from time to time, without any modifications or
exceptions, shall apply to the State of Jammu and Kashmir, despite anything contrary contained in
Article 152, or Article 308, or any other Article of this Constitution, or any other provision of the
Constitution of Jammu and Kashmir, or any law, document, judgement, ordinance, order, by-law, rule,
regulation, notification, custom, or usage having the force of law in the territory of India, or any other
instrument, treaty or agreement as envisaged under Article 363 or otherwise [the special status under
this Article has been revoked by a special Presidential order dated 5 August 2019].

Article 371: Special Provision with Respect to the States of Maharashtra and Gujarat
(a) the establishment of separate development boards for Vidarbha, Marathwada, and the rest of
Maharashtra or, as the case may be, Saurashtra, Kutch and the rest of Gujarat with the provision
that a report on the working of each of these boards will be placed each year before the State
Legislative Assembly;
(b) the equitable allocation of funds for developmental expenditure over the said areas, subject to the
requirements of the State as a whole; and
(c) an equitable arrangement providing adequate facilities for technical education and vocational
training, and adequate opportunities for employment in services under the control of the State
government, in respect of all the said areas, subject to the requirements of the State as a whole.

Article 371A: Special Provision with Respect to the State of Nagaland

No act of Parliament in respect of:
(i) religious or social practices of the Nagas,
(ii) Naga customary law and procedure,
(iii) administration of civil and criminal justice involving decisions according to Naga customary law,
(iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the
Legislative Assembly of Nagaland by a resolution so decides.

Article 371B: Special Provision with Respect to the State of Assam

The President may, by order made with respect to the State of Assam, provide for the constitution and
functions of a committee of the Legislative Assembly of the State.

Constitution of India 57
 Article 371C: Special Provision with Respect to the State of Manipur
The President may, by order made with respect to the State of Manipur, provide for the constitution
and functions of a committee of the Legislative Assembly of the State.

Article 371D: Special Provisions with Respect to the State of Andhra Pradesh or the State of Telangana
The President may by order made with respect to the State of Andhra Pradesh or the State of Telangana,
provide, having regard to the requirement of each State, for equitable opportunities and facilities for
people belonging to different parts of such State, in the matter of public employment and in the matter
of education, and different provisions may be made for various parts of the States.

Article 371E: Establishment of Central University in Andhra Pradesh

The Parliament may by law provide for the establishment of a University in the State of Andhra Pradesh.

Article 371F: Special Provisions with Respect to the State of Sikkim

The Legislative Assembly of the State of Sikkim shall consist of not less than 30 members. As from the
date of the commencement of the Constitution (36th Amendment Act, 1975):
(i) the Assembly for Sikkim formed as a result of the elections held in Sikkim in April 1974 with
32 members elected in the said elections (hereinafter referred to as the sitting members) shall
be deemed to be the Legislative Assembly of the State of Sikkim duly constituted under this
Constitution;
(ii) the sitting members shall be deemed to be the members of the Legislative Assembly of the State
of Sikkim duly elected under this Constitution; and
(iii) the said Legislative Assembly of the State of Sikkim shall exercise the powers and perform the
functions of the Legislative Assembly of a State under this Constitution.

Article 371G: Special Provision with Respect to the State of Mizoram

No Act of Parliament in respect of:
(i) religious or social practices of the Mizo,
(ii) Mizo customary law and procedure,
(iii) administration of civil and criminal justice involving decisions according to Mizo customary law,
(iv) the ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative
Assembly of the State of Mizoram by a resolution so decides.

Article 371H: Special Provision with Respect to the State of Arunachal Pradesh
The Governor of Arunachal Pradesh shall have special responsibility with respect to law and order in
the State of Arunachal Pradesh and in the discharge of his functions in relation thereto, the Governor
shall, after consulting the Council of Ministers, exercise his individual judgement as to the action to
be taken.

Article 371-I: Special Provision with Respect to the State of Goa

The Legislative Assembly of the State of Goa shall consist of at least 30 members.

Article 371J: Special Provisions with Respect to the State of Karnataka

The President may, by order made with respect to the State of Karnataka, provide for any special
responsibility of the Governor for:

58 Constitution of India
(a) the establishment of a separate development board for the Hyderabad–Karnataka region with
the provision that a report on the working of the board will be placed each year before the State
Legislative Assembly;
(b) equitable allocation of funds for developmental expenditure over the said region, subject to the
requirements of the State as a whole; and
(c) equitable opportunities and facilities for the people belonging to the said region in matters of
public employment, education, and vocational training, subject to the requirements of the State
as a whole.

Article 378A: Special Provision as to the Duration of Andhra Pradesh Legislative Assembly
The Legislative Assembly of the State of Andhra Pradesh shall, unless sooner dissolved, continue for a
period of five years and no longer and the expiration of the said period shall operate as a dissolution
of that Legislative Assembly.

Article 324–329: Law of Elections

Section 2(d) of the Representation of People’s Act defines the term, ‘election’, as: “election means an
election to fill a seat or seats in either House of Parliament or in the House or either House of the
Legislature of a State other than the State of Jammu and Kashmir.” According to the Representation of
People’s Act, 1951, it includes every stage from the time the notification calling for election is issued till
the declaration of the result. There are two systems of election prevalent in India.
1. Proportional representation by a single transferable vote: Proportional Representation is a type of
voting system used for elections in which parties gain seats in proportion to the number of votes
cast for them. The single transferable vote uses multiple-member districts, with voters casting
only one vote each but ranking individual candidates in order of preference (by providing backup
preferences). During the count, as candidates are elected or eliminated, surplus or discarded votes
that would otherwise be wasted are transferred to other candidates according to the preferences,
forming consensus groups that elect surviving candidates. STV enables voters to vote across party
lines, to choose the most preferred of a party’s candidates, and vote for independent candidates,
knowing that if the candidate is not elected his/her vote will likely not be wasted if the voter marks
backup preferences on the ballot.
2. Multiple vote with distributive voting: Mixed member proportional representation (MMP), also
called the additional member system (AMS), is a two-tier mixed electoral system combining local
non-proportional plurality/majoritarian elections and a compensatory regional or national party list
PR election. Voters typically have two votes, one for their single-member district and one for the
party list, the party list vote determining the balance of the parties in the elected body..

Articles 324–329: Constitutional Provisions Relating to the Law on Elections

Article 324: Power, Functions, Composition, and Appointment of the Election Commission
The superintendence, direction, and control for the preparation of the electoral roll for all elections of
the Legislative Assembly, Parliament, and the office of the President and Vice-President is vested with
the Election Commission [Article 324(1)].

Article 324(2): Composition of the Election Commission

The Election Commission shall consist of a Chief Election Commissioner and other election commissioners
as fixed by the President from time to time. Their appointment is also made by the President. He may
fix any number of election commissioners is addition to the Chief Election Commissioner.

Constitution of India 59
 Disqualifications of a Member
A member is disqualified from office, if he:
1. holds an office of profit under the Government of India or the State government;
2. is of an unsound mind;
3. is an undischarged insolvent;
4. is disqualified by or under law made by Parliament.

Article 324(3): Appointment of Election Commissioners by the President:

The Chief Election Commissioner (CEC) is appointed by the President in consultation with the the
president, as two-thirds of the Lok Sabha and the Rajya Sabha need to present and vote against him
for disorderly conduct or improper actions.

Qualification of the Chief Election Commission and other Election Commissions:

There are no fixed qualifications to be appointed as the Election Commissioner, in the Indian
Constitution. The Election Commissioner is usually a member of the Indian Administrative Service and
Indian Civil Services.

Article 324(4): Regional Commissioners

Before each general election to the House of the People and to the Legislative Assembly of each State,
and before the first general election and thereafter before each biennial election to the Legislative
Council of each State having such a Council, the President may also appoint after consultation with
the Election Commission such Regional Commissioners as he may consider necessary to assist the
Election Commission in the performance of the functions conferred on the Commission.

Article 324(5): Tenure Removal of Commissioners or Conditions of Service

The service tenure of the office of the Election Commissioners or the Regional Election Commissioners
shall be such as the President may by rule determine, provided they shall not be removed from office
except on the recommendations of CEC.

Article 324(6): Additional Staff for Assistance

On the request of the Election Commission, the President or the Governor of a State shall provide
such staff to the Election Commission or the Regional Election Commission, which may be necessary
for discharge of its functions.

Article 325: Electoral Roll

There shall be one electoral roll for every territorial constituency for election to the Parliament or State
Legislature. No person is ineligible for inclusion in such a roll on the grounds of religion, race, caste,
sex, or any of them.

Article 326: Rule of Adult Suffrage

Elections to the Lok Sabha and to the Legislative Assemblies of the States are carried out on the basis
of adult suffrage. Every person, who is a citizen of India, who is not less than 18 years of age, and who
is not disqualified under the Constitution or under any other law made by the appropriate legislature

60 Constitution of India
on the grounds of non-residence, unsoundness of mind, crime, or corrupt or illegal practices shall be
entitled to be registered as a voter at any such election.

Article 327: Power of the Parliament to Make Laws

The Parliament has the power to make rules regarding the conduct of elections to the Legislature
subject to the provisions of the Constitution, including matters relating to the preparation of electoral
roll, delimitation of constituencies, etc.

Article 328: Power of the State Legislatures to Make Rules

Where any provision relating to election of either house of the Legislature is not made by the Parliament,
then the Legislature of the State may make provisions for such matters.

Article 329: Judicial Review of Matters Relating to Elections

According to this Article, the validity of any law relating to the delimitation of constituencies or the
allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article
328, shall not be called in question in any court. No election to either House of Parliament or to the
House or either House of the Legislature of a State shall be called in question except by an election
petition presented to such an authority and in such a manner as may be provided for by or under any
law made by the appropriate Legislature.

Powers and Functions of Election Commission

The following are the functions of the Election Commission.
1. According to Article 324, the primary function of the Election Commission is to supervise, direct,
and control the preparation of electoral rolls for the conduct of elections to the Parliament, State
Legislatures, the office of the President and the Vice-President.
2. The Election Commission has the power to cancel the poll in the entire constituency.
3. Under Articles 103(2) and 192(2), the Constitution provides advisory jurisdiction to the Election
Commission in matters of disqualification post-elections in case of a sitting Member of the
Parliament or the State Legislature.
4. The powers of the Election Commission are the same as that of a Civil Court. While making an
enquiry in case of a post-election disqualification or while trying a civil suit under the Code of Civil
Procedure, the Election Commission has the same powers as that of a Civil Court .
5. The Election Commission has the power to decide the basic cause of disqualification in case of
corrupt practices. Under Section 8A of the Representation of People Act, 1951, if a person is found
guilty of a corrupt practice during an election weather by a High Court or the Supreme Court, the
President shall decide if the person should be allowed contest future elections, and if not, then
such a period needs to be specified.
6. Under Section 14 of the Representation of People Act, 1951, fixing the schedule for an election is
an exclusive power of the Election Commission, which is not subject to any law enacted by the
Parliament.
7. The Election Commission has the power to postpone the date of elections.
8. The Election Commission has the power to transfer, suspend, or recommend disciplinary action
against police officers and other government staff involved in polling duty by a competent authority
for any act in subordination while being on election duty.

Constitution of India 61
 9. The Commission is free to pass any order, rules, etc., for the smooth conduct of elections.
10. Under Section 29A of the Representation of People Act, 1951, all associations or bodies of individual
citizens addressing themselves as political parties and wishing to contest elections under the name
and banner of a political party must first get themselves registered with the Election Commission.
11. The Election Commission shall also have the power to decide the election schedule in light of
Constitution.
Hence, the jurisdictional powers of the Election Commission are wide enough to include all powers
necessary for the smooth conduct of elections. However, where there is an Act and express rules are
made thereunder, it is not open to the Commission to override the Act or the rules and pass orders in
direct disobedience to the mandate contained in the Act.

Features Held as Basic Structures by Court in Different Cases

y The power of judicial review
y The supremacy of the Constitution
y The rule of law
y The principal of separation of powers
y The principal behind Fundamental Rights
y Objectives specified in the Preamble to the Constitution
y Federalism
y Secularism
y Sovereignty
y Parliamentary system of government
y Republican and democratic forms of government
y Unity and integrity of the nation
y Mandate to build a welfare State
y Right to equality
y Independence of judiciary

List of Schedules in the Constitution and Items Listed Therein

Schedule Items Listed

First Schedule List of States and Union Territories

Second Schedule Provisions related to President, Governors of States, Speaker and Deputy
Speaker of the Lok Sabha, Chairman and Deputy Chairman of the Rajya Sabha,
Speaker and Deputy Speaker of the Legislative Assembly, Chairman and Deputy
Chairman of the Legislative Council of the State, Judges of the Supreme Court
and High Courts, Comptroller and Auditor-General of India

Third Schedule Forms of oaths or affirmations

Fourth Schedule Allocation of seats in the Council of States

62 Constitution of India
 Schedule Items Listed

Fifth Schedule Provisions as to the administration and control of scheduled areas and
Scheduled Tribes in these areas

Sixth Schedule Provisions as to the administration of tribal areas in the States of Assam,
Meghalaya, Tripura, and Mizoram

Seventh Schedule Union, State, and Concurrent lists

Eighth Schedule Languages (22 languages are recognised in total—Assamese, Bengali, Gujarati,
Hindi, Kannada, Kashmiri, Manipuri, Malayalam, Konkani, Marathi, Nepali, Odia,
Punjabi, Sanskrit, Sindhi, Tamil, Telugu, Urdu, Santhali, Bodo, Maithili, and Dogri;
Sindhi was added in 1967 by the 21st Amendment Act; Konkani, Manipuri, and
Nepali were added in 1992 by the 71st Amendment Act; and Santhali, Maithili,
Bodo, and Dogri were added in 2003 by the 92nd Amendment Act)

Ninth Schedule Laws and regulations saved from judicial review

Tenth Schedule Provisions as to disqualification on the ground of defection

Eleventh Schedule Provisions for panchayats

Twelfth Schedule Provisions for municipalities

Features of the Constitution Borrowed from Other Countries

S. No. Features of the Constitution Borrowed from

1. Parliamentary form of Government; Nominal Head; Post of the

Prime Minister; Cabinet System of Ministers; Lower House more
United Kingdom
powerful; Council of Ministers responsible to the Lower House;
Speaker of the Lok Sabha

2. Federal structure or distribution of subject matters of legislation;

Advisory opinion of the Supreme Court; single citizenship; Canada
Residuary Powers with the Centre

3. Concurrent List; Trade and Commerce; Language of the Preamble Australia

4. Directive Principles of State Policy (Ireland borrowed it from

Spain); Method of election of the President; Nomination of Ireland
members in the Rajya Sabha by the President

5. Written Constitution; Executive head of the state known as the

President and his being the Supreme Commander of the Armed
Forces; Vice-President as the ex officio Chairman of the Rajya
Sabha; Fundamental Rights; Supreme Court; Provision of States;
USA
Independence of Judiciary and Judicial Review; Removal of the
Supreme court and High court Judges; Powers of the President;
Position and Duties of the Vice-President; Amendment to the
Constitution

Constitution of India 63
 S. No. Features of the Constitution Borrowed from
6. Preamble of the Constitution Based on the model
in the American
Declaration of
Independence and
the United Nations
Organization
7. Fundamental Duties; Five year Plan Russia
8. Formation of alternate government Italy
9. Laws on which the Supreme Court functions Japan
10. Suspension of Fundamental Rights during emergency The Weimar Constitution
of Germany

Important Amendments to the Constitution

1st Amendment 18 June 1951 y It aimed to fully secure the Constitutional validity
of zamindari abolition laws and to place reasonable
restriction on the freedom of speech.
y Schedule 9 was introduced to protect laws that
are contrary to the constitutionally guaranteed
Fundamental Rights.
y These laws encroach upon property rights, freedom
of speech, and equality before law.

10th Amendment 11 August 1961 Incorporation of Dadra, Nagar and Haveli as a Union
Territory after acquisition from Portugal

12th Amendment 20 December 1961 Incorporation of Goa, and Daman and Diu as a Union
Territory after acquisition from Portugal

14th Amendment 28 December 1962 Incorporation of Pondicherry (now, Puducherry) into

the Union of India; creation of legislative assemblies
for Himachal Pradesh, Tripura, Manipur, and Goa

17th Amendment 20 June 1964 To secure constitutional validity for the acquisition of
estates and place land acquisition laws in Schedule 9
of the Constitution

24th Amendment 5 November 1971 Enable the Parliament to dilute Fundamental Rights
through amendments to the Constitution

25th Amendment 20 April 1972 Restrict property rights and compensation in case the
State takes over a private property

26th Amendment 28 December 1971 Abolition of the privy purse paid to former rulers of
princely states, which were included in the Indian
Republic

29th Amendment 9 June 1972 Placed the Land Reforms Act and amendments to the
Act under Schedule 9 of the Constitution

64 Constitution of India
34th Amendment 7 September 1974 Placed the Land Reforms Act and amendment to the
Act under Schedule 9 of the Constitution

39th Amendment 10 August 1975 Negated the judgement of the Allahabad High Court
invalidating Prime Minister Indira Gandhi’s election to
Parliament; amendment placed restrictions on judicial
scrutiny for the post of the Prime Minister

42nd Amendment 1 April 1977 Amendment passed during internal emergency

during the Indira Gandhi government; provided
for the curtailment of the Fundamental Rights;
imposed Fundamental Duties and changes to the
basic structure of the Constitution by making India
a ‘Socialist and Secular’ along with a Sovereign,
Democratic, and Republic

43rd Amendment 13 April 1978 Amendment passed after the revocation of

internal emergency; repealed some ‘Anti-Freedom’
Amendments enacted through Amendment Bill
number 42

44th Amendment 6 September 1979 Amendment passed after the revocation of internal
emergency; provided for human rights safeguards
and mechanisms to prevent the abuse of executive
and legislative authority; annulled some amendments
enacted in the Amendment Bill

47th Amendment 26 August 1984 Placed the Land Reforms Act and amendments to the
Act under Schedule 9 of the Constitution

52nd Amendment 1 March 1985 Anti Defection Law: provided for the disqualification
of Members of Parliament (MPs) and Members of
Legislative Assembly (MLAs) in case of defection from
one party to other

58th Amendment 9 December 1987 Provision to publish accurate Hindi translation of

the Constitution; provision to publish accurate Hindi
translation of future amendments

61st Amendment 28 March 1989 Reduce the age for first-time voters from 21 to 18
years

65th Amendment 12 March 1992 Formation of the National Commission for Scheduled
Castes and Scheduled Tribes; specification of its
statutory powers in the Constitution

66th Amendment 7 June 1990 Placed the Land Reforms Act and amendments to the
Act under Schedule 9 of the Constitution

69th Amendment 1 February 1992 Decision to provide for a Legislative Assembly and the
Council of Ministers for the Federal National Capital of
Delhi; Delhi is still a Union Territory

Constitution of India 65
 73rd Amendment 24 April 1993 Statutory provisions for the Panchayati Raj as the third
level of administration in villages

74th Amendment 1 June 1993 Statutory provisions for local administrative bodies as
the third level of administration in urban areas, such
as towns and cities

77th Amendment 17 June 1995 Technical amendment to protect reservation for SC/ST
employees in promotions

78th Amendment 30 August 1995 Placed the Land Reforms Act and amendments to the
Act under Schedule 9 of the Constitution

82nd Amendment 8 September 2000 Permitted relaxation in qualifying marks and other
criteria in reservation for the promotion for SC/ST
candidates

86th Amendment 12 December 2002 Provided the Right to Education until the age of 14
years and Early Childhood Care until the age of 6 years

89th Amendment 28 September 2003 Bifurcation of the National Commission for Scheduled
Castes and Scheduled Tribes into the National
Commission for Scheduled Castes and the National
Commission for Scheduled Tribes

91st Amendment 1 January 2004 Restricted the size of the Council of Ministers to 15
per cent of members in the Legislative Assembly and
strengthened the anti-defection laws

93rd Amendment 20 January 2006 Enabled the provision of reservation for candidates
belonging to the other backward classes (OBC)
in government, as well as, private educational
institutions

95th Amendment 25 January 2010 Extended the age of SC and ST candidates from 60
to 70 years in the Lok Sabha and State Legislative
Assemblies

97th Amendment 12 January 2012 Added the words, ‘co-operative societies’, in Article
19(1 )(c); inserted Article 43B that relates to the
Promotion of Co-operative Societies; added Part-IXB,
i.e., The Co-Operative Societies

99th Amendment 31 December 2014 Inserted Articles 124A, 124B, and 124C; amendments
were made to Articles 127, 128, 217, 222, 224A, and
231; the amendment provided for the formation of a
National Judicial Appointments Commission; 16 State
Assemblies out of 29 States, including Goa, Rajasthan,
Tripura, Gujarat, and Telangana, ratified the Central
legislation, enabling the President of India to give
assent to the Bill

66 Constitution of India
101st Amendment Act 1 July 2016 Introduction of the Goods and Services Tax (GST) Act;
introduction of Articles 246A, 269A, and 279A

102nd Amendment Act 11 August 2018 Constitutional status to the National Commission for
Backward Classes

103rd Amendment Act 12 January 2019 A maximum of 10 per cent reservation for candidates
belonging to the Economically Weaker Sections
(EWSs) and citizens of classes other than the classes
mentioned in Clauses (4) and (5) of Article 15, i.e.,
classes other than the socially and educationally
backward classes of citizens or the Scheduled Castes
and the Scheduled Tribes; inserted Clause (6) under
Article 15 and Clause (6) under Article 16

104th Amendment Act 25 January 2020 Extended the reservation of seats for SCs and STs
in the Lok Sabha and State Assemblies from 70
to 80 years; removed the seats reserved for the
Anglo-Indian community in the Lok Sabha and State
Assemblies

105th Amendment Act 10 August 2021 To restore the power of the states to make their own
OBC lists

Nature, Scope, and Importance of Administrative Law

Administrative law is the by-product of the growing socio-economic functions of the State and the
increased powers of the government. The relationship between administrative authorities and people
of the State has become complex. To regulate such complex relations, some laws that may bring about
regularity, certainty, and check the misuse of powers vested in the administration are necessary. Thus,
Administrative Law has become an inevitable necessity of modern times.
The study of administrative law deals with rules according to which the administration of a State is
to be carried on. It is that branch of law, which is concerned with the composition of powers, duties,
rights, and liabilities of the various organs of government. The growth of administrative law can be
attributed to a change in philosophy as to the role and functions of the State. The shifting of gear
from a laissez faire state to a social welfare state has resulted in change in the role of the State.
Administrative law is an important weapon for bringing about harmony between power and justice. The
basic law of the land, i.e., the Constitution governs the administrators. This branch of law essentially
deals with the location of power and the limitations thereupon.

Need for Administrative Law—Importance and Functions

Administration is the all-pervading feature of life. The scope of administration is wide and embraces
following things.
y It makes policies.
y It provides leadership to the legislature.
y It executes and administers the law.
y It takes manifold decisions.

Constitution of India 67
 y It exercises not only the traditional functions of the administration but other type of functions as
well.
y It exercises legislative powers, and also issues rules, by-laws, and orders of general nature.
The advantage of the administrative process is that it can evolve new techniques, processes, and
instruments, and acquire expertise and specialisation to handle the new and complex problems of
today’s society. Administration has become a highly specialised job, requiring technical expertise and
know-how. The aim of administrative law is to ensure that both the individual and the State are
placed at par before law. Administrative law is not codified like other laws but is certainly based on
the Constitution. It may be said to be a judge-made law. It is an ever-evolving subject in a developing
society. The principles of administrative law emerge and develop whenever a person becomes a victim
of the arbitrary exercise of public power. Therefore, administrative law deals with the relationship of
an individual with power. The administrative agencies derive their authority from constitutional and
statutory laws.

Definitions of Administrative Law

1. Austin has defined administrative law as the law which determines the ends and modes to which
the sovereign power shall be exercised.
2. According to Davis, administrative law is the law concerning the powers and procedures of
administrative agencies, including especially the law governing judicial review of administrative
action. It does not include the enormous mass of substantive law produced by the agencies. He
describes an administrative agency as a government authority, other than a court or a legislative
body, which affects the rights of private parties either through adjudication or rule making.
3. Bernard Schwartz has defined administrative law as the law applicable to those administrative
agencies which possess delegated legislation and adjudicatory authority.
4. Dicey has defined administrative law as denoting that portion of a nation’s legal system, which
determines the legal status and liabilities of all state officials, which defines the rights and liabilities
of private individuals in their dealings with public officials, and which specifies the procedure by
which those rights and liabilities are enforced.
5. Friedman said that administrative law includes the legislative powers of the administration—both
at common law and under a vast mass of statutes; the administrative powers of the administration;
judicial and quasi-judicial powers of the administration, all of them statutory; the legal liability of
public authorities; and the powers of ordinary courts to supervise administrative authorities.’
6. Sir Ivor Jennings defines administrative law as the law relating to administration. It determines the
organisation, powers, and the duties of administrative authorities.
In short, administrative law deals with the structure, powers, and functions of the organs of the
administration; the limits of their powers; the methods and procedures followed by them in exercising
their powers and functions; and the methods by which their powers are controlled, including the
legal remedies available to a person against them when his/her rights are infringed by their operation.
Therefore, administrative law deals with the problems like the following.
y Who are administrative authorities?
y What is the nature and powers exercised by administrative authorities?
y What are the limitations, if any, imposed on these powers?
y How is the administration kept restricted to its laminose?

68 Constitution of India
y What is the procedure followed by administrative authorities?
y What remedies are available to persons adversely affected by the administration?

Sources of Administrative Law

The principal sources of administrative law in India are—the Constitution of India, acts and statutes,
ordinances, administrative directions, notifications and circulars, and judicial decisions.

Classification of Administrative Actions

Administrative actions, in general, may be classified into four categories.
1. Rule-making action or quasi-legislative action
2. Rule-decision action or quasi-judicial action
3. Rule-application action or administrative action
4. Ministerial action

Principles of Natural Justice

In India, there is no statute laying down the minimum procedure that administrative agencies must
follow while exercising decision-making powers. This minimum fair procedure that must be followed
refers to the ‘principles of natural justice’. It is a concept of common law and represents higher
procedural principles developed by courts, which every judicial, quasi-judicial, and administrative
agency must follow while taking any decision that may adversely affect the rights of a private individual.
Natural justice implies fairness, equity, and equality.
In India, the principles of natural justice are firmly grounded in Articles 14 and 21 of the Constitution.
With the introduction of the concept of substantive and procedural due process in Article 21, all that
fairness included in the principles of natural justice can be read into Article 21. The violation of the
principles of natural justice results is arbitrariness. Therefore, the violation of natural justice is a
violation of equality clause under Article 14. The primary principles of natural justice encompass the
following rules.
1. Rule against bias (nemo judex in causa sua): No one should be made a judge in his own cause or
the rule against bias. Bias means an operative prejudice, whether conscious or unconscious in
relation to a party or issue. The rule against bias flows from the following two principles.
a. No one should be a judge in his own cause.
b. Justice should not only be done, but manifestly and undoubtedly be seen to be done.
Thus, a judge should not only be impartial but be able to apply his mind objectively to the dispute that
comes before him. Bias can take many forms, such as personal, pecuniary, subject matter, departmental
bias, pre-conceived notion, etc. Bias is, usually, of three types.
Pecuniary bias: A direct pecuniary interest, howsoever small or insignificant, will disqualify a person
from acting as a judge.
Personal bias: Such a bias arises from a certain relationship equation between the deciding authority
and the parties, which incline him favourably or otherwise on the side of one of the parties before him.
Subject matter bias: A case where the deciding officer is directly or otherwise involved in the subject
matter of the case falls within this category.
In the AK Kraipak versus Union of India case (1969, SC), Naquishband, who was the acting Chief
Conservator of Forests, was a member of the Selection Board and was also a candidate for selection

Constitution of India 69
 to the all-India cadre of the forest service. Though he did not take part in the deliberations of the Board
when his name was considered and approved, the Supreme Court held that there was a ‘real’ likelihood
of a bias. The mere presence of the candidate on the Selection Board may adversely influence the
judgement of the other members. The Apex Court also laid down the following guiding principles.
y The dividing line between an administrative power and a quasi-judicial power is quite thin and is
being gradually obliterated. Whether a power is administrative or quasi-judicial, one has to look into
the nature of the power conferred, the person on whom it is conferred, the framework of the law
conferring that power, and the manner in which that power is expected to be exercised.
y The principles of natural justice also apply to administrative proceedings.
y The concept of natural justice is to prevent the miscarriage of justice. It entails that no one shall be a
judge of his own cause; no decision shall be given against a party without affording him a reasonable
hearing; and quasi-judicial enquiries should be held in good faith and not arbitrarily or unreasonably.
2. Rule of fair hearing (audi alteram partem): The principle of audi alteram partem is the basic
concept of the principle of natural justice. The expression implies that a person must be given
the opportunity to defend oneself. This rule is applicable to various stages of administrative
adjudication, starting from notice to final determination. The right to fair essential hearing, thus,
includes the right to notice, right to present case and evidence, right to rebut adverse evidence,
right to cross-examination, right to legal representation, disclosure of evidence to party, and report
of enquiry to be shown to the other party and reasoned decisions or speaking orders.
In the Maneka Gandhi versus Union of India case (1978, SC), the Supreme Court held that though the
impoundment of the passport was an administrative action, the rule of fair hearing was attracted by
necessary implication and it would not be fair to exclude the application of this cardinal rule on the
ground of administrative convenience. The technique of post-decisional hearing was developed to
balance factors against the requirements of law, justice, and fairness. The court stressed that a fair
opportunity of being heard immediately following the order of impounding the passport would satisfy
the mandate of natural justice.
In the Swadeshi Cotton Mills versus Union of India case (1981, SC), the Court validated an order of the
government, which was passed in violation of the rule of audi alteram partem because the government
had agreed to give a post-decisional hearing. The Court held that:
y pre-decisional hearing may be dispensed with in an emergent situation where immediate action was
required to prevent some imminent danger, or injury, or hazard paramount to public interest.
y mere urgency was, however, no reason for the exclusion of the rule. The decision to exclude pre-
decisional hearing would be justiciable.
y where pre-decisional hearing was dispensed with, there must be a provision for post-decisional
remedial hearing.
Notice: A hearing starts with a notice sent by an authority concerned to an affected person. Hence, a
notice may be taken as the starting point of a hearing. Unless a person knows the case against him,
he cannot defend himself. The proceedings that start without serving a notice to the affected party
would violate the principles of natural justice. However, the omission to serve a notice would not be
fatal if it has not been served to the person concerned on account of his own fault. In addition to this,
the notice must give sufficient time to the person concerned to prepare his case. Further, it must be
adequate and reasonable. The wordings of the notice must be clear and unambiguous. If the notice
does not specify the action proposed to be taken, it is considered as vague, and therefore, not proper.

70 Constitution of India
Right of legal representation: Legal representation is not considered as an indispensable part of the
rule of fair hearing in administrative proceedings. This denial of legal representation is justified on the
ground that:
y lawyers tend to complicate matters, prolong hearings, and destroy the essential informality of the
hearings.
y it gives an edge to the rich over the poor, who cannot afford a good lawyer.
Whether legal representation is allowed in administrative proceedings depends on the provisions of the
concerned law. Many courts have observed that it would be improper to disallow legal representation
to the aggrieved person where the State is allowed to be represented by a lawyer.
3. Requirement of passing a speaking or reasoned order: In India, unless there is a specific requirement
of giving reasons , it is not mandatory for the administrative agencies to give reasons for their
decisions. Any decision of the administrative authority, affecting the rights of people, without
assigning any reason leads to the violation of the principles of natural justice. The requirement of
stating the reasons help serving the following purposes.
⚪ It ensures that the administrative authority will apply its mind and objectively look at the facts
and evidence of the case.
⚪ It ensures that all relevant factors have been considered and the irrelevant factors have been left
out.
⚪ It satisfies the aggrieved party in the sense that its viewpoints are examined and considered prior
to reaching a conclusion.
4. The appellate authorities and courts are in a better position to consider the appeals on the
question of law. In short, reasons reveal the rational nexus between the facts considered and the
conclusions arrived at.

Effect of the Failure of Natural Justice

The Supreme Court in the AR Antulay versus RS Nayak case (1988, SC) and the Nawab Khan versus
State of Gujarat case (1974, SC) held that an order that infringes a fundamental freedom passed in
violation of the principles of natural justice is a nullity. However, the decision of the Supreme Court
in the Maneka Gandhi versus Union of India case (1978, SC) created doubts about the efficacy of
this proposition. The Court took note of the assurance of the government that the appellant would
be provided with a post-decisional hearing. The effect of this decision was that an order passed in
violation of the rules of natural justice was not void, and hence, could be validated by post-decisional
hearing. Nevertheless, in India, the convention followed is that when the principles of natural justice
are followed, the decision is taken to be null and void.

Exclusion of the Rule of Natural Justice

It refers to exceptional and rare situations when the principles of natural justice may be ignored. Some
such instances are as follows.
1. On the grounds of Articles 14 and 21: Application of the principles of natural justice can be excluded
either expressly or impliedly, subject to the provisions of Articles 14 and 21 of the Constitution.
Therefore, if the statute precludes the rules of natural justice, it will not suffer invalidation on the
ground of arbitrariness.
2. Emergency: In such exceptional cases of emergency where prompt, preventive, or remedial action
is needed, the requirement of notice and hearing may be obviated.

Constitution of India 71
 3. Confidentiality: In a situation when secrecy of a matter must be taken into consideration, the
principles of natural justice may be ignored.
4. Interim preventive action: If the action of the administrative authority is a suspension order in a
preventive action and not the final order, the application of the principles of natural justice may
be excluded.
5. Legislative action: Such action, plenary or subordinate, is not subject to the rules of natural justice
because these rules lay down a policy without reference to a particular individual.
6. Where no right of the person is infringed: Where no right has been conferred on a person by any
statute or there is no such right that arises from the common law, the principles of natural justice
are not applicable.
7. Statutory exception or necessity: Disqualification on the ground of bias against a person will not be
applicable if he is the only person competent or authorised to decide that matter or take action.
8. Contractual arrangement: When the contract itself waives the requirement of the compliance of
the principles of natural justice, they may not be followed.
9. Government policy decision: If in the exercise of executive powers, the government makes a policy
decision, the principles of natural justice can be excluded as it will be impossible and impracticable
to give a formal hearing to all those who may be affected whenever a policy decision is taken, and
at times, it will be against public interest as well.

Judicial Review of Administrative Actions

The term, ‘discretion’, when qualified by the word, ‘administrative’, means choosing from amongst the
various available alternatives but with reference to the rules of reason and justice and not according
to personal whims. Such exercise is not to be arbitrary, vague, and fanciful, but legal and regular.
It is true that in any intensive form of government, the government cannot function without the
exercise of some discretion by officials. But it is equally true that absolute discretion is a ruthless
master. Discretionary power by itself is not ‘pure evil’, but it gives much room for misuse. Therefore,
remedy lies in tightening the procedure and not in abolishing the power itself. There is no set pattern of
conferring discretion on an administrative officer. Modern drafting technique uses the words—‘adequate’,
‘advisable’, ‘appropriate’, ‘beneficial’, ‘reputable’, ‘safe’, ‘sufficient’, ‘wholesome’, ‘deem fit’, ‘prejudicial to
safety and security’, ‘satisfaction’, ‘belief’, ‘efficient’, ‘public purpose’, etc., or their opposites.

Need for Administrative Discretion

The need for discretion arises because of the necessity to individualise the exercise of power by the
administration. In the current scenario, administrative discretion may be said to be important because:
1. the problems are complex and varying in nature, and it is difficult to comprehend them all within
the scope of general rules.
2. most of the problems are new. Lack of any previous experience to deal with them does not warrant
the adoption of general rules.
3. it is not always possible to foresee each problem.
4. circumstances differ from case to case. So, applying one rule mechanically to all cases may result
in injustice.

72 Constitution of India
Judicial Behaviour and Administrative Discretion in India
The judicial control mechanism of administrative discretion is exercised at the following two stages.
1. Control at the stage of delegation of discretion: The court exercises control over the delegation of
discretionary powers to the administration by adjudicating upon the constitutionality of the law
under which such powers are delegated with reference to the Fundamental Rights enunciated in
Part III of the Constitution. Therefore, if the law confers vague and wide discretionary power on any
administrative authority, it may be declared ultra vires under Articles 14 and 19, and other provisions
of the Constitution. In certain situations, though the Constitution does not give discretionary
power to the administrative authority to take an action, it may give it discretionary power to frame
rules and regulations affecting the rights of citizens. The court can control the bestowal of such
discretion on the ground of excessive delegation.
2. Control at the stage of exercise of discretion: In India, there is no administrative procedure
legislation providing for judicial review on the exercise of administrative discretion. Therefore, the
power of judicial review arises from the constitutional configuration of courts. The courts in India
have always held the view that judge-proof discretion is a negation of the rule of law. Therefore,
they have developed various formulations to control the exercise of administrative discretion.
These formulations may be conveniently grouped into three broad generalisations.
a. The authority is deemed not to have exercised its discretion at all.
b. The authority has not exercised its discretion properly.
c. That the authority is deemed not to have exercised its discretion at all.
In the RD Shetty versus International Airport Authority case (1979, SC), the Supreme Court accepted
the plea of locus standi in challenging administrative action. Justice PN Bhagwati, who delivered the
judgement in the case, held the following.
y The exercise of discretion is an inseparable part of sound administration, and therefore, the State,
which is itself a creature of the Constitution, cannot shed its limitation at any time in any sphere of
State activity.
y It is a well-settled rule of administrative law that an executive authority must be rigorously held to
the standards by which it professes its actions to be judged and it must scrupulously observe those
standards on the pain of invalidation of an act in violation of them.
y It is indeed unthinkable that in a democracy, governed by the rule of law, the executive government
or any of its officers should possess arbitrary powers over the interests of an individual. Every action
of the executive government must be informed with reason and should be free from arbitrariness.
That is the very essence of the rule of law and its bare minimal requirement.
y The government could not be permitted to say that it will give jobs, or enter into contracts, or issue
quotas or licences only in favour of those having grey hair, or belonging to a particular political party,
or professing a particular religious faith. The government is still the government when it acts in the
matter of granting largesse and it could not act arbitrarily. It does not stand in the same position as
a private individual.
Thus, the exercise of discretion must not be arbitrary, fanciful, and influenced by extraneous
considerations. In matters of discretion, the choice must be dictated by public interest and must not
be unprincipled or unreasoned. It has been firmly established that the discretionary powers given
to government or quasi-government authorities must be hedged by policy, standards, procedural
safeguards, or guidelines, failing which the exercise of discretion and its delegation may be quashed

Constitution of India 73
 by courts. This principle has been reiterated in many cases. In India, the administrative discretion has
been reviewed by courts on the following grounds.
1. Abuse of discretion: Nowadays, administrative authorities are conferred with a wide range of
discretionary powers. There is an immense need for their control so that they may not be misused.
The discretionary powers are required to be exercised as per law. When the mode of exercising a
valid power is improper or unreasonable, there is an abuse of power. Abuse of the discretionary
powers may be inferred in cases like use for improper purpose, mala fide or bad faith, irrelevant
consideration, leaving out relevant considerations, mixed consideration, unreasonableness,
colourable exercise of power, or exceeding jurisdiction.
2. Failure to exercise discretion: An authority is said to have failed to exercise its discretion in
situations like non-application of mind and acting under dictation, and its decision or action will
be bad in such circumstances.
3. Imposing fetters on the exercise of discretionary powers: If an authority imposes fetters on its
discretion by announcing rules of policy to be applied by it rigidly in all cases coming before it
for decision, its action or decision will be bad. An authority entrusted with discretionary powers
is required to exercise its powers only after considering individual cases. If the authority imposes
fetters on its discretion by adopting a fixed rule of policy to be applied rigidly to all cases coming
before it, it will be taken as failure to exercise discretion and its action, or decision, or order will
be bad.

Administrative Discretion and Fundamental Rights

The Fundamental Rights provide a basis to the judiciary in India to control administrative discretion to
a large extent. There have been several cases, wherein a law conferring discretionary powers has been
held violative of a fundamental right.
The doctrine of legitimate expectation: A major basis of judicial review of administrative action is the
doctrine of legitimate expectation. It is to be confined mostly to the ‘right of fair hearing’ before a
decision, which results in negativing a promise, or withdrawing an undertaking is taken. A person, who
bases his claim on the doctrine of legitimate expectation, in the first instance itself must satisfy that
there is foundation, and thus, he has locus standi to make such a claim. In case of a denial of legitimate
expectation in a case, it amounts to the denial of the right guaranteed, or arbitrary, discriminatory,
unfair or biased decision, or gross abuse of power, or violation of the principles of natural justice.
Abuse or misuse of discretion: The abuse of discretion may occur in any of the following situations.
Mala fide: Also meaning ‘bad faith’, mala fide means dishonest intention or corrupt motive. Even
though it may be difficult to determine whether an authority has exceeded its powers in a particular
case because of the broad terms in which the statute in question may have conferred power on it, the
administrative action may, nevertheless, be declared bad if the motivation behind the action is not
honest.
1. Improper purpose: If a statute confers power for one purpose, its use for a different purpose will
not be regarded as a valid exercise of the power, and the same may be quashed.
2. Irrelevant considerations: If an authority pays attention to or considers wholly irrelevant or
extraneous circumstances, events or matters, then it is said to be a case of misuse of discretion.
3. Leaving out relevant considerations: If while exercising its discretionary power an administrative
authority ignores relevant considerations, then its action will be invalid, especially those prescribed
by a statute, whether expressly or impliedly.

74 Constitution of India
4. Non-application of mind: Where a discretion has been conferred on an authority, it is expected to
exercise the same by considering the facts and circumstances of the case at hand, else its action
or decision will be bad, and the authority will be deemed to have failed to exercise its discretion.
5. Imposing fetters on the exercise of discretion: A case of non-application of mind also arises when
an authority having discretion imposes fetters on its discretion by announcing rules of policy to be
applied by it rigidly to all cases coming before it for decision.

Administrative Control through Writs

Habeas corpus: The words, habeas corpus, mean ‘to have the body’. It is a prerogative writ granted to
a subject detained illegally in jail. It is an order of release. Thus, the writ provides remedy for a person
wrongfully detained or restrained. By this, a command is issued to a jailor, who detains a person in
custody to the effect that the person imprisoned or the detenu should be produced before the Court
of Law and submit the day and cause of his imprisonment or detention. The detaining authority or the
person, i.e., the jailor is required to justify the cause of detention of the detenu. If there is no valid
reason for detention, the Court will immediately order the release of the detained person. The writ
is the most effective means to check arbitrary arrest by an executive authority. It is available only
in those cases where a restraint is put on a person without any legal justification. When a person is
subjected to confinement by an order of a Court, which passed the order after going through the merits
of a case, the writ of habeas corpus cannot be invoked, howsoever, erroneous the order may be.
Mandamus: A writ of mandamus is in the form of a command directed to a lower Court, tribunal,
board, corporation, or any administrative authority, or a person requiring the performance of a specific
duty fixed by law. The writ is issued to compel an authority to do its duties or exercise its powers in
accordance with the mandate of law. The authority may also be prevented from doing an act, which
it is not entitled to do. The authority, against which the writ is issued, may be governmental or semi-
governmental, or judicial bodies. An order of mandamus is not passed against a private individual,
unless s/he acts under some public authority.
Grounds of the writ of mandamus: Some of the grounds for issuing the writ of mandamus are as
follows.
y That the petitioner has a legal right.
y There has been an infringement of the legal right of the petitioner.
y The infringement has been due to non-performance of the corresponding duty by a public authority.
y The petitioner has demanded the performance of the legal duty by the public authority and the
authority has refused to act.
y There has been no effective alternative legal remedy.
The applicant must show that the duty, which is sought to be enforced, is owed to him/her. S/he must
be able to establish an interest, the invasion of which has given rise to the action.
Grounds on which the writ of mandamus may be refused: The relief by way of the writ of mandamus is
discretionary and not a matter of right. The Court may refuse a writ of mandamus where it would find
it to be meaningless, owing to lapse or otherwise.
Certiorari: The word, certiorari, means ‘to inform’. It may be defined as a judicial order operating in
personam and made in the original legal proceedings directed by the Supreme Court or a High Court to
any constitutional, or statutory, or non-statutory body, or person, requiring the records of any action
to be certified by the Court and dealt with in accordance with law. In other words, it is a command

Constitution of India 75
 or an order to a lower Court or tribunal to transmit the records of a cause or matter pending before it
to a higher Court; and if the order of the lower Court is found to be without jurisdiction or against the
principles of natural justice, it is quashed. The jurisdiction to issue the writ of certiorari is supervisory,
and in exercising it, the Court is not entitled to act as a ‘court of appeal’. An error of law apparent on
the face of record could be corrected by the writ of certiorari, but not by an error of fact, howsoever
grave it may appear to be. Certiorari is, thus, said to be a corrective remedy.
Against whom it can be issued: The writ of certiorari may be issued against any judicial or quasi-judicial
authority, acting in a judicial manner, or any other authority that performs judicial functions and acts
in a judicial manner or the government itself.
Grounds for the writ of certiorari: The writ of Certiorari can be issued in any of the following
circumstances.
1. Lack of jurisdiction: It refers to situations where an authority has no jurisdiction at all to take an
action. Such situations may arise:
a. if the authority is improperly constituted.
b. if the authority commits an error in its decision on jurisdictional facts, and thereby, assumes
jurisdiction that never belonged to it.
c. if the authority is incompetent to take an action in respect of a locality, party, or subject
matter.
d. if the law, which grants jurisdiction, is itself unconstitutional.
e. if the preliminary essentials have been disregarded, i.e., there is an omission to serve notice as
required by law.
2. Excess of jurisdiction: It refers to cases where the authority has jurisdiction, but it exceeds its
permitted limit.
3. Abuse of jurisdiction: The writ of certiorari will also apply to quash an action, where the authority
has jurisdiction but has abused it. This may happen when the authority exercises its power for
an improper purpose, or on extraneous consideration, or in bad faith, or leaves out a relevant
consideration, or does not exercise the power by itself but at the instance and discretion of
someone else.
4. Violation of the principles of natural Justice: The principles of natural justice include the
‘rule against bias’. ‘Bias’, here, means personal, pecuniary, subject matter, departmental, and
Preconceived notion bias. The rule of audi alteram partem, which means the right to fair hearing
and reasoned decision, is also covered under the principles of natural justice.. If an administrative
agency violates any of these rules, the decision of the agency may be quashed by the court through
the writ of certiorari.
5. Error of law apparent on the face of record: The writ of certiorari will be issued to quash decisions,
which though made within jurisdiction, reveal on the ‘face of record’ an error of law. ‘Record’, for
this purpose, shall include documents, in which the determination is recorded, and those that
indicate proceedings and pleadings, etc. ‘Error apparent on the face of record’ shall include not a
mere error but a manifested error based on sheer ignorance or disregard of the law, or on a wrong
proposition of the law, or on clear inconsistency between facts and the law and the decision.
6. Fraud: If a decision of an agency has been obtained by fraud or fraud operates to take away the
jurisdiction, or bestow jurisdiction, or result in the denial of justice, then the decision may be
quashed by issuing the writ of certiorari.

76 Constitution of India
It is a well-settled law that the certiorari cannot be issued to disturb a finding of a fact, unless it is
based on evidence, or purely on surmises and conjectures, or which is manifestly against the basic
principles of natural justice.
Quo warranto: The term, quo warranto, means ‘by what authority’. Whenever a private person wrongfully
usurps an office, s/he is prevented by the writ of quo warranto from continuing in that office. The basic
conditions for the issuance of the writ are—that the office must be public, it must have been created
by the statute or Constitution itself, it must be of a substantive character, and the holder of the office
must not be legally qualified to hold the office or to remain in office, or he has been appointed in
accordance with law. A writ of quo warranto is never issued as a matter of course. It is always within
the discretion of the Court to decide to issue the writ. The Court may refuse to grant the writ of quo
warranto if it is vexatious, or where the petitioner is guilty of laches, or where s/he has acquiesced or
concurred in the very act against which s/he complains, or where the motive of the relater is suspicious.
Any private person can file a petition citing this writ, even though s/he is not personally aggrieved or
interested in the matter. The remedy under this petition will be applicable only to public office. The
nature of quo warranto will lie in respect of a particular office when it satisfies the following conditions.
1. The office must have been created by statute, or by the Constitution itself.
2. The duties of the office must be of public nature.
3. The person proceeded against must be in actual possession and using the office in question.
Prohibition: The writ of ‘prohibition’ is a writ directing a subordinate to stop doing something that the
law prohibits. This writ is normally issued by a higher court to a lower court, asking it not to proceed
with a case that does not fall under its jurisdiction. The writ is issued as ‘alternative’ or ‘peremptory’.
An alternative writ directs a recipient to immediately act or desist, and ‘show cause’ why the directive
should not be made permanent. A peremptory writ directs the recipient to immediately act or desist,
and ‘return’ the writ with certification of its compliance within a certain timeframe.
When an agency of an official body is the target of the writ of prohibition, the writ is directed to the
official body over which the court has direct jurisdiction, ordering it to cause the agency to desist.
A writ of prohibition may be directed by any court of record (i.e,, higher than a misdemeanour court)
towards any official body— whether a court, or a county, city, or town government within the court’s
jurisdiction.
A writ of prohibition is issued primarily to prevent a lower court or tribunal from exceeding its jurisdiction
in cases pending before it or acting contrary to the principles of natural justice. It is issued by a higher
court to a lower court from preventing it to usurp a jurisdiction with which it was not legally vested,
or in other words, compel lower courts to remain within the limits of their jurisdiction. Thus, the
writ is issued in cases where there is excess of jurisdiction and those where there is an absence of
jurisdiction. It may be noted that the writ can be issued only when the proceedings are pending before
a court. If a proceeding has matured into a decision, the writ cannot be issued. If the court before
which the matter is pending has ceased to exist, even then the writ of prohibition cannot be issued
because there can be no proceedings upon which it can operate. But on the other hand, if a court is
functioning, the writ can be issued at any stage of the proceeding before the lower court or tribunal.
It can be issued only against a judicial or legislative function.

Constitution of India 77
 Difference between Certiorari and Prohibition
1. The grounds of both the writs are same. But prohibition is a preventive remedy, while certiorari is
a curative or corrective remedy. Thus, prohibition applies where an authority is about to abuse or
misuse its power, whereas certiorari applies where it has already abused or misused its power.
2. The writ of certiorari can be issued even when a proceeding has closed, while an order of prohibition
can be issued for only as long as the proceeding remains pending. It cannot be issued after the
authority has ceased to exist.
3. Prohibition is issued with a view to stop an act at its starting, whereas certiorari is issued to quash
or declare the act illegal.

Landmark Judgements

Preventive Detention Act Intra Vires Constitution of India with Section 14 as Exception
AK Gopalan versus State of Madras
[AIR 1950 SC 27]
Decided on: 19.05.1950
Bench: Justices MH Kania (CJI), Saiyid Fazl Ali, M Patanjali Sastri,
Mehr Chand Mahajan, BK Mukherjea, and SR Das
Facts: The writ of habeas corpus was filed against the detention of an applicant in Madras Jail. Various
dates were given showing his detention since December 1947. The conviction was set aside, but he
was sentenced to jail. He was served with an order of the Madras State government under Section
3(1) while still under detention. The legality of the order was challenged, contending the 1950 Act,
which contravenes the provisions of Articles 14, 19, and 21 of the Constitution and that provision of
the Act was not in accordance with Article 32 of the Constitution. The grounds of detention were not
disclosed to the applicant. The question of mala fide nature of the order could not be considered
under the petition. This was first case, containing different articles of the Constitution that describe
the Fundamental Rights, came for discussion.
Issue: Whether Preventive Detention Act ultra vires Fundamental Rights?
Held: The Preventive Detention Act was held to be intra vires the Constitution of India with Section
14 as an exception, was illegal and ultra vires with the provisions of constitution. The rest of provisions
in the Act were not as affected by the validity of Section 14. Section 12 is also ultra vires as it does
not confirm to the provisions of the Constitution. Article 21 is applicable to preventive detention
and detention beyond three months permitted by the Act of 1950. It excludes the necessity of the
Consulting Advisory Board if the opening words of Article 22(7) compiled with sub-clause (b) of the said
article is permissible. It is not obligatory to prescribe any maximum period by Parliament.
—————

Caste-Based Admissions in Professional Courses

State of Madras versus Champakam Dorairajan
[AIR 1951 SC 226]
Decided on: 09.04.1951
Bench: Kania, Hiralal J. (Cj), Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan,
Mehr Chand, Mukherjea, B.K. & Das, S. R. Bose, Vivian
Facts: The respondent filed an application before the High Court of Madras under Article 226 seeking
protection of her Fundamental Rights under Articles 15(1) and 29(2) of the Constitution, and to issue a

78 Constitution of India
writ of mandamus or a suitable prerogative writ restraining the state officers and subordinates from
maintaining, following, or enforcing a notification or order referred to as communal Government Order
by the authorities concerned by which admissions to medical colleges sought or purported to be
regulated in a manner as to infringe or violate her Fundamental Rights. On enquiry, she said that she
came to know that she would not be admitted to a college as she belonged to the Brahmin community.
No objection was taken regarding the maintainability of application for admission on ground of absence
of actual application for admission. The State agreed to reserve a seat for her, should her application
succeed before the High Court. But it is desired to be on guard being understood as holding as
approving against a person not actually applying for admission into an educational institution coming
to the Court complaining of infringement of her Fundamental Right under Article 29(2).
Issue: Whether a communal government order is violative of Articles 15(1) and 29(2), and the Fundamental
Rights guaranteed by the Constitution?
Held: The communal government order, being inconsistent with the provision mentioned in Article
29(2) in Part III of Constitution, is void under Article 13. The right to get admission into an educational
institution under Clause 2 of Article 29 is the right of every citizen of Indian as a citizen and not as a
member of any community or class of citizens. This right is not to be denied to a citizen on the grounds
of religion, race, caste, language, or any of them. If s/he has the required academic qualifications but
is refused admission on those grounds, there is clear breach of Fundamental Right.
—————

First Constitutional Amendment

Shankari Prasad Singh Deo versus Union of India
[AIR 1951 SC 458]
Decided on: 05. 10. 1951
Bench: Justices MH Kania, M Patanjali Sastri, BK Mukherjea, SR Das, and N Chandrasekhara Aiyar
Facts: A common question raised in petitions as to whether the first constitutional amendment, i.e., the
1st Amendment Act, 1951, passed by the present provisional Parliament of purports to insert Articles 31A
and 31B in the Constitution is ultra vires and unconstitutional. The enactment is a matter of common
knowledge. A political party in power, commanding a majority of votes in several State Legislatures
and Parliament, carried out certain agrarian reforms in Bihar, Uttar Pradesh, and Madhya Pradesh by
enacting a legislation compendiously referred to as the Zamindari Abolition Act. Feeling aggrieved,
certain zamindars attacked the validity of the Act in the courts of law as being in contravention with the
right to property, a Fundamental Right, conferred on citizens by Part III of the Constitution. An appeal
against the order of various High Courts was pending before the Apex Court. Besides, several petitions
were filed by zamindars on the issue. To put an end to litigation and remedy defects in the working
of the Constitution, the Union government brought forward a bill to amend the Constitution, which
was passed by a majority in Parliament as the Constitution (1st Amendment) Act, 1951. Reacting to this
move of the government, zamindars filed petitions under Article 32 of the Constitution, impugning the
1st Amendment Act, 1951, as void and unconstitutional.
Issue: The 1st Constitutional Amendment Act is ultra vires.
Held: It was evident that there existed a conflict between Articles 13 and 368 of the Constitution. On
one hand, Article 368 gave the legislature the power to amend the Constitution, while at the same
time, Article 13(2) restricted it. The Supreme Court, in this case, used the doctrine of harmonious
construction in an attempt to resolve the conflicting provisions. It was concluded that the word, ‘law’,

Constitution of India 79
 in Article 13(2) is for ordinary laws and not constitutional laws, thereby, limiting the extent of ‘law’
under Article 13(2). This also meant that the Parliament had exclusive power under Article 368 to
amend the Constitution, including the Fundamental Rights under Part III of the Constitution. The Apex
Court validated Article 31A and 31B, and also upheld the validity of the agrarian land reforms.
—————

Power of Suspension of Sentence by the Governor under Article 161 of the Constitution
KM Nanavati versus State of Bombay
[AIR 1961 SC 112: 1961 (1) SCR 497: 1961 (1) Cri LJ 173: 1961 (1) SCA 54]
Decided on: 05. 09. 1960
Bench: Justices BP Sinha (CJI), JL Kapur, K Subba Rao, KN Wanchoo, and PB Gajendragadkar
Issue: The case dealt with the power conferred on the Governor of a State under Article 161 of the
Constitution and its extent, and whether the Governor’s order impinges on the judicial powers of the
Supreme Court with reference to the powers mentioned in Article 142 of the Constitution.
Held: The Apex Court held that the order passed by the Governor granting the suspension of sentence
could operate only until the matter became sub judice in the Court. On the petition filed for a special
leave to appeal, the Supreme Court has seized the case after filing the petition, which would be dealt
by it in accordance with law. The period during which the matter was sub judice in the Supreme Court,
the Governor had no power to grant the suspension of sentence. The powers given to a Governor are
specific powers with regard to pardons as vested in colonial and British Governors in Indian provinces
during the British rule in India. The power given under Article 142(1) to the Court is a general power
exercisable for doing complete justice in any case or matter. Article 161 must prevail over Article 142(1),
which is in accord with the constitutional provision, if Articles 161 and 142(1) deal with the same subject
matter as contended.
—————

Tortious Acts of Employees—Vicarious Liability of Government

State of Rajasthan versus Vidhyawati
[AIR 1962 SC 933: 1963 (1) SCJ 307: 1962 (2) SCA 362: 1963 (1) MLJ 70]
Decided on: 02. 02. 1962
Bench: Justices BP Sinha (CJI), JC Shah, JL Kapur, JR Mudholkar, and M Hidayatullah
Facts: Respondent I’s husband and father of the minor respondent (aged three years) II was knocked
down by a government jeep car being driven by an employee of the State of Rajasthan while walking
on a footpath by the side of a public road. This caused him multiple injuries, including fractures in the
skull and backbone. He was taken to a hospital where he died after three days. The respondents sued
the first defendant and the State for damages for tort. They claimed a compensation of Rs 25000 from
both defendants. The Trial Court dismissed the claim for compensation against the State of Rajasthan,
which was the second defendant in the suit, for damages for the tortious act of the first defendant.
On appeal by the plaintiffs against the judgement and decree of the Trial Court, the High Court of
Rajasthan passed a decree in favour of the plaintiffs allowing a compensation of Rs 15000 against the
State of Rajasthan also, which is the appellant in this Court. Under Article 133(1)(c) of the Constitution,
the State of Rajasthan preferred appeal to the Supreme Court raising the question, viz., the extent
of vicarious liability of the government for tortious acts of its employees acting in the course of their
employment as such.

80 Constitution of India
Held: The liability of the State with respect to tortious acts committed by its servants within the scope of
their employment and functioning are similar to that of any other employer. The State of Rajasthan has
not shown that the Rajasthan Union, its predecessor, was not liable for any rule of positive enactment
or by the Common law. The appellant did not show any provision of law, statutory or otherwise, which
would exonerate the Rajasthan Union from vicarious liability for acts of its servants, analogous to the
Common Law of England. The very citadel of absolute rule of immunity of the sovereign has been
blown up. The republican form of government is established by our Constitution, with the objective
to establish a ‘socialistic’ State with its varied industrial and other activities employing a large army
of servants. There is no justification in the principle or in public interest that the State should not be
held vicariously liable for the tortious acts of its servant.
—————

Substantive Question of Law—Determination

Chunilal V Mehta & Sons Ltd versus Century Spinning and Manufacturing Co Ltd
[AIR 1962 SC 1314: 1963 MPLJ 449: 1963 MLJ 457: 1961 (21) FJR 478]
Decided on: 05. 05. 1962
Bench: Justices BP Sinha, JL Kapur, M Hidayatullah, JC Shah, and JR Mudholkar
Facts: The appellants were appointed as managing agents of the respondents for 21 years. Under Clause
10 of the agreement, the appellants were entitled to a remuneration equal to 10 per cent of the gross
profits of the respondents subject to a minimum of Rs 6000 per month. Clause 14 provided that if the
agreement was terminated otherwise in accordance with the provisions thereof, the appellants would
be entitled to liquidated Damages of not less than Rs 6000 per month for the unexpired portion of the
agreement. The respondent wrongfully terminated the agreement before the expiry of the stipulated
period. The appellants filed a suit for the recovery of damages for breach of contract on the basis of
10 per cent of the gross profits of the respondents. The trial judge granted a decree for Rs 234000
calculating the amount at Rs 6000 per month. On an appeal filed by the appellants, the High Court
affirmed the decree. The appellants applied to the High Court for a certificate of fitness for appealing
before the Supreme Court, but it declined to grant the same on the ground that though the question
involved in the case relating to the interpretation of the agreement was a question of law, it was not a
substantial question of law as required by Article 13(1) of the Constitution.
Issue: What is substantial question of law? Whether refusal to grant a certificate under Article 133(1)(a)
by the High Court was erroneous?
Held: It was held It was held that the case involved a substantial question of law and the appellants
were entitled to the certificate as of the right. A substantial question of law is one that is of general
public importance or one which directly and substantially affects the rights of the parties and that
have not been finally settled by the Supreme Court, the Privy Council, or the Federal Court, or which is
not free from difficulty, or which calls for discussion of alternative views. The question involved in the
present case as to the construction of the agreement was not only one of law but was neither simple
nor free from doubt and was a substantial question of law. The High Court was in error in refusing to
grant under Article 133(1)(a) certificate to the appellant for the appeal involved substantial question of
law.
—————

Constitution of India 81
 Surveillance—Violation of Privacy by Police
Kharak Singh versus State of Uttar Pradesh
[AIR 1963 SC 1295: 1964 (1) SCR 332: 1964 (2) SCJ 107: 1963 (2) Cri LJ 329]
Decided on: 18. 12. 1962
Bench: BP Sinha (CJI), JC Shah, JR Mudholkar, K Subba Rao, N Rajagopala Ayyangar, and SJ Imam
Facts: The petitioner was challenged in a dacoity case but was released as there was no evidence against
him. The police opened the history sheet against him. He was put under surveillance. In his petition,
he alleged that the chowkidar of the village and police constables used to enter his house, shout at
his door, wake him up from sleep at night. Many a time, the police compelled him to accompany them
to the police station at night. This required him to report to the village chowkidar or the police station
in the area about his departure, inform them of his whereabouts/destination, and the period by which
he would return. Once he reached the destination, the police station at the destination contacted the
police station of his departure, and put him under surveillance in the same way. The petitioner filed a
writ petition under Article 32, wherein he challenged the constitutional validity of Chapter XX of the UP
Police Regulations and powers conferred upon the police by its several provisions on the ground that
they violate the rights guaranteed to citizens under Articles 19(1)(d) and 21 of the Constitution.
Issue: Are Chapter XX of the UP Police Regulations and powers conferred upon the police by its
provisions constitutionally valid as they violate the rights guaranteed to citizens by Articles 19(1)(d) and
21 of the Constitution?
Held: Regulation 236(b), which authorises ‘domiciliary visits’, was struck down as unconstitutional. It
was held that the petitioner is entitled to issue the writ of mandamus, directing the respondent not to
continue domiciliary visits. Clause (b) of Regulation 236 is violative of Article 21 and as there is no law
to justify it. So, it must be struck down as unconstitutional. By watch being kept over the movements
of the suspect, the freedom guaranteed by Article 19(1)(d) is not infringed. The ‘right of privacy’ is not
guaranteed by the Constitution. Attempt to ascertain the movements of an individual, which is in such
a manner in which privacy is invaded, is not the infringement of Fundamental Rights guaranteed under
Part III of the Constitution.
—————

Basic Structure of the Constitution

IC Golak Nath versus State of Punjab
[AIR 1967 SC 1643]
Decided on: 27. 02. 1967
Bench: Justices K Subba Rao (CJI), CA Vaidialingam, GK Mitter, JC Shah, JM Shelat, KN Wanchoo, M.
Hidayatullah, RS Bachawat, SM Sikri, Vashishtha Bhargava, and V Ramaswami
Facts: The validity of the Constitution’s first, fourth, and seventeenth Amendment Acts was challenged
on the ground that Fundamental Rights conferred by Part III are inviolable and immune from amendment.
The power of amendment is not given by Article 368; and the amending power is expressly limited by
Article 13(2) and impliedly by Article 368, and other articles and the Preamble. The further acts made
changes in Articles 226 and 245 without complying with the proviso to Article 368.
Issue: Whether the first, fourth, and seventh Amendment Acts are part of the Constitution by
acquiescence?

82 Constitution of India
Held: The court held that the Fundamental Rights are outside the amendatory process. It further held
that being part of the Constitution by acquiescence for a long time, the first, fourth, and seventeenth
Amendment cannot be challenged, and they contain the authority for the seventeenth Amendment. It
is laid down by the Supreme Court that the Fundamental Rights cannot be abridged or taken away by
the exercise of a mandatory process in Article 368. Any further inroad into these rights as they exist
today will be unconstitutional and illegal, unless Part III, in general, and Article 13(2), in particular, were
complied with.
—————

Constitution Mandate—Disregard by the President Is Ultra Vires

HH Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur versus Union of India
[AIR 1971 SC 530: 1971 (3) SCR 9: 1971 (1) SCC 85: 1971 (1) SCJ 295]
Decided on: 15. 12. 1970
Bench: Justices M. Hidayatullah (CJI), AN Grover, AN Ray, CA Vaidialingam, GK Mitter, ID Dua, JC Shah,
JM Shelat, KS Hedge, SM Sikri, and V Bhargava
Facts: The aim of the Government of India Act, 1935, was to associate Indian states with British India as
equal partners in a loose federation. The British paramountcy in respect of Indian states lapsed when
India became independent by the Indian Independence Act, 1947. The rulers became independent, but
almost all rulers signed almost immediately the Instruments of Accession in August 1947, surrendering
Defence, External Affairs and Communications. The rulers immediately after Independence got divided
into four classes.
(a) Those who had signed Instruments of Accession
(b) Those who had signed instruments of Merger
(c) Those who had formed themselves into Unions and the Unions had signed the Instruments of
Accession
(d) Hyderabad, Mysore, and Jammu and Kashmir
When the Constitution came into force, these rulers, too, became parts of the Union of India but on
a later date. The Indian states covered about 48 per cent of the area of the Indian dominion. On the
merger of states with the Union of India, the rulers were left with Privy Purses and a few of their personal
privileges and properties. Privy Purses were fixed with due regard to the income of the rulers before
integration with a ceiling of Rs 10 lac. The rulers were to be paid more than that sum as personal Privy
Purse. On 7 September 1970, the Finance Minister laid on the table of the Rajya Sabha a statement. He
claimed that the power of the President to withdraw the recognition of the rulers was unquestioned
and suggested as alternative to the amendment of the Constitution, and that the Government was in
fact going to use the power after the adoption of the Bill amending the Constitution. The petitioner
had challenged the Presidential order on 6 September 1970, derecognising rulers as unconstitutional,
ultra vires, and void.
Issue: Is the action of the President and the government valid?
Held: The Court held that the order of the President ‘derecognising’ the rules is ultra vires and illegal.
The writ of mandamus is issued to enforce the orders. The jurisdiction of courts with respect to
disputes relating to personal rights and privileges, which are granted by statutes as long as they remain
in operation, is not excluded. The power of the Supreme Court under Article 32 and that of the High
Court under Article 226 cannot be bypassed under the claim that the President exercised political

Constitution of India 83
 powers against the impugned orders are unconstitutional. The power conferred under Article 366(22)
is exercised for collateral purpose.
—————
Public Meetings: Police Commissioner’s Authority to Grant Permission Is Not the Violation of a
Citizen’s Right
Himat Lal K Shah versus Commissioner of Police
[AIR 1973 SC 87: 1973 (2) SCR 266: 1973 (1) SCC 227: 1973 Cri LJ 204]
Decided on: 15. 09. 1972
Bench: Justices SM Sikri (CJI), AN Ray, KK Mathew, MH Beg, and P Jagamohan Reddy
Facts: A permission to hold a public meeting in connection with the all-India students’ strike sponsored
by the All India Students’ Federation was refused to the appellant as the application was not sent five
days before the date of the meeting, as required by a notification of the commissioner of police. The
appellant was also informed that a meeting with or without loudspeaker and without the required
permission amounts to offence. He was also informed that in view of the present position, it was not
possible to grant such a permission in order to maintain law and order. The petition under Article 226
of the Constitution filed by the appellant, praying to quash orders, was declared void [Section 33(o)
read with Section 33(y) of the Bombay Police Act; rule numbers 7 to 11, 14, and 15 of the Rules for
processions and Public Meetings]. It was declared that the petitioner was not entitled to hold public
meetings on 4 and 5 September 1969 without obtaining the respondent’s permission.
Issue: A citizen of India’s right to hold public meetings on public streets and restrictions that can be
placed
Held: The impugned rules do not ultra vires Section 33(i) in so far as they require a prior permission
for holding public meetings. Section 33(i)(o) proceeds on the basis that the public has the right to hold
assemblies and take out processions on and along streets. However, it is necessary to regulate the
conduct, behaviour, and actions of persons constituting such assemblies or processions to safeguard
the rights of citizens and preserve public order. The impugned rules prescribe that permission should
be taken and do not prohibit holding of meetings. Without such rules, it would be impossible for
citizens to enjoy their rights in crowded public streets. The section was said to be enacted in aid of
rights under Articles 19(1))(a) and 19(1)(d).
—————

Parliament Not Empowered to Alter the Basic Structure of the Constitution

His Holiness Kesavananda Bharati Sripadagalvaru versus State of Kerala
[1973 (4) SCC 225: AIR 1973 SC 1461: 1973 (Supp) SCR 1: 2012 (4) SLT 481]
Decided on: 24. 04. 1973
Bench: Justices SM Sikri (CJI), AN Grover, AN Ray, DG Palekar, HR Khanna, JM Shelat, KK Mathew, KS
Hedge, M Hameedullah Beg, P Jaganmohan Reddy, SN Dwivedi, AK Mukherjee, and YV Chandrachud
Facts: The petitioner challenged the validity of Constitution’s 24th, 25th, and 29th Amendment Acts.
The 25th Amendment Act has amended Articles 31(2) and Article 31(2A) of the Constitution. The effect of
these two amendments with regard to Articles 31(2) and 31 (2A) was two-fold. By the 29th Amendment
Act, 1972, the Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment
Act, 1971, were introduced in the ninth Schedule of the Constitution.

84 Constitution of India
Issue: To determine the validity of the 24th Amendment and the validity of 25th, 26th, and 29th
Amendments on that basis; amending power conferred by Article 368 of Constitution and its extent
Held: The 24th, 25th, and 29th Amendment Acts were held as valid. The power to amend the Constitution
is mentioned in Article 368, and the word, ‘law’, in Article 13(2) does not mean the Constitution. The
Constitution is the supreme law of land. Amendment to the Constitution is an exercise of constituent
power. The majority view in the Golak Nath case is wrong. There are no express limitations on the
power of amendment. There are no implied and inherent limitations on the power of amendment.
Neither the Preamble, nor Article 13(2) are limited on the power of amendment. The power to amend
is unlimited and wide. In the exercise of constituent power, the Parliament can amend any provision
of this Constitution. The power to amend can also be increased under Article 368. The amendment of
Article 31(2B) is also valid. Articles 31(2) and 19(1)(f) are mutually exclusive.
—————

Powers of the Governor—Termination of Judicial Officer

Shamsher Singh versus State of Punjab
[(1974) 2 LLJ 465: AIR 1974 SC 2192: 1974 (2) SCC 831: 1975 (1) SCR 814]
Decided on: 23. 08. 1974
Bench: Justices AN Ray, DG Palekar, KK Mathew, YV Chandrachud, A Alagiriswami, PN Bhagwati, and
VR Krishna Iyer
Facts: The appellant, Shamsher Singh, joined the Punjab Civil Service (Judicial Branch) as a Subordinate
Judge and was on probation. His services were terminated by the Government of Punjab in the name
of the Governor of Punjab by an order that did not cite any reason for the termination. The services
of Ishwar Chand Agarwal were also terminated by the Government of Punjab in the name of the
Governor on the recommendation of the High Court. The appellants contended that the Governor as
the constitutional or formal head of the State can exercise powers and functions of the appointment
and removal of members of the subordinate judicial service only personally. The State, on the other
hand, contended that the Governor exercises the powers of appointment and removal conferred on
him by or under the Constitution like the executive powers of the State government only on the aid
and advice of his Council of Ministers and not personally.
Issue: Whether the Governor, as the constitutional or formal head of the state, could personally exercise
powers and functions regarding the appointment and removal of judicial officers?
Held: Justice Ray (CJ) held that the order of termination of the appellants’ services is clearly by way of
punishment. The protection guaranteed under Article 311 was denied by the High Court but also denied
itself dignified control over the subordinate judiciary. The form of order is not decisive, as to whether
the order is by way of punishment. The order of termination was set aside as being illegal.
Justice Iyer held that there is a breach of requirements of Rule 7 and orders of termination passed
against the appellants are, on that account, liable to be quashed and set aside. The conclusion reached
by the CJ and the order proposed by him are concurred with.
The order of the termination of services of the appellants is set aside and the appellant Ishwar Chand
Aggarwal is declared to be member of the Punjab Civil Service (Judicial Branch). In view of the fact that
Samsher Singh is already employed in the Ministry of Law, no relief, excepting salary or other monetary
benefits which accrued to him up to the time he obtained employment in the Ministry of Law, is given.
The State of Punjab will pay costs to the appellants.
—————

Constitution of India 85
 Lok Sabha Elections and Corrupt Practices—Legislative Power
Smt Indira Nehru Gandhi versus Shri Raj Narain
[AIR 1975 SC 2299]
Decided on: 07. 11. 1975
Bench: Justices AN Ray (CJI), HR Khanna, KK Mathew, M Hameedullah Beg, and YV Chandrachud
Facts: The appellant is Indira Nehru Gandhi and the respondent is Raj Narain. The election of the
appellant to the Lok Sabha from Rae Bareli constituency was declared void and the election petition
of the respondent was allowed. The appellant was found guilty of committing offence under Section
123(7) of the Representation of People Act, 1951, and was disqualified for a period of six years in
accordance with Section 6A of the Act.
Issue: Article 329A(4) of the Constitution inserted by the 39th Amendment Act is violative of the basic
structure of the Constitution.
Held: The 39th Amendment Act, 1975, was passed by the Parliament in exercise of constituent power.
It contained three principal features. First, by the amendment, Article 71 of the Constitution was
substituted by a new article and that article provided clause (1), whereby the Parliament may by law
regulate any matter relating to or connected with the election of the President or the Vice-President,
including the grounds on which the elections may be questioned. Second is the insertion of Article
329A in the Constitution. Article 329A contains six clauses. The fourth clause, which directly concerns
the present appeals, states that no law made by the Parliament before the commencement of the
Constitution (39th Amendment) Act, 1975, in so far as it relates to election petitions applied or in
relation to the election of any such person as referred to in Clause (1) to either House of Parliament and
such election shall not be deemed to be void or ever to have become void on any ground on which such
election could be declared to be void under any such law and notwithstanding any order made by any
court, before such commencement, declaring such election to be void, such election shall continue to
be valid in all respects and any such order and any finding on which such order is based shall be and
shall be deemed always to have been void and of no effect. The court further held that under the guise
of the exercising legislative power, the Parliament cannot adjudicate an election dispute on merits.
Article 329A(4), as inserted by the 39th Constitutional Amendment, was struck down as it violated the
basic structure of the Constitution.
—————

Habeas Corpus Case—When certain FRs Are Withdrawn during Emergency Declared by
President, No Person Has Any Locus Standi to Move Any Writ Petition
Additional District Magistrate, Jabalpur versus Shivakant Shukla
[AIR 1976 SC 1207: 1976 SCR 172: 1976 (3) SCC 454: 1976 Cri LJ 1723]
Decided on: 28.04.1976
Bench: Justices AN Ray (CJI), HR Khanna, MH Beg, PN Bhagwati, and YV Chandrachud
Facts: In exercise of powers conferred by Article 352(1) of the Constitution, the President on 25 June
1975 declared that grave emergency exists, whereby the security of India is threatened by internal
disturbances. In exercise of powers conferred by Article 359(1) of the Constitution, the President on
27 June 1975 declared that the right of every person, including foreigners, to move any court for
enforcement of rights conferred by Articles 14, 21, and 22 of the Constitution and proceedings pending
in any court for the enforcement of rights shall remain suspended for the period during which the

86 Constitution of India
proclamation of emergency made under Article 352(1) of the Constitution on 3 December 1971 and
25 June 1975 are in force. The respondents detained under the Maintenance of Internal Security Act
(MISA) petitioned in different High Courts for the writ of habeas corpus. The High Court of MP did not
examine the validity of proclamation or its continuation. Against the High Court of MP order, a case
came before the Supreme Court by way of appeals.
Issue: To enforce the right to personal liberty during emergency declared under Article 352(1) of the
Constitution, is the writ petition filed under Article 226 of the Constitution maintainable? If the petition
is maintainable, then what is the scope of judicial scrutiny in view of Presidential order?
Held: The Court held that Section 16A (9) of MISA was constitutionally valid. In view of the presidential
order dated 27 June 1975, no person has the locus standi to move a writ petition. Under Article 226,
before a High Court for a writ of habeas corpus or any other writ or order or direction to challenge the
legality of the order of detention on the ground that the order is not executed in compliance with the
Act or is illegal or vitiated by mala fides factual or legal or based on extraneous considerations. Section
16A(9) of MISA is not unconstitutional on the ground that it constitutes an encroachment on the writ
jurisdiction of the High Court under Article 226 of the Constitution. Section 16A(9) of MISA enacts a
genuine rule of evidence and does not detract from or affect the jurisdiction of the High Court. Under
Article 226 of the Constitution, it cannot be assailed as invalid. Section 18 of MISA does not suffer from
vice of excessive delegation and is a valid piece of legislation.
—————

Article 19: Right to Go Abroad

Mrs Maneka Gandhi versus Union of India
[AIR 1978 SC 597]
Decided on: 25. 01. 1978
Bench: Justices M Hameedullah Beg (CJI), NL Untwalia, PN Bhagwati, PS Kailasam, S Murtaza Fazal
Ali, VR Krishna Iyer, and YV Chandrachud
Facts: The passport of the petitioner was impounded in public interest by an order dated 2 July 1977.
In the interest of the general public, the Government of India declined to furnish reasons to her for its
decision. The petitioner filed a writ petition under Article 32 of the Constitution to challenge the order.
Issue: Whether the right to go abroad is included in the right under Article 19(1)(a)?
Held: The court held that the right to go abroad is not included in the right under Article 19(1)(a). If the
order made under Section 10(3)(c) of the Passport Act violates the right to free speech and expression,
it could be struck down as unconstitutional. The statute may pass the test of constitutionality and
yet the order passed under it may be unconstitutional. Further, the court held that the petitioner
was not entitled to any of the Fundamental Rights enumerated in Article 19 of the Constitution, and
requirements of Article 21 along-with the provisions mentioned in the Passport Act is in accordance
with the procedure established by law. The law cannot permit exercise of power to keep the reasons
for impounding of passport undisclosed if the sole reason for doing so is to keep the reasons away
from judicial scrutiny.
—————

Constitution of India 87
 Custodial Interrogation—Right of Silence to Accused
Nandini Satpathy versus PL Dani
[AIR 1978 SC 1025: 1978 (2) SCC 424: 1978 Cri LJ 968: 1978 (3) SCR 608]
Decided on: 07-04-1978
Bench: Justices VR Krishna Iyer, Jaswant Singh, and VD Tulzapurkar
Facts: The DSP (vigilance) filed a complaint against the appellant, former Chief Minister of Orissa,
before SDJM-Cuttack, alleging some offending facts. The cognizance of the offence was taken by the
Magistrate and summons for appearance were issued against accused the appellant. The aggrieved
appellant moved the High Court. Under Article 226 of the Constitution that deals with challenging the
validity of magisterial proceedings, the High Court rebuffed the plea of unconstitutionality and illegality.
Issue: Whether the accused has the right to consult his lawyer in custodial interrogation or has the
right to keep silence in police interrogation?
Held: Self-incrimination or tendency to expose oneself to criminal charge is more than ‘confessional’
and less than ‘relevant’. The accused person cannot be forced to answer questions merely because
answers thereto are not implicative when viewed in isolation and confined to that particular case.
If the answer sought has reasonable prospect of exposing him to guilt in some other accusations,
actual or imminent, he is entitled to keep his mouth shut, even though investigation underway is
not with reference to that. But the accused person cannot have a hiding ground for fanciful claims,
unreasonable apprehensions, and vague possibilities. He is bound to answer where there is no clear
tendency to criminate.
—————

Undertrial Prisoners at Tihar Jail and Solitary Confinement

Sunil Batra versus Delhi Administration
AIR 1978 SC 1675: 1979 SCR (1) 392: 1978 Cri LJ 1741: 1978 (4) SCC 494
Decided on: 30-08-1978
Bench: YV Chandrachud, CJ and VR Krishna Iyer, S Murtaza Fazal Ali, PN Singhal and DA Desai, JJ.
Facts: Two petitioners challenged traumatic treatment to which they are subjected to by Jail authorities
as illegal by separate WPs. Grievance of petitioner, sentenced to death by Delhi Sessions Court is against
de facto solitary confinement at Tihar Jail, pending his appeal, without de jure sanction. Complaint of
other petitioner was against distressing disablement of men behind bars especially of under-trials by
bar fetters and for unlimited duration on ipse dixit of prison officials. Does a prison setting ipso facto
outlaw, rule of law, lock out the judicial process from Jail gates and declare long holiday for human
rights of convicts in confinement and (to change the metaphor) if there is no total eclipse, what lucent
segment is open for judicial justice, is the important interrogation that lied at the root of these WPs.
Issue: Constitutional validity of Section 3 of the Prisons Act, 1894 insofar as it empowers Jail authorities
to keep in solitary confinement person sentenced to death and Section 56 of Prisons Act insofar as it
confers unguided, uncanalised and arbitrary powers on Superintendent of Police to confine a prisoner
in irons. And Whether Prison system has a conscience in constitutional terms, whether prisoner, ipso
facto forfeits personhood to become rightless slave of State and in cultural terms, whether man-
management of prison society can operate the arts by “zoological “strategies?
Held: Sections 30 and 56 of the Prisons Act, 1894 are constitutionally valid. Though Section 30 is
intra vires, petitioner under death sentence or others like him cannot be classed as persons “under

88 Constitution of India
sentence of death. They cannot be confined apart from other prisoners. Operation of Articles 14, 19 and
21 may be paired down for prisoner but not puffed out altogether. Fetters of petitioner facing grave
charges shall be removed forthwith and freedom of undertrials inside jail be allowed to him, including
locomotion – not if he has already been convicted. Section 56 of Prisons Act although pre-constitution
measure its application must be governed by imperative of Articles 14, 19 and 21. There must be special
reasons of an extraordinary or urgent character when fetters are fastened on an unconvicted prisoner.
Substantial reasons must be recorded and its copy furnished to the prisoner.
—————

Social Defence – Court Interference

Charles Sobhraj versus Supt. Central Jail Tihar, New Delhi
[AIR 1978 SC 1514: 1978 (4) SCC 104: 1978 Cri LJ 1534: 1979 (1) SCR 512]
Decided on: 31-08-1978
Bench: VR Krishna Iyer, DA Desai and O Chinnappa Reddy, JJ.
Facts: Petitioner was notorious criminal, imprisoned at Tihar Jail during his extradition proceedings
from India at the request of the Government of Siam where he was said to have committed about
five murders. He was French citizen and extradited to France. During his incarceration at Tihar Jail
he addressed several communications to the Supreme Court and securing facilities like his writing
material. In one of the letters to the Supreme Court he complained about his treatment is subject
matter of this case. Court did not agree with any of his complaints as true or tenable. Application was
entertained. Classic exposition full of rhetoric on social defence made.
Issue: Social defence - Court interference?
Held: Rights enjoyed by prisoners under Articles 14, 19 and 21 though limited are not static and will rise
to human heights when challenging situations arise. Cooper and Maneka Gandhi have thus compulsive
consequence benignant to prisoners.
Social defence is the raisin d’etre of the Penal Code and bears upon judicial control over prison
administration. Broad guideline laid down that where policies, with a zoological touch which do not
serve valid Penal objectives are pursued in penitentiaries so as to inflict conditions so unreasonable as
to frustrate the ability of inmates to engage in rehabilitation, the Court is not helpless.
—————

Hypothetical/Speculative Reference
Re: The Special Courts Bill, 1978
[AIR 1979 SC 478: 1979 (1) SCC 380: 1979 (2) SCR 476: 1979 (2) SCJ 35]
Decided on: 01-12-1978
Bench: YV Chandrachud, CJ, PN Bhagwati, VR Krishna Iyer, RS Sarkaria, NL Untwalia, S Murtaza Fazl
and PN Singhal, JJ.
Facts: President of India on 1-8-1978 made reference to the Supreme Court under Article 143(1)
of Constitution for consideration of question whether “The Special Court is Bill 1978” or any of its
provisions, would be constitutionally valid, if enacted on receipt of reference notice issued to the then
Attorney General on 2nd August to appeal on 4th August before court for taking directions in matter.
Registry of Supreme Court issued notice to Union of India and Advocate Generals of 22 States, on 4-8-
1978. Newspaper notices also published large number of applications received by Court by August 22nd

Constitution of India 89
 asking that applicants should either be impleaded to reference as parties or in alternative allowed
to intervene in proceedings. Court granted permission to 18 persons and 2 State governments to
intervene in proceedings.
Issue: Ground of reference being of hypothetical or speculative character, whether Supreme Court can
decline to answer?
Held: Court held that assumption of every reference under Article 143 has to be continued existence of
context or conditions on basis of which question of law or factors are likely to arise. Possibility of change,
even fundamental, could not make exercise of Presidential Jurisdiction under Article 143 speculative
or hypothetical. Supreme Court could decline to answer reference on ground that it encroaches upon
functions and privileges of Parliament.
—————

Role of Judges—Discipline of Law, Due Process of Law and Rule of Law

Fuzlunbi versus K Khader Vali
[AIR 1980 SC 1730: 1980 (4) SCC 125: 1980 Cri LJ 1249: 1980 (3) SCR 1127]
Decided on: 08-05-1980
Bench: VR Krishna Iyer, O Chinnappa Reddy and AP Sen, JJ.
Facts: Appellant married respondent and blessed with a son. Respondent tormented appellant,
tormented woman, talaqued out of conjugal home, sought shelter in her parents’ home. Appellant
filed application for maintenance for herself and her son under Section 125, CrPC Magistrate granted
monthly sum of Rs. 250 to wife and Rs. 150 to child. Respondent resorted to unilateral technique of
talaq and tendered magnificent sum of Rs. 500 by way of mehar and Rs. 750 towards maintenance for
period of iddat, entrancing himself from obligation to maintain appellant. Talaq has snapped marital
tie, flimsy mehar tendered together with 3 months iddat dues and divorcee remains neglected. No one
in his senses can contend that mehar of Rs. 500 will yield sufficient income to maintain woman even
if she were to live on city pavements.
Issue: What is the intendment of Section 127(3)(b), CrPC. What is the purpose of providing absolution
from obligation to pay continued maintenance by lumpsum liquidation? What is the text and texture of
provision, if read in the light of mischief to be avoided, justice to be advanced?
At the time of divorce the liquidated sum paid must be reasonable and not an illusory amount.
Held: Conclusion is clear that liquidated sum paid at the time of divorce must be reasonable and not
an illusory amount, even by harmonizing payments under personal and customary laws with obligations
under Section 125 to 127 of CrPC This will release quondam husband from continuing liability, only if
sum paid is realistically sufficient to maintain ex-wife and salvage her from destitution which is the
anathema of the law. To complex provisions of Sections 125 to Section 127, CrPC, this perspective of
social justice alone does justice.
—————

90 Constitution of India
 Death Sentence – Rarest of Rare Case
Bachan Singh versus State of Punjab
[AIR 1980 SC 898: 1980 (2) SCC 684: 1980 Cri LJ 636: 1983 (1) SCR 145]
Decided on: 09-05-1980
Bench: YV Chandrachud, CJ and AC Gupta, NL Untwalia, PN Bhagwati and RS Sarkaria, JJ.
Facts: Sessions Judge sentenced appellant to death under Section 302 I.P.C. for 3 murders of P, DB and
VB. Death sentence confirmed by the High Court and appeal dismissed. By special leave he appealed to
Supreme Court. Supreme Court Bench heard appeal and directed records of case to be submitted to
CJ, for conducting larger Bench to resolve constitutional validity of death penalty for murder provided
in Section 302 I.P.C. and sentencing procedure embodied in Section 354(3) CrPC.
Issue: Constitutional validity of death penalty provided in Section 302, I.P.C. and sentencing procedure
embodied in Section 354(3) CrPC.
Held: In so far as Section 302, I.P.C. provides for death sentence and Section 354(3) CrPC is constitutionally
valid. Under Section 354(3) CrPC exercise of discretion should be exceptional and grave circumstances
and imposition of death sentence should only be in rarest of rare cases. Challenge to constitutionality
of impugned provisions contained in Section 302 I.P.C. and Section 354(3), CrPC rejected. Only effect
is that application of these principles is now to be guided by paramount beacons of legislative policy
discernible from Section 354(3) and 235(2) viz., (i) Extreme penalty can be inflicted only in gravest cases
of extreme culpability, (ii) In making choice of sentence, in addition to circumstances of offences, due
regard must be paid to circumstances of offender also.
—————

Validity of 42nd Constitutional Amendment Act

Minerva Mills Ltd. versus Union of India
[AIR 1980 SC 1789: 1980 (3) SCC 625: 1981 (1) SCR 206]
Decided on: 31-07-1980
Bench: YV Chandrachud, CJ, AC Gupta, NL Untwalia, PN Bhagwati and PS Kailasam, JJ.
Facts: Petitioner No. 1 was limited company owning textile undertaking situated in Karnataka. Petitioners
No. 2 to 6 were shareholders, secured and unsecured creditors. Central Government appointed
committee under Section 15 of Industrial Development Regulation Act, 1951 to make full and complete
investigation of affairs of petitioner. Minerva Mills Ltd., as it was of opinion that there had been or likely
to be substantial fall in volume of production. On the basis of report submitted to Central Government
by committee, Central Government passed order under Section 18A of 1951 Act authorizing Respondent
No. 2 to take over management of Minerva Mills Ltd. as its affairs were managed in highly detrimental
manner to public interest.
Issue: Whether Section 4 of Constitution (42nd Amendment) Act of 1976 amending Article 31C of
Constitution is constitutionally valid?
Held: Section 4 of the Constitution 42nd Amendment Act is held by court beyond the amending power
of Parliament and void. It damages the basic or essential features of Constitution and destroys its
basic structure by total exclusion of challenge to any law being inconsistent with, or takes away or
abridges any rights conferred by Article 14 or Article 19 of Constitution, if law is for giving effect to State
policy towards securing all or any of the principles laid down in Part IV of Constitution.
—————

Constitution of India 91
 Grant of Pardon is not Interference with Judicial Sentence
Maru Ram versus Union of India
[AIR 1980 SC 2147: (1981) 1 SCR 1196: 1981 (1) SCC 107: 1980 Cri LJ 1440]
Decided on: 11-11-1980
Bench: YV Chandrachud, CJ, PN Bhagwati, S Murtaza Fazal Ali, VR Krishna Iyer and AD Koshal, JJ.
Facts: Petitioner’s case was that the Parliament has broken the law of the Constitution by enacting
Section 433A. All the petitioners belong to one or other of two categories. They are either sentenced
by court to imprisonment for life in cases where the conviction is for offences carrying death penalty
as a graver alternative or are persons whom the court has actually sentenced to death which has
since been commuted by the appropriate Governments under Section 433(a) of the Procedure Code
to life imprisonment. The common factor bonding together these two categories of ‘lifers’ is obvious.
The offences are so serious that the Penal Code has prescribed ‘death’ as an alternative punishment
although, in actual fact, judicial compassion or executive clemency has averted the lethal blow – but
at a price, viz., prison tenancy for life.
Petitioners challenged Section 433A of the Criminal Procedure Code which compels ‘caging’ of two
classes of prisoners, at least for fourteen eternal infernal years, regardless of the benign remissions
and compassionate concessions sanctioned by prison law and human justice.
Issue: Whether Grant of Pardon is interference with Judicial Sentence?
Held: Power under Articles 72 and 161 of the Constitution can be exercised by the Central and State
Governments, not by the President or Governor on their own. Court concluded that the contents of
Section 433A of the Cr.P.C. (or, for that matter any other penal provision) cannot be attacked on the
ground that they are hit by Article 14 of the Constitution in as much as they are arbitrary or irrational
because they ignore the reformative aspect of punishment. Court affirmed the supremacy of Section
433A over the “Remission Rules and short-sentencing statutes made by the various States. Court
followed Godse’s case, ‘MANU/SC/0156/1961: 1961 Cri LJ 736a to hold that imprisonment for life lasts
until the last breath, and whatever the length of remissions earned, the prisoner can claim release only
if the remaining sentence is remitted by Government.
Court directed that the mandatory minimum of 14 years’ actual imprisonment will not operate against
those whose cases were decided by the trial court before the 18th December, 1978 when Section 433A
came into force. All lifers whose conviction by the court of first instance was entered prior to that date
are entitled to consideration by Government for release on the strength of earned remissions although
a release can take place only if Government makes an order to that effect.
—————

Termination of Services of Temporary Government Servant

Commodore Commanding, Southern Naval Area Cochin versus VN Rajan
[AIR 1981 SC 965: 1981 (2) SCC 636: 1981 (3) SCR 165: 1981 (1) SCALE 510]
Decided on: 10-03-1981
Bench: A Varadarajan, AN Sen and S Murtaza Fazl Ali, JJ.
Facts: Respondent appointed as Casual laborer in the first instance for a month but continued
against existing vacancy. Later he was appointed as a laborer in regular cadre in existing vacancy. He
was promoted and appointed as Ammunition Repair Laborer, Grade II sometimes later. His services
terminated 3 years thereafter.

92 Constitution of India
Issue: Whether termination of services or respondent appointed to the Post of Ammunition Repair
Laborer (Grade II) was discriminatory and in contravention of Article 16 of Constitution when juniors
were retained in service.
Held: Respondent, temporary government servant is entitled to protection of Article 311(2) of Constitution
where termination involves stigma or amounts to punishment. At the highest-level decision to terminate
services of respondent had seen taken on ground of unsuitability of respondent in relation to post held
by him. It is not by way of any punishment. By reason of termination of service no stigma is attached
to respondent. Judgement of the High Court set aside and appellant’s order terminating services of
respondent confirmed.
—————

Decision of CJI—Whether holds Primacy over Other Judges

SP Gupta versus Union of India
[AIR 1982 SC 149: 1981 Supp (1) SCC 87: 1982 (2) SCR 365: 1981 (4) SCALE 1974]
Decided on: 30-12-1981
Bench: AC Gupta, DA Desi, ES Venkataramiah, PN Bhagwati, RS Pathak, S Murtaza Fazal Ali and VD.
Tulzapurkar, JJ.
Facts: Letter dated 18-3-1981 addressed to various Chief Ministers by Law Minister of Union of India
asking them to inquire of additional Judges in the High Courts of their States whether they would
consent to their transfer as Judges of the High Court outside their states. Number of WPs filed in
different High Courts challenging the validity of circular. Ultimately WPs raised several other issues,
viz., Independence of judiciary, primacy of decisions of CJI in appointment of Judges, etc.
Issue: Validity of circular dated 18-3-1981 of Union Law Minister. Powers and procedures to be followed
for the appoint/transfer the High Court Judges. Validity of transfer of judges from one High Court
to another High Court and matters to be taken into consideration viz., Public interest, personal
inconvenience, regional language, consent of concerned judge during such transfer.
Held: Lawyers had interest and locus standi to file petitions and they could not be told off at the gates.
Power to appoint judges is executive in nature and President is bound by advice of Cabinet by virtue
of Article 74. Validity of circular dated 18-3-1981 of Law Minister is upheld by Bhagwati, SMF Ali, Desai
and Venkataramiah, JJ.
Contrary view taken by Justice Gupta, Tulzapurkar and Pathak J. in consultation with constitutional
functionaries must be meaningful and result oriented and proposal can emanate from any of the
constitutional functionaries. None of the constitutional functionaries can exercise veto in this matter.
Majority consisting of Justice Bhagwati, Desai, SMF Ali and Venkataramiah J. held opinion of CJI does
not enjoy primarily over other constitutional functionaries. Constitutional Convention does not vest any
enforceable right in incumbent though Additional Judge is entitled to weightage for being appointed as
permanent judge as compared to any fresh candidate. Transfer of judge from one High Court to another
must be in public interest and not by way of punishment. No privilege could be claimed in respect of
documents which constituted material for forming the opinions in matter of appointment/transfer of
Judges.
—————

Constitution of India 93
 Auroville Emergency Provision Act, 1980—Competency of Parliament
SP Mittal versus Union of India
[1983 (1) SCR 729: AIR 1983 SC 1: 1983 (1) SCC 51: 1982 (2) SCALE 1001]
Decided on: 08-11-1982
Bench: YV Chandrachud, CJ, RB Misra, PN Reddy, O Chinappa and V Balakrishna Eradi, JJ.
Facts: Sri Aurobindo, one of the Indian Sages and Philosophers, engaged himself for sometime in
political activities and revolutionary literary efforts after brilliant academic and administrative career.
But later on, gave them up to concentrate on life of meditation and integral yoga at Pondicherry, in
Tamil Nadu. French Lady Madam M. Alfassa, known as Mother, became the disciple of Sri Aurobindo.
People all over India and abroad later formed a society named Sri Aurobindo Society. New township
was formed after some years known as Auroville where people were taught teachings of Sri Aurobindo.
Cases were registered against misappropriation of funds in township after the death of Mother. Central
government decided to take over power of administration. Act in this regard passed known as Auroville
Emergency Provision Act, 1980, which is challenged.
Issue: Whether Parliament was competent to enact Auroville Emergency Provisions Act, 1980 and
whether it is in violation of Articles 14, 25, 26, 29 and 30 of Constitution?
Held: Parliament had legislative competence to enact Auroville (Emergency Provisions) Act, 1980.
Subject matter of impugned Act is not covered by Entry 32 of List II of 7th Schedule. The s ubject matter
of impugned Act would in any case be covered by residuary Entry 97 of List I even if it is not covered
by any specific Entry of List I or List III of 7th Schedule of Constitution. Impugned Act was passed
following due procedure. Merely because complaint made about situation prevailing in management of
Auroville and society, impugned enactment cannot be said to be passed at his behest.
—————

Acquittal by Court after Illegal Detention for 14 Years

Rudal Sah versus State of Bihar
[AIR 1983 SC 1086: 1983 (4) SCC 141: 1983 Cri LJ 1644: 1983 (3) SCR 508]
Decided on: 01-08-1983
Bench: YV Chandrachud, CJ and Ranganath Misra and Amarendra Nath Sen, JJ.
Facts: On 3-6-1968 petitioner was acquitted by the Court of Sessions, Muzaffarpur, Bihar but released
from jail on 16-10-1982, more than 14 years after he was acquitted. The petitioner asked for his release
on ground that his detention in jail is unlawful. Ancillary reliefs like rehabilitation, reimbursements of
expenses asked for by him, which he may incur for medical treatment and compensation for illegal
incarceration.
Issue: Whether the Supreme Court can pass an order of compensation for infringement of Fundamental
Rights by officers?
Held: Supreme Court can pass an order of compensation for infringement of Fundamental Rights.
Article 32 cannot be used as a substitute for the enforcement of rights and obligations, which can
be enforced efficaciously through ordinary processes of courts, Civil and Criminal. Whether Supreme
Court in exercise of its jurisdiction under Article 32 can pass an order for payment of money if such
an order is in the nature of compensation consequential upon deprivation of Fundamental Rights.
Petitioner was illegally detained for 14 years after his acquittal in full dressed trial. He filed HCP in the
Supreme Court for his release from illegal detention. If petitioner files a suit to recover damages for

94 Constitution of India
his illegal detention, decree for damages would have to be passed in that suit, though in the absence
of evidence, it is not possible to predicate precise amount which would be decreed in his favour .
Supreme Court’s refusal to pass order of compensation in favour of the petitioner will be doing lip
service to his Fundamental Rights to liberty which State Government has grossly violated. Article 21
will be demanded of its significant content, which guarantees right to life and liberty if power of the
Supreme Court were limited to passing orders to release from illegal detention.
—————

Freedom of Press: Tax on Newspaper Industry

Indian Express Newspapers (Bombay) Pvt. Ltd. versus Union of India
[AIR 1986 SC 515: 1985 (2) SCR 287: 1985 (1) SCC 641: 1984 (2) SCALE 83]
Decided on: 06-12-1984
Bench: O Chinnappa Reddy, AP Sen and ES Venkataramiah, JJ.
Facts: Writ petition filed under Article 32 of Constitution by petitioners, shareholders and their
employees engaged in business of editing, printing and publishing newspapers, periodicals, magazines
etc. Some of them are Trusts or other kind of establishments, carrying on same kind of business.
They consumed in course of their activity large quantities of newsprint and 60 per cent of expenditure
involved in the production of newspaper utilized for buying news prints, a substantial part of which
was imported from abroad. Validity of imposition of import duty on newsprint imported, challenged by
them.
Issue: Whether freedom of speech and expression hampered by taxation?
Held: Court is called upon in case of taxation of newspaper industry to reconcile the social interest
involved in freedom of speech and expression. Public interest is involved in fiscal levies imposed by
the Government, especially because newsprint constitutes the body if expression happens to be the
soul. In view of intimate connection of newsprint with freedom of press, tests for determining vires
of statute taxing newsprint have to be different from tests usually adopted for testing vires of other
taxing statutes . It would be sufficient to show in case of tax on newsprint, distinct and noticeable
burdensomeness, clearly and directly attributable to tax. In light of provisions of the Constitution any
such levy is subject to review by Courts, though tax can be levied on newspaper industry.
—————

Right to Livelihood under Article 21

Olga Tellis versus Bombay Municipal Corporation
[AIR 1986 SC 180: 1985 (3) SCC 545: 1985 (2) SCALE 5: 1985 (2) BCR 434]
Decided on: 10-07-1985
Bench: YV Chandrachud, CJ and A Varadarajan, O Chinnappa Reddy, S Murtaza Fazl Ali and VD
Tulzapurkar, JJ.
Facts: The Chief Minister of Maharashtra, A.R. Antulay made an announcement on 13-7-1981, that all
pavement dwellers in Bombay City will be forcibly evicted and deported to their respective places of
origin or removed to places outside Bombay City. Chief Minister directed the Commissioner of Police
to provide necessary assistance to Bombay Municipal Corporation, to demolish pavement dwellings
and deport pavement dwellers. Corporation removed ramshackle shelters on pavements with police
aid. By filing writ petition, some journalists and pavement dwellers challenged decision to demolish

Constitution of India 95
 huts on ground that it is violative of Articles 19 and 21 of the Constitution . Petitioner urged that it is
constitutionally impermissible to characterise pavement dwellers as “tress-passers” because, their
occupation of pavements arises from economic compulsion. Government of Maharashtra filed counter
affidavit and says no person has any legal right to encroach upon public land or construct any structure
on footpath, public streets or any other place which public had right of way. It is public interest that
public places like pavements and paths are not infringed upon Government of Maharashtra has issued
policy directives that 75 per cent of housing programmes should be allocated to lower income groups
and weaker Sections of society.
Issue: Under Article 21 of Constitution, whether right to life included right to livelihood? Constitutional
validity of Sections 314, 312 313 of Bombay Municipal Corporation Act, 1868.
Held: Sections 312, 313, 314 of Bombay Municipal Corporation Acts are not unconstitutional. Right
to Life guaranteed under Article 21 of Constitution includes right to livelihood. Sweep of right to life
conferred by Article 21 is far-reaching. That which alone makes it possible to live, leave aside what
makes life livable, must be deemed to be integral component of right to life. Procedure prescribed by
Section 314 read with Section 312 and 313 of Bombay Municipal Corporation Act, insofar as it empowers
Municipal Commissioner to remove, without notice any object or structure or fixture set up in or upon
street, cannot be regarded as unreasonable, unfair or unjust. Foot paths or pavements are public
properties intended to serve convenience of general public. They are not laid for private use.
—————

Expulsion from School for not Joining in Singing of National Anthem—Violation of

Fundamental Rights
Bijoe Emmanuel versus State of Kerala
[AIR 1987 SC 748: 1986 (3) SCC 615: 1986 (3) SCR 518: 1986 (2) SCALE 217]
Decided on: 11-08-1986
Bench: MM Dutt and O Chinnappa Reddy, JJ., Supreme Court
Facts: 3 child appellants, viz., B, BM and BE attend school daily. During morning assembly, they all
stand in respect of the National Anthem but do not sing. According to them, it is against the tenets of
their religious faith not the words or the thoughts of the Anthem but the singing of it. Children were
expelled from school by Head Mistress. Representations made by fathers of children requesting their
children may be permitted to attend school pending orders from Government. Helplessness expressed
by Head Mistress in the matter. Finally, writ petition filed in Court seeking an order restraining the
authorities from preventing them from attending the school.
Issue: Whether expulsion from school for not joining in singing of National Anthem is violation of
fundamental rights?
Held: Court held that the fundamental rights of the appellants under Articles 19(1)(a) and 25(1) have
been infringed and they were entitled to be protected. Court held that the expulsion of the three
children from the school for the reason that because of their conscientiously held religious faith,
they do not join the singing of the National Anthem in the morning assembly though they do stand
up respectfully when the Anthem was sung, is a violation of their fundamental right to freedom of
conscience and freedom to profess, practice and propagate religion.
—————

96 Constitution of India
 Observation Homes–Employment without Remuneration
Sheela Barse versus Secretary, Children’s Aid Society
[AIR 1987 SC 656: 1987 (3) SCC 50: 1987 (1) SCR 870: 1986 (2) SCALE 1234]
Decided on: 20-12-1986
Bench: PN Bhagwati, CJ and RS Pathak, J.
Facts: Freelance Journalist Appellant Sheela Barse, Member of Maharashtra State Legal Aid and Advice
Committee filed Writ Petition and made grievance about improper working of New Observation Home
located at Mankhud, maintained and managed by Children’s Aid Society, Bombay. Said society receives
grants from State. It has set up Remand Home at Umerkhadi within Bombay Area and now run as
an Observation Home under provisions of Bombay Children’s Act, 1948. High Court disposed of Writ
Petitions and found some allegations without any justification. Special leave filed by Sheela Barse
in the Supreme Court. According to Appellant shortfall in follow up action has not been properly
considered by the High Court and inadequate directions given by it. High Court lost sight of Children’s
Act and Provisions in Articles 21 and 24 of Constitution and Directive Principles of State Policy.
Issue: Whether Children’s Aid Society falls within the expression “the State” within the meaning of Article
12 of Constitution? What is the Legal validity of employment of Children without any remuneration in
Observation Homes?
Held: Employment of Children in Observation Homes without remuneration is not illegal. Children’s
Aid Society falls within the expression “the State” within the meaning of Article 12 of the Constitution
. For improving conditions of Homes dedicated workers have to be found out, proper training to them
has to be imparted and such people should be introduced into children homes. Juvenile Court has
to be manned by Judicial Officer with some special training. Respondent Society is undoubtedly an
instrumentality of State and should be treated as State within meaning of Article 12 of Constitution.
State of Maharashtra is directed to pay cost of Rs. 5,000 to appellant and directed to take prompt action
to strictly enforce the law, act upto the requirements of constitutional obligations and implement the
High Court directions as also in this judgement.
—————

Freedom to Join Association

SM Kala versus University of Rajasthan
[AIR 1987 SC 700: 1986 (2) SCALE 1230: JT 1987 (1) SC 17: 1987 SCC (L&S) 99]
Decided on: 20-12-1986
Bench: PN Bhagwati, CJ. and Ranganath Misra, J.
Issue: Conflict with arena of freedom of association and not to join association.
Held: Interesting question of whether freedom of association under Article 19(1)(c) also includes within
its freedom not to join association or union not gone into by court.
—————

Letter Addressed can be Entertained, to only one Judge of a Court

MC Mehta versus Union of India
[AIR 1987 SC 1086: 1987 (1) SCC 395: 1987 (1) SCR 819: 1986 (2) SCALE 1188]
Decided on: 20-12-1986
Bench: PN Bhagwati, Ranganath Misra, GL Oza and MM Dutt and KN Singh, JJ.
Facts: Some Supreme Court judges in Bandhua Mukti Morcha versus Union of India apprehended that
letters addressed to individual justices may involve court in frivolous cases, and possibility view could

Constitution of India 97
 be taken that such letters do not invoke jurisdiction of court as a whole, that such letters should not
be addressed to individual justices of court but to court or CJ and his companion judges.
Issue: Letter to an individual judge can be treated as writ petition.
Held: It was not right to reject the letter addressed to an individual justice of court on ground that it
is not addressed to Court or CJ and his companion judges. Court held that it was not right to reject
letter addressed to individual justice of court on ground that it is not addressed to court or CJ and
his companion judges. Further, it was held that court must not forget that letters would ordinarily be
addressed by poor and disadvantaged persons or by social action groups who might not know, proper
form of address; they know only particular judge who comes from their state and might address to him.
—————

Plenary or Subordinate Legislative Action is not Subject to Rules of Natural Justice

Union of India versus Cynamide India Ltd.
[AIR 1987 SC 1802: 1987 (2) SCC 720: 1987 (2) SCR 841: 1987 (1) SCALE 728]
Decided on: 10-04-1987
Bench: O Chinnappa Reddy and KN Singh, JJ.
Facts: High Court dispose of several Writ Petitions filed by different manufactures. Union of India filed
appeal within prescribed period of limitation against one of the manufacturers, Cynamide India Ltd.
Later, when it realized separate appeals were necessary, Union of India filed petitions for special leave
to appeal against other manufacturers also. As petitions filed beyond prescribed period of limitation,
petitions for condoning delay in filing SLP filed. Manufacturers strenuously opposed these applications
that every day’s delay must be properly explained should be rigorously enforced against government.
Two important features had weighed with Court in condoning delay, viz., all Writ Petitions were disposed
of by common judgement and appeal filed in principal case, other was that it was a matter of serious
concern to public interest. Condonation of delay was granted.
Issue: Plenary or subordinate legislative action whether falls under natural justice?
Held: Price fixation is neither function nor forte of the Court. Court is concerned with neither policy nor
rates. But it has jurisdiction to enquire into question in appropriate proceedings.
—————

Grant of Pardon – Appeal to President

Kehar Singh versus Union of India
[AIR 1989 SC 653: 1989 Cri LJ 941: 1989 (1) SCC 204: 1988 (2) SCALE 1565]
Decided on: 16-12-1988
Bench: RS Pathak, CJ and ES Venkataramiah, MN Venkatachaliah, ND Ojha and Ranganath Misra, JJ.
Facts: Smt. Indira Gandhi, former PM of India was assassinated on 31-10-1984 by Sub-Inspector Beant
Singh and Constable Satwant Singh. When she was proceeding to her office from her residence, both of
them fired bullets at Smt. Gandhi. One Kehar Singh was convicted of offence under Section 120B read
with Section 302, I.P.C. and sentenced to death in connection with this assassination. Petition for grant
of pardon presented to President of India, for Kehar Singh by his son under Article 72 of Constitution.
It was sought to be established that Kehar Singh was innocent and verdict of Court erroneous that
Kehar Singh was guilty.
Issue: Scope of Power of President under Article 72. Whether petitioner is entitled to oral hearing from
President invoking powers under Article 72?

98 Constitution of India
Held: Power under Article 72 entitles President to examine record of evidence of Criminal Case and
come to different conclusion from that recorded by Court. President in doing so does not amend or
modify or supersede judicial record. While exercising powers under Article 72 President acts under
constitutional power which is entirely different from judicial power and cannot be regarded as an
extension of it. Condemned person has no right who has applied for pardon, to insist on an oral
hearing before President. It lies within discretion of President the manner of consideration of petition
and decide how best he can acquaint himself with all necessary information for proper and effective
disposal.
—————

Legislative Competency to Enact Law and Determination of Colourable Legislation

Federation of Hotel and Restaurant versus Union of India
AIR 1990 SC 1637: 1989 (3) SCC 634: 1989 (2) SCR 918: 1989 (1) SCALE 1214
Decided on: 02-05-1989
Bench: RS Pathak, CJ, Sabyasachi Mukherji, S Natarajan, MN Venkatachaliah and S Ranganathan, JJ.
Facts: Constitutional Validity of Expenditure Tax Act of 1987 challenged in writ petitions under Article
32 of Constitution by petitioners engaged in or associated with Hotel Industry in India. Act envisages
tax at 10% ad valorem on “chargeable expenditure” incurred in class of Hotels wherein, “room charges”
for any unit of residential accommodation are Rs. 400 per day per individual. Vires of Act challenged on
grounds of lack of legislative competence and violation of rights under Article 14 and 19(1)(g). Legislative
competence sought to be sustained by Union of India to enact impugned law under Article 248 read
Entry 97 of List I of VII Schedule of Constitution.
Issue: Validity of Expenditure Tax Act, 1987.
Held: True nature and character of legislation must be determined with reference to question of power
of legislature. Consequences and effects of legislation were not same as legislative subject-matter.
It’s not ultimate economic results but true nature and character as held of legislation, that matters.
Finally, Expenditure Tax Act of 1987 held neither ultra vires nor violation of Article 14 and 19(1)(g) of
Constitution.
—————

Violation of Right of Prisoner Life by Putting them in Fetters and Handcuffs

Sunil Gupta versus State of Madhya Pradesh
[(1990) 3 SCC 119: 1990 (2) SCR 871: 1990 (42) DLT 386: 1990 (2) Crimes 504]
Decided on: 02-05-1989
Bench: K Jayachandra Reddy and S Ratnavel Pandian, JJ., Supreme Court
Facts: Petitioners were social workers and members of ‘Kisangani Adivasi Sangathan’, Kerala, actively
working against the local farmers and tribal people in the district of Hoshangabad. Petitioners claim
to be working for the welfare of the weaker Sections and down-trodden people in a peaceful manner,
but they were inhumanly treated against all norms of decency by the police in utter disregard of the
repeated and consistent mandates of this Court and in utter violation of their fundamental rights
guaranteed under Articles 14, 19 and 21 of the Constitution of India.
Issue: Whether there was violation of Right to Life of Prisoners by putting them in Fetters and Handcuffs.

Constitution of India 99
 Held: Petitioners were tried and convicted under Section 186 of IPC, bailable offence. Even assuming
petitioners objected public servants in discharge of their public functions during dharna or raised any
slogan inside or outside the court, would not be sufficient cause to handcuff them. No reason for
handcuffing them while taking them to court from jail. Even if extreme circumstances necessitate the
escort party to bind the prisoners in fetters, the escort party should record the reasons for doing so
in writing and intimate the Court so that the Court considering the circumstances either approve or
disapprove the action of the escort party and issue necessary directions. Court strongly condemn the
kind of conduct of the escort party arbitrarily and unreasonably humiliating the citizens of the country
with obvious motive of pleasing ‘someone .’ Court held it was most painful to note that the petitioners
1 and 2 who staged a ‘dharna’ for public cause and voluntarily submitted themselves for arrest and who
had no tendency to escape had been subjected to humiliation by being handcuffed which act of the
escort party is against all norms of decency and which is in utter violation of the principle underlying
Article 21 of the Constitution of India.
—————

State List Subject to Parliamentary Legislation –

State Ceases to have both Legislative and Executive Power
Bharat Coking Coal Ltd. versus State of Bihar
(1990) 4 SCC 557: 1990 (2) SCALE 256: 1990 (3) SCR 744: 1990 (2) BLJR 1395
Decided on: 17-08-1990
Bench: KN Singh and HM Kania, JJ.
Facts: Three appellant companies claimed their respective right to slurry that escaped from their
washery plant/pond and got deposited in Bokaro and Damodar River Beds as well in certain Raiyati
Land. Plea not accepted by State Government and leased out right to remove said slurry to respondent
on payment of royalty. WPs before the Patna High Court were filed by first two appellants challenging
state government’s action in leasing out right to respondents for removing the slurry. Third Company
instituted criminal proceedings against contractors, who in turn filed WPs before the Calcutta High
Court for quashing criminal proceedings and direction permitting them to collect slurry under lease
granted by State Government. Full Bench of the Patna High Court held that slurry was neither coal nor
mineral and dismissed WPs. It was industrial waste of coal mine which was not regulated by provisions
of Act. WPs filed by contractors before Calcutta High Courts were dismissed by single Judge holding
that appellant company was owner of slurry and State Government had no authority to grant any lease
to respondent contractors for removal of same. Against the High Court decision, appellant companies
preferred present appeals.
Issue: Whether Legislative Competency of State Legislature is subject to Parliamentary Legislation to
make laws on topics of mines and minerals?
Held: Under Entry 23 of State List. State Legislature is competent to enact law for regulation of mines
and mineral department. But this power is subject to declaration which may be made by Parliament by
law as envisaged by Entry of Union List. Legislative Competence of State Legislature to make law topic
of mines and minerals is subject to Parliamentary legislation. By Section 2 of Minerals (Development &
Regulation) Act enacted by Parliament it has declared that it is expedient in public interest that Union
should take under its control regulation of mines and development of minerals to extent provided
in Act. In view of Parliamentary declaration made in Section 2, State Legislature is demanded of its

100 Constitution of India

legislative power to make any law with respect to regulation of mines and mineral development to the
extent as provided by Act.
—————

Right of Privacy to Unchaste Women

State of Maharashtra versus Madhukar Narayan Mardikar
[AIR 1991 SC 207: 1991 (1) SCC 57: 1990 (2) SCALE 849: 1991 (1) SLR 140]
Decided on: 23-10-1990
Bench: K Jagannatha Shetty and AM Ahmadi, JJ.
Facts: Respondent, Police Inspector on 13-11-1965 allegedly visited the hutment of B w/o BS in uniform
and demanded to have sexual intercourse with her. He tried to have by force on her refusal. She resisted
his attempt and raised a hue and cry. Her husband and neighbours collected outside the hutment. The
respondent directed that the woman be taken to the Police Station as she had abused him. She was
taken on foot to the Police Station by Head Constable. On examination of report Inspector General of
Police prima facie concurred with findings recorded by Inquiry Officer and directed notice to issue to
respondent (Police Officer) to show cause why he should not be dismissed from service.
Issue: Whether unchaste Women have right to Privacy?
Held: It is held by court that “Even a woman of easy virtue is entitled to privacy and no one can invade
her privacy as and when he likes. She is equally entitled to the protection of law. Therefore, merely
because she is a woman of easy virtue, her evidence cannot be thrown overboard.” So also it is not
open to any and every person to violate her person as and when he wishes. She is entitled to protect
her person if there is an attempt to violate it against her wish.
—————

Minority Educational Institution – Reservation of Seats for

Students Belonging to Christian Community
St. Stephen’s College versus University of Delhi
(1992) 1 SCC 558: AIR 1992 SC 1630: 1991 (6) SLR 1: 1991 (2) SCALE 1217
Decided on: 06-12-1991
Bench: MH Kania, K Jagannatha Shetty, NM Kasliwal, M Fathima Beevi and Yogeshwar Dayal, JJ.
Facts: Challenge against validity of admission programme and preference given to Christian students
(10% reservation for them) by college as violative of Delhi University. Circular for admission of BA
and B.Com. Courses. For academic year 1980-81 St. Stephen’s College is affiliated to Delhi University
Admission Prospectus published by college inter alia provided that there would be interview prior to
final selection for admission to college. University issued circular on 5-6-1980 to all affiliated colleges
providing programme of admission. Another circular on 9-6-1980 issued by University to all colleges,
stating that admission to BA Courses based on merit of percentage of marks secured by students in
qualifying examinations. WP before the Supreme Court filed by college challenging validity of University
circular on ground that they were violative of their right to manage their college under Article 30 of
Constitution.
Issue: Whether St. Stephen’s College is minority run institution? Whether as minority institution St.
Stephen’s College was bound by University circulars? Whether St. Stephen’s College entitled to accord

Constitution of India 101

 preference to or reserve seats for Christian Community students and such preference invalid under
Article 29(2)?
Held: St. Stephen’s College is minority run institution and is not bound to follow University circulars
as college would be deprived of their minority character. Subject to university standard minority
educational institutions are entitled to prefer their community candidates to maintain minority
character of institution but in no case such intake shall exceed 50% of annual admission to members
of communities other than minority community.
—————

Environment Protection: Directions to Cinema Exhibition Halls

MC Mehta versus Union of India
[AIR 1992 SC 382: 1992 (1) SCC 358: 1991 (2) SCALE 1181: 1991 AIR (SCW) 2989]
Decided on: 22-11-1991
Bench: Ranganath Misra, CJ, GN Ray and Dr. AS Anand, JJ.
Facts: Reliefs claimed in application filed under Article 32 of Constitution in public interest. Issuing
appropriate directions to cinema exhibition halls to exhibit slides containing information and free
of cost messages on environment, broadcast on A.I.R. and exposure on television in short-term and
regular programs to educate people of India about social obligation for upkeep of environment in
proper shape and obligation not to act as polluting agencies or factors.
Issue: Cinema exhibition halls directed to exhibit slides containing messages/information free of cost
on environment.
Held: Central Government directed by court to issue appropriate directions to UTs and State Governments
to enforce invariably as condition of license of all cinema halls, touring cinemas and video parlors to
exhibit free of cost two messages/slides atleast in each show on environment undertaking them. UGC
also directed by Courts for feasibility of making environment compulsory subject in college education
at every level.
—————

Political Defection – Disqualification of Members of

Parliament and Legislatures of State
Kihota Hollohon versus Zachillhu
[AIR 1993 SC 412: 1992 (1) SCR 686: 1992 (1) SCALE 338: 1992 AIR (SCW) 3497]
Decided on: 08-02-1992
Bench: LM Sharma, MN Venkatachaliah, JS Verma, K Jayachandra Reddy and SC Agrawal, JJ.
Facts: Common question as to Constitutional validity of Constitution (52nd Amendment) Act, 1985 arose
in WPs., Transfer Petitions, C.As. and S.L.Ps., insofar as it seek to introduce 10th Schedule in Constitution
of India, were heard together. Some of these matters involve investigation and determination of factual
controversies and extent of applicability to them of conclusion reached on various constitutional
issues.
Issue: Disqualification of members of Parliament and State Legislatures.
Held: Para 2 of Tenth Schedule to Constitution is held to be valid. Its provisions do not suffer from
vice or subverting democratic rights of elected members of Parliament and legislatures of States. Their
freedom of speech, freedom of vote and conscience not violated. Provisions of Para 2 do not violate

102 Constitution of India

any rights or freedom under Article 105 and 194 of Constitution. Freedom of speech of member is not
an absolute freedom.
—————

Mandal Commission Report Case—Reservation of OBCs

in Public Employment
Indra Sawhney versus Union of India
AIR 1993 SC 477: 1992 (6) SLR 321: 1993 (1) STC 448: 1993 (1) RSJ 1
Decided on: 16-11-1992
Bench: MH Kania, CJ and MN Venkatachaliah, S Ratnavel Pandian, Dr. TK Thommen,
AM Ahmadi, Kuldip Singh, PB Sawant, RM Sahai and BP Jeevan Reddy, JJ.
Facts: Janta Dal came to power in 1989 and defeated congress party in parliamentary elections. As
promised to electorate, Janta Dal decided to implement Mandal Commission’s Report. Headed by P.M.
V.P. Singh Government of India issued O.M. dated 13-8-1990 reserving 27 per cent seats for backward
classes in Government services on basis of recommendations of Mandal Commission. The Supreme
Court. B.A. filed W.P. challenging validity of O.M. and staying its operation. Till final disposal of case
5-Judge Bench of Court stayed operation of O.M. Janta Government unfortunately collapsed and
congress party came to power in 1991 at Centre. Another O.M. dated 25-9-1991 issued by Congress
Government. But two changes made in O.M. issued by Janta Dal, viz., Economic Criterion introduced
in granting reservation by giving preference to poorer sections of socially and educationally backward
classes in 27 per cent quota. 10 per cent reservation for other Socially and Educationally Backward
Classes (SEBCs) and economically backward sections of higher castes. 5-Judges Bench referred matter
to Constitution Bench of Judges.
Issue: Validity of Mandal Commission Report and scope and extent of Article 16(4) of Constitution.
Held: In Article 16(4) backward class can be identified on basis of caste and not only on economic
basis. For identification of backward classes caste alone can’t be taken into consideration. Article
16(4) is not an exception to Article 16(1), but independent clause. On basis of reasonable classification,
reservation under Article 16(1) can be made. Backward classes in Article 16(4) are not similar to as
socially and educationally backward in Article 15(4). From backward classes, creamy layer (socially
advanced persons) can and must be excluded. Article 16(4) permits classification of backward classes
into backward and more backward classes. Backward class of citizens can’t be identified only and
exclusively with reference to economic criteria. Social, Educational and economic backwardness to
be taken into account. Reservation shall not exceed 50 per cent. No reservation in promotions. Court
observed that Article 16(4) speaks of adequate representation and not proportionate representation.
—————

Right to Free Education up-to 14 Years

Unni Krishnan, JP versus State of Andhra Pradesh
(1993) 1 SCC 645: AIR 1993 SC 2178: 1993 (1) SCALE 290: 1993 (1) SCR 594
Decided on: 04-02-1993
Bench: LM Sharma, CJ., SR Pandian, BP Jeevan Reddy, S Mohan, SP Bharucha, JJ.
Facts: Question for determination that arose, viz., whether citizen has Fundamental Right to education
for medical, engineering or other professional degrees, whether right to education implicit in Article

Constitution of India 103

 21 of Constitution, whether the Fundamental Right and the Directive Principles of state policy are
complementary to each other and whether private unaided recognized affiliated educational institutions
running professional courses like medical and engineering entitled to charge fee higher than charged
by Government institutions?
Issue: Right to Free Education, credentials etc.
Held: Up-to age of 14 years – every child/citizen has right to free education. Thereafter, it is suspect
to limits of economic capacity and development of State. State obliged to follow direction contained
in Article 21 to be construed in light of Articles 41, 45 and 46. This court has not followed rule that
unless right is expressly stated as Fundamental Right, it can’t be treated as Fundamental Right. Right
to education is not stated expressly as Fundamental Right in Part III. Freedom of Press read into and
inferred from freedom of speech and expression though not expressly mentioned in Part III. Provisions
of Part III and IV are supplementary and complementary to each other. Fundamental Rights are but
means to achieve goal indicated in Part IV. Fundamental Rights must be construed in the light of
Directive Principles. Private unaided recognized affiliated educational institutions running professional
courses like engineering and medical courses are entitled to charge higher fee than that of government-
run institutions but not exceeding ceiling fixed in this regard. It is not permissible to commercialize
education.
—————

Custodial Death – Compensation—Contravention of Fundamental Freedom

and Human Rights by State and its Agencies
Nilabati Behera versus State of Orissa
[AIR 1993 SC 1960: 1993 Cri LJ 2899: 1993 (2) SCR 581: 1993 (2) SCC 746]
Decided on: 24-03-1993
Bench: JS Verma, AS Anand and MN Venkatachaliah, JJ.
Facts: Letter written by petitioner dated 14-9-1988 sent to Supreme Court, treated as WP under Article
32 of Constitution for determining compensation claim consequent upon death of petitioner’s son
aged 22 years in police custody. Custodial death as a result of multiple injuries inflicted on him and
contravention of Fundamental Rights under Article 21 of Constitution. State of Orissa and its police
officers, ASI and constable impleaded as respondents. In view of controversy relating to cause of death
of petitioner’s son, direction was given by this court on 4-3-1991 to District Judge to hold inquiring
into matter and submit report. District Judge submitted report that death occurred on account of
multiple injuries inflicted on him while he was in police custody. Doctor deposed that all injuries were
caused by hard and blunt object, injuries on face and left temporal were post mortem while rest were
ante-mortem.
Issue: Whether Compensation for Custodial death can be available through WP?
Held: Relief of monetary compensation as exemplary damages, in proceedings under Article 32 by the
Supreme Court and under Article 226 by the High Court for established infringement of indefeasible
right guaranteed under Article 21 of Constitution is remedy available in public law. It is based on
strict liability for contravention of guaranteed basic and indefeasible rights of citizen. When Court
would relief by granting compensation in proceedings under Article 32 and 226 of Constitution seeking
enforcement of Fundamental Rights, it does so under public law by way of penalizing wrongdoers and
fixing liability for public wrong on State which has failed in its public duty to protect Fundamental
Rights of citizen. State has right to be indemnified by and take such action as may be available to it

104 Constitution of India

against wrong doer in accordance with law, through appropriate proceedings. For the reasons recorded
by Verma J, it is agreed that State of Orissa should pay sum of Rs. 1.50 lacs to petitioner and sum of
Rs 1,000 by way of costs to the Supreme Court Legal Aid Committee.
—————

Appointment of SC and HC Judges—Primacy of Opinion of CJI

Supreme Court Advocates-on-Record Association versus Union of India
[AIR 1994 SC 268: 1993 (5) SLR 337: 1993 (4) SCC 441: 1993 SCALE 67]
Decided on: 06-10-1993
Bench: S Ratnavel Pandian, AM Ahmadi, Kuldip Singh, JS Verma, MM Punchhi,
Yogeshwar Dayal, GN Ray, Dr. AS Anand and SP Bharucha, JJ.
Facts: Writ of Mandamus sought against Union of India to fill vacancies of the Supreme Court and
several High Court Judges of country. Question raised relates to function of superior judiciary, primary
object of which relates to facilitate judiciary to get rid of its suffocation caused by excessive executive
domain in appointment of Judges to superior Judiciary as well in formation of its structural composition,
to give primacy to opinion of CJI. if not supremacy in all matters thereof, to enjoy normal breathing
of unpolluted air of judicial independence to keep up indispensable independence and integrity of
Judiciary, consistent with letter and spirit of Constitution and in tune with oath and affirmation made
and subscribed.
Issue: Opinions of CJI in regard to appointment of the Supreme Court and High Court’s. Judges and
transfer of the High Court Judges, entitled to primacy? Matter for fixation of judge strength in High
Courts is justiceable?
Held: CJI is entitled to have right of primacy in process of constitutional consultation in matter of
selection and appointment of the Supreme Court and High Court’s Judges and transfer of judges from
one High Court to another High Court. Consultation with CJI under Article 124(2) Ist proviso as well
under Article 217 is mandatory condition. Its violation would be contrary to Constitutional mandate.
Executive will not be justified in enjoying supremacy over opinion of CJI in matter of selection of
Judges to superior judiciary.
—————

Anti-Defection Law – Judicial Review

Ravi S Naik versus Union of India
[AIR 1994 SC 1558: 1994 (1) SCR 754: 1994 (1) SCALE 487: 1994 AIR (SCW) 1214]
Decided on: 09-02-1994
Bench: M Venkatachaliah, CJ. and SC Aggarwal, J.
Facts: In November 1989, elections held for Goa, Legislative Assembly and Congress (I) Party secured 20
seats, Maharashtravadi Gomantak Party secured 18 and independents 2. Position was very vulnerable
to defections playing in all possible permitations and combinations. Several applications filed before
the Speaker requesting him to disqualify some members on ground of defection. Petitions followed by
speaker on ground that the defectors had held themselves in public that they joined the rival political
party. Speaker resigned in the melee that followed. Orders of his predecessor reviewed by successor
and MLAs disqualified were restored to their original status. Several WPs were filed and matters
reached the Supreme Court.

Constitution of India 105

 Issue: Whether Anti-Defection Law - Judicial Review permissible only on the final order of the Speaker?
Held: Questionable conduct which led to disqualification was that the defectors accompanied the rival
party delegation to the Governor. In subsequent case, the Supreme Court held that if a member of a
political party contests as an independent for a seat in the Rajya Sabha, he should be deemed to have
given up his political party voluntarily and held him to be disqualified to continue as member of the
State legislature. Supreme Court held constitutional amendment invalid in first case of Kesavananda
Bharati where a part of the Article 31C was declared as offending the basic structure of the Constitution.
Invalid post reads” No law containing the declaration that it is for giving effect to such policy shall
be called in question in any Court on the ground that it does not give effect to such policy. Second
case was where the 7th paragraph of the Tenth Schedule was declared invalid as being offensive to
the basic structure of the Constitution. Offending para reads “Notwithstanding anything contained
in the Constitution no Court shall have any jurisdiction in respect of any matter connected with the
disqualification of a Member of a House under this Schedule”. Both these cases relate to curbs on
judicial power. Court approved statement of law laid down by the Supreme Court in Kihoto Hollohan
versus Zachillhu.
—————

Emergency – Validity of Proclamation by President under

Article 356 of Constitution
SR Bommai versus Union of India
[(1994) 3 SCC 1: AIR 1994 SC 1918: 1994 (2) SCR 644: 1994 (2) SCALE 37]
Decided on: 11-03-1994
Bench: S Ratnavel, S Pandian, AM Ahmadi, Kuldip Singh, JS Verma, PB Sawant,
K Ramaswamy, SC Agrawal, Yogeshwar Dayal and BP Jeevan Reddy, JJ.
Facts: President on 21-4-1989 issued Proclamation under Article 356 dismissing Bommai Government
and dissolving Legislative Assembly of State of Karnataka. Challenging validity of proclamation WP
filed on 26-4-1989. WP dismissed by special Bench of 3 Judges of the Karnataka High Court. Validity of
proclamation of President dated 11-10-1991 under Article 356(1) dismissing Government of Meghalaya
and dissolving Legislative Assembly, and proclamation dated 7-8-1988 dismissing Government of
Nagaland and dissolving Legislative Assembly challenged in the Guwahati High Court. Matter heard by
D.B. comprising of CJ. Bench differed on effect and operation of Article 74(2) and matter referred to
IIIrd Judge. But before that Union of India was granted special leave to appeal, and further proceedings
stayed in the High Court. President on 15-12-1992 issued proclamation under Article 356 dismissing
State Governments and dissolving Legislative Assemblies of Rajasthan, Madhya Pradesh and Himachal
Pradesh. In appropriate High Courts its validity was challenged. The High Court of Madhya Pradesh
allowed the petition, but WPs relating to Rajasthan and Himachal Pradesh withdrawn to the Supreme
Court.
Issue: Whether powers of President to issue proclamation under Article 356(1) of Constitution are
unfettered?
Held: President’s power under Article 356 is not absolute or arbitrary. President cannot impose
President’s rule on State at whim, without reasonable cause. Dismissal of Government in MP and
Rajasthan was valid and imposition of President’s rule was constitutional in these states. But imposition
of President’s rule in Nagaland in 1988, Karnataka in 1989, Meghalaya in 1991 was unconstitutional and

106 Constitution of India

liable to be struck down. As election had subsequently taken place and new government installed, no
action in these States could be taken and it was not possible to receive Old State Assemblies.
—————

Life Story/Autobiography of a Prisoner – Right to Privacy

R Rajagopal versus State of Tamil Nadu
[AIR 1995 SC 264: 1994 (6) SCC 632: 1994 (4) SCALE 494: JT 1994 (6) SC 514]
Decided on: 07-10-1994
Bench: BP Jeevan Reddy and Suhas C Sen, JJ.
Facts: Ist and IInd Petitioner, editor and associate editor of magazine seek issuance of writ order/
direction under Article 32 restraining respondents. viz, State of Tamil Nadu, Represented by Secretary,
Home Department, Inspector General of Prisons, Madras Superintendent of Prisons (Central Prison)
Salem Tamil Nadu from taking any steps as contemplated in communication of II respondent and
restraining them from interfering with publication of autobiography of condemned prisoner., Auto
Shankar, in their magazine. Shankar was charged and tried for 6 murders, convicted and sentenced to
death by Sessions Judge. Confirmed by the Madras High Court and appeal dismissed by the Supreme
Court on 15-4-1994. His mercy petition to President of India was pending consideration. While confined
in jail during 1991 Auto Shankar wrote his autobiography running into 300 pages. With knowledge and
approval of Jail authority autobiography was handed over by him to his wife. Prisoner requested his
advocate to ensure publication of his autobiography in petitioner’s magazine and petitioner accepted.
Announcement of publication sent shock waves among several police and prison officials who were
afraid their links with condemned prisoners would be exposed. They forced him by applying third degree
methods to write letters addressed to IInd respondent (IG of Prisons) and 1st Petitioner requesting not
to publish his life story in magazine.
Issue: Whether citizen of this country can prevent another person from writing his life story or biography?
Whether freedom to press under Article 19(1) entitles press to publish such unauthorized account of
citizen’s life and activities and if so to what extent and in what circumstances? Whether action for
defamation can be maintained by Government? Whether public officials apprehending they or their
colleagues may be defamed, can impose prior restraint upon press to prevent such publication?
Held: Even without his consent or authorization, petitioners have right to publish what they allege to
be life story/autobiography of Auto Shankar as it appears from records. But if they go beyond that and
publish his life story, they may be invading his right to privacy and will be liable for consequences in
accordance with Law. State or its officials, cannot prevent/restraint said publication. Remedy if any of
affected public officials/figures is after the publication.
—————

Right to Die not included in Right to Life

Gian Kaur versus State of Punjab
[AIR 1996 SC 1257: 1996 Cri LJ 1600: 1996 (3) SCR 697: 1996 (2) SCR 648]
Decided on: 21-03-1996
Bench: JS Verma, GN Ray, NP Singh, Faizanuddin and GT Nanavati, JJ.
Facts: Appellant and her husband convicted by Trial Court under Section 306, IPC and sentenced to RI
with fine of Rs. 2,000 or in-default for further R.I. for 9 months for abetting commitment of suicide by

Constitution of India 107

 K. On appeal High Court maintained conviction of both but only sentence of appellant reduced to R.I.
for 3 years. Aggrieved by the order, appeal filed before the Supreme Court by special appeal against
their conviction and sentence. It is urged that ‘right to die’ being included in Article 21 of Constitution
as held in P. Rathinam declaring Section 309, IPC unconstitutional, any person abetting commission
of suicide by another is merely assisting in enforcement of Fundamental Right. Under Article 21 and
Section 306, IPC penalizing assisted suicide is equally violative of Article 21.
Issue: Constitutional Validity of Sections 306 and 309, IPC. Whether right to life also includes right to
die under Article 21?
Held: Right to life does not include right to die. Sections 306 and 309, IPC are constitutionally valid.
Abetment of suicide or attempted suicide is distinct offence found enacted even in the law of
countries where attempted suicide is not made punishable. Section 306 IPC can survive independently,
whereas Section 309, IPC enacts distinct offence. There is no ground to hold, that Section 309, IPC is
constitutionally invalid. Contrary view taken in P. Rathinam on basis of construction made of Article 21
to include therein ‘right to die’ cannot be accepted as correct.
—————

Person not a Member of either House of Parliament can be Sworn as PM of India

SP Anand versus HD Deve Gowda
[(1996) 6 SCC 734: AIR 1997 SC 272: 1996 (8) SCALE 191: JT 1996 (10) SC 274]
Decided on: 06-11-1996
Bench: AM Ahmadi, CJ And SV Manohar, JJ.
Facts: According to Petitioner, President of India Dr Shankar Dayal Sharma, IIIrd respondent committed
grave and serious Constitutional error in swearing Ist Respondent as PM, now former PM, he not being
member of either House of Parliament and not eligible to be appointed as PM of India. In view of
petitioner/appellant this action of IIIrd respondent was violative of Articles 14, 21 and 75 of Constitution,
void ab initio and deserves to be quashed by appropriate writ by Supreme Court issued in exercise of
powers conferred by Article 32 of Constitution. Speaker of Lok Sabha, leader of Muslim League in Lok
Sabha as respondents 2, 4 and 5 also impleaded by petitioner.
Issue: Person not being a member of either House of Parliament sworn as PM of India?
Held: Article 75(5) speaks of a “Minister” it takes within its embrace that Minister also who is described
in the Constitution as Prime Minister. Constitution did not make any distinction between the Prime
Minister and other ministers. Person who was not a member of either House of the State Legislature
or Lok Sabha or Rajya Sabha can also be appointed by the Governor/President as the Minister (which
includes the Chief Minister/Prime Minister) for a period not exceeding six consecutive months. Court
held that Article 75(5) of the Constitution permits the President of India to appoint a person who is
not a member of either House of Parliament as a Minister, including a Prime Minister subject to the
possibility of his commanding the support of the majority of members of the Lok Sabha.
—————

108 Constitution of India

 Custodial Death, Torture of any form or Cruel, Inhuman or Degrading
Treatment Fall within Inhibition
of Article 21 of Constitution
DK Basu versus State of West Bengal
[AIR 1997 SC 610: (1997) 1 SCC 416: 1997 Cri LJ 743: 1996 (9) SCALE 298]
Decided on: 18-12-1996
Bench: Kuldip Singh and AS Anand, JJ.
Facts: Letter addressed to CJI by Executive Chairman, Legal Aid Services, West Bengal, Non-Political
Organisation, registered under Societies Registration Act, draw his attention to news items published
in Telegraph, Statesman and Indian Express regarding deaths in police custody and lockups. That it
was imperative to examine issue in depth, develop’ custody jurisprudence’ and formulate modalities
for awarding compensation to victim and/or family members of victim for atrocities in police custody.
Considering importance of issue raised, letter treated as WP and notice issued to respondents, State
of West Bengal. Counter filed by State of West Bengal that police was not hushing up any matter of
lock up death and action being taken against police personnel found responsible for such death. In
response to notice, Affidavits filed by State of West Bengal, Orissa, Assam, Himachal Pradesh, Madhya
Pradesh, Tamil Nadu, Meghalaya, Maharashtra, Union Territory of Chandigarh.
Issue: Whether a citizen shed off his Fundamental Rights to life put in abeyance on his arrest?
Held: Custodial death is perhaps one of the worst crimes in civilized society governed by Rule of Law.
Precious Right guaranteed by Article 21 of Constitution cannot be denied to convicts, under-trials,
detenue and other prisoners in custody, except according to procedure established by law by placing
reasonable restrictions as permitted by law. Monetary compensation is an appropriate and effective and
sometimes the only suitable remedy for redressal of established infringement of Fundamental Right to
life of citizen by public servants and State is vicariously liable for their acts. Quantum of compensation
depends upon peculiar facts of each case and no strait jackpot formula can be evolved in that behalf.
—————

Tribunal’s Competency
L Chandra Kumar versus Union of India
[AIR 1997 SC 1125: 1997 (3) SCC 261: 1997 (3) SCALE 40: 1997 (2) SCR 1186]
Decided on: 18-03-1997
Bench: AM Ahmadi, CJ, MM Punchhi, K Ramaswamy, SP Bharucha, S Saghir Ahmad, K Venkataswami
and KT Thomas, JJ.
Facts: Whether power conferred upon Parliament or State Legislatures, under Article 323A(2)(d)
or Article 323B(3)(d) of Constitution totally exclude Jurisdiction of all courts except the Supreme
Court. Under Article 136 in respect of disputes referred to in Article 323 A(1) or any of or all matters
specified in Article 323B(2), runs counter to power of judicial review conferred under Articles 226/227
of Constitution on the High Court or under Article 32 of Constitution on Supreme Court? Whether these
Tribunals functioning at present, can be said to be effective substitutes for High Courts in discharging
power of judicial review?
Issue: Competence of Tribunals constituted either under Article 323A or 323B of Constitution.
Held: Article 323A(d) and Article 323B 3(d) to the extent they exclude jurisdiction of the High Courts
and the Supreme Court under Articles 226 and 227 and Article 32 of Constitution are unconstitutional.

Constitution of India 109

 Jurisdiction conferred upon High Court under Articles 226 and 227 and upon the Supreme Court. Under
Article 32 of Constitution is part of inviolable basic structure of our Constitution. While this jurisdiction
cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging powers
conferred by Articles 226, 227 and 32 of Constitution. Under Article 323A and 323B of Constitution,
Tribunal is possessed of competence to test constitutional validity of statutory provisions and rules.
All decisions of Tribunal will be subject to scrutiny before Division Bench of High Court. Within whose
jurisdiction concerned Tribunal falls. Tribunals will continue to act like Courts of first instance in
respect of areas of law for which they have been constituted.
—————

Right to Profession not Absolute

Ivory Traders and Manufacturers Association versus Union of India
[AIR 1997 Del 267: 1997 (67) DLT 145: 1997 (42) DRJ 131: 1997 AIHC 3988]
Decided on: 20-03-1997
Bench: M Jagannadha Rao, CJ AD Singh and Manmohan Sarin, JJ., High Court of Delhi
Facts: Amendments carried out in Wild Life (Protection) Act, 1972 by Amendment Act No. 44/91
challenged by petitioners, whereby trade in imported ivory and articles made therefrom have been
banned. Petitioner’s grievance was though that they are not covered by the Wild Life (Protection) Act,
1972 and the Amendment Act No. 44 of 1991, the authorities were taking action against them for their
being in possession of mammoth ivory and Articles made therefrom . That ban imposed by the Wild
Life (Protection) Amendment Act, 1991, on the trade in ivory derived from the African elephant. That
they were carrying on business and trade in ivory including the manufacture of articles derived from
ivory lawfully imported into India prior to the ban.
Issue: Whether reasonable restrictions can be imposed on profession?
Held: No citizen has a fundamental right to trade in ivory or ivory articles, whether indigenous or
imported. The ban on trade in imported ivory and articles made therefrom is not vocative of Article 14
of the Constitution and does not suffer from any of the maladies, namely, unreasonableness, unfairness
and arbitrariness.
—————

STs Right to Development includes Right to Social and Economic Empowerment

Samatha versus State of AP
[AIR 1997 SC 3297: 1997 (8) SCC 191: 1997 (4) SCALE 746: JT 1997 (6) SC 449]
Decided on: 11-07-1997
Bench: K Ramaswamy, S Saghir Ahmad and GB Pattanaik, JJ.
Facts: Two mutually inconsistent laws adumbrated by two Division Benches of Andhra Pradesh High
Court resolved in these appeals. One Division Bench of the Andhra Pradesh High Court held that Andhra
Pradesh Scheduled Area Land Transfer Regulation as amended by Regulation 2 of 1970 and Mining Act,
do not prohibit grant of mining leases of Government land in scheduled area to non-tribals. Another
Division Bench of same Court had taken opposite view and held that mining leases are illegal. Any
lease to non-tribals even of government land situated in scheduled area is in violation of Section 3 and
void. Mining lease in forest area for non-forest purpose or renewal, without prior approval of Central
Government, is in violation of Section 2 of Forest Conservation Act.

110 Constitution of India

Issue: Word ‘Person’ in Section 3 of Andhra Pradesh Scheduled Area Land Transfer Regulation as
amended by Regulation 2 of 1970, whether includes both natural as well as juristic person? Whether
land comprised in scheduled area can be transferred to non-tribals by State Government? What is the
Scope of State’s power to dispose of its property under Article 298 of Constitution?
Held: State exercises its power under Article 298 to dispose of its property only for public purpose and
enforcing constitutional goal. Word person in Section 3(1)(a) of Regulation would include not merely
natural persons but all juristic persons in generic sense, including corporation aggregate or corporation
sole, state, corporation, partnership firm, company, any person with corporate veil or persons of all
hues, either as transferor or transferee and therefore State Government is not competent to transfer
land in scheduled area to non-tribals.
—————

Violation of Rights of Gender Equality and Right to Life and Liberty

Vishakha versus State of Rajasthan
[AIR 1997 SC 3011: (1997) 6 SCC 241: 1997 (5) SCALE 453: 1997 SCR 404]
Decided on: 13-08-1997
Bench: JS Verma, CJ and Sujata V Manohar and BN Kirpal, JJ.
Facts: WP in the Supreme Court filed by social activists and NGOs for enforcement of Fundamental
Rights of working women under Articles 14, 19 and 21 of Constitution in view of prevailing climate in
which violation of these rights is not uncommon. Alleged brutal gang rape of social worker in village is
the immediate cause for filing of WP. With the aim of focusing attention towards this societal aberration
and assisting in finding suitable methods for realization of true concept of ‘gender equality’, prevent
sexual harassment of working women in all workplaces through judicial process and fill vacuum in
existing legislation.
Issue: Whether guidelines and norms to be treated as law under Article 141 of Constitution required for
gender equality and guarantee against sexual harassment of working women?
Held: Sexual harassment of women at workplace results in violation of Fundamental Rights of ’Gender
Equality’ and ‘Right to Life and Liberty’ of victim. It is clear violation of rights under Articles 14, 15,
19(1)(g) and 21 of Constitution and attract remedy under Article 32 of Constitution for enforcement
of these Fundamental Rights of working women. All employers or persons in charge of work place,
whether in public or private sector should take appropriate steps to prevent sexual harassment.
Express prohibition of sexual harassment should be notified, published and circulated in appropriate
ways. Appropriate work conditions should be provided in respect of work, leisure, health and hygiene
to ensure no hostile environment towards women at workplaces. Employees should be allowed to
raise issues of sexual harassment at workers meeting and in other appropriate forum. Appropriate
criminal proceedings or disciplinary action should be initiated by employer where conduct amounts to
offence under IPC or any other law or misconduct in employment.
—————

Constitution of India 111

 Punishment to Advocate in Contempt Case
Supreme Court Bar Association versus Union of India
[AIR 1998 SC 1895: 1998 (2) SCR 795: 1998 (4) SCC 409: 1998 (2) SCALE 745]
Decided on: 17-04-1998
Bench: SC Agrawal, GN Ray, AS Anand, SP Bharucha and S Rajendra Babu, JJ.
Facts: Advocate Vinay Chandra, found guilty of committing criminal contempt of Court by the Supreme
Court for having interfered with and obstructing course of justice by trying to threaten, overawe,
overbear court by using insulting disrespectful and threatening language. Supreme Court invoked its
power under Article 129 read with Article 142 of Constitution and awarded suspension sentence of
imprisonment together with suspension of his practice as an Advocate. S.C.B.A. aggrieved by direction
suspending contemnor from practicing as an Advocate for period of 3 years, filed WP through its
Honorary Secretary under Article 32 of Constitution.
Issue: Supreme Court in exercise of its powers under Article 129 read with Article 142 of Constitution.
Whether an Advocate who committed contempt be suspended from practice for specified period?
Held: Supreme Court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of
Constitution, while punishing contemnor for committing contempt of court, also impose punishment
of suspending his license into practice, where contemnor happens to be an Advocate. Complaint of
professional misconduct is to be tried by Disciplinary Committee of Bar Council, like trial of Criminal
case, by court of law. An advocate may be punished on basis of evidence led before Disciplinary
Committee of Bar Council after being afforded opportunity of hearing. Delinquent Advocate may be
suspended from rolls of advocates or imposed any other punishment as provided under Act.
—————

Violation of Freedom of Religion:

By conversion
Lily Thomas versus Union of India
[AIR 2000 SC 1650: 2000 Cri LJ 2433: 2000 (6) SCC 224: 2000 (4) SCALE 176]
Decided on: 05-05-2000
Bench: S Saghir Ahmad and RP Sethi, JJ.
Facts: Writ petition in Supreme Court was filed by wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) viz;
Smt. Sushmita Ghosh stating she was married to Shri G.C. Ghosh in accordance with Hindu rites in
1984 and since then both of them were happily living in Delhi. She prayed for appropriate writ, order
or direction, declare polygamy marriages by Hindus and non-Hindus after conversion to Islam religion,
illegal and void. Issue appropriate directions to respondent Nos. 1 and 2 carry out suitable amendments
in Hindu Marriage Act so as to curtail and forbid the practice of polygamy. Issue appropriate directions
to declare that where non-Muslim male gets converted to Muslim faith without any real change of
belief and with a view to avoid earlier marriage or enter into second marriage any marriage entered into
by him after conversion would be void.
Issue: Conversion to Islam by a male married Hindu violates the freedom of religion.
Held: Making convert Hindu after taking second wife by conversion, liable for prosecution under Section
494 I.P.C. is not against Islam, religion adopted upon conversion by such person. It would demonstrate
ignorance about tenets of Islam and its teachings saying it would be against Islam. Concept of Muslim
law is passed upon edifice of Shariat. Plurality of marriage is not unconditionally conferred upon

112 Constitution of India

husband even under Muslim Law. It would be doing injustice to Islamic Law to urge that convert
is entitled to practice bigamy notwithstanding continuance of his marriage under law to which he
belonged before conversion. Violators of law who contracted II marriage cannot be permitted to urge
that such marriage should not be made subject matter of prosecution under Penal Law prevalent in
country.
—————

Freedom of Press is not Absolute, Unlimited and Unfettered

Shri Surya Prakash Khatri versus Smt. Madhu Trehan
and
Dr. BL Wadhera versus Madhu Trehan
[2001 Cri LJ 3476: 2001 (92) DLT 665: 2001 (59) DRJ 298: 2001 (3) CCR 338]
Decided on: 28-05-2001
Bench: Arijit Pasayat, CJ, Arun Kumar, Anil Dev Singh, DK Jain and
OP Dwivedi, JJ., High Court of Delhi.
Facts: Journal “Wah India” published article denigrating Judges putting question marks on their
integrity and competence. Petitioners submit article was obnoxious and “Judge Bashing”. That in the
name of freedom of press and fair journalism borders of decency and respect for the judiciary have
been overstepped and a distorted version has been presented which has lowered the image of judiciary
and therefore attracted stringent action. Certain statements made in article which tend to cause
aspersions on integrity and capability of Hon’ble Judges of the High Court. Language used in the
article was sarcastic, contemptuous, and sole object of the article was attacking the credibility of the
institution (Judiciary) and defaming it.
Issue: Whether freedom of press is absolute, unlimited and unfettered.
Held: Contemners cannot act as if they were above law and cannot be allowed to commit contempt
of court in the garb of criticism. Such a trend if allowed to grow, respect and authority commanded by
the courts of law, which is essential for dispensation of justice and smooth functioning of the courts,
will suffer. Such publication has the lethal effect of discrediting the courts and destabilizing the
system of administration of justice thereby adversely affecting the rights and freedoms enshrined in
the Constitution. Apologies offered by the contemners accepted by court and it is observed by court
that proper care and caution should have been exercised by the contemners before the publication.
Court warned to deal sternly if there is recurrence of the amiss either by the respondents (Editor-in-
Chief and other respondents who were Printer, Publisher and Editor, Creative Director, Sub-Editor and
Special Correspondent) or any other person.
—————

Review Petition Dismissal – Person not Entitled to any Relief

Rupa Ashok Hurra versus Ashok Hurra
[AIR 2002 SC 1771: 2002 (4) SCC 388: 2002 (3) SCALE 406: 2002 (2) SCR 1006]
Decided on: 10-04-2002
Bench: Umesh C Banerjee, J.
Facts: Petition was filed after remedy of review exhausted, opportunity could be provided to aggrieved
person under inherent powers of the Supreme Court to seek relief in case of gross abuse of process of
court or gross miscarriage of justice.

Constitution of India 113

 Issue: After dismissal of review petition either under Article 32 of Constitution or otherwise, whether
aggrieved person entitled for any relief against final judgement/order of this Court?
Held: Aggrieved person, whether party or not, to case, cannot assail final judgement/order passed by
this court in application under Article 32 of Constitution. Petitioner is entitled to relief ex debito justitiae
if he establishes violation of principles of natural justice in that he was not party to lis but judgement
adversely affected his interests or if he was party, he was not served with notice of proceedings
and matter proceeded as if he had notice. Where learned judge in proceedings failed to disclose
his connection with subject-matter or parties giving scope for apprehension of bias and judgement
adversely affects petitioner. Right to move this court exists for enforcement of rights conferred by
Part III of Constitution and conferred in terms of Article 32 and language used therein is of widest
amplitude but view seems to be in negative as regards issuance of writs.
—————

Minorities: Right to Establish Educational Institutions

TMA Pai Foundation versus State of Karnataka
[(2002) 8 SCC 481: AIR 2003 SC 355: 2002 (8) SCALE 1: 2002 (6) SLR 627]
Decided on: 31-10-2002
Bench: BN Kirpal, CJ, GB Pattanaik, S Rajendra Babu, KG Balakrishnan, P Venkatarama Reddi, Dr. Arijit
Pasayat, VN Khare, SSM Quadri, Ruma Pal, SN Variava and Ashok Bhan, JJ.
Facts: All citizens have right to establish and administer educational institutions under Article 19(1)(g)
and 26, but subject to Articles 19(6) and 26(a) of Constitution.
Issue: Is there any Fundamental Right to set up educational institutes and if so, under which provision?
Held: It is held by Court that under Article 19(1)(g) and 26 of Constitution, right to establish and
administer educational institution is guaranteed under Constitution to all citizens, specifically to
minorities under Article 30. Under Article 19(1)(g) and 26 all citizens have a right to establish and
administer educational institutions, but this right is subject to provisions of Article 19(6) and 26(a).
—————

Antecedents of Candidate Contesting Election—Voter’s Right to Know

People’s Union for Civil Liberties (PUCL) versus Union of India
[AIR 2003 SC 2363: (2003) 4 SCC 399: 2003 (2) SCR 1136: 2003 (3) SCALE 263]
Decided on: 13-03-2003
Bench: MB Shah, PV Reddi and DM Dharmadhikari, JJ.
Facts: Supreme Court in Union of India versus Association for Democratic Reforms, directed Election
Commission to call for information on affidavit by issuing necessary order in exercise of its power.
Under Article 324 of Constitution from each candidate seeking election to Parliament/State Legislature
as necessary part of his nomination papers, viz, whether candidate is convicted/acquitted/discharged
of any criminal offence in the past, if any, whether he is punished with imprisonment or fine. Whether
candidate is accused in any pending case, of any offence punishable with imprisonment for two years
or more and in which charge is framed or cognizance is taken by court of law. Assets of (immovable,
movable) etc. of candidate and of his/her spouse. Educational qualification of candidate. Representation
of the People (Amendment) Ordinance, 2002 was promulgated on 24-8-2002. Ordinance was later
replaced by Representation of the People (3rd Amendment) Act, 2002 which inserted Section 33A

114 Constitution of India

and 33B in Act. As a result candidate is not required to disclose information on affidavit in all above
aspects. Constitutional validity of Section 33B challenged by petitioner on ground that prima facie it
is arbitrary, unjustifiable and void being violative of Fundamental Right of citizens/voters right to know
antecedents of candidates.
Issue: Voter’s right to know antecedents of candidates contesting election, Constitutional validity of
Section 33B of Representation of the People Act, 1951, as inserted by Representation of the People
(3rd Amendment) Act, 2002.
Held: Section 33B of Amended Act is illegal, null and void. Voters have right under Article 19(1)(a) to
know antecedents of candidates contesting election.
—————

Uniform Civil Code and Religious Freedom

John Vallamattom versus Union of India
[AIR 2003 SC 2902: 2003 (5) SCALE 384: 2003 SCR 638: 2003 (52) ALR 556]
Decided on: 21-07-2003
Bench: VN Khare, SB Sinha and AR Lakshmanan, JJ.
Facts: Petition was filed under Article 32 of Constitution to determine constitutionality of provisions
of Section 118 of Indian Succession Act, 1925. Petitioner No. 1, Christian Priest belonging to religious
denomination of Roman Catholics and IInd Petitioner member of Christian Community, aggrieved by
discriminatory treatment meted out to members of Christian community, by which they were practically
prevented from bequeathing property for religious and charitable purposes and it led them to file WP.
Provision of Section 118 postulates that person having nephew or niece or any nearer relative cannot
bequeath his property for religious or charitable use unless will is executed not less than 12 months
before death of testator, it is deposited within 6 months from its execution in some place provided by
law for safe custody thereof and it remains in such deposit till death of testator. Question is who the
near relations for purpose of Section 118 is to be determined according to Table of Consanguinity as
per Section 28 read with Schedule of Act.
Issue: Whether Uniform Civil Code for all religions should be there?
Held: As the law stands today, Christian cannot make bequest for all religious or charitable purposes
without satisfying conditions and procedures prescribed by Section 118 of Act. Such a procedural
burden and substantive law burden is not falling upon Hindu, Muhammadan, Jain or Parsi Testators. The
whole case is based upon undue, harsh and special burden on Christian testators alone. Substantive
restriction is imposed based on uncertain events over which testator has no control. Section 118 of
Act regarding religious and charitable bequests of all testator who are similar should be subjected to
same procedure.
—————

PIL cannot be Invoked by a Person to Satisfy his Personal Grudge

Ashok Kumar Pandey versus State of West Bengal
[AIR 2004 SC 280: 2004 (3) SCC 349: 2003 (9) SCALE 741]
Decided on: 18-11-2003
Bench: Doraiswamy Raju and Dr. Arijit Pasayat, JJ.
Facts: Petition has been filed purportedly in public interest under Article 32 of Constitution. WP prayer
was to effect that death sentence imposed on one D accused, by Sessions Court Alipur, West Bengal

Constitution of India 115

 and affirmed by the High Court of Calcutta and the Supreme Court needs to be converted to life
sentence because for a long time there has been no execution of death sentence. Petitioner submits
that he was shown that authorities were unaware about the non-execution of the death sentence and,
therefore, condemned prisoner, the accused has suffered a great degree of mental torture and that
itself is a ground for conversion of his death sentence to a life sentence.
Issue: Whether PIL can be invoked by a person to satisfy his personal grudge?
Held: It is held by Court that public interest litigation cannot be invoked by a person or body of persons
to satisfy his or its personal grudge and enmity. Court dismissed the Petition.
—————

Custodial Deaths in Civilized Society are one of the Worst Crimes

Nokolenlemba versus State of Nagaland
[(2006) 1 GLR 806]
Decided on: 07-12-2004
Bench: Brojendra Prasad Katakey, Judge, High Court of Gauhati
Facts: Application was filed by the father, whose son allegedly died in police custody. It was alleged
that his son was picked up by police from village inspite of the fact that there was no criminal case
registered against him. His son was taken to Police Station and put in lock up for no reason. The boy’s
sister in law went to police station and found his dead body lying in police lock up. It was further
stated that no steps were taken for making any enquiry by authority in spite of such unnatural death of
the boy and even dead body not sent for post-mortem examination by Police as required under law. WP
filed by petitioner for making an enquiry and to fix the responsibility on the guilty officers and to punish
them in accordance with law, apart from claiming compensation for the death caused to his son by the
illegal act of the Police personnel which resulted in the death of his son in the Police lock up.
Issue: Custodial deaths are one of the worst crimes in a civilised society.
Held: It is held by court that state has failed to protect the fundamental right of the citizen guaranteed
under Article 21 of the Constitution of India. That because of the illegal action on the part of some
officers, TiabaAo has to die in the police lock up thereby putting the entire family in jeopardy.
Compensation of Rs. 3 lacs with cost of Rs. 15000 directed to be paid to the writ petitioner, wife and
children of the deceased.
—————

Capitation Fee by Unaided Minority and Non-minority Institution

PA Inamdar versus State of Maharashtra
[(2005) 6 SCC 537: AIR 2005 SC 3226: 2005 (6) SCALE 471: 2005 SCR 603]
Decided on: 12-08-2005;
Bench: RC Lahoti, CJ, YK Sabharwal, DM Dharmadhikari, Arun Kumar,
GP Mathur, Tarun Chatterjee and PK Balasubramanyam, JJ.
Issue: At what extent State can regulate admissions made by unaided (minority or non-minority)
educational institutions? Unaided (minority and non-minority) educational institutions whether free to
devise their own admission procedure)?
Held: Court held that within the meaning of Article 30(1) of Constitution set up reasonable fee structure
is also a component of ‘the right to establish and administer an institution’. Subject to limitation that

116 Constitution of India

there can be no profiteering and no capitation fee be charged directly or indirectly, or in any form, every
institution is free to devise its own fee structure. Payment of capitation fee cannot be permitted to be
charged and no seat can be permitted to be appropriated by payment of capitation fee. From business
or mere occupation, Profession has to be distinguished. It is not permissible for unaided minority and
non-minority institutions to charge capitation fee for professional courses. Profiteering is also not
permissible similarly.
—————

Dissolution of Assembly to Prevent Staking of Claim by Political Party

Rameshwar Prasad versus Union of India
[AIR 2006 SC 980: (2006) 2 SCC 1: 2006 (1) SCALE 385: 2006 (1) SCR 562]
Decided on: 24-01-2006
Bench: YK Sabharwal. CJ., BN Agrawal, Ashok Bhan, Dr. Arijit Pasayat and KG Balakrishnan, JJ.
Facts: Constitutional validity of notification dated 23-05-2005 ordering dissolution of Legislative
Assembly of State of Bihar, challenged in petition. In this case even before first meeting of the
Legislative Assembly, its dissolution ordered on ground that attempts by illegal means are being made
to cobble majority and lay claim to form Government in the State. It would amount to tampering with
constitutional provisions, if these attempts continue.
Issue: Whether dissolution of Assembly under Article 356(1) of Constitution of India can be ordered to
prevent staking of claim by political party on ground that by illegal means majority has been obtained.
Held: It is observed by court that governor enjoys complete immunity for exercise and performance
of powers and duties of his office or for any act done or purporting to be done by him in exercise and
performance of those powers and duties. Governor is not answerable to any Court. Power of the Court
to examine validity of action including on ground of mala fides has not been taken away by immunity
granted by Article 361(1). While holding unconstitutional the impugned Proclamation dated 23-05-2005,
court moulded the relief and declined to grant status quo ante and permitted completion of election
process consequentially.
—————

Disqualification of MP for Holding an Office of Profit

Jaya Bachchan versus Union of India
[AIR 2006 SC 2119: 2006 (5) SCC 266: 2006 (5) SCALE 511: 2006 (5) MLJ 233]
Decided on: 08-05-2006
Bench: YK Sabharwal, CJ and CK Thakker and RV Raveendran, JJ.
Facts: Petitioner, Jaya Bachchan appointed as Chairperson of UP Film Developmental Council and
sanctioned to her rank of Cabinet Minister. She became entitled to benefits as a consequence, viz.,
honorarium of Rs. 5000 per month daily allowance of Rs. 600 per day within state and Rs. 750 outside
State, Rs. 10000 per month towards entertainment expenditure, Staff car with driver, telephone at
office and residence, one PS and 1 PA and two class IV employees. Body guard and night escort. Free
accommodation and medical treatment facilities provided to her and other family members. Free
accommodation in Government Circuit houses/guest houses and hospitality while on tour. Election
Commission expressed opinion that office of Chairperson of Council to which petitioner appointed was
appointed by State Government, is an “office of profit” which Government of Uttar Pradesh for purpose

Constitution of India 117

 of Article 102(1)(a) of Constitution. Commission also found that Section 3 of Parliament (Prevention of
Disqualification) Act, 1959 did not exempt said office of profit from disqualification under Article 102(1)
(a) of Constitution. In exercise of powers conferred under Article 103(1) of Constitution. President by
order dated 16-3-2006, after obtaining opinion of Election Commission, as required by Article 103(2)
that petitioner stands disqualified for being member of Rajya Sabha on and from 14-7-2004. These
orders were challenged by petitioner in the Supreme Court.
Issue: On being appointed as chairperson of U.P. Film Development Council, whether MP stands
disqualified for being member of Rajya Sabha?
Held: Petitioner held the post covered within the meaning of “office of Profit” and petitioner was
disqualified accordingly for being member of Rajya Sabha. Fact that petitioner is affluent or not
interested in benefits/facilities given by State Government or did receive such benefits are not relevant
to issue.
—————

Constitution of Rajya Sabha–Federal Principle is Dominant in

Constitution of India and it is One of its Basic Structure
Kuldip Nayar versus Union of India
[AIR 2006 SC 3127: 2006 (7) SCC 1: 2006 (8) SCALE 257: 2007 (1) Civil LJ 796]
Decided on: 22-08-2006
Bench: YK Sabharwal, KG Balakrishnan, SH Kapadia, CK Thakker and PK Balasubramanyan JJ.
Facts: Two issues viz., relating to content and significance of word ‘domicile’ and importance of
concept of ‘secrecy’ in voting under constitutional scheme, arise for determination. Constitution of
India provides for Union Legislature, called ‘Parliament’ through Article 79, to consist of President
and two houses as Council of States’ also known as Rajya Sabha and House of the People, known as
Lok Sabha. In Article 168 there is similar provision for State Legislature, which includes Legislative
Assembly known as Vidhan Sabha in each state, besides Governor and Legislative Council known as
Vidhan Parishad, in some states. The question that needs resolution is what is meant by word ‘elector’.
Reference is made to various provisions of Representation of the People Act, 1950 and 1951.
Issue: Whether secrecy of ballot is vital but not absolute principle and act within competence of State
Legislature can be challenged on ground of another more reasonable view.
Held: Democracy is an essential feature of Constitution. It is not dogmatic doctrine and no one can
suggest that rule is authoritarian because some rights and safeguards available to people at the
inception of its Constitution have been abridged or abrogated or as a result of Constitutional Amendment,
form of government does not strictly comport with some classical definition of concept. Apart from
Article 80(2) and (4) Constitution does not put any restrictions on legislative powers of Parliament.
Amendments in Sections 3, 59, 94 and 128 of Representation of the People Act, 1951 by Representation
of the People (Amendment) Act, 2003 has been made in exercise of powers conferred on Parliament.
Under Article 246 read with Arts 84 and 327 and Entry 72 of Union List of VII Schedule of Constitution.
Impugned Amendment does not infringe any constitutional provision and not violative of Fundamental
Rights in Part III of Constitution. All WPs questioning constitutional validity of amendments brought
about in Representation of the People Act, 1951 through Representation of the People (Amendment)
Act, 2003, being devoid of merits, dismissed.
—————

118 Constitution of India

 Equality in Public Employment—Constitutional Amendment and Validity
M Nagaraj versus Union of India
[AIR 2007 SC 71: (2006) 8 SCC 212: 2006 (10) SCALE 301: JT 2006 (9) SC 191]
Decided on: 19-10-2006
Bench: YK Sabharwal, KG Balakrishnan, SH Kapadia, CK Thakker and PK Balasubramanyan
Facts: Article 32 of Constitution invoked to quash Constitution (85th Amendment) Act, 2001 inserted
Article 16(4A) of Constitution retrospectively providing reservation in promotion with consequential
seniority as being unconstitutional and violative of basic structure. Petitioners pleaded that amendment
seeks to alter the Fundamental Right of equality which is part of basic structure of Constitution.
Issue: Whether Clause 4A inserted in Article 16, viz., equality of opportunity in matters of public
employment, by Constitution (77th Amendment) Act, 1995, constitutionally valid?
Whether Clause 4B inserted in Article 16 by Constitution (81st Amendment) Act, 2000, constitutionally
valid?
Whether proviso inserted to Article 335 (claims of SCs and STs to services and posts) by (82nd
Amendment) Act, 2000, constitutionally valid?
Whether Constitution (85th Amendment) Act, 2001, constitutionally valid, which changed wording of
Article 16(4A)?
Held: Ceiling limit of 50 per cent , concept of creamy layer and compelling reasons, viz., backwardness,
inadequacy of representation and overall administrative efficiency are all constitutional requirements
without which structure of equality of opportunity in Article 16 would collapse. Impugned Constitutional
amendments by Articles 16(4A) and 16(4B) have been inserted from Article 16(4). They do not alter
structure of Article 16(4). They retain controlling factors or the compelling reasons, viz., backwardness
and inadequacy of representation which enables states to provide for reservation keeping in mind
overall efficiency of State administration under Article 335. Even if State has compelling reasons, State
will have to see that its reservation provision does not lead to excessiveness so as to breach ceiling
limit of 50 per cent or obliterate creamy layer or extend the reservation indefinitely. Subject to this,
constitutional validity of 77th, 81st, 82nd and 85th amendments is upheld.
—————

IX Schedule: Validity
IR Coelho (Dead) by LRs versus State of Tamil Nadu
[AIR 2007 SC 861: (2007) 2 SCC 1: 2007 (1) SCALE 197: 2007 (2) ALT 1]
Decided on: 11-01-2007
Bench: YK Sabharwal, CJ and Ashok Bhan, Arijit Pasayat, BP Singh, SH Kapadia,
CK Thakker, PK Balasubramanyam, Altamas Kabir and DK Jain, JJ.
Facts: Issue raised before the Supreme Court was in the nature and character of protection provided
by Article 318 of Constitution to laws added to 9th Schedule by amendments made after 24-4-1973.
On this date judgement in Kesavananda Bharati versus State of Kerala was pronounced propounding
doctrine of Basic Structure of Constitution to Test Validity of Constitutional Amendments.
Issue: Whether on or and after 24-4-1973 when basic structure doctrine was propounded, it is
permissible for Parliament under Article 31B to immunize legislations, from Fundamental Rights by
inserting them into 9th Schedule and if so what is the effect on power of judicial review of court, was
the fundamental question?

Constitution of India 119

 Held: Law that abrogates or abridges rights guaranteed by Part III of Constitution may or may not violate
basic structure doctrine. If former is the consequence of law, whether by Amendment of any article of
Part III or by insertion in IX Schedule, such law will have to be invalidated in exercise of judicial review
power of court. By constitutional amendment even though an Act is put in IX Schedule, its provisions
would be open to attack on ground that they destroy or damage basic structure if Fundamental Rights
taken away or abrogated or pertain to basic structure. The basic structure doctrine requires State to
justify degree of invasion of Fundamental Rights. Parliament is presumed to legislate compatibly with
Fundamental Rights and this is where judicial review comes in. The power to grant immunity at will on
fictional basis, without full Judicial review, will nullify entire basic structure doctrine. Golden triangle
of Articles 14, 19 and 21 is the basic feature of Constitution as it stands for equality and rule of law.
—————

Reservation in Educational Institutes for OBCs

Ashoka Kumar Thakur versus Union of India
[2008 (6) SCC 1: JT 2008 (5) SC 1: 2008 (5) SCALE 1: 2008 (4) SCR 1]
Decided on: 10-04-2008
Bench: KG Balakrishnan, CJI and Dr. Arijit Pasayat, CK Thakker,
RV Raveendran and Adler Bhandari, JJ.
Facts: Question was raised related to Constitutionality of Central Educational Institutions (Reservation
in Admission) Act, 2006. Whether ‘creamy layer’ to be excluded from socially and Educationally Backward
class and identification of such classification of ‘Backward Class’ based on caste is constitutionally
valid?
Issue: Reservation in educational institutions for Other Backward Classes. Whether exclusion of
minority educational institution from Article 15(3) is violative of Article 14 of Constitution?
Held: Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of
Constitution as minority educational institutions, by themselves are separate class and their rights are
protected by other Constitutional provisions. Reservation is one of the many tools used to preserve
and promote essence of equality, so that disadvantaged groups can be brought to forefront of civil
life. ‘Creamy Layer’ principle is introduced merely to exclude Section of particular caste on ground
that they are economically advanced or educationally forward. They are excluded because unless this
segment of caste is excluded from that caste group, there cannot be proper identification of backward
class. Identification of socially and educationally backward classes for purpose of either Articles 15(4)
(5) or 16(4) solely on basis of caste is expressly prohibited by various Supreme Court decisions and it
is also against Article 15(1) and 16(1) of Constitution.
—————

Consensual Sexual Acts—Decriminalization

Naz Foundation versus Government of NCT
[2010 Cri LJ 94 (Del): (2009) 160 DLT 277: 2009 (111) DRJ 1: 2009 (3) LRC 328]
Decided on: 02-07-2009
Bench: Ajit Prakash Shah, CJ and S Muralidhar, JJ. High Court of Delhi.
Facts: NGO filed WP as PIL to challenge constitutional validity Section 377, IPC, which penalizes
“unnatural offences”, to the extent that said provision criminalizes consensual sexual acts between

120 Constitution of India

adults in private. Petitioners submitted that Section 377 of IPC should apply only to non-consensual
penile non-vaginal sex and penile non-vaginal sex involving minors.
Issue: Whether Section 377, IPC is violative of Articles 21, 14 and 15 of Constitution as it criminalizes
consensual sexual acts of adults in private.
Held: Court held that Section 377, IPC is violative of Articles 21, 14 and 15 of Constitution in so far it
criminalizes consensual sexual acts of adults in private. However, Section 377 will continue to govern
non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. Person below
18 would not be presumed to be able to consent to sexual act. Said judgement will not result in re-
opening of criminal cases involving Section 377, IPC already attained finality. This clarification will hold
till Parliament amends law to effectuate recommendation of Law Commission of India in its 172nd
report which removes great deal of confusion.
—————

Who can File PIL?

State of Uttaranchal versus Balwant Singh Chaufal
[AIR 2010 SC 2550: 2010 (3) SCC 402: 2010 (1) SCR 678: 2010 (1) SCALE 492]
Decided on: 18-01-2010
Bench: Dalveer Bhandari and Mukundakam Sharma, JJ.
Facts: In PIL before High Court appointment of LP Nathani was challenged on ground that he could
not hold the office of Advocate General of Uttarakhand in view of Article 165 read with Article 217 of
Constitution. According to Respondent, Mr. Nathani had attained the age of 62 years much before
he was appointed as Advocate General and ineligible to be appointed as Advocate General. State of
Uttaranchal filed special leave petition before Supreme Court.
Issue: Who can file a PIL?
Held: Same controversy is raised repeatedly and no longer res integra. It not only wastes the precious
time of the Court and prevent the Court from deciding other deserving cases, but also has the immense
potentiality of demeaning a very important constitutional office and person who has been appointed
to that office. In considered view of courts, it was a clear case of the abuse of process of court in the
name of the Public Interest Litigation.
Following directions issued by court in order to preserve purity and sanctity of PIL:
(1) The courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(2) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL
filed for extraneous considerations.
(3) The Court should be prima facie satisfied regarding the correctness of the contents of the petition
before entertaining a PIL.
(4) Instead of every individual judge devising his own procedure for dealing with the public interest
litigation, it would be appropriate for each High Court to properly formulate rules for encouraging
the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that
the High Courts who have not yet framed the rules, should frame the rules within three months.
The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared
by the High Court is sent to the Secretary-General of this Court immediately thereafter.
(5) The Court should ensure that the petition which involves larger public interest, gravity and urgency
must be given priority over other petitions.

Constitution of India 121

 (6) The Court should be fully satisfied that substantial public interest is involved before entertaining
the petition.
(7) The Court should also ensure that the petitions filed by busybodies for extraneous and ulterior
motives must be discouraged by imposing exemplary costs or by adopting similar novel methods
to curb frivolous petitions and the petitions filed for extraneous considerations.
(8) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine
public harm or public injury. The court should also ensure that there is no personal gain, private
motive or oblique motive behind filing the public interest litigation.
—————

Right against Self-Incrimination

Smt. Selvi versus State of Karnataka
[AIR 2010 SC 1974: 2010 (7) SCC 263: 2010 (4) SCALE 690: 2010 (2) Crimes 241]
Decided on: 05-05-2010
Bench: KG Balakrishnan, CJ., RV Raveendran and JM Panchal, JJ.
Facts: Involuntary administration of scientific techniques, viz., narcoanalysis, polygraph examination
and Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in
criminal cases. Involuntary administration of impugned technique prompts questions about protective
scope of ‘right against self-incrimination’ under Article 20(3) of Constitution.
Issue: Whether right against self-incrimination is being violated by compulsory administration of
techniques?
Held: It is held by court that compulsory administration of techniques violates right against ‘self-
incrimination’. Underlying rationale of said right is to ensure reliability as well as voluntaries of
statements as evidence. Article 20(3) aims to prevent forcible ‘conveyance of personal knowledge.’ That
is irrelevant to facts in issue. Court held that protective scope of Article 20(3) extends to investigative
stage in criminal cases and when read with Section 161(2) Cr.P.C. it protects accused persons, suspects
and witnesses who are examined during investigation. Article 20(3) aims to prevent ‘forcible conveyance’
of personal knowledge that is relevant to facts in issue. Results obtained from each of the impugned
tests bear testimonial character and they cannot be categorized as material evidence. Court also
took view that forcing an individual to undergo any of the impugned techniques violates standard of
‘substantive due process,’ required for restraining personal liberty. Further it was said that no individual
should be forcibly subjected to any of the techniques in question, whether in context of investigation
in criminal cases or otherwise. Doing so would amount to unwarranted intrusion into personal liberty.
—————

Status of Pregnant Female Student

Vandana Kandari versus University of Delhi
[170 (2010) DLT 755: 2010 (3) SCT 363]
Decided on: 12-07-2010
Bench: Kailash Gambhir, J. High Court of Delhi.
Facts: Petitioner on account of shortfall of their attendance was restricted from appearing in semester
examinations. Petitioner seeks relaxation in shortfall of the attendance in all those lectures during
which period they could not attend classes being at the advance stage of pregnancy.
Issue: Whether Female student could be deprived from her student status because of her pregnancy?

122 Constitution of India

Held: If any female candidate is deprived or restricted in any of the semester just on the ground that
she could not attend classes being in the advanced stage of pregnancy or due to the delivery of the
child, then such an act on the part of any of the university or college would not only be completely in
negation of the conscience of the Constitution of India but also of the women rights and gender equality
this nation has long been striving for. By not granting relaxation, we will be making motherhood a crime
which no civilised democracy in the history of mankind has ever done or will ever do. We cannot make
them pay the price for the glory that is motherhood. It is a saying that Motherhood is priced of God, at
price no man may dare to lessen or misunderstand.
—————

Euthanasia
Aruna Ramchandra Shanbaug versus Union of India
[AIR 2011 SC 1290: 2011 (4) SCC 454: 2011 (3) SCALE 298: JT 2011 (3) SC 300]
Decided on: 07-03-2011
Bench: Markandey Katju, Gyan Sudha Misra, JJ.
Facts: Petitioner nurse was attacked by sweeper in hospital, who wrapped dog chain around her neck
and yanked her back with it. He tried to rape her but so demised finding she was menstruating. He
twisted chain around her neck to immobilize her. Cleaner found her body on floor next day staining in
blood and in unconscious condition. Brain got damaged as due to strangulation by dog chain, supply
of oxygen stopped to brain. She is now 60 years of age as 36 years have expired since incident. She
is featherweight and her brittle bones could break if her hand or leg, awkwardly caught. She is in
Persistent Vegetative State (PVS) and virtually dead person and has no state of awareness and her
brain is virtually dead. She is not able to chew or taste any food. Her eurota and urine is discharged on
bed itself. Petitioner cannot be said to be living person and it is only on account of mashed food put
into her mouth there is facade of life which is totally devoid of any human element. Prayer of petitioner
is that respondents be directed to let her die peacefully by stop feeding her.
Issue: Granting approval for withdrawal of support of person who is in persistent vegetative-state and
dead person virtually and brain virtually dead.
Held: The High Court under Article 226 of Constitution can grant approval for withdrawal of life support
to such an incompetent person. CJ of the High Court should forth with constitute Bench of two judges
to decide grant approval or not before doing so. Bench should seek opinion of 3 reputed doctors to be
nominated by Bench after consulting medical authorities as it may deem fit. Simultaneously High Court
should issue notice to State and close relatives, e.g., parents; spouse, brothers/sisters of patient or
their friends and supply copy of doctor’s report and after hearing them give its verdict. Delay in matter
may result in causing great mental agony to relatives and persons close to patient, the High Court
should give its decision speedily.
—————

Employment of Children at Circus

Bachpan Bachao Andolan versus Union of India
[AIR 2011 SC 3361: 2011 (5) SCC 1: 2011 (5) SCR 353: 2011 (4) SCALE 769]
Decided on: 18-04-2011
Bench: Dalveer Bhandari and AK Patnaik, JJ.
Facts: PIL under Article 32 of Constitution filed for serious violation and abuse of children forcefully
detained in circuses, without any access to their families under extreme inhuman conditions. There

Constitution of India 123

 are instances of sexual abuse on a daily basis either physical abuse or emotional abuse. Children are
deprived of basic human needs like food and water. Petitioner found that circus is one of the ancient
forms of indigenous entertainment in the world, with humans having a major role to play. Artists
especially children are deprived of their basic Fundamental Rights by activities undertaken in circuses.
Most of them are trafficked from some poverty-stricken areas of Nepal as well as from backward
districts of India. There is no life beyond circus campus. They are confined to circus arena once they
enter into circuses, with no freedom of mobility and choice.
Issue: Employment of children at circus?
Held: With regard to children working in Indian circuses, directions given by the Supreme Court.
(i) The Respondents (Union of India and others) were directed to conduct simultaneous raids in all
the circuses to liberate the children and check the violation of fundamental rights of the children.
The rescued children be kept in the Care and Protective Homes till they attain the age of 18 years.
(ii) In order to implement the fundamental right of the children under Article 21A it was imperative
that the Central Government must issue suitable notifications prohibiting the employment of
children in circuses.
—————

Right of Voter to Know the Particulars of Candidate

Representing him in Parliament/Assemblies
Resurgence India versus Election Commission of India
[AIR 2014 SC 344: 2013 (11) SCALE 348: 2013 (9) SCR 360: 2014 (14) SCC 189]
Decided on: 13-09-2013
Bench: P Sathasivam, CJI, Ranjana Prakash Desai and Ranjan Gogoi, JJ.
Facts: Petitioner, a registered NGO under Societies Registration Act and working for social awakening/
empowerment/human rights during Punjab Legislative Assembly Elections 2007, undertook massive
exercise under the banner “Pb Election Watch”. On analysis of affidavits of candidates of six major
political parties large scale irregularities found. Petitioner made representation to Election Commission
of India regarding non-disclosures of affidavits filed by contestants in Punjab and poor scrutiny by
returning officers. Election Commission expressed its inability in rejecting nomination papers of
candidates due to furnishing false information in view of judgement in People’s Union for Civil Liberties
(PUCL). Appeal filed by petitioner before the Supreme Court.
Issue: Whether voter has elementary right to know the particulars of candidate representing him in
parliament/Assemblies?
Held: Voter has a right to know the full particulars of candidate representing him in parliament/
Assemblies. It is integral part of Article 19(1)(a) of Constitution. Filing affidavit along with nomination
paper is for ultimate purpose to effectuate Fundamental Right of citizens under Article 19(1)(a) of
Constitution. Affidavit filed with blank particulars will render affidavit nugatory. If candidate fails to fill
blanks even after returning officers reminder nomination paper is fit to be rejected. Minimum efforts
must be made by candidate to explicitly remark as ‘NIL’ or ‘NA’ or ‘Not Known’ in columns and not to
leave particulars blank. Filing of Affidavits with blanks will directly hit Section 125A(i) of Representation
of the People Act.
—————

124 Constitution of India

 NOTA: Right to not Vote
People’s Union for Civil Liberties versus Union of India
[2013 (10) SCC 1: 2013 (12) SCR 283: 2013 (12) SCALE 165: 2013 (132) AIC 219]
Decided on: 27-09-2013
Bench: P Sathasivam, CJI., Ranjana Prakash Desai and Ranjan Gogoi, JJ.
Facts: Challenge against Constitutional validity of Rules 41(2) and (3) and 49-O of Conduct of Election
Rules, 1961 by filing WP under Article 32 of Constitution by petitioner. These provisions violate secrecy
of voting which is fundamental to free and fair elections and to be maintained as per Section 128 of
Representation of People Act and Rules 39 and 49M of Rules. Also direction sought from ECI to provide
necessary provision in ballot papers as well as in EVM for protection of right of not to vote in order to
keep exercise of such right secret under existing Representation of People Act/Rules or under Article
324 of Constitution.
Issue: Negative voting-Whether fundamental and essential part of vibrant democracy?
Held: Election Commission directed by Court to provide ‘None of the Above’ (NOTA) button in EVMS.
Democracy is all about choice and can be better expressed by giving opportunity to voters to verbalize
themselves unreservedly and imposing fewer restrictions on their ability to make such a choice. It will
accelerate effective political participation in present state of democratic system and voters in fact
will be empowered by providing NOTA button in EVMS. When electioneering is in full swing, right to
cast negative vote will foster purity of electoral process and wide participation of people. Protection
of elector’s identity and affording secrecy is integral to free and fair elections. Arbitrary distinction
between voter who casts his vote and voter who does not cast his vote is violative of Article 14 of
Constitution. Secrecy is required to be maintained for both categories of persons. When political parties
will realize that disapproval expressed by large number of people with candidates put up by them,
gradually systematic change will be there. Political parties will be forced to accept Will of the people
and field candidates known for their integrity. Voting machines in Parliament have 3 buttons, viz., AYES,
NOES and ABSTAIN. NOTA button is exactly similar to ABSTAIN since by pressing NOTA button voter is
in effect saying he is abstaining from voting since he does not find any of the candidates worthy of his
vote. Mechanism of negative voting serves a very fundamental and essential part of vibrant democracy.
—————

Section 377, IPC—Constitutional Validity

Suresh Kumar Koushal versus NAZ Foundation
[AIR 2014 SC 563: 2013 (15) SCALE 55: 2014 (1) SCC 1: 2014 Cri LJ 784]
Decided on: 11-12-2013
Bench: GS Singhvi, Sudhansu Jyoti Mukhopadhyaya, JJ.
Facts: WP filed by Respondent NGO before the Delhi High Court praying for grant of declaration that
Section 377, IPC is violative of Articles 14, 15, 19(1)(a)(d), 21 of Constitution to the extent it is applicable
to and penalises sexual acts in private between consenting adults. That thrust of Section 377, IPC
is to penalise sexual acts which are against order of nature. That provision is based on traditional
Judeo-Christian rural and ethical standards and being used to legitimise discrimination against sexual
minorities. WP dismissed by the High Court observing no cause of action accrued to respondent and
court cannot examine purely academic issues. The High Court also dismissed a review petition filed
by respondent. Both orders challenged before Supreme Court by respondent and Supreme Court

Constitution of India 125

 remitted WP to the High Court for fresh decision. The High Court declared Section 377, IPC in so far
as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14 and 15 of
Constitution. Petitioner filed appeal before the Supreme Court against the High Court decision.
Issue: Constitutional validity of Section 377, IPC.
Held: Declaration made by Division Bench of the High Court is legally unsustainable. Section 377,
IPC does not suffer from vice of unconstitutionality. What Section 377, IPC does is merely to define
particular offence and prescribe punishment for same which can be awarded in trial conducted in
accordance with provisions of Cr.P.C. and other statutes. The High Court is nowhere right in declaring
Section 377 of IPC ultra vires Articles 14 and 15 of Constitution. Division Bench of the High Court while
reading down Section 377, IPC overlooked that minuscule fraction of country’s population constitutes
lesbians, gays, bisexuals or trans-genders. In last more than 150 years less than 200 persons have been
prosecuted for committing offence under Section 377, IPC and this cannot be made sound basis for
declaring that Section 377, IPC is ultra vires provisions of Articles 14, 15 and 21 of Constitution.
—————

Safety and Security of Female Employees During Night Shift

Mahila Utkarsh Trust Through its President versus Union of India Through Secretary
[2014 LIC 611: 2014 (1) GCD 566: 2013 (10) SCT 317]
Decided on: 13-12-2013
Bench: Bhaskar Bhattacharya, CJ and JB Pardiwala, J., High Court of Gujarat
Issue: Constitutional validity of Section 66(1)(b) of Factories Act - Night shift of female employees and
duty of employers to make safety arrangements for transportation.
Held: Provisions of Section 66(1)(b) of Act held ultra vires Articles 14, 15, 16, 19(1)(g) of Constitution.
Court observed that it will be condition precedent upon employer to make adequate measures for
safety and security of female employees who would work during night shift, while permitting female
employees to work during night shift. Entire provisions of Act including welfare and working hours
should be strictly followed even during the night shifts. Employer also has a duty to make arrangements
for transportation of female employees who work in the night shift from their respective residence
to factory before work commences and from factory to their respective residence after duty hours of
night shift if same ends before 6 am. Arrangements should also be made for opening adequate medical
unit for such female employees. Even during night shift provision for crèches as provided for in Section
48 of Factories Act should also be strictly adhered.
—————

Section 66A of Information Technology Act Relating to Restrictions on Online Speech

Struck Down and Declared Unconstitutional on Grounds of Violating Freedom of Speech
Guaranteed under Article 19(1)(a) of Constitution of India
Shreya Singhal versus Union of India
[AIR 2015 SC 1523: 2015 (5) SCC 1: 2015 (4) SCALE 1: 2015 (218) DLT 370]
Decided on: 24-03-2015
Bench: Jasti Chelameswar and Rohinton Fali Nariman, JJ.
Facts:
(a) Section 66A of Information Technology Act made it punishable offence for any person to “send
by means” of computer resource or communication device (as any information that is grossly
offensive or has menacing character, or

126 Constitution of India

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience,
danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by
making use of such computer resource or communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience
or to deceive or to mislead the addressee or recipient about the origin of such messages.
Issue: Declaration as unconstitutional Section 66A of Information Technology Act relating to restrictions
on Online Speech on grounds of violating Freedom of Speech Guaranteed under Article 19(1)(a) of
Constitution of India.
Held: Justice Nariman held that Section 66A was vague and over broad, fell foul of Article 19(1)(a) since
statute was not narrowly tailored to specific instances of speech, which is sought to curb. Court held
that ‘public order’ restriction under Article 19(2) of Constitution would not apply to cases of ‘advocacy’,
but only to ‘incitement’, specifically having proximate relation to public disorder. The Supreme Court
held that Section makes no distinction between mass dissemination and dissemination to one person.
That it is important to note distinction between Sections 268 and 66A. Whereas in Section 268 various
expressions used are ingredients for offence of public nuisance, these ingredients now become offences
in themselves when it comes to Section 66A. Under Section 268, person should be guilty of an act of
omission, which is illegal in nature, legal acts are not within its net on question of violation of Article 14,
court did not agree with L/C for petitioners that there is no intelligible differentia between medium of
print. Broadcast and live speech is opposed to speech on internet. That intelligible differentia is clear.
Internet gives any individual platform which requires very little or no payment through which to air his
views. Court upheld Section 69 of Act and secret blocking process by which government can choose
to take down content from Internet, holding that it did not suffer from infirmities in Section 66A or
Section 79 and is narrowly drawn provision with adequate safeguards.
—————

Mumbai Blasts Case—Mercy Petitions Rejected by President after

Due Consideration of All Relevant Facts
Yakub Abdul Razak Memon versus State of Maharashtra
[2015 (3) KLJ 770: 2015 (8) SCALE 339: 2015 (9) SCC 552: 2015 (3) KLR 473]
Decided on: 29-08-2015
Bench: Dipak Misra, Prafulla C Pant and Amitava Roy, JJ.
Facts: At 3 am the Supreme Court was opened for Judges to decide final plea against execution of
Yakub Memon for his role in 1993 Mumbai blasts case. Judges after about 90 minutes rejected Memon’s
appeal to stop his execution. Mercy plea of Memon rejected by the Supreme Court observing that stay
on death warrant could be travesty of justice since ample opportunity was provided to Memon, after
rejection of his first mercy petition. Petitioner’s counsel contended that he must be given 14 days
as mandated by the Supreme Court to meet family members, prepare his Will and make peace with
God before his death warrant is executed. That rejection of mercy petition by President and Governor
faulted for non-application of mind as new clemency petitions sought commutation of death penalty
to life imprisonment on grounds different from reasons cited by Yakub in 2013 while seeking mercy
from President.
Issue: Whether mercy petitions rejected by President after due consideration of all relevant facts?

Constitution of India 127

 Held: Bench said in the order the execution was inevitable after rejection of mercy petitions. While
rejecting Memon’s last appeal before Supreme Court, Dipak Misra, J. held that President had rejected
mercy petitions after due consideration of all relevant facts. 22 years had passed since incident and
judgements passed by this court not erroneous.
—————

National Judicial Appointment Commission Violates Basic Structure of

Constitution of India and is Unconstitutional
Supreme Court Advocates-on-Record Association versus Union of India
[2015 (11) SCALE 1: 2016 (5) SCC 1: 2015 AIR (SCW) 5457: 2015 (7) MLJ 753]
Decided on: 16-10-2015
Bench: JS Khehar, Jasti Chelameswar, Madan B Lokur, Kurian Joseph and AK Goel, JJ.
Facts: NJAC declared as unconstitutional by Constitution Bench of Supreme Court as it violates Basic
Structure of Constitution by 4:1 majority. Justice JS Khehar, MB Lokur, Kurian Joseph and AK Goel
declared 99th Amendment and NJAC Act unconstitutional and Justice Chelameswar upheld it.
Issue: NJAC is unconstitutional and violative of Basic Structure of Constitution.
Held: Constitution Amendment inserted Article 124A in Constitution and NJAC Act brought to replace
1993 Collegium system for appointment of judges to Supreme Court and High Courts. Article 124A
provided for Constitution and composition of NJAC. It composed of
(i) CJI, Chairman, ex officio.
(ii) 2 other senior SC Judges, next to CJI, Members, ex officio.
(iii) Union Minister in charge of Law and Justice, Member, ex officio.
(iv) Two eminent persons to be nominated – Members.
According to Justice JS Khehar, Article 124A(1)(a)(b) did not provide adequate representation to judicial
component in NJAC and Clause (a) and (b) of Article 124A(1) insufficient to preserve primacy of judiciary,
in selection and appointment of judges to higher judiciary (as also transfer of CJ and Judges from one
High Court to another) same declared as violative of principle of “independence of judiciary”. According
to Justice Khehar Clause (c) of Article 124(1) impinge upon principles of “independence of judiciary” as
well as “separation of powers”. Justice M.B. Lokur held NJAC in Article 124A ultra vires and alter “Basic
Structure” of Constitution. Constitution 99th Amendment Act, 2014, and NJAC Act considerably limited
and curtailed authority of CJI and precluded CJI from taking opinion of other judges or any person
outside NJAC. K. Joseph, J also declared Constitution (99th) Amendment Act, 2014 unconstitutional.
Justice Goel (while striking down NJAC and Constitution (99th Amendment) Act, 2014, held role of Law
Minister and non-judge members cannot be placed at par with CJ and Supreme Court Judges. Even
majority view supported reform in existing collegium system.
Lastly, Justice JS Khehar, M.B. Lokur, Kurian Joseph and AK Goel declared the 99th Amendment and
NJAC Act unconstitutional whereas Justice J. Chelameswar upheld it.
—————

128 Constitution of India

 Play National Anthem before Movies in Theatres
Shyam Narayan Chouksey versus Union of India
[2016 (12) SCALE 404: 2017 (1) SCC 421: 2017 (1) RCR (Criminal) 132: 2016 (6) RAJ 578]
Decided on: 30-11-2016
Bench: Dipak Misra and Amitava Roy, JJ.
Facts: Averment in Petition is that sometimes National Anthem is sung in various circumstances which
are not permissible and can never be countenanced in law. The assertion was that it is the duty of
every person to show respect when the National Anthem is played or recited or sung. Emphasis was on
showing requisite and necessary respect when the National Anthem is sung or played.
Issue: Whether National Anthem must be played before movies in theatre?
Held: Directions issued by Supreme Court:
(i) All the cinema halls in India shall play the National Anthem before the feature film starts and all
present in the hall are obliged to stand up to show respect to the National Anthem.
(ii) The National Anthem should not be utilized by which the person involved with it either directly or
indirectly shall have any commercial benefit or any other benefit.
(iii) National Anthem or a Part of it shall not be printed on any object and also never be displayed in
such a manner at such places which may be disgraceful to its status and tantamount to disrespect.
It is because when the National Anthem is sung, the concept of protocol associated with it has its
inherent roots in National identity, National integrity and Constitutional Patriotism.
(iv) There shall not be dramatization of the National Anthem and it should not be included as a part of
any variety show. It is because when the National Anthem is sung or played it is imperative on the
part of every one present to show due respect and honour. To think of a dramatized exhibition of
the National Anthem is absolutely inconceivable.
—————

Triple Talaq: Talaq-E-Biddat

Shayara Bano versus Union of India
[(2017) 6 Mad LJ 378: 2017 (9) SCC 1: 2017 (9) SCALE 178: AIR 2017 SC 4609]
Decided on: 22-08-2017
Bench: JS Khehar, CJI, Kurian Joseph, RF Nariman, UU Lalit and S Abdul Nazer, JJ.
Fact: Petition was filed before the Supreme Court challenging the practice of Triple-Talaq. Petitioner
argued that the practice of Triple-Talaq allowed a Muslim man to divorce his wife instantaneously by
saying the word ‘talaq’ for 3 times, which violates Muslim women’s right to equality.
Issue: Whether practice of “Talaq-E-Biddat” is violative of the fundamental rights and whether Section
2 of Muslim Personal Law (Shariat) Application Act, 1937 is void?
Held: By 3:2 majorities, Supreme Court declared the practice of Talaq-E-Biddat or Triple Talaq
unconstitutional. Majority view: RF Nariman and Uday Umesh Lalit.
This form of Talaq is manifestly arbitrary in the sense that marital tie can be broken capriciously and
whimsically by Muslim man without any attempt at reconciliation. This form of Talaq must be held
to be violative of Fundamental Rights contained under Article 14 of Constitution and Muslim Personal
Law (Shariat) Application Act, 1937 must be struck down as being void to the extent it recognizes and
enforces Triple Talaq within the meaning of the expressions “laws in force” in Article 13(1).

Constitution of India 129

 Minority view (concurring By Kurian Joseph, J) It is found extremely difficult to agree with CJ that
practice of triple talaq has to be considered integral to religious denomination in question and that
same is part of their personal law. After introduction of 1937 Act, no practice against the tenets of
Quran is permissible. There cannot be any Constitutional protection to such a practice and thus court
disagrees with the Chief Justice for the constitutional protection given to Triple Talaq. However the
majority opinion has outlawed Triple Talaq.
—————

The Right to Privacy

Justice KS Puttaswamy (Retd.) versus Union of India
[AIR 2017 SC 4161: 2017 (10) SCALE 1: 2017 (178) AIC 1: 2017 (10) SCC 1]
Decided on: 24-08-2017
Bench: JS Khehar, CJI, J. Chelameswar, SA Bobde, RK Aggarwal, RF Nariman, Abhay Manohar Sapre,
Dr. DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer, JJ.
Facts: Right to privacy has constitutionally protected value.
Issue: Whether privacy is a constitutionally protected value?
Held:
(i) Decision in M.P. Sharma case overruled which held that right to privacy is not protected by
Constitution.
(ii) Decision in Kharak Singh overruled to extent that it held that right to privacy is not protected by
Constitution.
(iii) Article 21 Right to privacy is protected as an intrinsic part of right to life and personal liberty and
as a part of freedoms guaranteed by Part III of Constitution.
(iv) Subsequent to Kharak Singh decisions which enunciated the position in (iii) lay down correct
position in law.
Majority view: JS Khehar, CJI, RK Aggarwal, Dr. DY Chandrachud and S Abdul Nazeer, JJ.
Privacy rights connote to be left alone. Privacy includes at its core the preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy
safeguards individual autonomy and recognizes the ability of the individual to control vital aspects
of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects
heterogeneity and recognizes the plurality and diversity of our culture. Like other rights which form
part of the fundamental freedoms protected by Part III, including the right to life and personal liberty
under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article
21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure, which is
fair, just and reasonable. “Privacy has both positive and negative part. The negative part restrains the
state from committing an intrusion upon the life and personal liberty of a citizen on the other side the
positive part imposes an obligation on the state to take all necessary measures to protect the privacy
of the individual.”
Concurring view by J. Chelameswar, SA Bobde, RF Nariman, A.M. Sapre, S.K. Kaul, JJ.
—————

130 Constitution of India

 Right to Die with Dignity
Common Cause (A Regd. Society) versus Union of India
[AIR 2018 SC 1655: 2018 (4) SCALE 1: 2018 (5) SCC 1: 2018 (1) Crimes 184]
Decided on: 09-03-2018
Bench: Dipak Misra, CJI and AM Khanwilkar, Dr. DY Chandrachud, AK Sikri,
Ashok Bhushan, Arun Mishra and Mohan M Shantanagoudar, JJ.
Facts: Petitioner, a registered society, filed the petition under Article 32 to declare right to die with
dignity as Fundamental Right within fold of right to live with dignity guaranteed under Article 21 of
Constitution; to issue directions to respondents to adopt suitable procedure in consultation with State
Governments, where necessary; to ensure that persons of deteriorated health or terminally ill patients
should be able to execute document-titled – My Living Will and Attorney Authorisation which can be
presented to hospital for appropriate action in event of executant; being admitted to hospital with
serious illness which may threaten termination of life of executant; to appoint a committee of experts
including doctors, social scientists and lawyers to study into aspect of issuing guidelines as to – Living
Wills; and to issue such further appropriate directions and guidelines as may be necessary.
Issue: Whether right to life includes right to die by passive euthanasia, voluntary or even, in certain
circumstances involuntary, whether legally permissible and if so under what circumstances? Whether
‘living will’ or ‘advance directive’ should be legally recognized and can be enforced?
Held: Dipak Misra CJI and AM Khanwilkar, J. – Under Article 21 right to life and liberty is meaningless
unless it encompasses within its sphere individual dignity. Right to live and liberty as envisaged under
Article 21 of Constitution is meaningless unless it encompasses within its sphere individual dignity.
Right to live with dignity also includes smoothening of process of dying in case of a terminally ill
patient or person in Persistent Vegetative State (PVS) with no hope of recovery. Though sanctity of life
has to be kept on high pedestal yet in cases of terminally ill persons or Persistent Vegetative State
patients where there is no hope for revival, priority shall be given to Advance Directive and right of self-
determination. Concurring (AK Sikri) This court has, with utmost sincerity, summoned all its instincts
for legality, fairness and reasonableness in giving a suitable answer to vexed issue that confronts
people on daily basis, keeping in mind competing interests and balancing those interests.
Concurring (Dr. DY Chandrachud)
(i) Constitution recognizes value of life as its indestructible component.
(ii) Liberty to make decisions and choices and autonomy of individual are central to quest to live a
meaningful life. Liberty, dignity and autonomy are essential to pursuit of happiness and to find
meaning in human existence.
(iii) Neither law nor Constitution compelled an individual who is competent and able to take decisions,
to disclose reasons for refusing medical treatment nor is such a refusal subject to supervisory
control of an outside entity.
(iv) Constitutional recognized right to life is subject to procedure established by law.
(v) An individual who is in sound and competent state of mind is entitled by means of an advance
directive in writing, to specify nature of medical intervention which may not be adopted in future,
should he or she cease to possess mental ability to decide.
(vi) Decision by treating doctor to withhold or withdraw medical intervention in case of patient in
terminal stage of illness or in a persistently vegetative state or the like where artificial intervention
will merely prolong suffering and agony of patient is protected by law.

Constitution of India 131

 (vii) Directions in regard to regime of advance directives have been issued in exercise of power conferred
by Article 142 of Constitution and shall continue to hold field until suitable legislation is enacted
by Parliament to govern the area.
Concurring Ashok Bhasin, J.
(a) Right to die with dignity as fundamental right has already been declared by Constitution Bench
Judgement of this Court in Gian Kaur case which we reiterate.
(b) We declare that an adult human being having mental capacity to take an informed decision has
right to refuse medical treatment including withdrawal from life-saving devices.
(c) A person of competent mental faculty is entitled to execute an advance medical directive in
accordance with safeguards as referred to above.
—————

Live Streaming of Court Proceedings

Swapnil versus Supreme Court of India
[AIR 2018 SC 4806: 2018 (11) SCALE 475: 2018 (10) SCC 639: 2018 (253) DLT 546]
Decided on: 26-09-2018
Bench: Dipak Misra CJI, and AM Khanwilkar and Dr. DY Chandrachud, JJ.
Facts: Petitioners and interventionists claiming to be public- spirited persons, sought declaration that
proceedings of the Supreme Court of constitutional importance having an impact on large number of
people be live streamed in a manner easily accessible for public viewing. Further direction was sought
to frame guidelines to determine exceptional cases qualifying live streaming and placing guidelines
before Full Bench of this Court.
Issue: Whether with the aid of Information and Communication Technology there should be live
dissemination of proceedings before this Court?
Held: Dipak Misra (CJI) and AM Khanwilkar, J: By providing “virtual” access to live Court proceedings to
one and all, right of access to justice/open to justice and public trial, right to know the development
of law and right of Justice at door step of litigants will get effectuated. Live streaming of court
proceedings in prescribed digital format would be an affirmation of constitutional rights bestowed
upon public and litigants in particular. While doing so, regard must be had to fact that just as dignity
and majesty of Court is inviolable, issues regarding privacy rights of litigants or witnesses whose cases
are set down for hearing, and exceptional category of cases of which live streaming of proceedings may
not be desirable, as it may affect cause of administration of justice, are matters need to be identified.
In that regard, proper regulatory framework must be provided by formulating rules in exercising power
under Article 145 of Constitution. The Supreme Court Rules, 2013 to be suitably amended to provide
for regulatory framework as per contours delineated above. It would be open to frame such regulatory
measures necessary for holistic live streaming of Court proceedings, without impinging upon cause
of administration of justice in any manner. In larger public interest, cause brought by protagonists
before this Court deserves to be accepted so as to uphold constitutional rights of public and litigants
in particular.
—————

132 Constitution of India

 Validity of Aadhaar Act
Justice KS Puttaswamy (Retd.) versus Union of India
[AIR 2017 SC 4161: 2018 (12) SCALE 1: 2019 (1) SCC 1: 2018 (255) DLT 1]
Decided on: 26-09-2018
Bench: Dipak Misra, CJI, AK Sikri, AM Khanwilkar,
Dr. Dhananjaya Y Chandrachud and Ashok Bhushan, JJ.
Facts: Justice Puttaswamy filed petition challenging validity of Aadhaar. Aadhaar could not be made
mandatory for public services. It is also alleged that Aadhaar requirement should not be forced and it
affected rights of citizen.
Issue: Whether Aadhaar Act violates right to privacy and unconstitutional on this ground? Whether
children can be brought within sweep of Sections 7 and 8 of Aadhaar Act? Whether provisions of
Aadhaar Act and Regulations suffer from vice of unconstitutionality, viz.,
(i) Sections 2(c) and 2(d) read with Section 32
(ii) Section 2(h) read with Section 10 of CIDR
(iii) Section 2(1) read with Regulation 23
(iv) Section 2(v)
(v) Section 3
(vi) Section 5
(vii) Section 6
(viii) Section 8
(ix) Section 9
(x) Sections 11 to 23
(xi) Sections 23 and 54
(xii) Section 23(2)(g) read with Chapter VI and VII – Regulations 27 to 32
(xiii) Section 29
(xiv) Section 33
(xv) Section 47
(xvi) Section 48
(xvii) Section 57
(xviii) Section 59
Held: CJI (Dipak Misra), Justice AK Sikri, AM Khanwilkar, Regulation 27(1) of Authentication Regulations
which permits records to be achieved for a period of 5 years is held bad in law. Section 33(1) of
Aadhaar Act clarified that individual, whose information is sought to be released, shall be afforded
opportunity of hearing. Section 33(2) is struck down. Section 57 held unconstitutional which enables
body corporate and individual to seek authentication. Only those matters over which there would be
reasonable expectation of privacy, protected by Article 21. Aadhaar Scheme is backed by statute, i.e.,
Aadhaar Act. Over a period of time use of Aadhaar No. increased manifold. It is also necessary to take
measures relating to ensuring security of the information provided by the individuals while enrolling for
Aadhaar card. Aadhaar Act meets the test of proportionality as certain components of proportionality
satisfied. There needs to be balancing of two competing Fundamental Rights, right to privacy on one

Constitution of India 133

 hand and right to food, shelter and employment on another hand. Enrolment in Aadhaar, on one hand,
gives such individuals their unique identity and on the other hand, it also enables such individuals to
avail the fruits of welfare schemes of the Government, which are floated as socio-economic welfare
measures to uplift such classes. In that sense, the scheme ensures dignity to such individuals.
On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of
their parents, shall be given the option to exit from the Aadhaar project if they so choose in case they
do not intend to avail the benefits of the scheme.
Insofar as the school admission of children is concerned, requirement of Aadhaar would not be
compulsory as it is neither a service nor subsidy. Aadhaar card meets concept of Limited Government,
Good Governance and Constitutional Trust. Rule 9 of Prevention of Money-laundering Rules of which
mandates linking of Aadhaar with bank accounts, does not meet test of proportionality and violates
right to privacy, of person which extends to banking details. Circular dated 23 March, 2017 mandating
linking of mobile number with Aadhaar is held to be illegal and unconstitutional as it is not backed by
any law and is hereby quashed.
JJ., Dr. Dhananjaya Y. Chandrachud, Ashok Bhushan concurring.
—————

Adultery: Law is Discriminatory

Joseph Shine versus Union of India
[(2019) 3 SCC 39: 2018 (11) SCALE 556: AIR 2018 SC 4898: 2019 Cri LJ 1]
Decided on: 27-09-2018
Bench: Dipak Misra, CJI, AM Khanwilkar, RF Nariman, Dr. Dhananjaya
Y Chandrachud and Indu Malhotra, JJ.
Facts: Joseph Shine, an Indian Businessman filed a PIL challenging the validity of Section 497 of IPC. He
further contented that Section 497 is discriminatory and is biased in the idea of women as a property
of men.
Issue: Whether subject to criminal sanctions, “adultery” must be treated as penal offence, or marital
wrong which is valid ground for divorce? Whether Section 497 of I.P.C. is constitutionally valid, which
makes adultery a crime?
Held: Section 497, I.P.C. is struck down as unconstitutional being violative of Articles 14, 15 and 21 of
Constitution. Section 198(2), Cr.P.C. which contains procedure for prosecution under Chapter XX of I.P.C.
shall be unconstitutional to the extent that it is applicable to the offence of Adultery under Section
497, I.P.C.
Dipak Misra, CJI (For himself and AM Khanwilkar, J.): Law makes adulterer the culprit. This expectation
by law is a command which gets into core of privacy. Two individuals may part on said ground but it is
inapposite to attach criminality. When parties to marriage lose their moral commitment of relationship,
it creates a dent in marriage and it depends on parties how they deal with situation. Some may
seek divorce and some may exonerate and live together. Whether deterrent or reformative theory
of punishment saves the situation? In certain situations, adultery may not be the cause of unhappy
marriage. As Section 497, I.P.C. is held unconstitutional and adultery should not be treated as an
offence, it is appropriate to declare Section 198, Cr.P.C. unconstitutional, which deals with procedure
for filing complaint in relation to offence of adultery.
RF Nariman, Dr. Dhananjaya, Y. Chandrachud, Indu Malhotra, JJ. – Concurred
—————

134 Constitution of India

 Sabrimala Case
Indian Young Lawyers’ Association versus State of Kerala
[2018 (13) SCALE 75: JT 2018 (10) SC 19: 2018 (7) MLJ 889]
Decided on: 14-11-2018
Bench: Dipak Misra CJI and AM Khanwilkar, J.
Sabarimala Temple is a Hindu temple dedicated to Ayyappan situated at Sabarimala in Pathanamthitta
District, Kerala, India. In the past, women devotees of menstruating age were not permitted to worship
here, this ban being said to be out of respect to the celibate nature of the deity in this temple. A
Kerala High Court judgement had legalized this interpretation, and forbade women from entering the
temple since 1991. In September 2018, a judgement of the Supreme Court of India ruled that all pilgrims
regardless of gender, including women in the menstruating age group, should be allowed entrance to
Sabarimala. The Constitution bench of the Supreme Court held that any exception placed on women
because of biological differences violates the Constitution - that the ban violates the right to equality
under Article 14, and freedom of religion under Article 25. This verdict led to protests by people who
oppose the verdict. Several women attempted to enter Sabarimala despite threats of physical assault
against them but failed to reach the sanctum sanctorum. Two women belonging to the previously
barred age (10 to 50) group finally entered the temple defying protests on 2nd January, 2019 with the
help of police through the back gate. Temple was closed for purification. On November 14, 2019, the
Supreme Court Constitution Bench referred the review petitions as well as the writ petitions to a larger
bench of not less than seven judges, may be constituted by the Hon’ble Chief Justice of India.
—————

Ayodhya Case
M Siddiq versus Mahant Suresh Das
[2019 (15) SCALE 1: 2020 (1) SCC 1: 2019 (8) MLJ 117]
Decided on: 09-11-2019
Bench: Ranjan Gogoi, CJI and Sharad A Bobde, DY Chandrachud,
Ashok Bhushan and Abdul Nazeer, JJ.
The Ayodhya dispute is a political, historical, and socio-religious debate in India, centred on a plot of
land in the city of Ayodhya, Uttar Pradesh. The issues revolve around the control of a site traditionally
regarded among Hindus to be the birthplace of their deity Rama, the history and location of the Babri
Masjid at the site, and whether a previous Hindu temple was demolished or modified to create a
mosque.
The mosque there, the Babri Masjid, was destroyed during a political rally which turned into a riot on
6th December, 1992. A subsequent land title case was lodged in the Allahabad High Court, the verdict
of which was pronounced on 30 September, 2010. In the judgement, the three judges of the Allahabad
High Court ruled that the 2.77 acres (1.12 ha) of Ayodhya land be divided into three parts, with one third
going to the Ram Lalla or Infant Rama represented by the Hindu Maha Sabha, one third going to the
Sunni Waqf Board, and the remaining one third going to Nirmohi Akhara, a Hindu religious denomination.
While the three-judge bench was not unanimous that the disputed structure was constructed after
demolition of a temple, it did agree that a temple structure predated the mosque at the same site.
The five-judge Supreme Court bench heard the title dispute cases from August to October 2019. On 9th
November, 2019, the Supreme Court, headed by Chief Justice Ranjan Gogoi, announced their verdict;

Constitution of India 135

 it vacated the previous decision and ruled that the land belonged to the government based on tax
records. It further ordered the land to be handed over to a trust to build the Hindu temple. It also
ordered the government to give an alternate five-acre tract of land to the Sunni Waqf Board to build
the mosque.
—————

Contempt of Court: Tweets worth Re. 1

Freedom of Speech and Expression is a natural right, guaranteed
under Article 19 of the Constitution of India.
In Re Prashant Bhushan
[2020 (3) RCR (Criminal) 793]
Decided on: 24-08-2020
Bench: Arun Mishra, BR Gavai and Krishna Murari, JJ.
Facts: Tweets that prompted the Supreme Court to initiate contempt proceeding…
Tweet 1- When historians in future look back at the last 6 years to see how democracy has been
destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme
Court in this destruction, and more particularly the role of the last 4 CJIs.
Tweet 2- CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a
mask or helmet, at a time when he keeps the Supreme Court in Lockdown mode denying citizens their
fundamental right to access Justice.
Advocate Prashant Bhushan is a ‘public interest’ lawyer and has been a part of the institution of
administration of justice for more than 35 years. He has been taken many issues for the interest of
public to High Court and Supreme Court.
Held: On 14th August, 2020 Supreme Court held advocate Prashant Bhushan guilty of criminal
contempt for his tweets criticizing the Supreme Court and Judiciary. “The tweets which are based
on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’, CJI held.
Judiciary is considered as a last hope when a citizen fails to get justice anywhere and it is not expected
from a senior advocate of Supreme Court who has been in practice for 30 years and protecting the
large public interest, said by the court.
Later in this matter, on 20th August, 2020 Supreme Court gave time to Prashant Bhushan to submit
unconditional apology. Further on 24th August, 2020 Supreme Court upheld its verdict on Prashant
Bhushan’s contempt remarks on judiciary as he refused to apologise for his tweets.
Contempt of court means civil contempt or criminal contempt-“civil contempt” means wilful
disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful
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 representation, or otherwise) of any matter or the
doing of any other act whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice in any other manner.

136 Constitution of India

Guilty of Contempt, fined Re. 1
After giving several opportunities to the contemnor to express apology on 24th August, 2020 Supreme
Court has sentenced advocate Prashant Bhushan with a fine or Re. 1/(Rupee one) to be deposited with
the Registry by 15th September, 2020 and if he fails so, he shall undergo a simple imprisonment for a
period of three months and further be debarred from practising in this Court for a period of three years.
—————

Right to Establish Educational Institution: A Fundamental Right

Pharmacy Council of India versus Rajeev College of Pharmacy
[Civil Appeal No. 6681 of 2022
2022 LiveLaw (SC) 768]
Decided on: 15-09-2022
Bench: BR Gavai and Pamidighantam Sri Narasimha, JJ.
Facts and issues: Pharmacy Council of India, the petitioner filed the petition challenging orders of the
High Courts of Delhi, Chhattisgarh and Karnataka, whereby the moratorium issued by the Pharmacy
Council of India on opening new colleges for 5 years was set aside.
All the three High Courts, i.e., Karnataka, Delhi and Chhattisgarh, while allowing the writ petitions filed
by the respondent-institutions and quashing and setting aside the Resolutions/communications of the
Central Council of the appellant-PCI, have, in a nutshell, held thus:
(i) That the right to establish educational institutions is a fundamental right guaranteed under Article
19(1)(g) of the Constitution of India;
(ii) That there can be reasonable restrictions on such a right. However, such a restriction can be
imposed only by a law enacted by the competent legislature;
(iii) The Resolution/communication dated 17th July, 2019, vide which the moratorium was imposed
is an executive instruction and could not be construed as a law and, therefore, the moratorium
imposed by an executive instruction is not sustainable in law.
Held: Right to establish an educational institution is a fundamental right under Article 19(1)(g) of the
Constitution of India. Reasonable restrictions on such a right can be imposed only by a law and not by
an execution instruction.
Fundamental rights given under Article 19 cannot be restricted through executive instructions, citizen
cannot be deprived of the said right except in accordance with law. It has further been held that the
requirement of law for the purpose of Clause (6) of Article 19 of the Constitution can by no stretch
of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the
Constitution or otherwise.
Petition stands disposed and held that right to establish an educational institution is a fundamental
right under Article 19(1)(g) of the Constitution of India.
Pharmacy Council of India (PCI) could not impose restrictions on the fundamental right to establish
educational institutions under Article 19(1)(g) of the Constitution of India.
Article 19 of the Indian Constitution reads as follows……
Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right—
(a) to freedom of speech and expression;

Constitution of India 137

 (b) to assemble peaceably and without arms;
(c) to form associations or unions or co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted;
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the
State from making any law, in so far as such law imposes reasonable restrictions on the exercise of
the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order, decency or morality,
or in relation to contempt of court, defamation or incitement to an offence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so
far as it imposes, or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the
right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty
and integrity of India or public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub-clause.
(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions
on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the
general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and,
in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far
as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or carrying
on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens
or otherwise.
—————

Validity of AADHAAR Act

Beghar Foundation versus Justice KS Puttaswamy (Retd.)
[LL 2021 SC 30: AIR 2021 SC 891: (2021) 3 SCC 1]
Decided on: 11-01-2021
Bench: AM Khanwilkar, Ashok Bhushan, S Abdul Nazeer, DY Chandrachud and BR Gavai, JJ.
Facts and issues: The Constitutional validity of the Aadhaar Act was upheld by the Supreme Court
in its earlier judgement in 2018. It was observed that phone numbers and bank accounts need not

138 Constitution of India

to be linked with Aadhaar. The authentication under Section 7 would be required as a condition for
receipt of a subsidy, benefit or service only when such a subsidy, benefit or service is taken care of by
Consolidated Fund of India. The batch of petitions also seeks a review of the decision of a Constitution
Bench of the Court in Puttaswamy (Aadhaar) versus Union of India, 2019.
Court dealt with issues as follows: Whether the Aadhaar Act is a ‘Money Bill’ under Article 110. The
decision of the Speaker of the House of People under Article 110(3) of the Constitution, to certify a bill
as a ‘Money Bill’ under Article 110(1) is final and binding, or can be subject to judicial review; and if the
decision is subject to judicial review, whether the Aadhaar (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) Act, 2016 had been correctly certified as a ‘Money Bill’ under Article
110(1) of the Constitution.
Held: Majority stated that Judicial review of whether a Bill is a ‘Money Bill’ would be admissible under
certain circumstances regarding the law laid down by this Court.
Majority held that Section 7 of the Aadhaar Act had elements of a ‘Money Bill’, and the other provisions
were incidental to the ‘core’ of the Aadhaar Act.
Majority held that the Aadhaar Act had been correctly certified as a ‘Money Bill’ under Article 110(1).
Batch of review petitions challenging the Court’s 2018 Aadhaar judgement where the Court upheld the
Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 were
dismissed.
—————

Governor’s Pardoning Power

State of Haryana versus Rajkumar @ Bittu
[LL 2021 SC 345: (2021) 9 SCALE 33]
Decided on: 03-08-2021
Bench: Hemant Gupta and AS Bopanna, JJ.
Facts and issues: State Government filed an appeal against the order of Punjab and Haryana High
Court, which directed to consider fresh policies in respect of exercise of powers conferred under
Article 161 of the Constitution. Court dealt with an issue related to the applicability of policy to the
prisoner convicted.
The question was that, can Governor exercise pardoning power, if the prisoner has not undergone 14
years of imprisonment?
Whether the provisions of Article 243ZR and 243ZS independent provisions and workable?
Held: “The power under Article 161 of the Constitution can be exercised by the State Governments, not
by the Governor on his own. The advice of the appropriate Government binds the Head of the State. No
separate order for each individual case is necessary but any general order made must be clear enough
to identify the group of cases and indicate the application of mind to the whole group. Therefore, the
policies of the State Government are composite policies encompassing both situations under Article
161 of the Constitution and Sections 432,433 and 433A of the Code. The remission under Article 161
of the Constitution will override Section 433A of the Code, if the State Government decides to be
governed of its constitutional power.”
Power of remission is to be exercised by the State Government, as an appropriate Government, if the
prisoner has undergone 14 years of actual imprisonment in the cases falling within the scope of Section

Constitution of India 139

 433A of the Code and in case the imprisonment is less than 14 years, the power of premature release
can be exercised by the Governor though on the aid and advice of the State Government.
“The case for premature release of the prisoner in terms of the policy of the State Government dated
13-8-2008, the policy which was applicable on the date of his conviction, can be considered only
after he completes 14 years of actual imprisonment. However, the State Government can consider the
prisoner in question for premature release after undergoing imprisonment for less than 14 years only
under Article 161 of the Constitution”.
The provisions of Article 243ZR and 243ZS are independent provisions. Both these provisions are
entirely dependent upon the provisions contained in Article 243ZI to 243ZQ. This is for the reason
that both these provisions expressly provide that the ‘provisions of this part’, which clearly means the
foregoing provisions, which are contained in Article 243ZI to 243ZQ, are to apply in regard to multi-
State cooperative societies and to Union Territories with the modifications, which are indicated therein.
—————

Right to Shelter: Government Accommodation

Union of India versus Onkar Nath Dhar
[LL 2021 SC 372]
Decided on: 05-08-2021
Bench: Hemant Gupta and AS Bopanna, JJ.
Facts and issues: The order passed by the High Court of Punjab & Haryana was the subject matter of
challenge in this appeal.
Onkar Nath Dhar, the respondent gave representation to the appellant to allow him to retain the
government accommodation. Respondent was allowed to retain house for one year. Respondent
submitted another representation on 18-6-2007 to allow him to retain house allotted to him on a
nominal licence fee till the circumstances prevailing in Jammu & Kashmir improve and the Government
makes it possible for him to return to his native place.
Onkar Nath Dhar was an officer of the Intelligence Bureau. He had drawn his salary and availed of
alternative accommodation for fifteen years after his retirement along with pensionary benefits. There
is no indefeasible right in any citizen for allotment of government accommodation on a nominal licence
fee.
Held: The Right to shelter is a fundamental right under Article 21 of the Constitution of India. The Right
to shelter does not mean right to government accommodation. The government accommodation is
meant for serving officers and officials and not to the retirees as a benevolence and distribution of
largesse.
“The Government accommodation could not have been allotted to a person who had demitted office.
No exception was carved out even in respect of the persons who held Constitutional posts at one point
of time. It was held that the Government accommodation is only meant for in-service officers and not
for the retirees or those who have demitted office.”
The orders passed by the High Court were absolutely without any basis. The orders passed were wholly
arbitrary and irrational. Court did not agree with the reasoning recorded by Delhi and Punjab & Haryana
High Courts. Accordingly, the appeal was allowed and the order passed by the High Court was set aside.
Further the writ petition challenging the order under the Act was restored. Respondent was granted

140 Constitution of India

time to handover vacant physical possession of the premises on or before 31-10-2021, i.e., after 15 years
of his attaining the age of superannuation.
—————

Supreme Court Guidelines

Arrest and Detention

Joginder Kumar versus State of Uttar Pradesh
[1994 SCC (4) 260: AIR 1994 SC 1349: 1994 Cri LJ 1981: 1994 (3) SCR 661]
Dated: April 25, 1994
Bench: Venkatachaliah, MN (CJ)
Facts and Issues of the Case: Joginder Kumar (a young lawyer, aged 28) was illegally detained over a
period of five days (Earlier he was called to the office of the Senior Superintendent of Police [SSP],
Ghaziabad in connection with some inquiries). A Writ of habeas corpus was filed by the family to find
out his whereabouts. Accordingly the Notices were issued to the State of Uttar Pradesh and to the SSP
to immediately produce Joginder Kumar and answer why he was detained for five days without a valid
reason; why his detention was not recorded by the police in its diary; and why he was not produced
before a magistrate.
Supreme Court issued following Guidelines:
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative
or other person who is known to him or likely to take an interest in his welfare told as far as is
practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this
right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These
protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
NOTE: It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy
himself that these requirements have been complied with. The above stated guidelines are not
exhaustive but the same shall be followed in all cases of arrest till legal provisions are made in this
behalf.
—————

Death Penalty
Shatrughan Chauhan versus Union of India
[2014 (1) SCR 609: 2014 (1) SCALE 437: 2014 (3) SCC 1: 2014 Cri LJ 1327
Writ Petition (Criminal) No. 55 of 2013]
Dated: January 21, 2014
Bench: Chief Justice P Sathasivam, Justice Ranjan Gagoi and Shiv Kirti Singh.
Framed the following guidelines for safeguarding the interest of the death row convicts.
1. Solitary Confinement: This Court, in Sunil Batra (supra), held that solitary or single cell confinement
prior to rejection of the mercy petition by the President is unconstitutional. Almost all the prison
Manuals of the States provide necessary rules governing the confinement of death convicts. The

Constitution of India 141

 rules should not be interpreted to run counter to the above ruling and violate Article 21 of the
Constitution.
2. Legal Aid: There is no provision in any of the Prison Manuals for providing legal aid, for preparing
appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been
rejected. Various judgements of this Court have held that legal aid is a fundamental right under
Article 21. Since this Court has also held that Article 21 rights in here in a convict till his last
breath, even after rejection of the mercy petition by the President, the convict can approach a writ
court for commutation of the death sentence on the ground of supervening events, if available,
and challenge the rejection of the mercy petition and legal aid should be provided to the convict
at all stages. Accordingly, Superintendent of Jails are directed to intimate the rejection of mercy
petitions to the nearest Legal Aid Centre apart from intimating the convicts.
3. Procedure in placing the mercy petition before the President: The Government of India has framed
certain guidelines for disposal of mercy petitions filed by the death convicts after disposal of their
appeal by the Supreme Court. As and when any such petition is received or communicated by the
State Government after the rejection by the Governor, necessary materials such as police records,
judgement of the trial court, the High Court and the Supreme Court and all other connected
documents should be called at once fixing a time limit for the authorities for forwarding the
same to the Ministry of Home Affairs. Even here, though there are instructions, we have come
across that in certain cases the Department calls for those records in piece-meal or one by
one and in the same way, the forwarding Departments are also not adhering to the procedure/
instructions by sending all the required materials at one stroke. This should be strictly followed
to minimize the delay. After getting all the details, it is for the Ministry of Home Affairs to send the
recommendation/their views to the President within a reasonable and rational time. Even after
sending the necessary particulars, if there is no response from the office of the President, it is the
responsibility of the Ministry of Home Affairs to send periodical reminders and to provide required
materials for early decision.
4. Communication of Rejection of Mercy Petition by the Governor: No prison manual has any provision
for informing the prisoner or his family of the rejection of the mercy petition by the Governor. Since
the convict has a constitutional right under Article 161 to make a mercy petition to the Governor,
he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the
mercy petition by the Governor should forthwith be communicated to the convict and his family in
writing or through some other mode of communication available.
5. Communication of Rejection of the Mercy Petition by the President: Many, but not all, prison
manuals have provision for informing the convict and his family members of the rejection of mercy
petition by the President. All States should inform the prisoner and their family members of the
rejection of the mercy petition by the President. Furthermore, even where prison manuals provide
for informing the prisoner of the rejection of the mercy petition, we have seen that this information
is always communicated orally, and never in writing. Since the convict has a constitutional right
under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing
of the decision on that mercy petition. The rejection of the mercy petition by the President should
forthwith be communicated to the convict and his family in writing.
6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the
President and the Governor.
7. Minimum 14 day notice for execution: Some prison manuals do not provide for any minimum
period between the rejection of the mercy petition being communicated to the prisoner and his

142 Constitution of India

 family and the scheduled date of execution. Some prison manuals have a minimum period of 1
day, others have a minimum period of 14 days. It is necessary that a minimum period of 14 days be
stipulated between the receipt of communication of the rejection of the mercy petition and the
scheduled date of execution for the following reasons:—
(a) It allows the prisoner to prepare himself mentally for execution, to make his peace with god,
prepare his Will and settle other earthly affairs.
(b) It allows the prisoner to have a last and final meeting with his family members. It also allows
the prisoners’ family members to make arrangements to travel to the prison which may be
located at a distant place and meet the prisoner for the last time. Without sufficient notice
of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be
thwarted and they will be prevented from having a last and final meeting with their families.
It is the obligation of the Superintendent of Jail to see that the family members of the convict
receive the message of communication of rejection of mercy petition in time.
8. Mental Health Evaluation: We have seen that in some cases, death-row prisoners lost their mental
balance on account of prolonged anxiety and suffering experienced on death row. There should,
therefore, be regular mental health evaluation of all death row convicts and appropriate medical
care should be given to those in need.
9. Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the
discretion to stop an execution on account of the convict’s physical or mental ill health. It is,
therefore, necessary that after the mercy petition is rejected and the execution warrant is issued,
the Prison Superintendent should satisfy himself on the basis of medical reports by Government
doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed.
If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the
execution, and produce the prisoner before a Medical Board for a comprehensive evaluation and
shall forward the report of the same to the State Government for further action.
10. Furnishing documents to the convict: Most of the death row prisoners are extremely poor and do
not have copies of their court papers, judgements, etc. These documents are must for preparation
of appeals, mercy petitions and accessing post-mercy judicial remedies which are available to
the prisoner under Article 21 of the Constitution. Since the availability of these documents is a
necessary pre-requisite to the accessing of these rights, it is necessary that copies of relevant
documents should be furnished to the prisoner within a week by the prison authorities to assist
in making mercy petition and petitioning the courts.
11. Final Meeting between Prisoner and his Family: While some prison manuals provide for a final
meeting between a condemned prisoner and his family immediately prior to execution, many
manuals do not. Such a procedure is intrinsic to humanity and justice, and should be followed by
all prison authorities. It is therefore, necessary for prison authorities to facilitate and allow a final
meeting between the prisoner and his family and friends prior to his execution.
12. Post Mortem Reports: Although, none of the Jail Manuals provide for compulsory post mortem
to be conducted on death convicts after the execution, we think in the light of the repeated
arguments by the petitioners herein asserting that there is dearth of experienced hangman in the
country, the same must be made obligatory.
—————

Constitution of India 143

 Equal Pay for Equal Work
State of Punjab versus Jagjit Singh
[AIR 2016 SC 5176: 2016 (10) SCALE 447: 2017 (1) SCC 148: JT 2016 (10) SC 434
Civil Appeal No. 213 of 2013]
Dated: October 26, 2016
Bench: Justices Jagdish Singh Khehar, SA Bobde
It was the contention of the Court that in a welfare state, an employee engaged for the same work,
cannot be paid less than another, who performs the same duties and responsibilities. Further Supreme
Court clarified Principle of “equal pay for equal work.”
(i) The ‘onus of proof’, of parity in the duties and responsibilities of the subject post with the reference
post, under the principle of ‘equal pay for equal work’, lies on the person who claims it.
(ii) The mere fact that the subject post occupied by the claimant, is in a “different department” vis-
a-vis the reference post, does not have any bearing on the determination of a claim, under the
principle of ‘equal pay for equal work’.
(iii) The principle of ‘equal pay for equal work’, applies to cases of unequal scales of pay, based on
no classification or irrational classification. For equal pay, the concerned employees with whom
equation is sought, should be performing work, which besides being functionally equal, should be
of the same quality and sensitivity.
(iv) Persons holding the same rank/designation (in different departments), but having dissimilar
powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim
the benefit of the principle of ‘equal pay for equal work’. The principle would not be automatically
invoked, merely because the subject and reference posts have the same nomenclature.
(v) In determining equality of functions and responsibilities, under the principle of ‘equal pay for equal
work’, it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity,
and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree of
responsibility, reliability and confidentiality, would fall within the realm of valid classification,
and therefore, pay differentiation would be legitimate and permissible. The nature of work of the
subject post should be the same and not less onerous than the reference post. Even the volume
of work should be the same. And so also, the level of responsibility. If these parameters are not
met, parity cannot be claimed under the principle of ‘equal pay for equal work’.
(vi) For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant
should have been selected, on the basis of a regular process of recruitment. An employee appointed
on a temporary basis, cannot claim to be placed in the regular pay-scale.
(vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed
in different pay-scales such as “selection grade” in the same post. But this difference must
emerge out of a legitimate foundation, such as – merit, or seniority, or some other relevant criteria.
(viii) If the qualifications for recruitment to the subject post vis-a-vis the reference post are different,
it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively
similar or comparable. In such a cause, the principle of ‘equal pay for equal work’, cannot be
invoked.
(ix) The reference post, with which parity is claimed, under the principle of ‘equal pay for equal work’,
has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be

144 Constitution of India

 different, if the hierarchy of the posts in question, and their channels of promotion, are different.
Even if the duties and responsibilities are same, parity would not be permissible, as against a
superior post, such as a promotional post.
(x) A comparison between the subject post and the reference post, under the principle of ‘equal pay
for equal work’, cannot be made, where the subject post and the reference post are in different
establishments, having a different management or even, where the establishments are in different
geographical locations, though owned by the same master. Persons engaged differently, and being
paid out of different funds, would not be entitled to pay parity.
(xi) Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together
at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the
posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of
‘equal pay for equal work’ would not be applicable. And also when, the reference post includes the
responsibility to take crucial decisions, and that is not so for the subject post.
(xii) The priority given to different types of posts, under the prevailing policies of the Government, can
also be a relevant factor for placing different posts under different pay-scales. Herein also, the
principle of ‘equal pay for equal work’ would not be applicable.
(xiii) The parity in pay, under the principle of ‘equal pay for equal work’, cannot be claimed, merely on
the ground, that at an earlier point of time, the subject post and the reference post, were placed
in the same pay-scale. The principle of ‘equal pay for equal work’ is applicable only when it is
shown, that the incumbents of the subject post and the reference post, discharge similar duties
and responsibilities.
(xiv) For parity in pay-scales, under the principle of ‘equal pay for equal work’, equation in the nature
of duties, is of paramount importance. If the principal nature of duties of one post is teaching,
whereas that of the other is non-teaching, the principle would not be applicable. If the dominant
nature of duties of one post is of control and management, whereas the subject post has no such
duties, the principle would not be applicable. Likewise, if the central nature of duties of one post
is of quality control, whereas the subject post has minimal duties of quality control, the principle
would not be applicable.
(xv) There can be a valid classification in the matter of pay-scales, between employees even holding
posts with the same nomenclature i.e., between those discharging duties at the headquarters, and
others working at the institutional/sub-office level, when the duties are qualitatively dissimilar.
(xvi) The principle of ‘equal pay for equal work’ would not be applicable, where a differential higher pay-
scale is extended to persons discharging the same duties and holding the same designation, with
the objective of ameliorating stagnation, or on account of lack of promotional avenues.
(xvii) Where there is no comparison between one set of employees of one organization, and another
set of employees of a different organization, there can be no question of equation of pay-scales,
under the principle of ‘equal pay for equal work’, even if two organizations have a common employer.
Likewise, if the management and control of two organizations, is with different entities, which are
independent of one another, the principle of ‘equal pay for equal work’ would not apply.
Relevant cases: Randhir Singh versus Union of India, (1982) 1 SCC 618: 1982 SCR (3) 298; SC Chandra
versus State of Jharkhand, Civil Appeal No. 1532 of 2005; State of UP versus JP Chaurasia, AIR 1989 SC
19; Government of West Bengal versus Tarun K Roy, 2003 Supp (5) SCR 656; Union of India versus Pradip
Kumar Dey, 09/11/2000.
—————

Constitution of India 145

 Public Interest Litigation
State of Uttaranchal versus Balwant Singh Chaufal
[(2010) 3 SCC 402: AIR 2010 SC 2550: 2010 (1) SCT 607: 2010 (1) SCR 678
Civil Appeal Nos. 1134-1135 of 2002]
Dated: January 18, 2010
Bench: Justice Dalveer Bhandari and Dr. Mukundakam Sharma.
“Public Interest Litigation has been in existence in our country for more than four decades, has a
glorious record. Courts by their judicial creativity and craftsmanship have passed a number of directions
in the larger public interest in consonance with the inherent spirits of the Constitution. The conditions
of marginalized and vulnerable Section of society have significantly improved on account of courts
directions in the P.I.L.”
In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following
directions:—
(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL
filed for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the public interest
litigation, it would be appropriate for each High Court to properly formulate rules for encouraging
the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that
the High Courts who have not yet framed the rules, should frame the rules within three months.
The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared
by the High Court is sent to the Secretary General of this court immediately thereafter.
(3) The courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The court should be prima facie satisfied regarding the correctness of the contents of the petition
before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before entertaining
the petition.
(6) The court should ensure that the petition which involves larger public interest, gravity and urgency
must be given priority over other petitions.
(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine
public harm or public injury. The court should also ensure that there is no personal gain, private
motive or oblique motive behind filing the public interest litigation.
(8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior
motives must be discouraged by imposing exemplary costs or by adopting similar novel methods
to curb frivolous petitions and the petitions filed for extraneous considerations.
—————

Trial of Rape Cases

Delhi Domestic Working Women’s Forum versus Union of India
[(1995) 1 SCC 14: JT 1994 (7) 183: 1994 (4) SCALE 608: 1995 (1) BLJR 1]
Dated: October 19, 1994
Bench: Justices S Mohan, MN Venkatachaliah, SB Majmudar
Parameters in assisting the victims of rape:
1. The complainants of sexual assault cases should be provided with legal representation. It is
important to have someone who is well-acquainted with the criminal justice system. The role of

146 Constitution of India

 the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to
prepare her for the case and to assist her in the police station and in court but to provide her with
guidance as to how she might obtain help of a different nature from other agencies, for example,
mind counselling or medical assistance. It is important to secure continuity of assistance by
ensuring that the same person who looked after the complainant’s interests in the police station
represent her till the end of the case.
2. Legal assistance will have to be provided at the police station since the victim of sexual assault
might very well be in a distressed state upon arrival at the police station, the guidance and support
of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
3. The police should be under a duty to inform the victim of her right to representation before
any questions were asked of her and that the police report should state that the victim was so
informed.
4. A list of advocates willing to act in these cases should be kept at the police station for victims who
did not have a particular lawyer in mind or whose own lawyer was unavailable.
5. The advocate shall be appointed by the court, upon application by the police at the earliest
convenient moment, but in order to ensure that victims were questioned without undue delay,
advocates would be authorised to act at the police station before leave of the court was sought
or obtained.
6. In all rape trials anonymity of the victim must be maintained, as far as necessary.
7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the
Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur
substantial financial loss. Some, for example, are too traumatised to continue in employment.
8. Compensation for victims shall be awarded by the court on conviction of the offender and by the
Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will
take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the
expenses of child birth if this occurred as a result of the rape.
—————

Right to Die with Dignity is a Fundamental Right

Common Cause (A Regd. Society) versus Union of India
[2018 SCC OnLine SC 208: AIR 2018 SC 1665: 2018 (4) SCALE 1: 2018 (5) SCC 1
Writ Petition (Civil) No. 215 of 2005]
Dated: March 09, 2018
Bench: Justices Dipak Misra, AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan
Passive Euthanasia was permitted as “Right to die with dignity is a fundamental right”
What was held/reiterated/declared?
1. Court held: Right to die with dignity is a fundamental right.
2. Court declared that: An adult human being having mental capacity to take an informed decision
has right to refuse medical treatment including withdrawal from life saving devices.
3. A person of competent mental faculty is entitled to execute an advance medical directive in
accordance with safeguards as referred to above.

Constitution of India 147

 “Living Will has been defined as “A document in which person states his/her desire to have or not to
have extraordinary life prolonging measures used when recovery is not possible from his/her terminal
condition”
“Right to live with dignity also includes the smoothening of the process of dying in case of a terminally
ill patient or a person in PVS with no hope of recovery. A failure to legally recognize advance medical
directives may amount to non-facilitation of the right to smoothen the dying process and the right to
live with dignity.”
Relevant case: Gian Kaur versus State of Punjab, (1996) 2 SCC 648; P Rathinam versus Union of India,
(1994) 3 SCC 394; Aruna Ramachandra Shanbaug versus Union of India, (2011) 4 SCC 454.
After discussion the Court arrived at the conclusion:
1. The Constitution Bench in Gian Kaur’s case held that the “right to life: including right to live with
human dignity” would mean the existence of such right up to the end of natural life, which also
includes the right to a dignified life upto the point of death including a dignified procedure of
death. The above right was held to be part of fundamental right enshrined under Article 21 of the
Constitution which we also reiterate.
2. We agree with the observation made in the reference order of the three-Judge Bench to the effect
that the Constitution Bench in Gian Kaur’s case did not express any binding view on the subject of
euthanasia. We hold that no binding view was expressed by the Constitution Bench on the subject
of Euthanasia.
3. The Constitution Bench, however, noted a distinction between cases in which physician decides
not to provide or continue to provide for treatment and care, which could or might prolong his life
and those in which he decides to administer a lethal drug even though with object of relieving the
patient from pain and suffering. The later was held not to be covered under any right flowing from
Article 21.
4. Thus, the law of the land as existing today is that no one is permitted to cause death of another
person including a physician by administering any lethal drug even if the objective is to relieve the
patient from pain and suffering.
5. An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide
not to take medical treatment and may decide to embrace the death in natural way.
6. Euthanasia as the meaning of words suggests is an act which leads to a good death. Some positive
act is necessary to characterize the action as Euthanasia. Euthanasia is also commonly called
“assisted suicide” due to the above reasons.
7. We are thus of the opinion that the right not to take a lifesaving treatment by a person, who
is competent to take an informed decision is not covered by the concept of euthanasia as it
is commonly understood but a decision to withdraw lifesaving treatment by a patient who is
competent to take decision as well as with regard to a patient who is not competent to take
decision can be termed as passive euthanasia, which is lawful and legally permissible in this
country.
8. The right of patient who is incompetent to express his view cannot be outside the fold of Article
21 of the Constitution of India.
9. We also are of the opinion that in cases of incompetent patients who are unable to take an
informed decision, “the best interests principle” be applied and such decision be taken by

148 Constitution of India

 specified competent medical experts and be implemented after providing a cooling period to
enable aggrieved person to approach the court of law.
10. An advance medical directive is an individual’s advance exercise of his autonomy on the subject of
extent of medical intervention that he wishes to allow upon his own body at a future date, when
he may not be in a position to specify his wishes. The purpose and object of advance medical
directive is to express the choice of a person regarding medical treatment in an event when he
looses capacity to take a decision. The right to execute an advance medical directive is nothing but
a step towards protection of aforesaid right by an individual.
11. Right of execution of an advance medical directive by an individual does not depend on any
recognition or legislation by a State and we are of the considered opinion that such rights can
be exercised by an individual in recognition and in affirmation of his right of bodily integrity and
self-determination.
NOTE: Advance Directives and the safeguards as mentioned in the judgement will remain in force till
the Parliament makes legislation on this subject.
—————

Live Streaming of Court Proceedings

Swapnil Tripathi versus Supreme Court of India
[2018 SCC OnLine SC 1667: AIR 2018 SC 4806: 2018 (11) SCALE 475: 2018 (10) SCC 639
Writ Petition (Civil) No. 1232 of 2017]
Dated: September 26, 2018
Bench: Justices Dipak Misra, AM Khanwilkar and Dr. DY Chandrachud.
“Justice should be administered in an open court”
The project of live streaming of the court proceedings of the Supreme Court on the “internet” and/
or on radio and TV through live audio-visual broadcasting/telecasting universally by an official agency,
such as Doordarshan, having exclusive telecasting rights and/or official website/mobile application
of the Court, must be implemented in a progressive, structured and phased manner, with certain
safeguards to ensure that the purpose of live streaming of proceedings is achieved holistically and that
it does not interfere with the administration of justice or the dignity and majesty of the Court hearing
the matter and/or impinge upon any rights of the litigants or witnesses. The entire project will have to
be executed in phases, with certain phases containing sub-phases or stages.
(i) To begin with, only a specified category of cases or cases of constitutional and national importance
being argued for final hearing before the Constitution Bench be live streamed as a pilot project. For
that, permission of the concerned Court will have to be sought in writing, in advance, in conformity
with the prescribed procedure.
(ii) Prior consent of all the parties to the concerned proceedings must be insisted upon and if there is
no unanimity between them, the concerned Court can take the appropriate decision in the matter
for live streaming of the court proceedings of that case, after having due regard to the relevancy
of the objections raised by the concerned party. The discretion exercised by the Court shall be
treated as final. It must be non-justiciable and non-appealable.
(iii) The concerned court would retain its power to revoke the permission at any stage of the proceedings
suo motu or on an application filed by any party to the proceeding or otherwise, in that regard, if
the situation so warrants, keeping in mind that the cause of administration of justice should not
suffer in any manner.

Constitution of India 149

 (iv) The discretion of the Court to grant or refuse to grant such permission will be, inter alia, guided by
the following considerations:
(a) unanimous consent of the parties involved,
(b) even after the parties give unanimous consent the Court will consider the sensitivity of the
subject matter before granting such permission, but not limited to case which may arouse
passion or social unrest amongst Section of the public,
(c) any other reason considered necessary or appropriate in the larger interest of administration
of justice, including as to whether such broadcast will affect the dignity of the court itself or
interfere with/prejudice the rights of the parties to a fair trial,
(v) There must be a reasonable time-delay (say ten minutes) between the live court proceedings and
the broadcast, in order to ensure that any information which ought not to be shown, as directed
by the Court, can be edited from being broadcast.
Until a full-fledged module and mechanism for live streaming of the court proceedings of the Supreme
Court over the “internet” is evolved, it would be open to explore the possibility of implementation of
Phase-I of live streaming in designated areas within the confines of this Court via “intranet” by use of
allocated passwords, as a pilot project. The designated areas may include:
(a) dedicated media room which could be accessible to the litigants, advocates, clerks and interns.
Special provisions must be made to accommodate differently abled people;
(b) the Supreme Court Bar Association room/lounge;
(c) the Supreme Court Advocates-on-Record Association room/lounge;
(d) the official chambers of the Attorney General, Solicitor General and Additional Solicitor Generals
in the Supreme Court premises;
(e) Advocate’s Chambers blocks.
(f) Press Reporters room.
It may be desirable to keep in mind other measures to be taken for efficient management of the entire
project such as:
(i) Appoint a technical committee comprising the Registrar (IT), video recording expert(s) and any other
members as may be required, to develop technical guidelines for video recording and broadcasting
court proceedings, including the specific procedure to be followed and the equipment to be used
in that regard.
(ii) Specialist video operator(s) be appointed to handle the live broadcast, who will work under the
directions of the concerned Court. The coverage itself will be coordinated and supervised by a
Court-appointed officer.
(iii) The focus of the cameras in the courtroom will be directed only towards two sets of people:
(a) The Justices/Bench hearing the matter and at such an angle so as to only show the anterior-
facing side of the Justices, without revealing anything from behind the elevated platform/
level on which the Justices sit or any of the Justice’s papers, notes, reference material and/or
books;
(b) The arguing advocate(s) in the matter and at such an angle so as to not to reveal in any way the
contents of notes or reference material being relied upon by the arguing advocate(s). This will
also apply to parties-in-person arguing their own matter.

150 Constitution of India

 (c) There shall be no broadcast of any interaction between the advocate and the client even
during arguments.
(iv) Subject to any alteration of camera angles for the purpose of avoiding broadcast of any of the
aforestated papers, notes, reference materials, books and/or discussions, the camera angles will
remain fixed over the course of the broadcast.
(v) The Supreme Court shall introduce a case management system to ensure inter alia that advocates
are allotted and adhere to a fixed time limit while arguing their matter to be live streamed.
(vi) The Supreme Court must retain copyright over the broadcasted material and have the final say in
respect of use of the coverage material.
(vii) Reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or
modification of any part(s) of the original broadcast of Court proceedings, in any form, physical,
digital or otherwise, must be prohibited. Any person engaging in such act(s) can be proceeded under,
but not limited to, the Indian Copyright Act, 1957, the Indian Penal Code, 1860, the Information
Technology Act, 2000 and the Contempt of Courts Act, 1971.
Justice DY Chandrachud rendered a separate concurring opinion:
A. Kind of matters to be live-streamed
1. Proceedings involving the hearing of cases before the Supreme Court shall be live-streamed in the
manner provided below:
(a) Cases falling under the following categories shall be excluded as a class from live-streaming:
(i) Matrimonial matters, including transfer petitions;
(ii) Cases involving sensitive issues as in the nature of sexual assault; and
(iii) Matters where children and juveniles are involved, like POCSO cases.
(b) Apart from the general prohibition on streaming cases falling in the above categories, the
presiding judge of each courtroom shall have the discretion to disallow live-streaming for
specific cases where, in his/her opinion, publicity would prejudice the interests of justice. This
may be intimated by the presiding judge in advance or live-streaming may be suspended as and
when a matter is being heard; and
(c) Where objections are filed by a litigant against live-streaming of a case on grounds of privacy,
confidentiality, or the administration of justice, the final authority on live-streaming the case
shall lie with the presiding judge.
2. In addition to live-streaming of courtroom proceedings, the following events may also be live-
streamed in the future subject to the provisions of the Rules:
(a) Oath ceremonies of the Judges of the Supreme Court and speeches delivered by retiring judges
and other judges in the farewell ceremony of the respective Supreme Court Judges; and
(b) Addresses delivered in judicial conferences or Full Court References or any event organized by
the Supreme Court or by advocate associations affiliated to the Supreme Court or any other
events.
B. Manner of live-streaming
1. Live-streamed and archived videos of the broadcast shall be made available on the official website
of the Supreme Court. The recorded broadcast of each day shall be made available as archives on
the official website of the Supreme Court by the end of the day;

Constitution of India 151

 2. Live-streaming shall commence as soon as the judges arrive in the courtroom and shall continue
till the Bench rises;
3. The presiding judge of the courtroom shall be provided with an appropriate device for directing
the technical team to stop live-streaming if the Bench deems it necessary in the interest of
administration of justice;
4. Live-streaming of the proceedings should be carried out with a delay of two minutes;
5. Proceedings shall only be live-streamed during working hours of the court;
6. Courtroom proceedings will continue to be live-streamed unless the presiding judge orders the
recording to be paused or suspended;
7. To give full effect to the process of live-streaming, advocates addressing the Bench, and judges
addressing the Bar, must use microphones, while addressing the Court;
8. Recording of courtroom proceedings shall be done by the Registry with the technical support of
National Informatics Centre or any other public/private agency authorized by the Supreme Court
or the Ministry of Information and Technology; and
9 The portions of proceedings which are not broadcast online, on the direction of the presiding
judge of the Bench shall not be made part of the official records and shall be placed separately as
‘confidential records’.
C. Technical specifications for live-streaming
1. Live-streaming shall be conducted by the Supreme Court with its own camera-persons or by an
authorized agency. No person who is not authorized by the Supreme Court will be permitted to
record any proceeding;
2. Cameras should be focused only on the judges and advocates pleading before the Bench in the
matter being live-streamed;
3. Cameras shall not film the media and visitor’s galleries;
4. Cameras may zoom in on the Bench when any judge is dictating an order or judgement or making
any observation or enquiry to the advocate; and
5. The following communications shall not be filmed:
(a) Discussions among the judges on the Bench;
(b) Any judge giving instructions to the administrative staff of the courtroom;
(c) Any staff member communicating any message to the judge or circulating any document to the
judge;
(d) Notes taken down by the judge during the court proceedings; and
(e) Notes made by an advocate either on paper or in electronic form for assistance while making
submissions to the court.
D. Archiving
1. The audio-visual recording of each day’s proceedings shall be preserved in the Audio-Visual Unit
of the Supreme Court Registry;
2. Archives of all broadcasts of courtroom proceedings which have been live-streamed should be
made available on the website of the Supreme Court; and
3. Hard copies of the video footage of past proceedings may be made available according to terms
and conditions to be notified by the Supreme Court Registry. The video footage shall be made

152 Constitution of India

 available for the sole purpose of fair and accurate reporting of the judicial proceedings of the
Supreme Court.
E. Broadcast Room
1. The Registry will make one or more rooms or a hall available within the premises of the Supreme
Court for the purpose of broadcasting the proceedings. Multiple screens along with the other
necessary infrastructural facilities shall be installed, for enabling litigants, journalists, interns,
visitors and lawyers to view the courtroom proceedings in the broadcast room(s). Special
arrangements will be made for the differently abled.
F. Miscellaneous
1. The Supreme Court shall hold exclusive copyright over videos streamed online and archived with
the Registry; and
2. Re-use, capture, re-editing or redistribution, or creating derivative works or compiling of the
broadcast or video footage, in any form, shall not be permitted except as may be notified in the
terms and conditions of use and without the written permission of the Registry.
—————

Judges—Appointment and Transfer

In Re: Under Article 143(1) of the Constitution of India versus Unknown
[AIR 1999 SC 1: RLW 1999 (1) SC 168: 1998 (7) SCC 739: 1998 (5) SCALE 629]
Dated: October 28, 1998
Bench: Justices S Bharucha, M Mukherjee, S Majmudar, SV Manohar,
G Nanavati, SS Ahmad, K Venkataswami, B Kirpal, G Pattanaik.
Questions:
1. Whether the expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1)
requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice
of India or does the sole individual opinion of the Chief Justice of India constitute consultation
within the meaning of the said articles;
2. Whether the transfer of Judges is judicially reviewable in the light of the observation of the
Supreme Court in the aforesaid judgement that “such transfer is not justiciable on any ground”
and its further observation that limited judicial review is available in matters of transfer, and the
extent and scope of judicial review;
3. Whether Article 124(2) as interpreted in the said judgement requires the Chief Justice of India to
consult only the two senior-most Judges or whether there should be wider consultation according
to past practice;
4. Whether the Chief Justice of India is entitled to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court in respect of all materials and information
conveyed by the Government of India for non-appointment of a Judge recommended for
appointment;
5. Whether the requirement of consultation by the Chief Justice of India with his colleagues, who are
likely to be conversant with the affairs of the concerned High Court refers to only those Judges
who have that High Court as a parent High Court and excludes Judges who had occupied the office
of a Judge or Chief Justice of that Court on transfer from their parent or any other Court;

Constitution of India 153

 6. Whether in light of the legitimate expectations of senior Judges of the High Court in regard to their
appointment to the Supreme Court referred to in the said judgement, the ‘strong cogent reason’
required to justify the departure from the order of the seniority has to be recorded in respect of
each such senior Judge, who is overlooked, while making recommendation of a Judge junior to him
or her;
7. Whether the Government is not entitled to require that the opinions of the other consulted Judges
be in writing in accordance with the aforesaid Supreme Court judgement and that the same be
transmitted to the Government of India by the Chief Justice of India along with his views;
8. Whether the Chief Justice of India is not obliged to comply with the norms and the requirement of
the consultation process in making his recommendation to the Government of India;
9. Whether any recommendations made by the Chief Justice of India without complying with the
norms and consultation process are binding upon the Government of India?
Answers:
1. The expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the
Constitution of India requires consultation with a plurality of Judges in the formation of the opinion
of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not
constitute “consultation” within the meaning of the said articles.
2. The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation
that has been made by the Chief Justice of India in this behalf has not been made in consultation
with the four senior-most puisne Judges of the Supreme Court and/or that the views of the Chief
Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the
High Court to which the transfer is to be effected have not been obtained.
3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme
Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four
senior-most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is
concerned, the recommendation must be made in consultation with the two senior-most puisne
Judges of the Supreme Court.
4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation
with other Judges of the Supreme Court, in respect of materials and information conveyed by the
Government of India for non-appointment of a Judge recommended for appointment.
5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to
be conversant with the affairs of the concerned High Court does not refer only to those Judges
who have that High Court as a parent High Court. It does not exclude Judges who have occupied
the office of a Judge or Chief Justice of that High Court on transfer.
6. “Strong cogent reasons” do not have to be recorded, as justification for a departure from the order
of seniority, in respect of each senior Judge who has been passed over. What has to be recorded
is the positive reason for the recommendation.
7. The view of the other Judges consulted should be in writing and should be conveyed to the
Government of India by the Chief Justice of India along with his views to the extent set out in the
body of this opinion.
8. The Chief Justice of India is obliged to comply with the norms and the requirement of the
consultation process, as aforestated, in making his recommendations to the Government of India.

154 Constitution of India

9. Recommendations made by the Chief Justice of India without complying with the norms and
requirement of the consultation process, as aforestated, are not binding upon the Government of
India.
—————

Appointment of Judges
Supreme Court Advocates-on-Record Association versus Union of India
[AIR 1994 SC 268: 1993 (5) SLR 337: 1993 (4) SCC 441: 1993 SCALE 67
Writ Petition (Civil) 1303 of 1987]
Dated: October 06, 1993
Bench: Justices S Ratnavel Pandian and AM Ahmadi and Kuldip Singh and JS Verma and MM Punchhi
and Yogeshwar Dayal and GN Ray and Dr. AS Anand and SP Bharucha
NOTE: Majority view in S.P. Gupta’s case (supra) giving primacy to the Central Government in the matter
of appointment of Judges to the superior courts does not lay down correct law and is overruled to
that extent.
Process of Appointment of Judges:
(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated
‘participatory consultative process’ for selecting the best and most suitable persons available for
appointment; and all the constitutional functionaries must perform this duty collectively with a
view primarily to reach an agreed decision, sub-serving the constitutional purpose, so that the
occasion of primarily does not arise.
(2) Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief
Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for
transfer of a Judge/Chief Justice of a High Court, the proposal had to be initiated by the Chief
Justice of India. This is the manner in which proposals for appointments to the Supreme Court
and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must
invariably be made.
(3) In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary
symbolised by the view of the Chief Justice of India and formed in the manner indicated, has
primacy.
(4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in
conformity with the opinion of the Chief Justice of India.
(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India,
indicating that the recommendee is not suitable for appointment, that appointment recommended
by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by
the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in
the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment
should be made as a healthy convention.
(6) Appointment to the office of the Chief Justice of India should be of the senior most Judge of the
Supreme Court considered fit to hold the office.
(7) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter
of transfers of High Court judges/Chief Justices.

Constitution of India 155

 (8) Consent of the transferred Judge/Chief Justice is not required for either the first of any subsequent
transfer from one High Court to another.
(9) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be
punitive, and such transfer is not justiciable on any ground.
(10) In making all appointments and transfers, the norms indicated must be followed. However, the
same do not confer any justiciable right in any one.
(11) Only limited judicial review on the grounds specified earlier is available in matters of appointments
and transfers.
(12) The initial appointment of Judge can be made to a High Court other than that for which the
proposal was initiated.
(13) Fixation of Judge-strength in the High Courts is justiciable, but only to the extent and in the
manner indicated.
(14) The majority opinion in SP Gupta versus Union of India, (1982) 2 SCR 365: AIR 1982 SC 149, in so far
as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters
of appointments and transfers, and the justiciability of these matters as well as in relation to
Judge-strength, does not commend itself to us as being the correct view. The relevant provisions
of the Constitution, including the constitutional scheme must now be construed, understood and
implemented in the manner indicated herein by us.
Relevant Cases: Supreme Court Advocates-on-Record Association versus Union of India, AIR 1994 SC
268: (1993) 4 SCC 441; SP Gupta versus President of India, AIR 1982 SC 149: (1981) Supp SCC 87.
—————

Appointment of Ad Hoc Judges

Lok Prahari versus Union of India
[AIR 2021 SC 2039: 2021 SCC OnLine SC 333: LL 2021 SC 225]
Dated: April 22, 2021
Bench: Justices SA Bobde, SK Kaul and Surya Kant
“Recourse to Article 224A is the necessity of the day, and without inhibiting the expanse of the powers
conferred on the Chief Justice of the High Court as per the Constitution, it would be in the fitness of
things to lay down some guidelines for assistance of the Chief Justices of the High Courts and to make
the provision a ‘live letter’.”
“Guidelines to appoint ‘ad-hoc judges’ to High Courts”
GUIDELINES:

A. Trigger Point for activation of Article 224A:

The Trigger Point cannot be singular and there can be more than one eventuality where it arises.
y If the vacancies are more than 20% of the sanctioned strength.
y The cases in a particular category are pending for over five years.
y More than 10% of the backlog of pending cases are over five years old.
y The percentage of the rate of disposal is lower than the institution of the cases either in a particular
subject matter or generally in the Court.

156 Constitution of India

y Even if there are not many old cases pending, but depending on the jurisdiction, a situation of
mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing
over a period of a year or more.
B. Embargo Situation:
y If recommendations have not been made for more than 20 per cent of the regular vacancies then the
trigger for recourse to Article 224A would not arise.
y What data shows: There are only ten High Courts having fewer than 20% vacancies as on 1-4-2021;
seven High Courts having fewer than 10 per cent vacancies in permanent appointments but then
there may be additional Judges and there are cases which are in the pipeline.
Thus, the parameter we have adopted is that, at least, the recommendations should have been made
leaving not more than 20% vacancies in order to take recourse to Article 224A.
C. Pre-recommendation process:
y Past performance of recommendees in both quality and quantum of disposal of cases should be
factored in for selection as the objective is to clear the backlog.
y The Chief Justice should prepare a panel of Judges and former Judges. Naturally this will be in respect
of Judges on the anvil of retirement and normally Judges who have recently retired preferably within
a period of one year. However, there can be situations where the Judge may have retired earlier
but his expertise is required in a particular subject matter. There may also be a scenario where the
Judge(s) may prefer to take some time off before embarking upon a second innings albeit a short
one. In the preparation of panel, in order to take consent and take into account different factors, a
personal interaction should be held with the Judge concerned by the Chief Justice of the High Court.
D. Methodology of Appointment:
y Para 24 of the MoP lays down a procedure for appointment under Article 224A of the Constitution
must be followed to see the progress made and impediments, if any. However, since the Judges are
already appointed to the post through a warrant of appointment, the occasion to refer the matter to
the IB or other agencies would not arise in such a case, which would itself shorten the time period.
E. Time to complete the process:
y The requirement that recommendations should be made six months in advance by the Chief Justice
of the High Court emanates from the concept that the said period should be required to complete
the process in case of a regular appointment of a Judge under Article 217 or 224 of the Constitution
of India. Since there are a number of aspects not required to be adverted to for appointment under
Article 224A, a period of about three months should be sufficient to process a recommendation and,
thus, ideally a Chief Justice should start the process three months in advance for such appointment.
F. Tenure of Appointment:
y The tenure for which an ad hoc Judge is appointed may vary on the basis of the need but suffice
to say that in order to give an element of certainty and looking to the purpose for which they are
appointed, generally the appointment should be for a period between two to three years.
G. Number of Appointments:
y At least, for the time being dependent on the strength of the High Court and the problem faced by
the Court, the number of ad hoc Judges should be in the range of two to five in a High Court.
H. Role of ad hoc Judges:
y The primary objective being to deal with long pending arrears, the said objective will be subserved
by assigning more than five years old cases to the ad hoc Judges so appointed. However, this would

Constitution of India 157

 not impinge upon the discretion of the Chief Justice of the High Court, if exigencies so demand for
any particular subject matter even to deal with the cases less than five years old, though the primary
objective must be kept in mind.
y Constitution of division bench of ad hoc Judge and sitting Judge in matters to be heard by Division
Bench not to be constituted. The Division Bench, at present, may be constituted only of ad hoc
Judges because these are old cases which need to be taken up by them.
y Because of the very nature of the profile and work to be carried out by ad hoc Judges, it would not be
permissible for an ad hoc Judge to perform any other legal work whether it be advisory, of arbitration
or appearance.
I. Emoluments and Allowances:
y The emoluments and allowances of an ad hoc Judge should be at par with a permanent Judge of
that Court at the relevant stage of time minus the pension. This is necessary to maintain the dignity
of the Judge as also in view of the fact that all other legal work has been prohibited by us in terms
of the aforesaid guidelines.
y Emoluments to be paid would be a charge on the Consolidated Fund of India consisting of salary
and allowances. It is a misconceived notion that there will be an additional burden on the State
Government if some perquisites are made available to ad hoc Judges by the State Government. The
trigger for appointment of ad hoc Judges is the very existence of vacancies and had these vacancies
been filled in, the State Government would have incurred these expenses anyhow. In any case there
is a limit placed on the number of ad hoc Judges and, thus, the existence of vacancies actually
results in the savings for the State Government(s), which would otherwise be amount expended as
their allowances and perks.
—————

Aadhar Card for Sex Workers

Budhadev Karmaskar versus State of WB
[2022 SCC OnLine SC 704]
Dated: May 19, 2022
Bench: Justices L Nageswara Rao, BR Gavai, AS Bopanna
Every individual in this country has a right to a dignified life under Article 21. Aadhar Cards shall be
issued to sex workers on the basis of a proforma certificate which is issued by UIDAI and submitted
by the Gazetted Officer at NACO or the Project Director of the State AIDS Control Society, along with
Aadhar enrolment form/application, held by the court.
“Sex workers are entitled to equal protection of the law”
The panel has recommended the following terms in respect of rights of sex workers:
(i) Sex workers are entitled to equal protection of the law. Criminal law must apply equally in all
cases, on the basis of ‘age’ and ‘consent’. When it is clear that the sex worker is an adult and is
participating with consent, the police must refrain from interfering or taking any criminal action.
(ii) There have been concerns that police view sex workers differently from others. When a sex worker
makes a complaint of criminal/sexual/any other type of offence, the police must take it seriously
and act in accordance with law.
(iii) Any sex worker who is a victim of sexual assault should be provided with all facilities available to
a survivor of sexual assault, including immediate medical assistance, in accordance with Section

158 Constitution of India

 357C of the Code of Criminal Procedure, 1973 read with “Guidelines and Protocols: Medico-legal
care for survivor/victims of sexual violence”, Ministry of Health and Family Welfare (March, 2014).
(iv) Whenever there is a raid on any brothel, since voluntary sex work is not illegal and only running the
brothel is unlawful, the sex workers concerned should not be arrested or penalised or harassed or
victimised.
(v) The State Governments may be directed to do a survey of all ITPA Protective Homes so that cases
of adult women, who are detained against their will can be reviewed and processed for release in
a time-bound manner.
(vi) It has been noticed that the attitude of the police to sex workers is often brutal and violent. It is as
if they are a class whose rights are not recognised. The police and other law enforcement agencies
should be sensitised to the rights of sex workers who should also enjoy all basic human rights
and other rights guaranteed in the Constitution to all citizens. Police should treat all sex workers
with dignity and should not abuse them, both verbally and physically, subject them to violence or
coerce them into any sexual activity.
(vii) The Press Council of India should be urged to issue appropriate guidelines for the media to take
utmost care not to reveal the identities of sex workers, during arrest, raid and rescue operations,
whether as victims or accused and not to publish or telecast any photos that would result in
disclosure of such identities. Besides, the newly introduced Section 354C, IPC which makes
voyeurism a criminal offence, should be strictly enforced against electronic media, in order to
prohibit telecasting photos of sex workers with their clients in the garb of capturing the rescue
operation.
(viii) Measures that sex workers employ for their health and safety (e.g., use of condoms, etc.) must
neither be construed as offences nor seen as evidence of commission of an offence.
(ix) The Central Government and the State Governments must involve the sex workers and/or their
representatives in all decision-making processes, including planning, designing and implementing
any policy or programme for the sex workers or formulating any change/reform in the laws relating
to sex work. This can be done, either by including them in the decision-making authorities/panel
and/or by taking their views on any decision affecting them.
(x) The Central Government and the State Governments, through National Legal Services Authority,
State Legal Services Authority and District Legal Services Authority, should carry out workshops
for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and
obligations of the police and what is permitted/prohibited under the law. Sex workers can also be
informed as to how they can get access to the judicial system to enforce their rights and prevent
unnecessary harassment at the hands of traffickers or police.
(xi) As already recommended in the 6th interim Report dated 22-3-2012, no child of a sex worker
should be separated from the mother merely on the ground that she is in the sex trade. Further, if
a minor is found living in a brothel or with sex workers, it should not be presumed that he/she has
been trafficked. In case the sex worker claims that he/she is her son/daughter, tests can be done
to determine if the claim is correct and if so, the minor should not be forcibly separated.
—————

Constitution of India 159

 Legal Maxims
y “Audi Alteram Partem” means no man shall be condemned unheard or it is a principle of natural
justice where every person gets a chance of being heard.
y “Autrefois acquit” means formerly acquitted.
y “Autrefois convict” means formerly convicted.
y “Ad hoc” means for this purpose only or for this special purpose.
y “Ex Post Facto” means after the fact or it is a law that retroactively changes the legal consequences
of actions that were committed, or relationships that existed, before the enactment of the law.
y “Non bis in idem” means an issue once decided must not be raised again.
y “Double Jeopardy” means no person shall be prosecuted and punished for the same offence more
than once.
y “Habeas Corpus” means “may you have the body” or “you have the body”.
y “Mandamus” means “we command” or issuance of an order or writ from a court of superior jurisdiction
that commands an inferior tribunal/court to perform, or refrain from performing, a particular act, the
performance of which is required by law as an obligation.
y “Quo Warranto” means “by what warrant” or it is a writ to challenge a person’s right to hold a public
or corporate office.
y “Certiorari” means to be more fully informed.

Words and Phrases: Legally Defined

Adequate
The Word “adequate” imply only numerical representation in the services or does it imply something
more than that? The three meanings of the word “adequate” given in the Shorter Oxford English
Dictionary are (i) equal in magnitude and extent; (ii) commensurate in fitness, sufficient, suitable; and
(iii) fully representing (logic). It seems to me that it is the second meaning (namely, sufficient) which
properly applies to the words “adequately represented” as used in this Article.
Sufficient - “Sufficient” has two meanings: (i) Sufficing, adequate, esp. in amount or number to the
need, (ii) enough, adequate quantity. Therefore, when Art. 16(4) says that reservation may be made in
order that any backward class of citizens may be adequately represented in the services it means that
reservation may be made in order to make the number of any backward class sufficient in the services
under the State; The General Manager, Southern Railway versus Rangachari, AIR 1962 SC 36: 1962 (2)
SCR 586.

Agitate
Webster’s Third New International Dictionary (1961 Ed., p. 42) says that to ‘agitate’ is ‘to stir up’; to
arouse public feeling or influence public opinion (as by constant discussion)’. ‘Agitation’ is defined to
mean ‘the persistent and sustained attempt to arouse public feeling or influence public opinion (as by
appeals, discussions, or demonstrations)’.
The Random House Dictionary (1970 Ed., p. 28) says that to ‘agitate’ is ‘to call attention to by speech or
writing; discuss; debate’; to arouse or attempt to arouse public interest, as in some political or social
question’. ‘Agitation’ accordingly moans ‘persistent urging of a political or social question before the
public’.

160 Constitution of India

The Shorter Oxford English Dictionary (1964 Edition Vol. I, p. 36) says that to ‘agitate’ means ‘To perturb,
excite or stir up by appeals’; ‘To discuss or push forward’. Dictionaries give various shades of meanings
and the effort has to be to choose the meaning which is appropriate in the context. When “the wind
agitates the sea”, the meaning of the word agitate is ‘to move or force into violent, irregular action’.
When a crowd is “agitated to a frenzy by impassioned oratory”, the meaning of the word is ‘to disturb
or excite emotionally’. But in regard to social or political questions, the normal meaning of the word
is ‘to arouse or attempt to arouse public interest’ (See the Random House Dictionary, 1970 Ed., p. 28).
When “the ladies sigh and agitate their fans” the meaning of the word ‘agitate’ is simply ‘to move to and
fro’. But when one is “agitating for the schools and the vote” the meaning is- ‘to arouse public feeling
or influence public opinion (as by constant discussion)’ (See the Webster’s Third New International
Dictionary, 1961 Ed., p. 42). Ram Bahadur Rai versus State of Bihar, AIR 1975 SC 223: 1975 (2) SCR 732.

Amendment of this Constitution

The expression “amendment of this Constitution” in Article 368 means any addition or change in any of
the provisions of the Constitution within the broad contours of the preamble, made in order to carry
out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open
to amendment provided the basic foundation or structure of the Constitution was not damaged or
destroyed.
Essential features - The expression “essential features” means the basic structure or framework of the
Constitution.
“A law relating to” a State monopoly cannot include all the provisions contained in such law but it must
be construed to mean, “the law relating to the monopoly in its absolutely essential features” and it is
only those provisions of the law “which are basically and essentially necessary for creating the State
monopoly” which are protected by Article 19(6); Minerva Mills Ltd. versus Union of India, AIR 1980 SC
1789: 1981 (1) SCR 206.

Any educational institution

Use of the Expression “any educational institution” in Article 29(2) would refer to any educational
institution established by anyone, but which is maintained by the state or receives aid out of state
funds. In other words, on a plain reading, state-maintained or aided educational institutions, whether
established by the Government or the majority or a minority community cannot deny admission to
a citizen on the grounds only of religion, race, caste or language. The expression “education” in the
Articles of the Constitution means and includes education at all levels from the primary school level up
to the post-graduate level. It includes professional education. The expression “educational institutions”
means institutions that impart education, where “education” is as understood hereinabove; T.M.A. Pai
Foundation versus State of Karnataka, 2002 (8) SCALE 1: AIR 2003 SC 355.

Article 21 of Indian Constitution

The word “establish” according to the Oxford English Dictionary, Vol. III, p. 297, means, amongst other
things, “to render stable or firm; to strengthen by material support; to fix, settle, institute or ordain
permanently by enactment or agreement.” According to Dr. Annandale’s edition of the New Gresham
Dictionary the word “establish, “means, amongst other things, “to found permanently; to institute;
to enact or decree; to ordain; to ratify; to make firm.” It follows that the word “established” in its
ordinary natural sense means, amongst other things, “enacted.” “Established by law” will, therefore,
mean “enacted by law.” If this sense of the word “established” is accepted, then the word “law” must

Constitution of India 161

 mean State-made law and cannot possibly mean the principles of natural justice, for no procedure can
be said to have ever been “enacted” by those principles. When Section 124A of the Indian Penal Code
speaks of “Government established by law, “surely it does not mean “Government set up by natural
justice”; AK Gopalan versus State of Madras Union of India, AIR 1950 SC 27: 1950 SCR 88.
The Sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely
that life cannot be extinguished or taken away as, for example, by the imposition and execution of the
death sentence, except according to procedure established by law. That is but one aspect of the right
to life. An equally important facet of that right is the right to livelihood because, no person can live
without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as
a part of the constitutional right to life, the easiest way of depriving a person his right to life would be
to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only
denude the life of its effective content and meaningfulness but it would make life impossible to live.
And yet, such deprivation would not have to be in accordance with the procedure established by law, if
the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible
to live, leave aside what makes life livable, must be deemed to be an integral component of the right to
life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that
explains the massive migration of the rural population to big cities. They migrate because they have no
means of livelihood in the villages. The motive force which people their desertion of their hearths and
homes in the village s that struggle for survival, that is, the struggle for life. So unimpeachable is the
evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful
can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of
livelihood. That is the context in which it was said by Douglas J. in Baksey that the right to work is the
most precious liberty because, it sustains and enables a man to live and the right to life is a precious
freedom. “Life”, as observed by Field, J. in Munn versus Illinois, (1877) 94 US 113, means something more
than mere animal existence and the inhibition against the deprivation of life extends to all those limits
and faculties by which life is enjoyed; Olga Tellis versus Bombay Municipal Corporation, AIR 1986 SC
180: 1985 SCR Supp (2) 51.
Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State
shall, in particular, direct its policy towards securing that the citizens, men and women equally, have
the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides,
inter alia, that the State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work in cases of unemployment and of undeserved want.
Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless
fundamental in the governance of the country. The Principles contained in Articles 39(a) and 41 must be
regarded as equally fundamental in the understanding and interpretation of the meaning and content
of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate
means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood
from the content of the right to life. The State may not, by affirmative action, be compellable to
provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his
right to livelihood except according to just and fair procedure established by law, can challenge the
deprivation as offending the right to life conferred by Article 21; Olga Tellis versus Bombay Municipal
Corporation, AIR 1986 SC 180: 1985 SCR Supp (2) 51.

Certiorari
Writ – Writ petition before the High Court prayed for a writ in the nature of certiorari, and it is well
known that a writ in the nature of certiorari may be issued only if the order of the inferior tribunal or

162 Constitution of India

subordinate court suffers from an error of jurisdiction, or from a breach of the principles of natural
Justice or is vitiated by a manifest or apparent error of law. There is no sanction enabling the High
Court to reappraise the evidence without sufficient reason in law and reach findings of fact contrary
to those rendered by an inferior court or subordinate court. When a High Court proceeds to do so, it
acts plainly in excess of its powers; Harbans Lal versus Jagmohan Saran, AIR 1986 SC 302: 1985 SCR
Supp (3) 634: 1985 (4) SCC 333.
Writ of certiorari - “Certiorari’ is a Late Latin word being the passive form of the word “certiorari”
meaning ‘inform’ and occurred in the original Latin words of the writ which translated read “we being
desirous for certain reasons, that the said record should by you be certified to us, ‘. Certiorari was
essentially a royal demand for information; the king, wishing to be certified of some matter, orders that
the necessary information be provided for him. We find in De Smith’s “Judicial Review of Administrative
Action”, 4th edition, page 587, some interesting instances where writs of certiorari were so issued. Thus,
these writs were addressed to the escheator or the sheriff to make inquisitions: the earliest being for
the year 1260. Similarly, when Parliament granted Edward II one foot-soldier for every township, the
writ addressed to the sheriffs to send in returns of their townships to the Exchequer was a writ of
certiorari. Very soon after its first appearance this writ was used to remove to the King’s Court at
Westminster the proceedings of inferior courts of record: for instance, in 1271 the proceeding, in an
assize of Darrien presentment were transferred to Westminster because of their dilatoriness. This
power was also assumed by the Court of Chancery and in the Tudor an early Stuart periods a writ of
certiorari was frequently issued to bring the proceedings of inferior courts of common law before the
Chancellor. Later, however, the Chancery confined its supervisory functions to inferior courts of equity.
In “A New Abridgement of the Law”, Seventh Edition, Volume II at pages 9 and 19, Matthew Bacon has
described a writ of certiorari in these words:
A Certiorari is an original writ issuing out of Chancery, or the King’s Bench, directed in the King’s name,
to the judges or officers of inferior courts, commanding them to return the records of a cause pending
before them, to the end the party may have the more sure and speedy justice before him, or such other
justice as he shall assign to determine the cause; Prabodh Verma versus State of Uttar Pradesh, AIR
1985 SC 167: 1985 (1) SCR 216.

Consultation
The Word ‘consultation’ in Article 233(1) must bear the same meaning as in these other provisions.
The plain meaning of the word ‘consult’ as given in Shorter Oxford English Dictionary, Vol. 1 at p.
409 is: ‘to take counsel together, deliberate, confer, and the word ‘consultation’ means: ’the action
of consulting or taking counsel together; deliberation, conference. The word ‘consultation’ therefore
implies a conference of two or more persons or an impact of two or more minds in respect of a topic
in order to enable them to evolve a correct, or at least, a satisfactory solution; State of Kerala versus
A Lakshmikutty, AIR 1987 SC 331: 1987 (1) SCR 136.

Constitution
A Constitution is a document having a special legal sanctity which sets out the frame-work and the
principal functions of the organs of government within the State and declares the principles by which
those organs must operate. Constitution refers to the whole system of the governance of a country
and the collection of rules which establish and regulate or govern the government. In our country,
we have a written constitution, which has been given by the people of India to themselves. The said
Constitution occupies the primary place. Notwithstanding the fact, we have a written Constitution,

Constitution of India 163

 in course of time, a wide variety of rules and practices have evolved which adjust operation of the
Constitution to changing conditions. No written constitution would contain all the detailed rules upon
which the government depends. The rules for electing the legislature are usually found not in the
written Constitution but in the statutes enacted by the legislature within limits laid down by the
Constitution.
A Constitution is a thing antecedent to a government, and a government or a good governance is a
creature of the Constitution. A documentary Constitution reflects the beliefs and political aspirations
of those who had framed it. One of the principle of constitutionalism is what it had developed in the
democratic traditions. A primary function that is assigned to the written Constitution is that of controlling
the organs of the Government. Constitutional law pre-supposes the existence of a State and includes
those laws which regulate the structure and function of the principal organs of government and their
relationship to each other and to the citizens. Where there is a written Constitution, emphasis is placed
on the rules which it contains and on the way in which they have been interpreted by the highest court
with constitutional jurisdiction. Where there is a written Constitution the legal structure of Government
may assume a wide variety of forms. Within a federal constitution, the tasks of government are divided
into two classes, those entrusted to the federal organs of government, and those entrusted to the
various states, regions or provinces which make up the federation. But the constitutional limits bind
both the federal and state organs of government, which limits are enforceable as a matter of law; BR
Kapoor versus State of Tamil Nadu, (2001) 7 SCC 231 (312): 2001 (4) SCJ 82.

Contract
The word “contract” is used in Article 310(2), but as these “contracts” are as much subject to “pleasure”
as any other engagement of service (except as otherwise provided by the Constitution) they are not
contracts in the usual sense of the term; nor are the conditions of service that apply to Government
servants who do not serve under a special “contract”. A contract that can be determined at will despite
an express condition to the contrary [and that is what Article 310(2) contemplates] is not a contract as
usually understood; nor are conditions of service that can be unilaterally varied without the consent
of the other it contracting party “, and even behind his back. But they are convenient terms to convey
a thought and that is the sense in which “contract” is used in Article 310(2) and the sense in which it
has been used in some Privy Council rulings. Now these “conditions of service” (and of course special
“contracts” as well) confer “rights” and though the conditions can be varied unilaterally because of
the “pleasure”, they cannot be ignored so long as they are in force; and if a dismissal, or removal,
or reduction in rank infringes one of these rights “, then, in my judgement, Article 311 is attracted;
Parshotam Lal Dhingra versus Union of India, AIR 1958 SC 36: 1958 SCR 828.

Determination
The Word “Determination” must also be given its full effect to, which pre-supposes application of
mind and expression of the conclusion. It connotes the official determination and not a mere opinion
of finding.
In Law Lexicon by P Ramanatha Aiyar, Second Edition, it is stated: “Determination or order. The expression
“determination” signifies an effective expression of opinion which ends a controversy or a dispute by
some authority to whom it is submitted under a valid law for disposal. The expression “order” must
have also a similar meaning, except that it need not operate to end the dispute, Determination or order
must be judicial or quasi-judicial; Jaswant Sugar Mills versus Lakshmi Chand, (1963) 1 LLJ 524 (SC)
[Constitution of India Article 136].

164 Constitution of India

In Black’s Law Dictionary, 6th Edition, it is stated: A determination is a “final judgement” for purposes
of appeal when the trial court has completed its adjudication of the rights of the parties in the action;
Thomas Van Dyken Joint Venture versus Van Dyken, 90 Wis. 236, 279 NW 2d 459, 463; Ashok Leland Ltd.
versus State of Tamil Nadu, 2004 (1) SCR 306.

Domiciliary visits
“Domiciliary visits” is defined in the Oxford English Dictionary as “Visit to a private dwelling, by official
persons, in order to search or inspect it.” Webster’s Third New International Dictionary defines the
word as “Visit to a private dwelling (as for searching it) under authority.” The definition in Chambers
Twentieth Century Dictionary is almost identical “Visit under authority, to a private house for the
purpose of searching it”; Kharak Singh versus State of UP, AIR 1963 SC 1295: 1964 (1) SCR 332.

Education
Education is “Continual growth of personality, steady development of character, and the qualitative
improvement of life. A trained mind has the capacity to draw spiritual nourishment from every
experience, be it defeat or victory, sorrow or joy. Education is training the mind and not stuffing the
brain.” (See Eternal Values for A Changing Society, Vol. III Education for Human Excellence, published
by Bharatiya Vidya Bhavan, Bombay, at p. 19) “We want that education by which character is formed,
strength of mind is increased, the intellect is expanded, and by which one can stand on one’s own
feet.”
“The end of all education, all training, should be man-making. The end and aim of all training is to
make the man grow. The training by which the current and expression of will are brought under control
and become fruitful is called education.” (Swami Vivekanand as quoted in ibid, at p. 20) Education,
accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does
not cease to be a service to the society. And even though an occupation, it cannot be equated to a
trade or a business; PA Inamdar versus State of Maharashtra, 2005 (5) Bom CR 52: 2005 (3) MhLJ 1067
also see, TMA Pai Foundation versus State of Karnataka, 2002 (8) SCALE 1: AIR 2003 SC 355.

Emergency
Article 356 of the Constitution of India - Emergency means a situation which is not normal, a situation
which calls for urgent remedial action; SR Bommai versus Union of India, AIR 1994 SC 1918: JT 1994 (2)
SC 215: 1994 (2) SCALE 37.

Eminent domain
Eminent domain is in the nature of a compulsory purchase of the property of the citizen for the
purpose of applying to the p007.

Establish
Article 30(1) of the Constitution of India – What does the word “establish” used in Article 30(1) mean?
In Bouvier’s Law Dictionary, Third Edition, Vol. I, it has been said that the word “establish” occurs
frequently in the, Constitution of the United States and it is there used in different meanings; and five
such meanings have been given, namely (1) to settle firm, to fix unalterably, as to establish justice; (2)
to make or form: as, to establish a uniform rule of naturalization; (3) to found, to create, to regulate-,
as, Congress shall have power to establish post offices; (4) to found, recognize, confirm or admit: as,
Congress shall make no law respecting an establishment of religion; (5) to create, to ratify, or confirm,

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 as We, the people, etc., do ordain and establish this constitution. Thus it cannot be said that the
only meaning of the word “establish” is to found in the sense in which an eleemosynary institution is
founded and we shall have to see in what sense the word has been used in our Constitution in this
Article.
In Shorter Oxford English Dictionary, Third Edition, the word “establish” has at number of meanings, i.e.
to ratify, confirm, settle, to found, to create. Here again founding is not the only meaning of the word
“establish” and it includes creation also.
In Webster’s Third New International Dictionary, the word “establish” has been given a number of
meanings, namely, to found or base squarely, to make firm or stable, to bring into existence, create,
make, start, originate. It will be seen that here also founding is not the only meaning; and the word
also means “to bring into existence”. Court was of the opinion that for the purpose of Art. 30(1) the
word means “to bring into existence”, and so the right given by Art. 30(1) to the minority is to bring into
existence an educational institution, and if they do so, to administer it; S Azeez Basha versus Union of
India, AIR 1968 SC 662: 1968 SCR (1) 833.

Further investigation
‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence
after the final report has been filed before the Court in terms of Section 173(8). This power is vested
with the Executive. It is the continuation of a previous investigation and, therefore, is understood
and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of
further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if
they are discovered at a subsequent stage to the primary investigation. It is commonly described as
‘supplementary report’. ‘Supplementary report’ would be the correct expression as the subsequent
investigation is meant and intended to supplement the primary investigation conducted by the
empowered police officer. Another significant feature of further investigation is that it does not have the
effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency.
This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and
in continuation of the same offence and chain of events relating to the same occurrence incidental
thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’,
‘fresh’ or ‘de novo’ investigation.
‘Fresh investigation’, ‘reinvestigation’ or ‘de novo investigation’ - In the case of a ‘fresh investigation’,
‘reinvestigation’ or ‘de novo investigation’ there has to be a definite order of the court. The order of
the Court unambiguously should state as to whether the previous investigation, for reasons to be
recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has
any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be
opposed to the scheme of the Code. It is essential that even an order of ‘fresh’/’de novo’ investigation
passed by the higher judiciary should always be coupled with a specific direction as to the fate of
the investigation already conducted. The cases where such direction can be issued are few and far
between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is
the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows
from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where
the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set
aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another
independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore,
has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases.

166 Constitution of India

Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the
Court should be reluctant to interfere in such matters to the extent of quashing an investigation and
directing a ‘fresh investigation’; Vinay Tyagi versus Irshad Ali @ Deepak, 2013 (5) SCC 762.

In the pay of
In Shorter Oxford English Dictionary the expression ‘in the pay of’ is defined thus To give money, etc.,
in return for something or in discharge of an obligation of a thing or action. To yield an adequate return.
Similarly ‘Payer’ is defined thus: ”One who pays a sum of money”.
In Webster’s Third New International Dictionary the expression ‘in the pay of’ is indicated to mean:
“Compensate, remunerate, satisfy, reimburse, indemnify, recompense, repay. Pay is a general term,
lacking particular connotation but sometimes bluntly stressing the purchase of service, pay a machinist
high wages”. “Wages, salary remuneration”.
In Webster’s New World Dictionary the expression ‘in the pay of’ is thus defined: “Stresses the idea
of payment for a service rendered, but it often also carries an implication of reward (a bumper crop
remunerated the farmer for his labors)”.
In Words and Phrases, Permanent Edition Vol. 31A p. 176 the meaning of the word ‘pay’ is given thus:
“Pay” is remuneration, wages or salary. To remunerate; to recompense, to give any pay”.
In Venkataramaya’s Law Lexicon Vol. II p. 1122 the expression ‘to pay money’ has the following
connotation: “To pay money is to pay it in respect of a right which some person has to receive it”.
In Corpus Juris Secundum Vol. 70 at page 200 the word ‘pay’ if used as a noun is defined as remuneration,
wages, compensation, salary and the following observations are also made: To noun ‘pay’ has been
held equivalent to, or synonymous with, ‘compensation’, salary and wages and has been compared
with, or distinguished from, ‘allowance’ and consideration; M Karunanidhi versus Union of India, AIR
1979 SC 898: 1979 (3) SCR 254.

Land
In Black’s Law Dictionary (Sixth Edition) at page 877, land is defined to mean- “in the most general
sense, comprehends any ground, soil or earth whatsoever, including rocks.
“Land” may include any estate or interest in lands, either legal or equitable, as well as easements
and incorporeal hereditaments. Technically, land signifies everything comprehending all things of a
permanent nature, and even of an unsubstantial provided they be permanent.
Ordinarily, the term is used as descriptive of the subject of ownership and not the ownership. Land is
the material of the earth, whatever may be the ingredients of which it is composed, weather, soil, rock,
or other substance, and includes free or occupied space for an indefinite distance upwards as well as
downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace
granted by law.
Land - The Law Lexicon (Reprint Edn. 1987) by Ramanatha Iyer p. 701, the word ‘land” in the ordinary
legal sense comprehends everything of a fixed or permanent nature and, therefore, growing trees,
land includes the benefit arise out of the land and things attached to the earth or permanently means
everything attached to the earth and also the share in or charges on, the revenue or rent of villages
or other defined portions of territory. Land includes the bed of the sea below high water mark. Land
shall extend to messuages, and all other hereditaments, whether corporal or incorporeal and whether
freehold or of any other tenure and to money to be paid out in the purchase of land. Land in its widest
signification would therefore include not only the surface of the ground, cultivable, uncultivable or

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 waste lands but also everything on or under it; Jilubhai Nanbhai Khachar versus State of Gujarat, 1994
Supp (1) SCR 807.

Law, Established
Article 13 of Indian Constitution - “No person shall be deprived of his property save by authority
of law.” It is obvious that in that clause “law” must mean enacted law. The object of dealing with
property under a different article appears more to provide the exceptions found in Article 31 (2) to
(6), rather than to give the word “law” a different meaning than the one given in Article 21. The word
“established” according to the Oxford Dictionary means “to fix, settle, institute or ordain by enactment
or agreement.” The word “established” itself suggests an agency which fixes the limits. According to
the dictionary this agency can be either the legislature or an agreement between the parties. There is
therefore no justification to give the meaning of “jus” to “law” in Article 21; AK Gopalan versus State of
Madras Union of India, AIR 1950 SC 27: 1950 SCR 88.

Life
The expression ‘life’ has to be construed liberally. ‘Physical safety’ is a restricted term while life is a
term of wide connotation. ‘Life’ includes reputation of an individual as well as the right to live with
freedom. The expression ‘ life’ also appears in Article 21 of the Constitution and has been provided a
wide meaning so as to inter alia include within its ambit the right to live with dignity, right to shelter,
right to basic needs and even the right to reputation.
The expression life under Section 8(1)(g) of the Act, thus, has to be understood in somewhat similar
dimensions. The term ‘endanger’ or ‘endangerment’ means the act or an instance of putting someone
or something in danger; exposure to peril or such situation which would hurt the concept of life as
understood in its wider sense [refer Black’s Law Dictionary (Eighth Edition)]. Of course, physical safety
would mean the likelihood of assault to physical existence of a person; Bihar Public Service Commn.
versus Saiyed Hussain Abbas Rizwi, (2012) 13 SCC 61.

Luxury
In this background, the competing contentions as to the meaning of the word “luxury” in Entry 62 of
List II are considered:
(a) According to the learned counsel for the assesses the word ‘luxury’ is distinct from an article
of luxury and for the purpose of Entry 62 of List II means the activity of indulgence, comfort,
enjoyment.
(b) The argument of learned counsel for the State of U.P. and A.P. as to the meaning of ‘Luxury’ is
somewhat ambivalent. On the one hand it was contended that ‘luxury’ is a component and aspect
of the goods and that Entry 62 relates to the exclusive jurisdiction of the State to levy a tax on
such component or aspect of the goods. On the other hand it was contended that luxury may arise
from the use or consumption of certain kinds of goods or services or indulgence in certain kind of
activities which are luxurious in nature.
(c) According to counsel for the State of West Bengal, ‘luxuries’ comprehends both goods and services
which have an element of enjoyment, extravagance and which are not necessaries. Therefore, the
State can tax goods which are per se “luxury goods in the absolute sense like tobacco, liquor,
jewellery etc. or other goods by imposing a sufficiently high price limit, the sufficiency being
determined according to standards of the middle class”.

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The word luxury may possibly be susceptible of all three meanings. According to the Oxford English
Dictionary (2nd Edn; Vol. IX) ‘luxury’ could among other meanings be defined as (1) abundance,
sumptuous enjoyment (2) the habitual use of, or indulgence in what is choice or costly (3) refined
and intense enjoyment; means of luxurious enjoyment; (4) in a particularized sense: something which
conduces to enjoyment or comfort in addition to what are accounted the necessaries. Hence, in recent
use, something which is desirable but not indispensable and (5) as an attribute as luxury coach, cruise
duty, edition, flat, liner, shop, tax, trade”; Godfrey Phillips (I) Ltd. versus State of UP, 2005 INSC 54.

Luxury Tax
According to this definition, American Courts appear to have opted for the definition of the word as
submitted by the assesses and have held that it is an activity. However, we have also been referred
by counsel for the States to other authoritative works such as Black’s Law Dictionary (6th Edition) in
which a ‘luxury tax’ is said to be a generic term for excise imposed on purchase of items which are not
necessaries, e.g., tax on liquor or cigarettes. This definition is inconclusive as it merely defines what
may have in fact been the subject matter of tax in a particular statute.
But theoretically ‘luxuries’ is capable of covering each of the several meanings ascribed to the word.
The question is how the word is to be construed in the Constitutional entry. Neither the dictionary
meaning nor the meaning ascribed to the word judicially (for the reasons stated) resolves the ambiguity.
The solution must be found in the language of the Entry taking into consideration the Constitutional
scheme with regard to the imposition of taxes and the collection of revenues; Godfrey Phillips (I) Ltd.
versus State of UP, 2005 INSC 54.

Obstruction
The expression obstruction means “something that impedes or hinders”. The expression, however, has
varied sets of meaning and is not necessarily confined to physical obstructions only.
It has been held that “Obstructing” the police, includes anything which makes it more difficult for the
police to carry out their duties and is not confined to mere physical obstructions; vide Hinchliffe versus
Sheldon, (1955) 1 WLR 1203.
Obstruction has a wider meaning than mere physical obstruction and it includes tangible and identifiable
obstruction and even a protest is obstructing.
The expression `obstruction’ in Rule 3(iii) would, therefore, include any act which impedes the free
and safe movement of the traffic, pedestrians and vehicles. Such an act may well be, by reason of
what is displayed on the hoardings. If the subject-matter that is displayed in such hoardings attracts
attention of the drivers of vehicles and which, in turn, impedes free and safe movement of traffic such
a hoarding would clearly come under the meaning “obstruction” contemplated under Rule 3(iii) of the
Rules; Novva Ads versus Secretary, Deptt. of Municipal Administration and Water Supply, 2008 (8) SCC
42.

Occupation
In Corpus Juris Secundum, Volume LXVII, the word “occupation” is defined as under: “The word
“occupation” also is employed as referring to that which occupies time and attention; a calling; or a
trade; and it is only as employed in this sense that the word is discussed in the following paragraphs.
There is nothing ambiguous about the word “occupation” as it is used in the sense of employing
one’s time. It is a relative term, in common use with a well-understand meaning, and very broad in
its scope and significance. It is described as a generic and very comprehensive term, which includes

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 every species of the genus, and compasses the incidental, as well as the main, requirements of one’s
vocation, calling, or business. The word “occupation” is variously defined as meaning the principal
business of one’s life; the principal or usual business in which a man engages; that which principally
takes up one’s time, thought, and energies; that which occupies or engages the time and attention; that
particular business, profession, trade, or calling which engages the time and efforts of an individual;
the employment in which one engages, or the vocation of one’s life; the state of being occupied or
employed in any way; that activity in which a person, natural or artificial, is engaged with the element
of a degree of permanency attached.”
In Webster’s Third New International Dictionary at page 1650, “occupation” is, inter alia, defined as “an
activity in which one engages” or “a craft, trade, profession or other means of earning a living”; TMA Pai
Foundation versus State of Karnataka, 2002 (8) SCALE 1: AIR 2003 SC 355.

Other Authorities
The expression “Authority” has a definite connotation. It has different dimensions and, thus, must
receive a liberal interpretation. To arrive at a conclusion, as to which “other authorities” could come
within the purview of Article 12, we may notice the meaning of the word “authority”.
The word “Other Authorities” contained in Article 12 is not to be treated as ejusdem generis.
In Concise Oxford English Dictionary, 10th Edition, the word ‘authority’ has been defined as under:
“1. the power or right to give orders and enforce obedience.
2. a person or organization exerting control in a particular political or administrative sphere.
3. the power to influence others based on recognized knowledge or expertise.”
Broadly, there are three different concepts which exist for determining the question which fall within
the expression “other authorities”.
(i) The Corporations and the Societies created by the State for carrying on its trading activities in
terms of Article 298 of the Constitution wherefor the capital, infrastructure, initial investment and
financial aid etc. are provided by the State and it also exercises regulation and control thereover.
(ii) Bodies created for research and other developmental works which is otherwise a governmental
function but may or may not be a part of the sovereign function.
(iii) A private body is allowed to discharge public duty or positive obligation of public nature and
furthermore is allowed to perform regulatory and controlling functions and activities which were
otherwise the job of the government; Zee Telefilms Ltd. versus Union of India, 2005 INSC 72.

Preamble
‘Preamble’ has been defined in the Oxford English Dictionary to mean “a preliminary statement, in
speech or writing; an introductory paragraph, section, or clause; a preface, prologue, introduction.”
It has further been defined there as “an introductory paragraph or part in a statute deed, or other
document, setting forth the grounds and intention of it”; Mohammad Yousuf Rather versus State of
Jammu & Kashmir, AIR 1979 SC 1925: 1980 (1) SCR 258.

Professional or non-professional education

Constitution of India – Article 30(1) speaks of ‘educational institutions’ generally and so does Article
29(2). These Articles do not draw any distinction between an educational institution dispensing
theological education or professional or non-professional education. However, the terrain of thought
as has developed through successive judicial pronouncements culminating in Pai Foundation is that

170 Constitution of India

looking at the concept of education, in the backdrop of constitutional provisions, the professional
educational institutions constitute a class by themselves as distinguished from the educational
institutions imparting non-professional education. It is not necessary for us to go deep into this aspect
of the issue posed before us inasmuch as Pai Foundation has clarified that merit and excellence
assume special significance in the context of professional studies. Though merit and excellence are
not anathema to non-professional education, yet at that level and due to the nature of education
which is more general, merit and excellence do not stand in need of that degree thereof, as is called
for in the context of professional education.
Difference between professional and non-professional education institutions Dealing with unaided
minority educational institutions, Pai Foundation holds that Article 30 does not come in the way of
the State stepping in for the purpose of securing transparency and recognition of merit in the matter
of admissions. Regulatory measures for ensuring educational standards and maintaining excellence
thereof are no anathema to the protection conferred by Article 30(1). However, a distinction is to be
drawn between unaided minority educational institution of the level of schools and undergraduate
colleges on one side and the institutions of higher education, in particular, those imparting professional
education on the other side. In the former, the scope for merit based selection is practically nil
and hence may not call for regulation. But in the case of latter, transparency and merit have to
be unavoidably taken care of and cannot be compromised. There could be regulatory measures for
ensuring educational standards and maintaining excellence thereof. (See para 161, Answer to Q. 4, in
Pai Foundation). The source of this distinction between two types of educational institutions referred
to hereinabove is to be found in the principle that right to administer does not include a right to mal-
administer; PA Inamdar versus State of Maharashtra, 2005 (5) Bom CR 52: 2005 (3) MhLJ 1067 also see,
TMA Pai Foundation versus State of Karnataka, 2002 (8) SCALE 1: AIR 2003 SC 355.

Proportionality
The principle originated in Prussia in the nineteenth Century and has since been adopted in Germany,
France and other European countries. The European Court of Justice at Luxembourg and the
European Court of Human Rights at Strasbourg have applied the principle while judging the validity of
administrative action. But even long before that, the Indian Supreme Court had applied the principle
of ‘proportionality’ to legislative action since 1950, as stated in detail below.
By ‘proportionality’, we mean the question whether, while regulating exercise of fundamental rights, the
appropriate or least restrictive choice of measures has been made by the legislature or the administrator
so as to achieve the object of the legislation or the purpose of the administrative order, as the case
may be. Under the principle, the Court will see that the legislature and the administrative authority
‘maintain a proper balance between the adverse effects which the legislation or the administrative
order may have on the rights, liberties or interests of persons keeping in mind the purpose which they
were intended to serve’. The legislature and the administrative authority are, however, given an area of
discretion or a range of choices but as to whether the choice made infringes the rights excessively or
not is for the Court. That is what is meant by proportionality.
The above principle of proportionality has been applied by the European Court to protect the rights
guaranteed under the European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950 and, in particular, for considering whether restrictions imposed were restrictions
which were ‘necessary’-Within Articles 8 to 11 of the said convention (corresponding to our Article 19(1)
and to find out whether the restrictions imposed on fundamental freedoms were more excessive than
required. [Handyside versus UK, (1976) 1 EHR 737]. Articles 2 and 5 of the Convention contain provisions

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 similar to Article 21 of our Constitution relating to life and liberty. The European Court has applied
the principle of proportionality also to questions of discrimination under Article 14 of the Convention
(corresponding to Article 14 of our Constitution). (See European Administrative Law by J. Schwarze,
1992, pp. 677-866; Om Kumar versus Union of India, 2000 Supp (4) SCR 693.

Provisions of this Constitution

The words “provisions of this Constitution” mean what they say. The said words cannot be limited or
confined to a particular chapter in the Constitution or to a particular set of Articles, while construing
a constitutional provision, such a limitation ought not to be ordinarily inferred unless the context does
clearly so require. The provisions of the Constitution include the chapter relating to fundamental rights,
the chapter relating to directive principles of the state policy as also the preamble to the Constitution;
S.R. Bommai versus Union of India, AIR 1994 SC 1918: JT 1994 (2) SC 215: 1994 (2) SCALE 37.

Public purpose
According to Article 39 of the Constitution, the State shall, in particular, direct its policy towards
securing that the ownership and control of the material resources of the community are so distributed
as best to subserve the common good. The laws made for the purpose of securing the constitutional
intention and spirits have to be for public purpose.
The term ‘public purpose’ has been defined in Black’s Law Dictionary (Fifth Edition) as under: “A public
purpose or public business has for its objective the promotion of the public health, safety, morals,
general welfare, security, prosperity and contentment of all the inhabitants or residents within a given
political division, as, for example, a state, the sovereign powers of which are exercised to promote such
public purpose or public business.”
Public purpose is bound to vary with times and prevailing conditions in the community or locality and,
therefore, the legislature has left it to the State (Government) to decide what is public purpose and
also to declare the need of a given land for the purpose. The legislature has left the discretion to the
Government regarding public purpose. The Government has the sole and absolute discretion in the
matter; Daulat Singh Surana versus First Land Acquisition Collector, MANU SC 8666 2006: AIR 2007 SC
471.
In Black’s Law Dictionary (Special Deluxe Fifth Edition) at page 1107 the words ‘public purpose’ have
been defined thus: “The term is synonymous with governmental purpose - A public purpose or public
business has for its objective the promotion of the public health, safety, morals, general welfare,
security, prosperity, and contentment of all the inhabitants or residents within a given political division,
as, for example, a state, the sovereign powers of which are exercised to promote such public purpose
or public business”; State of Tamil Nadu, versus L Abu Kavur Bai, AIR 1984 SC 326: 1984 (1) SCR 725.

Remuneration
There is no definition of ‘remuneration the Constitution, but that is not a ground for holding that the
expression is used in any limited sense as merely salary. The expression remuneration’, in its ordinary
connotation means “reward, recompense, pay, wages or salary for service rendered.”
The word ‘remuneration’ means a quid pro quo. If a man gives his services, whatever consideration he
gets for giving his services seems to be remuneration for them. Consequently, if a person was in receipt
of a Payment, or in receipt of a percentage, or any kind of payment which would not be actual money
payment, the amount he would receive annually in respect of this would be remuneration; Accountant
General, Bihar versus N Bakshi, AIR 1962 SC 505.

172 Constitution of India

Right to establish and administer’ and ‘educational institution of their choice
The employment of expressions ‘right to establish and administer’ and ‘educational institution of
their choice’ in Article 30(1) gives the right a very wide amplitude. Therefore, a minority educational
institution has a right to admit students of its own choice, it can, as a matter of its own freewill, admit
students of non-minority community. However, non-minority students cannot be forced upon it. The
only restriction on the freewill of the minority educational institution admitting students belonging
to non-minority community is, as spelt out by Article 30 itself, that the manner and number of such
admissions should not be violative of the minority character of the institution.
Aid and affiliation or recognition, both by State, bring in some amount of regulation as a condition of
receiving grant or recognition. The scope of such regulations must satisfy the following tests: (a) the
regulation is reasonable and rational; (b) it is regulative of the essential character of the institution and
is conducive to making the institution an effective vehicle of education for the minority community or
other persons who resort to it; (c) it is directed towards maintaining excellence of the education and
efficiency of administration so as to prevent it from falling in standards; PA Inamdar versus State of
Maharashtra, 2005 (5) Bom CR 52: 2005 (3) MhLJ 1067 also see, TMA Pai Foundation versus State of
Karnataka, 2002 (8) SCALE 1: AIR 2003 SC 355.

Secularism
The word secularism defined in Oxford dictionary means that “morality should be based solely in
regard to the well-being of the mankind in the present life to the exclusion of all considerations drawn
from the belief in God or a future study”: In Encyclopaedia Britannica secularism is defined as “branch
of totalitarian ethics, it is for the physical, moral and social improvement of mankind which neither
affirms nor denies theistic problems of religion”.
Secularism became means and consciously pursued for full practical necessities of human life to
liberate the human spirit from bondage, ignorance, superstition which have held back humanity. The
goal of every civilised democratic society is the maximisation of human welfare and happiness which
would be best served by a hobby organisation; SR Bommai versus Union of India, AIR 1994 SC 1918: JT
1994 (2) SC 215: 1994 (2) SCALE 37.

Subject to
In Black’s Law Dictionary, Fifth Edition at page 1278 the expression ‘Subject to” has been defined as
under: “Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that;
provided, answerable for”; Homan versus Employers Reinsurance Corporation, 345 Mo. 650: 136 SW 2d
289 (302); Ashok Leland Ltd. versus State of Tamil Nadu, 2004 (1) SCR 306.

Village
Article 40 of the Constitution does not define ‘village’ as such. It only refers to the Organisation of
“village panchayats” as units of self-government.
‘Village’ has been defined in the Shorter Oxford English Dictionary [1993 Edition] to mean “a self-
contained group of houses and associated buildings, usu. in a country area-, an inhabited place larger
than a hamlet and smaller than a town;... a small self-contained district or community within a city or
town, regarded as having features characteristic of a village”.
The Law Lexicon by P Ramanatha Aiyar [1987 Ed.] states that ‘village’ includes [a] a village-community;
[b] village-lands; [c] rivers passing through or by village-lands; and [d] a group of villages. The expression
‘village’ connotes ordinarily an area occupied by a body of men mainly dependent upon agriculture or

Constitution of India 173

 occupations subservient thereto. When the area is occupied by persons who are engaged mainly in
commercial pursuits, rural areas in the vicinity of a town grow into a suburb of the town.
The Encyclopedia Americana [1983 Ed] [Vol. 28] states that village is “a type of community, generally
small but without exact or commonly accepted size limits. Generally, in the United States, the village
is thought to be intermediate between the hamlet [a settlement with several families and some form
of commerce but no more than 50 people] and the town [generally over 1,000 people].
Dealing with the origin and evolution village, it states that-”the village is the typical form of rural
settlement in most of the world in Europe [except for Great Britain] ‘in Asia, in Africa, and in much of
South America..... It often seems to be the result of the settlement of lands that previously were only
thinly occupied by indigenous populations, but probably also derives from the emergence of clear-cut
private proprietorship of land. In much of Europe and in many other areas of the world, communal
land ownership prevailed in the past, and this property arrangement was one basis for the village form
of rural settlement, the community being set amid the tillage and grazing lands”; State of UP versus
Pradhan Sangh Kshettra Samiti, AIR 1995 SC 1512: 1995 SCC Supp (2) 305.

Void and voidable

The distinction between void or voidable is summarized as follows: “De Smith, Woolf and Jowell in their
treatise Judicial Review of Administrative Action, 5th, para 5-044, have summarized the concept of
void and voidable as follows: ”Behind the simple dichotomy of void and voidable acts (invalid and valid
until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity.
The problems arose from the premise that if an act, order or decision is ultra vires in the sense of
outside jurisdiction, it was said to be invalid, or null and void. If it is intra vires it was, of course, valid.
If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to
be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law
on the face of the record.”
Clive Lewis in his work Judicial Remedies in Public Law at p. 131 has explained the expressions “void
and voidable” as follows: “A challenge to the validity of an act may be by direct action or by way of
collateral or indirect challenge. A direct action is one where the principal purpose of the action is to
establish the invalidity. This will usually be by way of an application for judicial review or by use of any
statutory mechanism for appeal or review. Collateral challenges arise when the invalidity is raised in
the course of some other proceedings, the purpose of which is not to establish invalidity but where
questions of validity become relevant.”
In Words and Phrases by Justice R.P. Sethi the expression ‘void’ and ‘voidable’ read as under: “Void-
Black’s Law Dictionary gives the meaning of the word “void” as having different nuances in different
connotations. One of them is of course “null or having no legal force or binding effect”. And the other
is “unable in law, to support the purpose for which it was intended”.
The meaning of the word “void” is stated in Black’s Law Dictionary (3rd Edn.) to be as follows: “Null and
void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose
for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid”; Baljinder
Singh versus Rattan Singh, 2008 INSC 1307.

174 Constitution of India

 Objective Type Questions
1. When was the Constitution of India adopted? 4. It determines the organisation, powers and
(A) 26 January, 1950 duties of the administrative authorities.” Who
(B) 15 August, 1947 among the following jurists has given the
(C) 15 August, 1950 above definition?
(D) 26 November, 1949 (A) Ivor Jennings
Ans. (D) (B) KC Davis
The Constitution of India was adopted on 26th (C) Owen Hood Phillips
November, 1949. (D) Keith
The Constitution of India was enacted on 26th Ans. (A)
November, 1949. - Ivor Jennings said the Administrative Law is the
India became free from British rule on 15th law relating to the administration. It determines
August, 1947. the organisation, powers and duties of the
The Constitution of India came into effect on administrative authorities.
26th January, 1950 replaced the Government of Sir Ivor Jennings called the Constitution of India a
India Act (1935). ‘paradise for lawyers’ because of some ambiguous
2. The Chairman of the Constituent Assembly terms.
was:— Sir Ivor Jennings was a British lawyer and
(A) Jawaharlal Nehru academic.
(B) Jaiprakash Narayan Sir Ivor Jennings was a prominent educator who
(C) C Rajagopalachari served as the Vice-Chancellor of University of
(D) Dr. Rajendra Prasad. Cambridge and University of Ceylon.
Ans. (D) 5. The doctrine of rule of law in England
Dr. Rajendra Prasad was the Chairman of the means:—
Constituent Assembly. (A) Absence of Arbitrary powers
Temporary Chairman was Sachchidananda Sinha. (B) Absence of discretionary powers
President was Rajendra Prasad. (C) Supremacy of droit administrative
Vice-President was HC Mookerjee and VT (D) None of the above
Krishnamachari. Ans. (A)
VT Krishnamachari, HC Mookerjee was The doctrine of rule of law in England means
unanimously nominated as the Vice-President of absence of arbitrary powers.
the Assembly. According to Edward Coke, “Rule of Law means:
3. “Directive Principles in the Indian Constitution Absence of arbitrary power on the part of the
are like a cheque on a bank payable at the Government. No man is punishable or can be
convenience of the bank.” made to suffer in body or good except for a
(A) Pandit Jawaharlal Nehru distinct breach of law established in the ordinary
(B) Dr. B.N. Rau legal manner before the ordinary courts of the
(C) Dr. B.R. Ambedkar land.
(D) Prof. K.T. Shah 6. The Planning Commission is a:—
Ans. (D) (A) political body
Directive Principles in the Indian Constitution (B) statutory body
are like a cheque on a bank payable at the (C) non-political body
convenience of the bank, said by Prof. KT Shah. (D) quasi-political body.
Ans. (D)

Constitution of India 175

 The Planning Commission is a quasi-political limited to 15% of the total number of members of
body. the lower house.
Planning Commission is a non-constitutional and 10. Which of the following Amendments of the
non-statutory body. Constitution is related with G.S.T.?
7. By which one of the following Amendment of (A) 97th
the Constitution Sikkim was included in the (B) 98th
State of India? (C) 100th
(A) 36th Amendment (D) 101st
(B) 35th Amendment Ans. (D)
(C) 7th Amendment Amendment 101st
(D) 5th Amendment The Constitution (One Hundred and First
Ans. (A) Amendment) Act, 2016, introduced a national
Amendment 36th Goods and Services Tax (GST) in India.
Through 36th amendment of the Constitution of 11. In Preamble of Constitution, word socialist
India, Sikkim was included in the Union of India. was added by:
Sikkim became the 22nd State of India Vide (A) Section 2 of 42nd Amendment Act
Constitution (36th Amendment) Act, 1975. (B) Section 3 of 42nd Amendment Act
8. In which amendment voting age was reduced (C) Section 4 of 42nd Amendment Act
from 21 to 18 years. (D) Section 5 of 42nd Amendment Act
(A) 52nd Amendment Ans. (A)
(B) 42nd Amendment The word ‘socialist’ was added to the Preamble of
(C) 43rd Amendment the Indian Constitution by the 42nd Amendment
(D) 61st Amendment Act of 1976.
Ans. (D) Section 2 of THE CONSTITUTION (FORTY-SECOND
Amendment 61st AMENDMENT) ACT, 1976- Amendment of the
By the Constitution (Sixty-first Amendment) Act, Preamble- In the Preamble to the Constitution,—
1989 voting age was reduced from 21 to 18 years. (a) for the words “SOVEREIGN DEMOCRATIC
The Parliament passed the Constitution (61st REPUBLIC” the words “SOVEREIGN SOCIALIST
Amendment) Act, 1988 in Lok Sabha wherein SECULAR DEMOCRATIC REPUBLIC” shall be
the voting age for elections to Lok Sabha was substituted; and
lowered from 21 years to 18 years by amending (b) for the words “unity of the Nation”, the words
Article 326 of the Indian Constitution under Rajiv “unity and integrity of the Nation” shall be
Gandhi government. substituted.
9. By which Constitutional Amendment the
12. By the 42nd Amendment Act, 1976, the
number of ministers has been limited to 15%
following words have been added to the
of the total number of members of the lower
preamble to the Constitution of India ……….
house?
(A) Unity and integrity
(A) Ninety First Amendment
(B) Sociality and secular
(B) Ninety Second Amendment
(C) Socialist, secular and integrity
(C) Ninetieth Amendment
(D) Secular, unity and integrity
(D) None of the above
Ans. (C)
Ans. (A)
By the 42nd Amendment Act, 1976: In the
Amendment 91st
Preamble to the Constitution,—
By the Constitution (Ninety-first Amendment)
Act, 2003, the number of ministers has been

176 Constitution of India

(a) for the words “SOVEREIGN DEMOCRATIC 15. The basic-structure theory of the Constitution
REPUBLIC” the words “SOVEREIGN SOCIALIST of India implies that
SECULAR DEMOCRATIC REPUBLIC” shall be (A) Fundamental Rights cannot be abridged
substituted; and or taken away.
(b) for the words “unity of the Nation”, the words (B) The Constitution cannot be amended
“unity and integrity of the Nation” shall be except in accordance with the procedure
substituted. prescribed in Article 368.
(C) The Preamble of the Constitution cannot
13. Which Article of the Indian Constitution
be amended for it is not a part of the
empowers the Parliament to form new States,
Constitution and at the same time it
change in the area of the present States and
represents real spirit of Constitution.
change in the territories and name of the
(D) Certain features of the Constitution are
States?
so essential to it that they cannot be
(A) Article 5
amended.
(B) Article 11
Ans. (D)
(C) Article 13
The basic-structure theory of the Constitution
(D) Article 3
of India implies that certain features of the
Ans. (D)
Constitution are so essential to it that they
- Article 3 empowers the Parliament to form new
cannot be amended.
States, change in the area of the present States
16. Doctrine of legitimate expectation and
and change in the territories and name of the
Wednesbury principles were read by Supreme
States.
Court into
- Parliament may by law.—(a) form a new State
(A) Article 12
by separation of territory from any State or by
(B) Article 14
uniting two or more States or parts of States or
(C) Article 13
by uniting any territory to a part of any State; (b)
(D) Article 25
increase the area of any State; (c) diminish the
Ans. (B)
area of any State; (d) alter the boundaries of any
Doctrine of legitimate expectation falls within the
State; (e) alter the name of any State.
purview of the principle of non-arbitrariness as
14. The expression ‘every person’ in Article 5 of
incorporated under Article 14 of the Constitution.
the Constitution of India includes:
17. The fundamental right available only to a
(A) A prisoner
citizen of India is the right under Article
(B) Member of Armed Forces
(A) 14
(C) Person born in the Territory of India
(B) 15
(D) All of the above
(C) 20
Ans. (D)
(D) 22
Article 5, At the commencement of this
Ans. (B)
Constitution, every person who has his domicile
The fundamental right available only to a citizen
in the territory of India and—
of India is the right under Article 15 of the
(a) who was born in the territory of India; or
Constitution of India.
(b) either of whose parents was born in the
The State shall not discriminate against any
territory of India; or
citizen on grounds only of religion, race, caste,
(c) who has been ordinarily resident in the
sex, place of birth or any of them. (Article 15)
territory of India for not less than five years
immediately preceding such commencement, 18. Which one of the following terms regarding
shall be a citizen of India. ‘backward class of citizen’ is not defined by
the Constitution?
Constitution of India 177
 (A) Economically backward 22. What in provision Article 20(2)?
(B) Socially backward (A) Ex Post Facto
(C) Educationally backward (B) Double Jeopardy
(D) Socially and educationally backward (C) Self-conviction
Ans. (A) (D) None of these
Economically backward is not defined by the Ans. (B)
Constitution. Article 20(2), Protection in respect of conviction
19. The term Consequential Seniority is for offences.—(2) No person shall be prosecuted
mentioned under which of the following and punished for the same offence more than
Articles of the Constitution? once. (Doctrine of Double jeopardy)
(A) Article 16(5) 23. “The State shall provide free and compulsory
(B) Article 16(4A) education to all children of the age of six to
(C) Article 16(4B) fourteen years in such manner as the state
(D) Article 16(6) may, by law, determine’, provides in
Ans. (B) (A) Article 19
Nothing in this article shall prevent the State from (B) Article 20
making any provision for reservation in matters of (C) Article 21
promotion, with consequential seniority, to any (D) Article 21A
class or classes of posts in the services under Ans. (D)
the State in favour of the Scheduled Castes and Article 21A provides that the State shall provide
the Scheduled Tribes which, in the opinion of free and compulsory education to all children of
the State, are not adequately represented in the the age of six to fourteen years in such manner as
services under the State. [Article 16(4A)] the State may, by law, determine.
20. Article 17 of Indian Constitution deals with....... [Note: Article 21A, Inserted by the Constitution
(A) Education (Eighty-sixth Amendment) Act, 2002, section 2
(B) Health (w.e.f. 1-4-2010)]
(C) Abolition of untouchability 24. In which year and by what amendment Article
(D) Food guarantee 21A was inserted?
Ans. (C) (A) 86th Amendment, 2002
Article 17, Untouchability is abolished and its (B) 89th Amendment, 2002
practice in any form is forbidden the enforcement (C) 91st Amendment, 2002
of any disability arising out of Untouchability shall (D) 93rd Amendment, 2002
be an offence punishable in accordance with law. Ans. (A)
21. Which Article of the Constitution of India Article 21A was inserted by the Constitution
guarantees citizens the right to settle in any (Eighty-sixth Amendment) Act, 2002.
part of the territory of India? 25. Article 22 of the Constitution of India is the
(A) Article 19(1)(a) combination of
(B) Article 19(1)(d) (A) taxation laws
(C) Article 19(1)(e) (B) preventive as well as punitive laws
(D) Article 19(1)(g) (C) substantive laws
Ans. (C) (D) procedural laws
Article 19(1)(e) guarantees citizens the right to Ans. (D)
settle in any part of the territory of India. Article 22 of the Constitution of India is the
combination of procedural laws.

178 Constitution of India

26. By the Constitution (42nd Amendment) Act, Article 40 of the Constitution of India obliges the
1976, State to organise Village Panchayats.
(A) the provision for Equal Justice and free Article 40, The State shall take steps to
Legal Aid was inserted under Article 39A. organise village panchayats and endow them
(B) the provision of Organisation of village with such powers and authority as may be
Panchayats was inserted. necessary to enable them to function as units of
(C) the provision for Eligibility for re-election self-government.
of President was inserted under Article 57. 29. Which Article of Constitution of India provides
(D) the provision for protection of the Human provisions of Uniform Civil Code?
Rights was inserted. (A) Article 42
Ans. (A) (B) Article 43
Article 39A, Equal justice and free legal aid.—The (C) Article 51A
State shall secure that the operation of the legal (D) Article 44
system promotes justice, on a basis of equal Ans. (D)
opportunity, and shall, in particular, provide free Article 44, Uniform Civil Code for the citizens.—
legal aid, by suitable legislation or schemes or in The State shall endeavour to secure for the
any other way, to ensure that opportunities for citizens a Uniform Civil Code throughout the
securing justice are not denied to any citizen by territory of India.
reason of economic or other disabilities.
30. One of the objectives of Directive Principles
Article 39A was added by the 42nd Amendment
of State policy is:
in 1976.
(A) prohibition of liquor
27. The concept of free legal aid takes its root (B) prevention of cow slaughter
from which Article of the Constitution India? (C) protection and improvement of
(A) Article 30 environment and safeguarding forests
(B) Article 39 and wildlife
(C) Article 38 (D) prevention of gambling.
(D) Article 39A Ans. (C)
Ans. (D) Article 48A, Protection and improvement of
The concept of free legal aid takes its root from environment and safeguarding of forests and wild
Article 39. life.—The State shall endeavour to protect and
The State shall secure that the operation of the improve the environment and to safeguard the
legal system promotes justice, on a basis of equal forests and wild life of the country.
opportunity, and shall, in particular, provide free
31. By which amendment of the Constitution
legal aid, by suitable legislation or schemes or in any
of India provisions regarding fundamental
other way, to ensure that opportunities for securing
duties were inserted:
justice are not denied to any citizen by reason
(A) From 26th January 1950 since the
of economic or other disabilities. [Article 39A]
enforcement of Constitution
28. Which Article of the Constitution of India (B) Inserted the Constitution (Forty-second
obliges the State to organise Village Amendment) Act
Panchayats? (C) 46th Amendment of the Constitution
(A) Article 40 2002
(B) Article 41 (D) Inserted by the Constitution (Forty-
(C) Article 42 second Amendment) Act
(D) Article 43 Ans. (B)
Ans. (A)

Constitution of India 179

 The Fundamental Duties of citizens were added (A) 3 months from the date of vacancy
to the Constitution by the 42nd Amendment (B) 1 month from the date of vacancy
in 1976. Recommendations were made by the (C) 6 months from the date of vacancy
Swaran Singh Committee that was constituted by (D) 12 months from the date of vacancy
the government earlier that year.
Ans. (C)
32. How many ‘Fundamental Duties’ are prescribed Article 62(2), An election to fill a vacancy in the
under Article 51A of the Constitution of India? office of President occurring by reason of his
(A) 10 death, resignation or removal, or otherwise shall
(B) 12 be held as soon as possible after, and in no case
(C) 13 later than six months from, the date of occurrence
(D) 8 of the vacancy; and the person elected to fill the
(E) None of the above vacancy shall, subject to the provisions of Article
Ans. (E) 56, be entitled to hold office for the full term of
Total 11 Duties enshrined under Article 51A. five years from the date on which he enters upon
33. Who is the supreme commander of armed his office.
forces in India?
36. What is the duration of The Council of States?
(A) Defence Minister
(A) Six years
(B) President
(B) Five years
(C) Prime Minister
(C) Four years
(D) None of these
Ans. (B) (D) None of the above
Article 53(2), The Supreme Command of the Ans. (D)
Defence Forces of the Union shall be vested in Article 83, Duration of Houses of Parliament.—
the President. (1) The Council of States shall not be subject to
34. The President of India is elected by dissolution, but as nearly as possible one-third
of the members thereof shall retire as soon as
(A) the Members of the State Legislature
may be on the expiration of every second year
and both the Houses of the Parliament
in accordance with the provisions made in that
(B) the Members of the Lok Sabha and the
behalf by Parliament by law.
State Vidhan Sabha
(C) the Members of the Lok Sabha and the (2) The House of the People, unless sooner
Rajya Sabha dissolved, shall continue for five years from the
(D) the elected Members of the State Vidhan date appointed for its first meeting and no longer
Sabha and Members of both the Houses and the expiration of the said period of five years
of the Parliament shall operate as a dissolution of the House:
Ans. (D) Provided that the said period may, while a
Article 54, Election of President.—The President Proclamation of Emergency is in operation, be
shall be elected by the members of an electoral extended by Parliament by law for a period not
college consisting of— exceeding one year at a time and not extending in
(a) the elected members of both Houses of any case beyond a period of six months after the
Parliament; and Proclamation has ceased to operate.

(b) the elected members of the Legislative 37. Who decides ‘Whether a Bill is Money Bill or
Assemblies of the States. not’?
(A) President of India
35. The election to fill in the vacancy of the
(B) Finance Minister
President office should be completed within
a maximum time limit of

180 Constitution of India

 (C) Lok Sabha Speaker (b) the regulation of the borrowing of money
(D) Prime Minister or the giving of any guarantee by the
Ans. (C) Government of India, or the amendment
Lok Sabha Speaker decides that whether a Bill is of the law with respect to any financial
Money Bill or not. obligations undertaken or to be undertaken
Article 109, Special procedure in respect of Money by the Government of India;
Bills.—(1) A Money Bill shall not be introduced in (c) the custody of the Consolidated Fund or the
the Council of States. Contingency Fund of India, the payment of
(2) After a Money Bill has been passed by the moneys into or the withdrawal of moneys
House of the People it shall be transmitted to from any such fund;
the Council of States for its recommendations
(d) the appropriation of moneys out of the
and the Council of States shall within a period
Consolidated Fund of India;
of fourteen days from the date of its receipt of
(e) the declaring of any expenditure to be
the Bill return the Bill to the House of the People
expenditure charged on the Consolidated
with its recommendations and the House of the
Fund of India or the increasing of the amount
People may thereupon either accept or reject all
of any such expenditure;
or any of the recommendations of the Council of
States. (f) the receipt of money on account of the
(3) If the House of the People accepts any of Consolidated Fund of India or the public
the recommendations of the Council of States, account of India or the custody or issue of
the Money Bill shall be deemed to have been such money or the audit of the accounts of
passed by both Houses with the amendments the Union or of a State; or
recommended by the Council of States and (g) any matter incidental to any of the matters
accepted by the House of the People. specified in sub-clauses (a) to (f).
(4) If the House of the People does not accept (2) A Bill shall not be deemed to be a Money Bill
any of the recommendations of the Council of by reason only that it provides for the imposition
States, the Money Bill shall be deemed to have of fines or other pecuniary penalties, or for the
been passed by both Houses in the form in which demand or payment of fees for licences or fees
it was passed by the House of the People without for services rendered, or by reason that it provides
any of the amendments recommended by the for the imposition, abolition, remission, alteration
Council of States. or regulation of any tax by any local authority or
(5) If a Money Bill passed by the House of the body for local purposes.
People and transmitted to the Council of States (3) If any question arises whether a Bill is a Money
for its recommendations is not returned to the Bill or not, the decision of the Speaker of the
House of the People within the said period of House of the People thereon shall be final.
fourteen days, it shall be deemed to have been (4) There shall be endorsed on every Money Bill
passed by both Houses at the expiration of the when it is transmitted to the Council of States
said period in the form in which it was passed by under Article 109, and when it is presented to
the House of the People. the President for assent under Article 111, the
Article 110, Definition of “Money Bills”.—(1) For the certificate of the Speaker of the House of the
purposes of this Chapter, a Bill shall be deemed People signed by him that it is a Money Bill.
to be a Money Bill if it contains only provisions
38. The Rajya Sabha can withhold Money Bills for
dealing with all or any of the following matters,
a period of
namely:—
(A) 14 days
(a) the imposition, abolition, remission,
(B) 3 months
alteration or regulation of any tax;

Constitution of India 181

 (C) 6 months (A) revenue
(D) None of the above. (B) land laws
Ans. (A) (C) record
The Rajya Sabha can withhold Money Bills for a (D) circuit
period of 14 days. (Article 109) Ans. (C)
39. An ordinance promulgated by the President: Article 129, Supreme Court to be a court of
(A) has an indefinite life record.—The Supreme Court shall be a court of
(B) one year record and shall have all the powers of such a
(C) must be laid before Parliament when it court including the power to punish for contempt
re-assembles of itself.
(D) None of the above 42. Under which Article of the Indian Constitution,
Ans. (C) the Supreme Court has developed the
An ordinance promulgated by the President must ‘Curative Petition’?
be laid before Parliament when it re-assembles. (A) Article 136
Article 123, Power of President to promulgate (B) Article 142
Ordinances during recess of Parliament.—An (C) Article 141
Ordinance promulgated under this article shall
(D) Article 143.
have the same force and effect as an Act of
Ans. (B)
Parliament, but every such Ordinance—
(a) shall be laid before both Houses of Article 142, Enforcement of decrees and orders
Parliament and shall cease to operate at the of Supreme Court and orders as to discovery,
expiration of six weeks from the reassembly etc.—(1) The Supreme Court in the exercise of its
of Parliament, or, if before the expiration of jurisdiction may pass such decree or make such
that period resolutions disapproving it are order as is necessary for doing complete justice
passed by both Houses, upon the passing of in any cause or matter pending before it, and
the second of those resolutions; and any decree so passed or order so made shall be
enforceable throughout the territory of India in
(b) may be withdrawn at any time by the
such manner as may be prescribed by or under
President.
any law made by Parliament and, until provision
Explanation.—Where the Houses of Parliament in that behalf is so made, in such manner as the
are summoned to reassemble on different dates, President may by order prescribe.
the period of six weeks shall be reckoned from
(2) Subject to the provisions of any law made in
the later of those dates for the purposes of this
this behalf by Parliament, the Supreme Court
clause.
shall, as respects the whole of the territory of
40. Which one of the following provisions of the India, have all and every power to make any order
Constitution deals with the ordinance making for the purpose of securing the attendance of
power of the President? any person, the discovery or production of any
(A) Article 123 documents, or the investigation or punishment of
(B) Article 124 any contempt of itself.
(C) Article 125
43. Which Article of the Constitution of India
(D) Article 126
provides that the law declared by the
Ans. (A)
Supreme Court of India shall be binding on
Article 123 deals with the ordinance making power
all courts within the territory of India?
of the President.
(A) Article 141
41. The Supreme Court of India shall also be the (B) Article 139A
court of

182 Constitution of India

 (C) Article 140 his service or as authorising the High Court to
(D) Article 142 deal with him otherwise than in accordance with
Ans. (A) the conditions of his service prescribed under
Article 141 of the Constitution of India provides such law.
that the law declared by the Supreme Court of 47. Municipalities have become constitutional
India shall be binding on all courts within the functionaries by insertion of Article:—
territory of India. (A) 243Y
44. A retired Judge of the High Court cannot (B) 243Q
(A) practise in the Supreme Court (C) 243Z
(B) practise in any High Court in India (D) None of these
(C) practise in the High Court from where he Ans. (B)
has retired Municipalities have become constitutional
(D) none of the above functionaries by insertion of Article 243Q.
Ans. (C) Part 9A was inserted by the Constitution (Seventy-
A retired Judge of the High Court cannot practise fourth Amendment) Act, 1992.
in the High Court from where he has retired. 48. According to Constitution of India, 1950 the
(Article 220) residuary power under Article 248 can be
45. …………has power to exercise writ jurisdiction. exercised by
(A) High Court (A) Union Government
(B) Governor of State (B) Parliament
(C) President of India (C) Legislature of States
(D) Prime Minister of India (D) Judiciary
Ans. (A) Ans. (B)
High Court has power to exercise writ jurisdiction According to Constitution of India, 1950 the
under Article 226. residuary power under Article 248 can be
Supreme Court has power to exercise writ exercised by Parliament.
jurisdiction under Article 32. Article 248 deals with residuary powers of
46. Control over the subordinate courts including legislation.
posting and promotion of persons belonging 49. Whether Legislature of a State can enact a
to the judicial services vests with the: law with respect to a matter enumerated in
(A) State Government the Concurrent List repugnant to provisions
(B) Central Government of an earlier law made by the Parliament?
(C) President of India (A) No.
(D) High Court (B) Yes, with the prior permission of the
Ans. (D) Governor.
Article 235, Control over subordinate courts.—The (C) Yes, with prior permission of the
control over district courts and courts subordinate President of India.
thereto including the posting and promotion of, (D) Yes, but the law made should receive
and the grant of leave to, persons belonging to assent of the President.
the judicial service of a State and holding any Ans. (D)
post inferior to the post of district judge shall Article 254, Inconsistency between laws made by
be vested in the High Court, but nothing in this Parliament and laws made by the Legislatures of
article shall be construed as taking away from States.—(1) If any provision of a law made by the
any such person any right of appeal which he may Legislature of a State is repugnant to any provision
have under the law regulating the conditions of of a law made by Parliament which Parliament

Constitution of India 183

 is competent to enact, or to any provision of an at such earlier time as the President considers
existing law with respect to one of the matters necessary, by order constitute a Finance
enumerated in the Concurrent List, then, subject Commission which shall consist of a Chairman
to the provisions of clause (2), the law made by and four other members to be appointed by the
Parliament, whether passed before or after the President. [Article 280(1)]
law made by the Legislature of such State, or, as 52. Article 300A of the Constitution deals with
the case may be, the existing law, shall prevail (A) Tortuous and contractual liability of
and the law made by the Legislature of the State State
shall, to the extent of the repugnancy, be void. (B) Right to Property
50. ‘Full faith and credit shall be given throughout (C) Freedom of trade and commerce
the territory of India to public acts, records, (D) Parliamentary privileges
and judicial proceedings of the Union and of Ans. (B)
every State,’ is provided under which Article Article 300A of the Constitution deals with right
of the Constitution of India? to property. It states that “No person shall be
(A) Article 261 deprived of his property save by authority of law.”
(B) Article 260 53. Article 310 of the Indian Constitution
(C) Article 32(3) and Article 226(3) embodies the
(D) Article 226(2) (A) doctrine of pleasure
Ans. (A) (B) doctrine of separation
Article 261, Public acts, records and judicial (C) doctrine of proportionality
proceedings.—(1) Full faith and credit shall be (D) doctrine of res judicata
given throughout the territory of India to public Ans. (A)
acts, records and judicial proceedings of the - Article 310 of the Indian Constitution embodies
Union and of every State. the doctrine of pleasure.
(2) The manner in which and the conditions under - Every person who is a member of a defence
which the acts, records and proceedings referred service or of a civil service of the Union or of an
to in clause (1) shall be proved and the effect all-India service or holds any post connected with
thereof determined shall be as provided by law defence or any civil post under the Union holds
made by Parliament. office during the pleasure of the President, and
(3) Final judgments or orders delivered or passed every person who is a member of a civil service
by civil courts in any part of the territory of India of a State or holds any civil post under a State
shall be capable of execution anywhere within holds office during the pleasure of the Governor
that territory according to law. of the State.
51. Provision relating to Finance Commission is 54. The Chairman of Union Public Service
contained under Commission is appointed by:
(A) Article 279 (A) Prime Minister
(B) Article 279A (B) President
(C) Article 280 (C) Speaker of Lok Sabha
(D) Article 283 (D) Committee of Prime Minister and
Ans. (C) Vice-President
Provision relating to Finance Commission is Ans. (B)
contained under Article 280. Article 316(1), Appointment and term of office of
The President shall, within two years from members.—The Chairman and other members of
the commencement of this Constitution and a Public Service Commission shall be appointed,
thereafter at the expiration of every fifth year or in the case of the Union Commission or a Joint

184 Constitution of India

Commission, by the President, and in the case If the President is satisfied that a grave emergency
of a State Commission, by the Governor of the exists whereby the security of India or of any part
State: of the territory thereof is threatened, whether by
Provided that as nearly as may be one-half of the war or external aggression or armed rebellion, he
members of every Public Service Commission may, by Proclamation, make a declaration to that
shall be persons who at the dates of their effect in respect of the whole of India or of such
respective appointments have held office for at part of the territory thereof as may be specified
least ten years either under the Government of in the Proclamation.
India or under the Government of a State, and in Explanation.—A Proclamation of Emergency
computing the said period of ten years any period declaring that the security of India or any part of
before the commencement of this Constitution the territory thereof is threatened by war or by
during which a person has held office under the external aggression or by armed rebellion may be
Crown in India or under the Government of an made before the actual occurrence of war or of
Indian State shall be included. any such aggression or rebellion, if the President
55. Chief Election Commissioner of India may be is satisfied that there is imminent danger thereof.
removed by (Article 352)
(A) Resolution of cabinet by two third 58. Which right is a constitutional right but not a
majority fundamental right?
(B) Resolution of both houses (A) Right to life and personal liberty
(C) On recommendation of Chief Justice of (B) Right to move freely throughout the
India territory of India
(D) None of these (C) Right to form associations
Ans. (D) (D) Right to hold property
The Chief Election Commissioner can be removed Ans. (D)
from his office in manner and grounds as Right to property in India is not a fundamental
applicable for removal of judge of Supreme Court. right.
[Article 324(5)] Right to hold property in India is a constitutional
56. Under the Constitution of India Hindi, in or legal right.
Devanagari Script is 59. Which of the following Fundamental Rights
(A) National language of the Union of India cannot be suspended during the period of
(B) Official language of the Union of India proclamation of emergency?
(C) Mother language of the Union of India (A) Freedoms under Article 19
(D) None of the above (B) Protection of Life and Personal Liberty
Ans. (B) under Article 21
The official language of the Union shall be Hindi (C) Freedom of Conscience under Article 25
in Devanagari script. [Article 343(1)] (D) Freedom to move Courts for enforcement
57. Who is empowered to proclaim emergency? of Fundamental Rights
(A) The Prime Minister Ans. (B)
(B) Council of Ministers. Fundamental Rights enshrined under Article 21 of
(C) The President of India the Constitution of India cannot be suspended
(D) The Election Commission during the period of proclamation of emergency.
Ans. (C) (1) Where a Proclamation of Emergency is in
President of India is empowered to proclaim operation, the President may by order declare that
emergency. the right to move any court for the enforcement
of such of the rights conferred by Part III (except

Constitution of India 185

 articles 20 and 21) as may be mentioned in the (c) any of the Lists in the Seventh Schedule, or
order and all proceedings pending in any court for (d) the representation of States in Parliament,
the enforcement of the rights so mentioned shall or
remain suspended for the period during which
(e) the provisions of this Article, the amendment
the Proclamation is in force or for such shorter
shall also require to be ratified by the
period as may be specified in the order. [Article
Legislatures of not less than one-half of the
359(1)]
States by resolutions to that effect passed
60. An amendment of the Constitution of by those Legislatures before the Bill making
India to make change in provision relating provision for such amendment is presented
to establishment and Constitution of the to the President for assent.
Supreme Court requires, before giving of
61. After declaration of financial emergency
assent by the President
what is the maximum period of its operation
(A) To be passed by a majority of not less
without approval of President?
than two-thirds of members present and
(A) Four months
voting in each House.
(B) Three months
(B) Ratification by resolution to that effect
(C) Two months
by legislatures of not less than one-half
(D) One month
of the States.
Ans. (C)
(C) Both (A) and (B)
Article 360(1) & (2), Provisions as to financial
(D) None of these
emergency.—(1) If the President is satisfied that a
Ans. (C)
situation has arisen whereby the financial stability
Article 368, Power of Parliament to amend
or credit of India or of any part of the territory
the Constitution and procedure therefor.—(1)
thereof is threatened, he may by a Proclamation
Notwithstanding anything in this Constitution,
make a declaration to that effect.
Parliament may in exercise of its constituent
(2) A Proclamation issued under clause (1)-(c) shall
power amend by way of addition, variation or
cease to operate at the expiration of two months,
repeal any provision of this Constitution in
unless before the expiration of that period it has
accordance with the procedure laid down in this
been approved by resolutions of both Houses of
article.
Parliament:
(2) An amendment of this Constitution may be
Provided that if any such Proclamation is issued
initiated only by the introduction of a Bill for the
at a time when the House of the People has
purpose in either House of Parliament, and when
been dissolved or the dissolution of the House
the Bill is passed in each House by a majority
of the People takes place during the period of
of the total membership of that House and by
two months referred to in sub-clause (c), and
a majority of not less than two-thirds of the
if a resolution approving the Proclamation has
members of that House present and voting, it
been passed by the Council of States, but no
shall be presented to the President who shall
resolution with respect to such Proclamation has
give his assent to the Bill and thereupon] the
been passed by the House of the People before
Constitution shall stand amended in accordance
the expiration of that period, the Proclamation
with the terms of the Bill: Provided that if such
shall cease to operate at the expiration of thirty
amendment seeks to make any change in—
days from the date on which the House of the
(a) Article 54, Article 55, Article 73, Article 162,
People first sits after its reconstitution unless
Article 241 or Article 279A or
before the expiration of the said period of thirty
(b) Chapter IV of Part V, Chapter V of Part VI, or
days a resolution approving the Proclamation has
Chapter I of Part XI, or
been also passed by the House of the People.

186 Constitution of India

62. The provision relating to the Federal Structure (C) Special provision with respect to State
can be amended by Parliament: of Mizoram
(A) By simple majority (D) None of the above
(B) By 2/3rd majority Ans. (A)
(C) By absolute majority Article 371E, Establishment of Central University
(D) By 2/3rd majority of members present in Andhra Pradesh.—Parliament may by law
and voting and ratification by half of the provide for the establishment of a University in
State the State of Andhra Pradesh.
Ans. (D)
65. As per the Constitution of India, the legislative
The provision relating to the Federal Structure
Assembly of a State shall consist of more
can be amended by Parliament by 2/3rd majority
than 500 and not less than 60 members, but
of members present and voting and ratification
which one of the following states has got
by half of the State. [Article 368(2)]
only 32 members?
63. How many Schedules are there in the (A) Delhi
Constitution of India? (B) Sikkim
(A) 10 (C) Goa
(B) 12 (D) Puducherry
(C) 11 (E) None of these
(D) 9 Ans. (B)
Ans. (B) Article 371F, Notwithstanding anything in
There were 8 Schedules at the time of this Constitution,—(b) as from the date of
commencement. Now there are 12 Schedules in commencement of the Constitution (Thirty-sixth
the Constitution of India. Amendment) Act, 1975 (hereafter in this article
Last Schedule (12 Schedules) was added by the referred to as the appointed day)—
Constitution (Seventy-fourth Amendment) Act, (i) the Assembly for Sikkim formed as a result of
1992, s. 4 (w.e.f. 1-6-1993). the elections held in Sikkim in April, 1974 with
64. Article 371E of the Constitution deals with; thirty-two members elected in the said elections
(A) Establishment of Central University in (hereinafter referred to as the sitting members)
Andhra Pradesh shall be deemed to be the Legislative Assembly
(B) Special Provisions with respect to the of the State of Sikkim duly constituted under this
State of Sikkim Constitution.

Previous Years’ Questions

66. “Emergency powers of the President is a The proclamation of emergency can be issued even
fraud on the Constitution.” before the occurrence of war or aggression, the
[Bihar APO (Pre.) Advt. 41/2011] critics denounce Indian democracy as a disguised
(A) KM Nambiar dictatorship. KM Nambiar, arguing in N Krishna
(B) KM Munshi Bliatta versus Mysore State case proclaimed,
(C) BN Rau “Emergency is a fraud on the Constitution.”
(D) Dr. BR Ambedkar 67. “If I were asked to name any particular Article
Ans. (A) in this Constitution as the most important—
KM Nambiar said that Emergency powers of the an Article without which this Constitution
President is a fraud on the Constitution. would be a nullity, I could not refer to any
The emergency powers vested in the President other Article except this one …. it is the very
under Articles 352-360.

Constitution of India 187

 soul of the Constitution and the very heart of Sir Kenneth Clinton Wheare was an expert on the
it.” Who among the following has given the constitutions of the British Commonwealth.
above statement Sir Kenneth Clinton Wheare known as the Father
[28th BJS (Pre.), 2012] of contemporary federal theories.
(A) Pt. Jawaharlal Nehru 70. The Right of Vote in India is:—
(B) Dr. Rajendra Prasad [MPJS Class-2 Entry Level (Pre), 2018 (Shift - I)]
(C) Dr. BR Ambedkar (A) Fundamental right
(D) Sarvepalli Radhakrishnan (B) Natural right
Ans. (C) (C) Constitutional right
Dr. Ambedkar described Article 32 as the very (D) Legal right
soul of the Constitution. Ans. (D)
If I were asked to name any particular Article The Right to Vote is neither Fundamental Right
in this Constitution as the most important, an nor Constitutional Right.
Article without which this Constitution would be a The Right to Vote Statutory Right or Legal Right.
nullity, I could not refer to any other Article except
71. The MPs and MLAs are mandated to take
Article 32, it is the very soul of the Constitution
oath to preserve sovereignty and integrity
and the very heart of it, said by Dr. B.R. Ambedkar.
of the nation under which Constitutional
68. Which out of the following does not constitute amendment?
basic structure of the Constitution? [Jharkhand APO (Pre.), 2019]
[27th BJS (Pre.), 2009] (A) 1st Constitutional Amendment, 1951
(A) Right to Equality (B) 16th Constitutional Amendment, 1963
(B) Secularism (C) 42nd Constitutional Amendment, 1976
(C) Judicial review (D) 73rd Constitutional Amendment, 1992
(D) Right to speedy trial Ans. (B)
Ans. (D) Amendment 16th
Right to speedy trial does not constitute basic The MPs and MLAs are mandated to take oath to
structure of the Constitution. preserve sovereignty and integrity of the nation
Right to speedy trial is not specifically enumerated under 16th Constitutional Amendment, 1963.
as fundamental right in Constitution of India but The Sixteenth Amendment expanded the forms
it is implicit in the broad sweep of Article 21. of oath.
69. “The Indian Constitution provides a unitary 72. Clause (k) to Article 51A was added by
State with subsidiary federal features, rather [30th BJS (Pre.), 2018]
than federal state with subsidiary unitary (A) the Constitution (73rd Amendment) Act,
features.” This statement is of:— 1992
[Uttar Pradesh (Pre.), 2016] (B) the Constitution (85th Amendment) Act,
(A) Sir Ivor Jennings 2001
(B) AV Dicey (C) the Constitution (86th Amendment) Act,
(C) Prof. KC Wheare 2002
(D) SA Desmith (D) the Constitution (93rd Amendment) Act,
Ans. (C) 2005
Prof KC Wheare said the Indian Constitution Ans. (C)
provides a unitary State with subsidiary federal Amendment 86th
features, rather than federal state with subsidiary Clause (k) to Article 51A was added by the
unitary features. Constitution (86th Amendment) Act, 2002.

188 Constitution of India

It shall be the duty of every citizen of India who (C) distribute legislative powers
is a parent or guardian to provide opportunities (D) none of the above
for education to his child or, as the case may be, Ans. (C)
ward between the age of six and fourteen years. The ‘Union List’, the ‘State List’ and the ‘Concurrent
(Article 51A, clause k) List’ in The Constitution of India are prepared to
73. Reservation in educational institutions distribute legislative powers.
including private institutions under the The Concurrent List or List-III (Seventh Schedule)
Indian Constitution has been inserted by the is a list of 52 items given in the Seventh Schedule
Amendment of to the Constitution of India.
[Bihar APO (Pre.) Advt. 42/2011] The Union List or List-I is a list of 92 numbered
(A) 42nd items (after 101st Constitutional Amendment Act
(B) 44th 2016, Entry 92 and 92C removed) (the last item
(C) 93rd is numbered 97) given in Seventh Schedule in the
(D) 88th Constitution of India on which Parliament has
Ans. (C) exclusive power to legislate.
Amendment 93rd The State List or List-II is a list of 59 items (after
Reservation in educational institutions including the 101st Constitutional Amendment Act, 2016,
private institutions under the Indian Constitution entry number 52 and 55 deleted). Initially there
has been inserted by 93rd Constitutional were 66 items in the list in Schedule Seven to the
Amendment Act. Constitution of India.

74. Which of the following Amendment to the 76. The solemn resolution in the Preamble of our
Constitution is related with reservation of Constitution is made in the name of:—
seats in Educational Institutions for the [Odisha JS (Pre.), 2011]
economically weaker section of citizens? (A) Constituent Assembly of Free India
[Uttarakhand JS (Pre.), 2019] (B) Constitution of India
(A) 123rd (C) Indian Independence Act
(B) 101st (D) People of India
(C) 103rd Ans. (D)
(D) 102nd The solemn resolution in the Preamble of our
Ans. (C) Constitution is made in the name of People of
Amendment 103rd India.
One Hundred and Third Amendment is related with Preamble is a declaration made by the legislature.
reservation of seats in Educational Institutions The Preamble embodies the intentions of
for the economically weaker section of citizens. the founding fathers and objectives of the
This Amendment provides for 10% reservation Constitution.
in government jobs and educational institutions 77. Which of the following is correct about the
for the economically weaker section in the Preamble to the Constitution of India?
unreserved category. [DJS (Pre.), 2014]
75. The ‘Union List’, the ‘State List’ and the (A) It was adopted after adoption of
‘Concurrent List’ in The Constitution of India operative Articles of Constitution.
are prepared to______. (B) It envisages that all citizens have
fundamental rights.
[Maharashtra (Pre.), 2010]
(C) It seeks to secure good livelihood to all.
(A) distribute revenue between State and
(D) It is not a part of the Constitution.
Union
Ans. (A)
(B) distribute territory

Constitution of India 189

 The Preamble was adopted after adoption of In India, Sovereignty lies with the people of India.
operative Articles of Constitution. 81. Which Part of the Constitution of India deals
The Preamble is a key to the understanding of the with the Fundamental Rights?
mind of founding fathers. [DJS (Pre.), 2015]
The Preamble embodies the ideals, hopes, faith (A) Part I
and aspirations of the people. (B) Part II
The Preamble embodies the intentions of (C) Part III
the founding fathers and objectives of the (D) Part IV
Constitution. Ans. (C)
78. The idea of Preamble in Indian Constitution Part III of the Constitution of India deals with the
has been borrowed from:— Fundamental Rights.
[Jharkhand APO (Pre.), 2019] 82. The basic-structure theory of the Constitution
(A) U.S.A. of India implies that
(B) Canada [Uttar Pradesh (Pre.), 2015]

(C) U.S.S.R. (A) Fundamental Rights cannot be abridged

or taken away.
(D) U.K.
(B) The Constitution cannot be amended
Ans. (A)
except in accordance with the procedure
The idea of Preamble in Indian Constitution has
prescribed in Article 368.
been borrowed from U.S.A. India has borrowed
(C) The Preamble of the Constitution cannot
the best features from U.S.A.
be amended for it is not a part of the
The Preamble embodies the ideals, hopes, faith Constitution and at the same time it
and aspirations of the people. represents real spirit of Constitution.
The Preamble embodies the intentions of (D) Certain features of the Constitution are
the founding fathers and objectives of the so essential to it that they cannot be
Constitution. amended.
79. Which of the following words is not used with Ans. (D)
‘Liberty’ in the preamble of the Constitution? The basic-structure theory of the Constitution
[PJS (Pre.) 2019] of India implies that certain features of the
(A) Worship Constitution are so essential to it that they
cannot be amended.
(B) Speech
(C) Expression 83. According to the Constitution of India, pre-
constitutional laws inconsistent with the
(D) Faith
Fundamental Rights are______.
Ans. (B)
[Maharashtra (Pre.), 2010]
Preamble uses, liberty of thought, expression,
(A) void
belief, faith and worship.
(B) voidable
80. In India sovereignty lies with:— (C) required to be examined by the courts
[HJS Pre, 2021] (D) none of the above
(A) The Constitution Ans. (A)
(B) The Supreme Court According to the Constitution of India, pre-
(C) The Parliament constitutional laws inconsistent with the
Fundamental Rights are void. (Article 13)
(D) The People
All laws in force in the territory of India
Ans. (D)
immediately before the commencement of this

190 Constitution of India

Constitution, in so far as they are inconsistent (A) Article 19(1)(a)
with the provisions of this Part, shall, to the extent (B) Article 19(1)(b)
of such inconsistency, be void. [Article 13(1)] (C) Article 19(1)(c)
84. The ‘equal protection of Laws’ in Article 14 (D) None of the above
has been taken from: Ans. (C)
[Uttar Pradesh (Pre.), 2015] Article 19(1)(c), Protection of certain rights
(A) British Constitution regarding freedom of speech, etc.—(1) All citizens
(B) American Constitution shall have the right—(c) to form associations or
(C) Australian Constitution unions or co-operative societies.
(D) None of the above 88. Which of the following is a Fundamental Right?
Ans. (B) [DJS (Pre.), 2014]
The ‘Equal protection of Laws’ in Article 14 of (A) To assemble with arms.
Indian Constitution has been taken from section (B) To form co-operative societies.
1 of the 14th Amendment Act of the Constitution
(C) Right to employment.
of the United States (American Constitution).
(D) Right of religious denominations to own
85. Dicey, in India the Rule of law’ is embodied in immovable property only for charitable
[30th BJS (Pre.), 2018] purpose
(A) Article 12 of the Constitution of India Ans. (B)
(B) Article 13 of the Constitution of India Article 19(1), (c) All citizens shall have the right-
(C) Article 14 of the Constitution of India (c) to form associations or unions or co-operative
(D) Article 21 of the Constitution of India
societies.
Ans. (C)
89. Right of all citizens to move freely throughout
According to Dicey ‘Rule of law’ is embodied in
the territory of India:
Article 14 of the Constitution of India. Equality
[DJS (Pre.), 2018]
before the law as enumerated by Dicey is
incorporated in Article 14 of the Constitution of (A) is recognised as a Fundamental Right as
India. all citizens have right to reside and settle
in any part of the territory of India under
86. In educational institutions reservation of
Article 19(1)(e) of the Constitution.
seats in favour of Scheduled Castes and
(B) is only a statutory right.
Scheduled Tribes is governed by—
(C) is recognised as a separate Fundamental
[Uttar Pradesh (Pre.), 2018]
Right under Article 19(1)(d) of the
(A) Article 15(4) of the Constitution
Constitution.
(B) Article 16(4) of the Constitution
(C) Article 29(2) of the Constitution (D) is not a Fundamental right.
(D) Article 14 of the Constitution Ans. (B)
Ans. (A) Right of all citizens to move freely throughout
In educational institutions reservation of seats in the territory of India is recognised as a separate
favour of Scheduled Castes and Scheduled Tribes Fundamental Right under Article 19(1)(d) of the
is governed by Article 15(4). Constitution.
Article 15 deals with Prohibition of discrimination 90. ‘Hicklin Test’ under Article 19(2) is related to
on grounds of religion, race, caste, sex or place [Uttarakhand JS (Pre.), 2015, 2017]
of birth. (A) Decency and morality
87. Pursuant to a constitutional amendment, (B) Defamation
“co-operative society” finds a place among (C) Integration of India
fundamental rights in (D) None of the above
[Uttarakhand JS (Pre.), 2016] Ans. (A)

Constitution of India 191

 ‘Hicklin Test’ under Article 19(2) is related to Article 33, Power of Parliament to modify the
Decency and morality. rights conferred by this Part in their application to
91. Which Article has prohibited begging, forced Forces, etc.—Parliament may, by law, determine
labour and sale and purchase of persons in to what extent any of the rights conferred by this
our Constitution? Part shall, in their application to,—
[Bihar APO (Pre.) Advt. 41/2011] (a) the members of the Armed Forces; or
(A) Article 22 (b) the members of the Forces charged with the
(B) Article 23 maintenance of public order; or
(C) Article 24 (c) persons employed in any bureau or other
(D) Article 25 organisation established by the State
Ans. (B) for purposes of intelligence or counter
Article 23, Prohibition of traffic in human beings intelligence; or
and forced labour.—(1) Traffic in human beings (d) person employed in, or in connection with,
and begar and other similar forms of forced the telecommunication systems set up
labour are prohibited and any contravention of for the purposes of any Force, bureau or
this provision shall be an offence punishable in organisation referred to in clauses (a) to (c),
accordance with law. be restricted or abrogated so as to ensure
(2) Nothing in this article shall prevent the State the proper discharge of their duties and the
from imposing compulsory service for public maintenance of discipline among them.
purposes, and in imposing such service the State
shall not make any discrimination on grounds only 94. The concept of Directive Principle of the
of religion, race, caste or class or any of them. State Policy is borrowed from
[Assam JS, Grade-3 (Pre.), 2011]
92. Which of the following Articles of the
(A) Germany
Constitution of India provides for freedom to
(B) France
manage religious affairs?
(C) Ireland
[Gujarat JS (Pre.), 2019]
(D) USA
(A) Article 26
Ans. (C)
(B) Article 28
The concept of Directive Principle of the
(C) Article 29
State Policy is borrowed from Ireland or Irish
(D) Article 30.
Constitution.
Ans. (A)
Makers of the Constitution were influenced by
Article 26 deals with Freedom to manage religious
the Irish Constitution.
affairs.
95. According to the Constitution of India, which
93. As far as Armed Forces are concerned the
of the following are fundamental for the
fundamental rights granted under Articles 14
governance of the country?
and 19 of the Constitution are
[HJS (Pre.), 2014]
[HJS (Pre.), 2013]
(A) Fundamental Rights
(A) Not available at all
(B) Fundamental Duties
(B) Available to armed forces but not to
(C) Directive Principles of State Policy
other forces
(D) Fundamental Rights and Fundamental
(C) Available only at the discretion of the
Duties
Chief of Army staff
Ans. (C)
(D) Available only according to law made by
Directive Principles of State Policy are fundamental
Parliament
for the governance of the country.
Ans. (D)

192 Constitution of India

Dr. BR Ambedkar described these principles as (A) Fundamental Right
‘novel features’ of the Constitution. (B) Fundamental Duty
Directive Principles are the constitutional (C) Directive Principles of State Policies
instructions or recommendations to the State in (D) A Social morality
legislative, executive and administrative matters. Ans. (B)
96. The Constitution of India recognizes Article 51A, Fundamental Duties.—It shall be
International Law under: the duty of every citizen of India-(f) to value
[Uttarakhand JS (Pre.), 2016] and preserve the rich heritage of our composite
(A) Articles 51 and 253 culture.
(B) Articles 51 and 252 99. Which of the following is not included in the
(C) Articles 50 and 253 list of Fundamental Duties in the Article 51(a)
(D) Articles 50 and 252 of the Indian Constitution?
Ans. (A) [Uttar Pradesh (Pre.), 2018]
The Constitution of India recognizes International (A) To Caste Vote in general elections.
Law under Articles 51 and 253. (B) To value and preserve the rich heritage
Article 51 deals with Promotion of international of our composite culture.
peace and security. (C) To develop the scientific temper.
Article 253 deals with Legislation for giving effect (D) To uphold and protect the sovereignty,
to international agreements. unity and integrity of India
97. Protection and Improvement of Environment Ans. (A)
and safeguarding forest and wild life is: To value and preserve the rich heritage of our
[MPJS Class-2 Entry Level (Pre), 2018 (Shift - I)] composite culture, Article 51A(f)
(A) One of the Fundamental Duties To develop the scientific temper, Article 51A(h)
To uphold and protect the sovereignty, unity and
(B) One of the Directive Principles of State
integrity of India, Article 51A(c)
Policy
(C) Both Directive Principles of State Policy 100. To remove the president from the post
and Fundamental Duty impeachment can be brought on the ground
(D) None of these of

Ans. (C) [Chhattisgarh JS (Pre.), 2019]

(A) Violation of constitution
To Protect and improve the natural environment
(B) Misconduct
including forests, lakes, rivers and wild life, and
(C) Corruption
to have compassion for living creatures. [Article
(D) All of the above
51A(g)]
Ans. (A)
Protection and improvement of environment
Article 56(1)(b), President may, for violation of
and safeguarding of forests and wildlife- State
the Constitution, be removed from office by
shall endeavour to protect and improve the
impeachment in the manner provided in Article
environment and to safeguard the forests and
61.
wildlife of the country. [Article 48(A)]
When a President is to be impeached for violation
Article 48A was added by the Constitution (42nd
of the Constitution, the charge shall be preferred
Amendment) Act, 1976.
by either House of Parliament. [Article 61(1)]
98. Under Indian Constitution “To value and
101. Who shall be the Chairman of the Council of
preserve the rich heritage of our composite
States in accordance with the provisions of
culture” is a
the Constitution of India?
[Uttar Pradesh (Pre.), 2016]
[Uttarakhand JS (Pre.), 2015]

Constitution of India 193

 (A) President of India 104. The ‘right of audience’ under the Indian
(B) Vice-President of India Constitution given to the Attorney-General of
(C) Prime Minister of India India in the performance of his/her duties is
(D) None of the above the right relating to:
Ans. (B) [DJS (Pre.), 2018]
Vice-President of India shall be the Chairman (A) appearance in courts.
of the Council of States in accordance with the (B) appearance before the House of
provisions of the Constitution of India. Parliament.
The Vice-President shall be ex-officio Chairman (C) appearance before the cabinet for legal
of the Council of the States and shall not hold issues.
any other office of profit: (D) appearance before the President of India.
Provided that during any period when the Vice- Ans. (A)
President acts as President or discharges the The ‘right of audience’ under the Indian
functions of the President under Article 65, he Constitution given to the Attorney-General of
shall not perform the duties of the office of India in the performance of his/her duties is the
Chairman of the Council of States and shall not right relating to appearance in courts.
be entitled to any salary or allowance payable In the performance of his duties the Attorney-
to the Chairman of the Council of States under General shall have right of audience in all courts
Article 97. (Article 64) in the territory of India. [Article 76(3)]
102. The President’s power to grant pardon, etc. 105. Who presides the joint sitting of both the
to any accused person has been given under Houses of the Parliament?
which Article of the Constitution of India? [Jharkhand APO (Pre.), 2012]
[Bihar APO (Pre.) Advt. 42/2011] (A) The Speaker of the Lok Sabha
(A) Article 62 (B) The Chairman of the Rajya Sabha
(B) Article 182 (C) The President of India
(C) Article 72 (D) None of the above
(D) Article 352 Ans. (A)
Ans. (C) Speaker of the Lok Sabha presides the joint sitting
The President’s power to grant pardon, etc. to any of both the Houses of the Parliament. (Article 108)
accused person has been given under Article 72 106. The Supreme Court of India has been
of the Constitution of India. established under Article:
103. Which Article in the Constitution of India [DJS (Pre.), 2015]
relates to the power of the President to (A) 124
grant pardons etc. and to suspend, remit or (B) 125
commute sentences in certain cases? (C) 126
[DJS (Pre.), 2015] (D) 127
(A) Article 71 Ans. (A)
(B) Article 72 The Supreme Court of India has been established
(C) Article 162 under Article 124.
(D) Article 77 107. Ad hoc Judges of the Supreme Court of India
Ans. (B) may be appointed under which Article of the
Article 72 relates to the power of the President Indian Constitution?
to grant pardons etc. and to suspend, remit or [Bihar APO (Pre.) Advt. 42/2011;
commute sentences in certain cases. Jharkhand APO (Pre.) 2012]

194 Constitution of India

 (A) Article 124 respect to any of the matters in the Union List as
(B) Article 126 Parliament may by law confer.
(C) Article 127 (2) The Supreme Court shall have such further
(D) Article 128 jurisdiction and powers with respect to any matter
Ans. (C) as the Government of India and the Government
If at any time there should not be a quorum of of any State may by special agreement confer,
the Judges of the Supreme Court available to if Parliament by law provides for the exercise of
hold or continue any session of the Court, the such jurisdiction and powers by the Supreme
National Judicial Appointments Commission on a Court.
reference made to it by the Chief Justice of India, 110. For how much period, the President can
may with the previous consent of the President appoint additional and acting judges in High
and after consultation with the Chief Justice of Courts?
the High Court concerned, request in writing the [Uttar Pradesh (Pre.), 2015]
attendance at the sittings of the Court, as an ad (A) Not exceeding 2 years
hoc Judge, for such period as may be necessary, (B) Not exceeding 3 years
of a Judge of a High Court duly qualified for (C) Not exceeding 1 year
appointment as a Judge of the Supreme Court (D) Not exceeding 5 years
to be designated by the Chief Justice of India. Ans. (A)
(Article 127) President can appoint additional and acting
108. The Constitution of India empowers the judges in High Courts not exceeding 2 years.
Supreme Court of India to adjudicate disputes If by reason of any temporary increase in the
between the Centre and the States through: business of a High Court or by reason of arrears
[HJS (Pre.), 2018] of work therein, it appears to the President that
(A) Appellate Jurisdiction the number of the Judges of that Court should
(B) Original Jurisdiction be for the time being increased, the President
(C) Advisory Jurisdiction may, in consultation with the National Judicial
(D) Writ Jurisdiction Appointments Commission, appoint duly qualified
(E) None of the above persons to be additional Judges of the Court for
Ans. (B) such period not exceeding two years as he may
The Constitution of India empowers the Supreme specify. [Article 224(1)]
Court of India to adjudicate disputes between 111. Comptroller and Auditor General of India is a
the Centre and the States through Original constitutional post as per provisions of the
Jurisdiction under Article 131. Indian Constitution under:
109. The jurisdiction of the Supreme Court may [Bihar APO (Pre.) Advt. 42/2011]
be enlarged by the Parliament under which (A) Article 248
Article of the Constitution? (B) Article 148
[Bihar APO (Pre.) Advt. 42/2011] (C) Article 348
(A) Article140 (D) Article 138
(B) Article138 Ans. (B)
(C) Article137 Article 148(1), There shall be a Comptroller and
(D) Article139 Auditor-General of India who shall be appointed
Ans. (B) by the President by warrant under his hand and
Article 138, Enlargement of the jurisdiction of the seal and shall only be removed from office in like
Supreme Court.—(1) The Supreme Court shall manner and on the like grounds as a Judge of the
have such further jurisdiction and powers with Supreme Court.

Constitution of India 195

 112. Which article of the Constitution of India (a) has for at least ten years held a judicial
confers power to grant pardons on the office in the territory of India; or
Governor of a State? (b) has for at least ten years been an advocate
[MPJS (Pre.), 2014] of a High Court or of two or more such Courts
(A) Article 151 in succession.
(B) Article 161
115. According to Article 233 of the Constitution,
(C) Article 163
a District Judge is appointed by the
(D) Article 171
[HJS (Pre.), 2014]
Ans. (B)
(A) Chief Justice of the State High Court
Article 161 confers power to grant pardons on the
(B) Governor of the State
Governor of a State.
(C) Chief Minister of the State
The Governor of a State shall have the power to
(D) None of the above
grant pardons, reprieves, respites or remissions of
Ans. (B)
punishment or to suspend, remit or commute the
According to Article 233 of the Constitution, a
sentence of any person convicted of any offence
District Judge is appointed by the Governor of
against any law relating to a matter to which the
the State.
executive power of the State extends. (Article 161)
Article 233(1), Appointment of district judges.—(1)
113. According to Article 227 of the Constitution,
Appointments of persons to be, and the posting
every High Court shall have ......................
and promotion of, district judges in any State
over all courts and tribunals throughout the
shall be made by the Governor of the State in
territories in relation to which it exercises
consultation with the High Court exercising
jurisdiction
jurisdiction in relation to such State.
[HJS (Pre.), 2014]
116. Fill in the blank from the following:
(A) Supervision
[West Bengal C.S J.S (Pre.), 2011]
(B) Superintendence
(A) Article243
(C) Overview
(B) Article243A
(D) None of the above
(C) Article234B
Ans. (B)
(D) Article234A.
Every High Court shall have Superintendence over
Ans. (B)
all courts and tribunals throughout the territories
Article 243A, Gram Sabha.—A Gram Sabha may
in relation to which it exercises jurisdiction.
exercise such powers and perform such functions
Article 227 deals with Power of superintendence
at the village level as the Legislature of a State
over all courts by the High Court.
may, by law, provide.
114. Who amongst the following cannot be
117. The Constitution of India vests residuary
appointed as Advocate General:
legislative powers and executive functions in:
[RJS (Pre), 2019]
(A) An advocate of 66 years of age. [DJS (Pre.), 2015]
(B) An advocate who has not practiced in (A) The States
such State. (B) The states and Union Government jointly,
(C) An advocate having 07 years of practice because of the Concurrent List, in the
at Bar. Seventh Schedule
(D) All of the above. (C) The Union
Ans. (C) (D) None of these
Article 217(2), A person shall not be qualified for Ans. (C)
appointment as a Judge of a High Court unless he
is a citizen of India and—

196 Constitution of India

Article 248. Residuary powers of legislation.—(1) Union and one or more of the States, have a
Subject to Article 246A, Parliament has exclusive common interest; or
power to make any law with respect to any matter (c) making recommendations upon any such
not enumerated in the Concurrent List or State subject and, in particular, recommendations
List. for the better co-ordination of policy and
(2) Such power shall include the power of making action with respect to that subject, it shall
any law imposing a tax not mentioned in either of be lawful for the President by order to
those Lists. establish such a Council, and to define the
118. Which of the following Articles of the nature of the duties to be performed by it
Constitution of India empowers the and its organisation and procedure.
Parliament to make law on the subject 120. Which of the following Articles of the
mentioned in the State List? Constitution provides for the establishment
[28th BJS (Pre.), 2012] of inter-State Council?
(A) Article 245 [Jharkhand APO (Pre.), 2012]
(B) Article 249 (A) Article 261
(C) Article 251 (B) Article 262
(D) Article 253 (C) Article 263
Ans. (B) (D) Article 264
Articles 249 of the Constitution of India empowers Ans. (C)
the Parliament to make law on the subject Article 263 provides for the establishment of
mentioned in the State List. inter-State Council.
Power of Parliament to legislate with respect to
121. Fill in the blank from the following:
a matter in the State List in the national interest.
[West Bengal C.S J.S (Pre.), 2011]
(Article 249)
(A) Article300
119. Which of the following statements is not true
(B) Article300A
regarding ‘Inter-State Council’?
(C) Article301
[Bihar APO (Pre.) Advt. 39/2009] (D) Article203
(A) It is established under the Article 263 of Ans. (C)
the Constitution Article 301, Freedom of trade, commerce and
(B) Decision on all questions is required to intercourse.—Subject to the other provisions
be taken in consensus of this Part, trade, commerce and intercourse
(C) Decision of the Chairman is bound by throughout the territory of India shall be free.
the consensus - [PART XIII TRADE, COMMERCE AND INTERCOURSE
(D) It is required to meet at least thrice WITHIN THE TERRITORY OF INDIA]
every year.
122. Which of the following is not a requirement
Ans. (C)
under Article 311 of the Constitution while
Article 263, Provisions with respect to an inter-
dealing with disciplinary proceedings for
State Council.—If at any time it appears to the
dismissal, removal or reduction in rank of a
President that the public interests would be
civil servant?
served by the establishment of a Council charged
[DJS (Pre.), 2014]
with the duty of—
(A) A departmental inquiry is held against
(a) inquiring into and advising upon disputes
the delinquent employee after serving
which may have arisen between States;
him with the charge-sheet.
(b) investigating and discussing subjects in (B) A reasonable opportunity of being heard
which some or all of the States, or the in respect of the charges.

Constitution of India 197

 (C) A reasonable opportunity of making Article 338A of the Constitution provides for the
representation on the penalty proposed. establishment of a “National Commission for
(D) None of these. Scheduled Tribes.”
Ans. (C) Article 338A was inserted by the Constitution
Reasonable opportunity of making representation (Eighty-ninth Amendment) Act, 2003.
on the penalty proposed is nowhere a requirement 126. “It shall be the duty of Union to protect every
under Article 311 of the Constitution while dealing State against external aggression and internal
with disciplinary proceedings for dismissal, disturbances.” Which of the following Articles
removal or reduction in rank of a civil servant. of the Indian Constitution provides it?
123. Establishment of Administrative Tribunals is [Jharkhand APO (Pre.), 2012]
relates to which Article (A) Article 216
[West Bengal C.S J.S (Pre.), 2011] (B) Article 323
(A) Article 323 (C) Article 355
(D) Article 365
(B) Article 323A
Ans. (C)
(C) Article 232A
It shall be the duty of the Union to protect every
(D) Article 233A
State against external aggression and internal
Ans. (B)
disturbance and to ensure that the Government
Article 323A deals with Administrative tribunals. of every State is carried on in accordance with
[Amendment was made, Constitution (Forty- the provisions of this Constitution. (Article 355)
second Amendment) Act, 1976]
127. President’s Rule under Article 356 of
124. What is the tenure of Chief Election Constitution remains valid in the State for
Commissioner of India? the maximum period of?
[Chhattisgarh PSC CJ (Pre.), 2014] [MPJS Class-2 (Pre), 2013 (Shift - II)]
(A) Five years (A) One Year
(B) 62 years of age (B) Two Year
(C) Five years or 62 years of age whichever is (C) Six months
earlier (D) Nine months
(D) Six years or 65 years of age whichever is Ans. (C)
earlier President’s Rule under Article 356 of Constitution
Ans. (D) remains valid in the State for the maximum
Tenure of Chief Election Commissioner of India is period of six months. Article 356(1)
Six years or 65 years of age whichever is earlier. 128. Suspension of provisions of Article 19 during
125. Article 338A of the Constitution provides for Emergency is dealt in
the establishment of a [Odisha JS (Pre.), 2011]
[Uttar Pradesh (Pre.), 2016] (A) Article 352
(A) National Commission for Backward (B) Article 355
Classes (C) Article 358
(D) Article 361
(B) National Commission for Scheduled
Ans. (C)
Castes
Suspension of provisions of Article 19 during
(C) National Commission for Scheduled
Emergency is dealt in Article 358.
Tribes
(D) None of the above 129. On proclamation of emergency under Article
Ans. (C) 352 the president has power to suspend the

198 Constitution of India

 fundamental rights except the right secured soon as the order aforesaid ceases to operate,
by except as respects things done or omitted to be
[MPJS (Pre.), 2019 (Shift - I)] done before the law so ceases to have effect:
(A) Article19 and 20 Provided that where a Proclamation of Emergency
(B) Article20 and 21 is in operation only in any part of the territory of
(C) Article21 and 22 India, any such law may be made, or any such
(D) Article19, 20 and 21 executive action may be taken, under this article
Ans. (B) in relation to or in any State or Union territory in
Article 359, Suspension of the enforcement of the which or in any part of which the Proclamation of
rights conferred by Part III during emergencies— Emergency is not in operation, if and in so far as
(1) Where a Proclamation of Emergency is in the security of India or any part of the territory
operation, the President may by order declare that thereof is threatened by activities in or in relation
the right to move any court for the enforcement to the part of the territory of India in which the
of such of the rights conferred by Part III (except Proclamation of Emergency is in operation.
Articles 20 and 21) as may be mentioned in the 130. Provision for Financial emergency are laid
order and all proceedings pending in any court for down in Article ................ of the Constitution
the enforcement of the rights so mentioned shall of India.
remain suspended for the period during which [Chhattisgarh JS (Pre.), 2016]
the Proclamation is in force or for such shorter (A) 352
period as may be specified in the order. (B) 356
(1A) While an order made under clause (1) (C) 360
mentioning any of the rights conferred by Part III (D) 368
(except Articles 20 and 21) is in operation, nothing Ans. (C)
in that Part conferring those rights shall restrict The provisions for financial emergency are laid
the power of the State as defined in the said Part down under Article 360 of the Constitution of
to make any law or to take any executive action India. If the President is satisfied that a situation
which the State would but for the provisions has arisen whereby the financial stability or credit
contained in that Part be competent to make or of India or of any part of the territory thereof is
to take, but any law so made shall, to the extent threatened, he may by a Proclamation make a
of the incompetency, cease to have effect as declaration to that effect. [Article 360(1)]

Recent and Relevant Cases

Kishor Madhukar Pinglikar versus Automotive Research Association of India, 2022 LiveLaw (SC) 189
Point/s to Note: Article 12; State; purview of Article 12
Article 12
y Court in Pradeep Kumar Biswas versus Indian Institute of Chemical Biology, (2002) 5 SCC 111 explicated
the tests for determining whether a body comes within the purview of Article 12. Same being:
(1) the formation of the body;
(2) objects and functions;
(3) management and control;
(4) financial aid, etc.
y Court in Zee Telefilms Ltd. versus Union of India, (2005) 4 SCC 649, observed that the determination
of a body as a ‘State’ is not a rigid set of principles. What is to be seen is whether in the light of the
cumulative facts as established, the body is financially, functionally and administratively dominated

Constitution of India 199

 by or under the control of the Government, albeit if the control is mere regulatory, whether under
statute or otherwise, it will not serve to make the body a State. Also, the presence of some element
of public duty or function would not by itself suffice for bringing a body within the net of Article 12.
—————
State of Manipur versus Buyamayum Abdul Hanan @ Anand, 2022 LiveLaw (SC) 862
Point/s to Note: Article 22; Right of personal liberty; rights on the detenu; right to be informed.
Right of Personal Liberty
y Article 22(5) of the Constitution confers two rights on the detenu, firstly, the right to be informed of
the grounds on which the order of detention has been made and, secondly, to be afforded an earliest
opportunity to make a representation against the order of detention.
y It is well settled that right to make a representation implies that the detenu should have all the
information that will enable him to make an effective representation. No doubt, this right is again
subject to the right or privilege given by Clause (6). At the same time, refusal to supply the documents
requested by the detenu or supply of illegible or blurred copies of the documents relied upon by the
detaining authority amounts to violation of Article 22(5) of the Constitution. Although it is true that
whether an opportunity has been afforded to make an effective representation always depends on
the facts and circumstances of each case.
y Right of personal liberty and individual freedom which is probably the most cherished is not, in any
manner, arbitrarily to be taken away from him even temporarily without following the procedure
prescribed by law and once the detenu was able to satisfy while assailing the order of detention
before the High Court in exercise of jurisdiction Article 226 of the Constitution holding that the
grounds of detention did not satisfy the rigors of proof as a foundational effect which has enabled
him in making effective representation in assailing the order of detention in view of the protection
provided under Article 22(5) of the Constitution, the same renders the order of detention illegal.
—————
State of Uttarakhand versus Sudhir Budakoti, 2022 LiveLaw (SC) 354: AIR 2022 SC 1767
Point/s to Note: Article 14; concept of equality; anathema to Article 14 of the Constitution
Article 14
y A mere differential treatment on its own cannot be termed as an “anathema to Article 14 of the
Constitution”. When there is a reasonable basis for a classification adopted by taking note of the
exigencies and diverse situations, the Court is not expected to insist on absolute equality by taking
a rigid and pedantic view as against a pragmatic one.
y Such discrimination would not be termed as arbitrary as the object of the classification itself is
meant for providing benefits to an identified group of persons who form a class of their own. When
the differentiation is clearly distinguishable with adequate demarcation duly identified, the object
of Article 14 gets satisfied. Social, revenue and economic considerations are certainly permissible
parameters in classifying a particular group. Thus, a valid classification is nothing but a valid
discrimination. That being the position, there can never be an injury to the concept of equality
enshrined under the Constitution, not being an inflexible doctrine.
y The question as to whether a classification is reasonable or not is to be answered on the touchstone
of a reasonable, common man’s approach, keeping in mind the avowed object behind it? If the
right to equality is to be termed as a genus, a right to non-discrimination becomes specie. When
two identified groups are not equal, certainly they cannot be treated as a homogeneous group. A

200 Constitution of India

 reasonable classification thus certainly would not injure the equality enshrined under Article 14 when
there exists an intelligible differentia between two groups having a rational relation to the object.
Therefore, interference would only be called for on the court being convinced that the classification
causes inequality among similarly placed persons. The role of the court being restrictive, generally, the
task is best left to the concerned authorities. When a classification is made on the recommendation
made by a body of experts constituted for the purpose, courts will have to be more wary of entering
into the said arena as its interference would amount to substituting its views, a process which is
best avoided.
—————
Pharmacy Council of India versus Rajeev College of Pharmacy, 2022 LiveLaw (SC) 768: AIR 2022 SC
4321
Point/s to Note: Right to establish educational institutions; fundamental right; reasonable restrictions.
Right to Establish an Educational Institution
y Whether the right to establish educational institutions is a fundamental right guaranteed under
Article 19(1)(g) of the Constitution of India? Whether there can be reasonable restrictions on such a
right?
y The right to establish an educational institution is a fundamental right under Article 19(1)(g) of the
Constitution of India and reasonable restrictions on such a right can be imposed only by a law and
not by an execution instruction.
y Citizens cannot be deprived of the said right except in accordance with law. It has further been
held that the requirement of law for the purpose of Clause (6) of Article 19 of the Constitution can
by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article
162 of the Constitution or otherwise. It has been held that such a law must be one enacted by the
legislature.
—————
All India Haj Umrah Tour Organizer Association Mumbai versus Union of India, 2022 LiveLaw (SC) 632
Point/s to Note: Article 14; discrimination; concept of equality; reasonable classification
Article 14: Article 14 prohibits class legislation and not reasonable classification.
y Article 14 does not prohibit the classification of persons or class of persons provided it is not
arbitrary. The classification has to be reasonable. The classification is permissible provided it is
founded on an intelligible differentia which must distinguish the persons grouped together from
those who are left out. Moreover, the classification must have a rational nexus to the objects sought
to be achieved by it. While we examine this question in the context of the infringement of Article
14 of the Constitution of India, it must be remembered that only on the ground that both HGOs and
the Haj Committee render service to the same class of persons, the classification made by treating
the Haj Committee as a separate class, cannot be questioned. In a given case, different classes of
service providers may be rendering the same service to the same class of service recipients. That,
per se, does not amount to discrimination.
y Article 14 prohibits class legislation and not reasonable classification. It is very much within the
powers of legislature to categorize goods and services for the purpose of taxation in such manner
as meets the policies and objectives of the government. The legislation intends to differentiate
between tour operator services rendered by public and private entities. There is no discrimination

Constitution of India 201

 between religious pilgrims. All pilgrims who undertake Haj/Umrah pilgrimage or any other religious
pilgrimage through private tour operators are treated equally.
—————
Union of India versus Rajendra Shah, 2021 SCC OnLine SC 474; LL 2021 SC 312
Point/s to Note: Doctrine of Severability; Constitution 97th Amendment Act; List II of the 7th Schedule;
Part IXB
“Doctrine of Severability”
y Question was raised as to the vires of the Constitution (Ninety Seventh Amendment) Act, 2011
“Constitution 97th Amendment Act” which inter alia introduced Part IXB under the chapter heading
‘The Co-operative Societies’.
y Law relating to Co-Operative Societies is still in the List II of the 7th Schedule, without bringing
the subject of Co-Operative Societies either into List I or List III, by way of this amendment, the
Parliament has controlled the said power without complying with the provisions of Article 368(2) of
the Constitution by taking ratification of the majority of the State Legislatures.
y A few provisions introduced by 97th Constitutional Amendment were struck down on the ground that
the requisite ratification from states was not obtained as per Article 368(2) of the Constitution.
y The entirety of Part IXB of the Constitution of India was strike down. Part IXB of the Constitution
of India is operative only insofar as it concerns multi-State co-operative societies both within the
various States and in the Union territories of India, court declared.
y The Doctrine of Severability must apply on surer foundations, while opining the matter in this regard
that the entire Part IXB of the Constitution dealing with co-operative societies is liable to be struck
down.
—————
Neil Aurelio Nunes versus Union of India, 2022 LiveLaw (SC) 73: (2022) 4 SCC 1
Point/s to Note: Article 15; reservation; explanation to Article 15; Ninety-Third Amendment Act
Article 15
y The Constitution (Ninety-Third Amendment) Act 2005 amended Article 15 of the Constitution by
inserting clause (5) to Article 15 to empower the State to make special provisions (including reservation)
for the advancement of socially and educationally backward classes (or the OBCs) relating to their
admission in educational institutions.
y Parliament by the Constitution (Ninety-Third Amendment) Act 2005 introduced Clause (5) in Article
15 providing reservation for the SCs, STs and socially and educationally backward classes (or the
OBCs) in admission to educational institutions, including private educational institutions, aided or
unaided by the State and other minority educational institutions.
y The explanation to Article 15 states that for the purposes of Article 15 and Article 16, ‘economically
weaker sections’ shall be notified by the State from time to time on the basis of family income and
other indicators of economic disadvantage.

Article 16
y Content of Article 16(1) is not individual-centric rather it aims to provide equality of opportunity to
sections that face structural barriers to their advancement.

202 Constitution of India

y Equality of opportunity under Article 16(1) entails the removal of barriers faced by certain classes
of society. They cannot be denied the right to equality and relegated to suffer backwardness only
because they do not meet certain artificial standards set up by institutions.
y Articles 16(4), 15(4), and 15(5) employ group identification as a method through which substantive
equality can be achieved. This may lead to an incongruity where individual members of an identified
group may not be backward or individuals belonging to the non-identified group may share certain
characteristics of backwardness with members of an identified group. However, this does not
change the underlying rationale of the reservation policy that seeks to remedy the structural barriers
that disadvantaged groups face in advancing in society. Reservation is one of the measures that is
employed to overcome these barriers. The individual difference may be a result of privilege, fortune,
or circumstances but it cannot be used to negate the role of reservation in remedying the structural
disadvantage that certain groups suffer.
—————
Janhit Abhiyan versus Union of India, 2022 LiveLaw (SC) 922
Point/s to Note: Article 15; Article 16; 103rd Constitution Amendment; EWS reservations; Amendment is
violative of the basic structure
103rd Constitution Amendment
1. Whether the 103rd Constitution Amendment can be said to breach the basic structure of the
Constitution by permitting the State to make special provisions, including reservation, based on
economic criteria?
a. The states’ compelling interest to fulfil the objectives set out in the Directive Principles, through
special provisions on the basis of economic criteria, is legitimate. That reservation or special
provisions have so far been provided in favour of historically disadvantaged communities,
cannot be the basis for contending that other disadvantaged groups who have not been able
to progress due to the ill effects of abject poverty, should remain so and the special provisions
should not be made by way of affirmative action or even reservation on their behalf. Therefore,
special provisions based on objective economic criteria (for the purpose of Article 15), is per se
not violative of the basic structure.
2. Whether the 103rd Constitution Amendment can be said to breach the basic structure of the
Constitution by permitting the State to make special provisions in relation to admission to private
unaided institutions?
a. Unaided private educational institutions would be bound under Article 15(6) to provide for
EWS reservations. However, given that the analysis under Question 3 on ‘exclusion’ leads to
the conclusion that the Amendment is violative of the basic structure, the question herein has
been rendered moot.
3. Whether the 103rd Constitution Amendment can be said to breach the basic structure of the
Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?
a. The impugned amendment and the classification it creates, is arbitrary, and results in hostile
discrimination of the poorest sections of the society that are socially and educationally
backward, and/or subjected to caste discrimination. For these reasons, the insertion of Article
15(6) and 16(6) is struck down, is held to be violative of the equality code, particularly the
principle of non-discrimination and non-exclusion which forms an inextricable part of the
basic structure of the Constitution.
—————

Constitution of India 203

 St. Mary’s Education Society versus Rajendra Prasad Bhargava, 2022 SCC OnLine SC 1091: 2022
LiveLaw (SC) 708
Point/s to Note: Article 226; application under Article 226; public duty
Article 226 of the Constitution
y An application under Article 226 of the Constitution is maintainable against a person or a body
discharging public duties or public functions. The public duty cast may be either statutory or
otherwise and where it is otherwise, the body or the person must be shown to owe that duty or
obligation to the public involving the public law element. Similarly, for ascertaining the discharge of
public function, it must be established that the body or the person was seeking to achieve the same
for the collective benefit of the public or a section of it and the authority to do so must be accepted
by the public.
y Even if it be assumed that an educational institution is imparting public duty, the act complained of
must have a direct nexus with the discharge of public duty. It is indisputably a public law action which
confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a
prerogative writ. Individual wrongs or breach of mutual contracts without having any public element
as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts
have intervened in their exercise of jurisdiction under Article 226, either the service conditions were
regulated by the statutory provisions or the employer had the status of “State” within the expansive
definition under Article 12 or it was found that the action complained of has public law element.
y It must be consequently held that while a body may be discharging a public function or performing a
public duty and thus its actions becoming amenable to judicial review by a Constitutional Court, its
employees would not have the right to invoke the powers of the High Court conferred by Article 226
in respect of matter relating to service where they are not governed or controlled by the statutory
provisions. An educational institution may perform myriad functions touching various facets of public
life and in the societal sphere.
y While such of those functions as would fall within the domain of a “public function” or “public duty”
be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions
or decisions taken solely within the confines of an ordinary contract of service, having no statutory
force or backing, cannot be recognised as being amenable to challenge under Article 226 of the
Constitution. In the absence of the service conditions being controlled or governed by statutory
provisions, the matter would remain in the realm of an ordinary contract of service.
y Even if it be perceived that imparting education by private unaided the school is a public duty within
the expanded expression of the term, an employee of a nonteaching staff engaged by the school
for the purpose of its administration or internal management is only an agency created by it. It is
immaterial whether “A” or “B” is employed by school to discharge that duty.
y In any case, the terms of employment of contract between a school and nonteaching staff cannot
and should not be construed to be an inseparable part of the obligation to impart education. This
is particularly in respect to the disciplinary proceedings that may be initiated against a particular
employee. It is only where the removal of an employee of nonteaching staff is regulated by some
statutory provisions, its violation by the employer in contravention of law may be interfered by
the court. But such interference will be on the ground of breach of law and not on the basis of
interference in discharge of public duty.

204 Constitution of India

y From the pleadings in the original writ petition, it is apparent that no element of any public law is
agitated or otherwise made out. In other words, the action challenged has no public element and
writ of mandamus cannot be issued as the action was essentially of a private character.
—————
Brajesh Singh versus Sunil Arora, 2021 SCC OnLine SC 571: LL 2021 SC 367
Point/s to Note: Election commission; right to vote; right to information; political parties;
“Election: Voter’s Right to Information”
y Political parties are to publish information regarding criminal antecedents of candidates on the
homepage of their websites, thus making it easier for the voter to get to the information that has
to be supplied. It will also become necessary now to have on the homepage a caption which states
“candidates with criminal antecedents”;
y The ECI is directed to create a dedicated mobile application containing information published
by candidates regarding their criminal antecedents, so that at one stroke, each voter gets such
information on his/her mobile phone;
y The ECI is directed to carry out an extensive awareness campaign to make every voter aware about
his right to know and the availability of information regarding criminal antecedents of all contesting
candidates. This shall be done across various platforms, including social media, websites, TV ads,
prime time debates, pamphlets, etc. A fund must be created for this purpose within a period of 4
weeks into which fines for contempt of Court may be directed to be paid;
y For the aforesaid purposes, the ECI is also directed to create a separate cell which will also monitor
the required compliances so that this Court can be apprised promptly of non-compliance by any
political party of the directions contained in this Court’s Orders, as fleshed out by the ECI, in
instructions, letters and circulars issued in this behalf;
y The direction in paragraph 4.4 of our Order dated 13.02.2020 be modified and it is clarified that the
details which are required to be published, shall be published within 48 hours of the selection of the
candidate and not prior to two weeks before the first date of filing of nominations; and
y If such a political party fails to submit such compliance report with the ECI, the ECI shall bring such
non-compliance by the political party to the notice of this Court as being in contempt of this Court’s
Orders/directions, which shall in future be viewed very seriously.
—————
Jacob Puliyel versus Union of India, 2022 SCC OnLine SC 533
Point/s to Note: Article 21; vaccination; not mandatory; right of an individual.
“No one can be forced to get vaccinated”
y Bodily integrity is protected under Article 21 of the Constitution of India and no individual can be
forced to be vaccinated.
y Personal autonomy of an individual involves the right of an individual to determine how they should
live their own life, which consequently encompasses the right to refuse to undergo any medical
treatment in the sphere of individual health.
y Persons who are keen to not be vaccinated on account of personal beliefs or preferences, can avoid
vaccination, without anyone physically compelling them to be vaccinated. However, if there is a
likelihood of such individuals spreading the infection to other people or contributing to mutation of
the virus or burdening of the public health infrastructure, thereby affecting communitarian health

Constitution of India 205

 at large, protection of which is undoubtedly a legitimate State aim of paramount significance in this
collective battle against the pandemic, the Government can regulate such public health concerns by
imposing certain limitations on individual rights that are reasonable and proportionate to the object
sought to be fulfilled.
—————
KC Cinema versus State of Jammu and Kashmir, 2023 SCC OnLine SC 22: 2023 LiveLaw SC 38
Point/s to Note: Ban on outside food or beverages in cinema; right to take food or beverages; bring
food or beverages to theatre
“Right to Bar Beverages from outside within the precincts of the theatre”
y Whether movie goer to bring food or beverages from outside within the precincts of the theatre.
y Article 19(1)(g) of the Constitution recognizes the right of citizens to practice any profession, or to
carry on any occupation, trade or business. This right includes all activities which enable citizens to
generate economic benefits and earn a livelihood. The right recognized in Article 19(1)(g) is not an
unfettered right and the state may impose reasonable restrictions on the exercise of that right, in
terms of Article 19(6).
y “Cinema hall is a private property of the owner of the hall. The owner of the hall is entitled to stipulate
terms and conditions so long as they are not contrary to public interest, safety and welfare. Like
with any other business, the proprietor or the management is entitled to determine the business
model that is to be followed and to give effect to their own conceptions of the economic viability
of a particular business model. The owner of a cinema hall is entitled to determine whether she will
set up or engage an entity for setting up counters for the sale of food and beverages and to regulate
the terms on which such sale should take place. A prohibition on carrying food and beverages from
outside into the precincts of the movie hall is not contrary to public interest, safety or welfare.”
—————
Sunil Kumar Rai versus State of Bihar, 2022 LiveLaw (SC) 219: 2022 (4) SCALE 199
Point/s to Note: Article 32; Article 21; Article 14; Article 342; Fundamental Right; Enforcement of the
Fundamental Rights
Articles 32, 14, 21 an 342 of the Constitution
y Article 32: Article 32 of the Constitution provides for a Fundamental Right to approach the Supreme
Court for enforcement of the Fundamental Rights. The founding fathers contemplated that the very
right to approach this Court when there is a violation of Fundamental Rights, should be declared as
beyond the reach of Parliament and, therefore, it is as a part of judicial review that the right under
Article 32 has been put in place and invoked from time to time. That in a given case, the Court may
refuse to entertain a petition under Article 32 of the Constitution is solely a part of self-restraint
which is exercised by the Court having regard to various considerations which are germane to the
interest of justice as also the appropriateness of the Court to interfere in a particular case. The right
under Article 32 of the Constitution remains a Fundamental Right and it is always open to a person
complaining of violation of Fundamental Rights to approach this Court. This is, no doubt, subject to
the power of the Court to relegate the party to other proceedings.
y Article 14: Article 14 of the Constitution proclaims right to equality. The right against unfair State
action is part of Article 14. Un-equals being treated equally are tabooed under Article 14 of the
Constitution.

206 Constitution of India

y Article 21: Article 21 of the Constitution is the fountain head of many rights which are part of the
grand mandate which has been from time to time unravelled by this Court giving rise to the theory
of un-enumerated rights under the Constitution. While liberty is a dynamic concept capable of
encompassing within it a variety of Rights, the irreducible minimum and at the very core of liberty, is
freedom from unjustifiable custody.
y Article 342: The Constitution of India in Article 342 provides for the manner in which the members
of the Scheduled Tribe are to be recognised. Article 342 provides for the power with the President
after consultation with the State to specify the Tribes which are to be treated as Scheduled Tribes
in that State or the Union Territory as the case may be. Parliament is empowered in sub-Article (2)
to include or exclude from the list. This is the scheme.
—————
Satyajit Kumar versus State of Jharkhand, 2022 LiveLaw (SC) 651
Point/s to Note: Article 16; scope of Article 16; discrimination; reservation.
Article 16 of the Constitution
y Article 16(2) of the Constitution of India prohibits discrimination on the grounds “only” of religion,
race, caste, sex, descent, place of birth, residence and these expressions are preceded by the word
“only” and followed by the expression “or any of them” which play a very important role.
y Article 16(2) of the Constitution of India prohibits discrimination on the grounds “only” of religion,
race, caste, sex, descent, place of birth, residence, and these expressions are preceded by the word
“only” and followed by the expression “or any of them’, which are significant.
y The scope of Article 16(3) is confined to inter State borders and that it has no application to areas
within a State.
y Under Article 16(3) of the Constitution of India, it is the Parliament alone, which is authorized to make
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 of Union Territory, any requirement
as to residence within the State or Union territory prior to such employment or appointment. As
per Article 35 of the Constitution of India, notwithstanding anything contained in the Constitution,
the Parliament shall have and the Legislature of a State shall not have the power to make laws with
respect to any of the matters which, under clause (3) of Article 16 may be provided for law made by
Parliament. Therefore, impugned Notification/Order making 100% reservation for the local resident of
the concerned Scheduled Area/Districts (reservation on the basis of resident) is ultra vires to Article
35 read with Article 16(3) of the Constitution of India.
—————

Practice Questions
1. What is Double Jeopardy? [Madhya Pradesh 4. “No person shall be deprived of his life
Judicial Services Examination, 2003] or personal liberty except according to
2. Right to Privacy is now fully recognized as a procedure established by law”. Explain.
Fundamental Right in India. Explain. [Uttar [Madhya Pradesh Judicial Services
Pradesh Judicial Services Examination, 2006] Examination, 2009]

3. Secularism is many a time mistaken as non- 5. What is the writ of Mandamus? Against
religious. Explain the concept in the light of whom it can be issued? [Rajasthan Judicial
freedom of religion. [Uttar Pradesh Judicial Services Examination, 2011]
Services Examination, 2006]

Constitution of India 207

 6. What is the nature of the “right to property” 13. Explain the doctrine of pleasure and the
under the Indian Constitution? [Rajasthan concept of reasonable opportunity of hearing
Judicial Services Examination, 2011] in the Constitution of India. [Rajasthan
7. What is the procedure and limitations for Judicial Services Examination, 2014]
amendment of the Indian Constitution? 14. Write short note on Equality in the
Discuss while citing the relevant cases. Constitution of India. [Rajasthan Judicial
[Rajasthan Judicial Services Examination, Services Examination, 2014]
2011] 15. Briefly discuss the applicability of doctrine
8. Write short note on Rule of Law. [Madhya of severability under Article 13(1) of the
Pradesh Judicial Services Examination, 2011] Constitution of India. [Rajasthan Judicial
Services Examination, 2015]
9. Who can proclaim the Emergency? Describe
16. Discuss power of the Governor to promulgate
the effect of proclamation of Emergency?
Ordinances. [Madhya Pradesh Judicial
[Madhya Pradesh Judicial Services
Services Examination, 2015]
Examination, 2011]
17. Write short note on Directive Principles of
10. Write notes on Preamble of the Constitution
the State. [Madhya Pradesh Judicial Services
of India. [Madhya Pradesh Judicial Services
Examination, 2015]
Examination, 2012]
18. “Arbitrariness is antithesis to Article 14 of the
11. Describe the fundamental duties prescribed
Constitution of India.” Explain. [Rajasthan
under Article 51A. [Madhya Pradesh Judicial
Judicial Services Examination, 2015]
Services Examination, 2013]
19. Can parliament amend Part III of the
12. What do you know by Schedule Caste and Constitution of India relating to Fundamental
Schedule Tribe? Describe the procedure Rights? Discuss. [Uttar Pradesh Judicial
for their ascertainment and how they Services Examination, 2016]
are included in the appropriate list/ 20. Explain relations between the Union and the
orders. [Madhya Pradesh Judicial Services States in legislative matters with reference
Examination, 2013] to various Articles of the Constitution. [Uttar
Pradesh Judicial Services Examination, 2016]

Solved Questions
Q. What is Double Jeopardy?
Ans. The principle of double jeopardy incorporated under Clause (2) of Article 20 of the Constitution
of India. Clause (2) of Article 20 postulates that “No person shall be prosecuted and punished for the
same offence more than once.” The fundamental right which is guaranteed under Clause (2) of Article
20 enunciates the principle of “autrefois convict” or “double jeopardy”. Article 20 of the Constitution
incorporates the rule against double jeopardy. But it is different from the one found in U.S.A. and U.K. in
the sense that it restricts the principle of “autrefois convict” and does not extend to that of “autrefois
acquit”. Clause (2) of Article 20 to be operative, both prosecution and punishment must co-exist. The
prosecution simpliciter sans the punishment, would not attract the said constitutional mandate.
In other words, Clause (2) of Article 20 would become operative in a case when the second prosecution
and punishment is for the identical offence for which the person concerned had already been prosecuted
and punished earlier. The same offence would essentially mean the offence whose ingredients are same.
At the same time, if one and the same act of a person constitutes two different or distinct offences,
then the prosecution and punishment for one offence would not bar prosecution and punishment for
the other offence. If the same set of facts constitutes offences under more than one provision of law,

208 Constitution of India

then it will not attract the principle of double jeopardy, and separate prosecution and punishment
for such distinct offences would not be barred. If there are two distinct and separate offences with
different ingredients under two different enactments are disclosed and established from same set of
facts, then a double punishment is not barred, and the principle of double jeopardy is not attracted.
Court in State of Bombay versus SL Apte, AIR 1961 SC 578, explained the principle of double jeopardy
that “To operate as a bar the second prosecution and the consequential punishment thereunder,
must be for “the same offence”. The crucial requirement therefore for attracting the Article is that the
offences are the same, i.e., they should be identical. If, however, the two offences are different, then
notwithstanding that the allegations of facts in the two complaints might be substantially similar,
the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not
the allegations in the two complaints but the ingredients of the two offences and see whether their
identity is made out.”
What is the nature of the “right to property” under the Indian Constitution?
[Rajasthan Judicial Services Examination, 2011]
The right to property has been the occasion for more than one Amendment of the Constitution, would
cease to be a fundamental right and become only a legal right. By the Forty Fourth Amendment Act,
inserted in Part XII, a new chapter i.e., Chapter IV-Right to Property and inserted Article 300A, which reads
as “No person shall be deprived of property save by authority of law.” Article 300A of the Constitution
proclaims that “No person can be deprived of his property save by authority of law”, meaning thereby
that a person cannot be deprived of his property merely by an executive fiat, without any specific legal
authority or without the support of law made by a competent legislature. The expression `Property’ in
Article 300A of the Constitution confined not to land alone, it includes intangibles like copyrights and
other intellectual property and embraces every possible interest recognised by law.
The right to property has never belonged to the category of what are called “natural rights’. It is a
creation of law and the manner in which it is created, to the same extent it can be extinguished by law,
where, therefore, a legal system or a legal formulation or a statutory measure has extended deserved
protection to property, on the ugly and evil features of property becoming manifest, the statute can
withdraw the umbrella of protection.
Background: While framing the Constitution and making the right to property a fundamental right,
hindsight reveals that a grave error was committed in making the right to property a fundamental right.
Social reconstruction and social justice measures, more or less undertaken in implementation of the
Directive Principles of State Policy as set out in Part IV or the Constitution, floundered on the bed-
rock of fundamental right to property. Earlier the “Right to property” was Fundamental as set out in
Articles 31 and 19(1)(f). The validity of any legislation entrenching upon the right to acquire, hold and
dispose of property was likely to be tested on the fundamental right enshrined in Article 19(1)(f) and
could be sustained, on the only ground that the law imposes reasonable restrictions in the interests of
the general public or for the protection of the interests of any Scheduled Tribe. Articles 19(1)(f) and 31
both are deleted and, therefore, the constraint on the power of the Legislature in dealing with property
subject to Article 300A of the Constitution has disappeared.
Sum up: Right to property no more remains an overarching guarantee in our Constitution, such a
legislation enacted under the authority of law as provided in Article 300A is immune from challenge
before a Constitutional Court for violation of Articles 14, 21 or the overarching principle of Rule of Law, a
basic feature of our Constitution, especially when such a right is not specifically incorporated in Article
300A, unlike Article 30(1A) and the 2nd proviso to Article 31A.

Constitution of India 209

 Q. Right to Privacy is now fully recognized as a Fundamental Right in India. Explain.
Ans. Right of privacy is a fundamental right
The Right to privacy falls in part III of the Indian Constitution. It is a right which protects the inner
sphere of the individual from interference from both State, and non-State actors and allows the
individuals to make autonomous life choices. The right to privacy is protected as an intrinsic part of
the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part
III of the Constitution. Let the right of privacy, an inherent right, be unequivocally a fundamental right
embedded in Part III of the Constitution of India, but subject to the restrictions specified, relatable to
that part, held in KS Puttaswamy versus Union of India, (2017) 10 SCC 1; AIR 2017 SC 4161.
The ‘right to privacy’ is a sacrosanct facet of Article 21 of the Indian Constitution, however, is not
defined in law except in the dictionaries. The Courts, however, by process of judicial interpretation, has
assigned meaning to this right in the context of specific issues involved on case- to-case basis.
‘Privacy’ has the nature of being both a common law right as well as a fundamental right. Its content,
in both forms, is identical. All that differs is the incidence of burden and the forum for enforcement
for each form.
In Indian context, the Fundamental right to privacy would cover at least the following three aspects:
y Privacy that involves the person i.e. when there is some invasion by the State of a person’s rights
relatable to his physical body, such as the right to move freely;
y Informational privacy which does not deal with a person’s body but deals with a person’s mind, and
therefore recognizes that an individual may have control over the dissemination of material that is
personal to him. Unauthorised use of such information may, therefore lead to infringement of this
right; and
y The privacy of choice, which protects an individual’s autonomy over fundamental personal choices.
Supreme Court in R Rajagopal versus State of TN, AIR 1995 SC 264, 1994 SCC (6) 632, held that, the
right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by
Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his
family, marriage, procreation, motherhood, child-bearing and education among other matters. None
can publish anything concerning the above matters without his consent whether truthful or otherwise
and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person
concerned and would be liable in an action for damages. Position may, however, be different, if a
person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
Supreme Court in PUCL versus Union of India, (1997) 1 SCC 301, held that, the right to privacy is a part of
the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts
in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed
“except according to procedure established by law”.
Supreme Court in Justice KS Puttaswamy (Retd.) versus Union of India, (2019) 1 SCC 1, the right to
privacy was recognised as a right which ‘protected the inner sphere of the individuals from interference
by both the state and non-state actors’. Right to privacy of an individual is considered as a natural and
inseparable right, which inheres in every human being to protect the innate dignity and autonomy of
man. ‘Privacy’ was held to be not only as an intrinsic element of right to life and personal liberty under
Article 21 of the Constitution but also as a constitutional value which is embodied in the fundamental
freedoms embedded in Part III of the Constitution.

210 Constitution of India