Budding Lawyer Constitutional Law Notes PDF

1 Preamble to the Indian Constitution Introduction: A preamble is an introductory statement in a document that explains the document’s philosophy and objectives. In a Constitution, it presents the intention of its framers, the history behind its creation, and the core values and principles of the nation. The preamble basically gives idea of the following things/objects: Source of the Constitution, Nature of Indian State of its objectives, Date of its adoption History of the Preamble to Indian Constitution  The ideals behind the Preamble to India’s Constitution were laid down by Jawaharlal Nehru’s Objectives Resolution, adopted by the Constituent Assembly on January 22, 1947. Components of Preamble  It is indicated by the Preamble that the source of authority of the Constitution lies with the people of India.  Preamble declares India to be a sovereign, socialist, secular and democratic republic.  The objectives stated by the Preamble are to secure justice, liberty, equality to all citizens and promote fraternity to maintain unity and integrity of the nation.  The date is mentioned in the preamble when it was adopted i.e. November 26, 1949. Key words in the Preamble  We, the people of India: It indicates the ultimate sovereignty of the people of India. Sovereignty means the independent authority of the State, not being subject to the control of any other State or external power.  Sovereign: The term means that India has its own independent authority and it is not a dominion of any other external power. In the country, the legislature has the power to make laws which are subject to certain limitations.  Socialist: The term means the achievement of socialist ends through democratic means. It holds faith in a mixed economy where both private and public sectors co-exist side by side. It was added in the Preamble by 42nd Amendment, 1976.  Secular: The term means that all the religions in India get equal respect, protection and support from the state. It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976.  Democratic: The term implies that the Constitution of India has an established form of Constitution which gets its authority from the will of the people expressed in an election.  Republic: The term indicates that the head of the state is elected by the people. In India, the President of India is the elected head of the state. Objectives of the Indian Constitution  The Constitution is the supreme law and it helps to maintain integrity in the society and to promote unity among the citizens to build a great nation.  The main objective of the Indian Constitution is to promote harmony throughout the nation. The factors which help in achieving this objective are: 1 Justice: It is necessary to maintain order in society that is promised through various provisions of Fundamental Rights and Directive Principles of State Policy provided by the Constitution of India. It comprises three elements, which is social, economic, and political. 2 Social Justice – Social justice means that the Constitution wants to create a society without discrimination on any grounds like caste, creed, gender, religion, etc. 3 Economic Justice – Economic Justice means no discrimination can be caused by people on the basis of their wealth, income, and economic status. Every person must be paid equally for an equal position and all people must get opportunities to earn for their living. 4 Political Justice – Political Justice means all the people have an equal, free and fair right without any discrimination to participate in political opportunities. 5 Equality: The term ‘Equality’ means no section of society has any special privileges and all the people have given equal opportunities for everything without any discrimination. Everyone is equal before the law. 6 Liberty: The term ‘Liberty’ means freedom for the people to choose their way of life, have political views and behavior in society. Liberty does not mean freedom to do anything; a person can do anything but in the limit set by the law. 7 Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment with the country and all the people. Fraternity helps to promote dignity and unity in the nation. Case Laws 1 Berubari Case: It was used as a reference under Article 143(1) of the Constitution which was on the implementation of the Indo-Pakistan Agreement related to the Berubari Union and in exchanging the enclaves which were decided for consideration by the bench consisting of eight judges. Through the Berubari case, the Court stated that ‘Preamble is the key to open the mind of the makers’ but it can not be considered as part of the Constitution. Therefore it is not enforceable in a court of law. 2 Kesavananda Bharati Case: In this case, for the first time, a bench of 13 judges was assembled to hear a writ petition. The Court held that: The Preamble of the Constitution will now be considered as part of the Constitution. The Preamble is not the supreme power or source of any restriction or prohibition but it plays an important role in the interpretation of statutes and provisions of the Constitution. 2 Salient features/Characteristics of the Indian Constitution are listed and brief below: 1. Lengthiest Written Constitution  Constitutions are classified into written, like the American Constitution, or unwritten, like the British Constitution.  The Constitution of India has the distinction of being the lengthiest and detailed Constitutional document the world has so far produced. In other words, the Constitution of India is the lengthiest of all the written constitutions of the world.  It is a very comprehensive, elaborate and detailed document.  Both justiciable and non-justiciable rights are included in the Constitution. 2. Drawn from Various Sources  The Constitution of India has borrowed most of its provisions from the constitutions of various other countries as well as from the Government of India Act of 1935  Dr B R Ambedkar proudly acclaimed that the Constitution of India has been framed after ‘ransacking all the known Constitutions of the world’.  The structural part of the Constitution is, to a large extent, derived from the Government of India Act of 1935.  The philosophical part of the Constitution (Fundamental Rights and the Directive Principles of State Policy) derive their inspiration from the American and Irish Constitutions respectively.  The political part of the Constitution (the principle of Cabinet government and the relations between the executive and the legislature) have been largely drawn from the British Constitution. 3. Blend of Rigidity and Flexibility  Constitutions are classified into rigid and flexible.  A rigid constitution is one that requires a special procedure for its amendment, as for example, the American Constitution.  A flexible constitution is one that can be amended in the same manner as the ordinary laws are made, as for example, the British Constitution.  The Indian Constitution is a unique example of the combination of rigidity and flexibility on the basis of its amending procedure. 4. Federal System with Unitary Bias  The Constitution of India establishes a federal system of government.  It contains all the usual features of a federation, such as two governments, division of powers, written constitution, the supremacy of the constitution, the rigidity of the Constitution, independent judiciary and bicameralism. 5. Parliamentary Form of Government  The Constitution of India has opted for the British Parliamentary System of Government rather than the American Presidential system of government.  The parliamentary system is based on the principle of cooperation and coordination between the legislative and executive organs while the presidential system is based on the doctrine of separation of powers between the two organs.  The parliamentary system is also known as the ‘Westminster’ model of government, responsible government and cabinet government.  The Constitution establishes the parliamentary system not only at the Centre but also in the States.  In a parliamentary system, the role of the Prime Minister has become so significant, and therefore it is called a ‘Prime Ministerial Government’. 6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy  The doctrine of the sovereignty of Parliament is associated with the British Parliament while the principle of judicial supremacy with that of the American Supreme Court.  Just as the Indian parliamentary system differs from the British system, the scope of judicial review power of the Supreme court in India is narrower than that of what exists in the US.  This is because the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ contained in the Indian Constitution (Article 21). 7. Rule of Law  According to this axiom, people are ruled by law but not by men, that is, the basic truism that no man is infallible. The axiom is vital to a democracy.  In the final analysis, rule of law means the sovereignty of the common man’s collective wisdom.  Apart from this crucial meaning, rule of law means a few more things like  There is no room for arbitrariness  Each individual enjoys some fundamental rights, and  The highest judiciary is the final authority in maintaining the sanctity of the law of the land. 8. Integrated and Independent Judiciary  India has a single integrated judicial system.  Also, the Indian Constitution establishes Independent Judiciary by enabling the Indian judiciary to be free from the influence of the executive and the legislature.  The Supreme Court stands as the apex court of the judicial system. Below the Supreme Court are the High Courts at the state level. 9. Fundamental Rights  Part III of the Indian Constitution guarantees six fundamental rights to all Citizens.  Fundamental Rights are one of the important features of the Indian Constitution.  They are justiciable in nature, that is, enforceable by the courts for their violation. 10. Directive Principles of State Policy  According to Dr B R Ambedkar, the Directive Principles of State Policy is a ‘novel feature’ of the Indian Constitution.They are enumerated in Part IV of the Constitution.  The Directive Principles were included in our Constitution in order to provide social and economic justice to our people.  In the Minerva Mills case (1980), the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles’. 11. Fundamental Duties  The original constitution did not provide for the fundamental duties of the citizens.  Fundamental Duties were added to our Constitution by the 42nd Amendment Act of 1976 on the recommendation of the Swaran Singh Committee.  There is a total of 11 Fundamental duties altogether. 12. Indian Secularism  The Constitution of India stands for a secular state.  Hence, it does not uphold any particular religion as the official religion of the Indian State. 13. Universal Adult Franchise  Indian democracy functions on the basis of ‘one person one vote’.  Every citizen of India who is 18 years of age or above is entitled to vote in the elections irrespective of caste, sex, race, religion or status.. 14. Single Citizenship  In a federal state usually, the citizens enjoy double citizenship as is the case in the USA.  In India, there is only single citizenship. 3 Citizenship Introduction Citizenship is the status of a person recognized under law as being a legal member of a sovereign state or belonging to a nation. In India, Articles 5 – 11 of the Constitution deals with the concept of citizenship. The term citizenship entails the enjoyment of full membership of any State in which a citizen has civil and political rights. Article 5: Citizenship at the commencement of the Constitution This article talks about citizenship for people at the commencement of the Constitution, i.e. 26th January 1950. Under this, citizenship is conferred upon those persons who have their domicile in Indian Territory and – 1. Who was born in Indian territory; or 2. Whose either parent was born in Indian territory; or 3. Who has ordinarily been a resident of India for not less than 5 years immediately preceding the commencement of the Constitution. Article 6: Citizenship of certain persons who have migrated from Pakistan Any person who has migrated from Pakistan shall be a citizen of India at the time of the commencement of the Constitution if – 1. He or either of his parents or any of his grandparents was born in India as given in the Government of India Act of 1935; and 2. (a) in case such a person has migrated before July 19th, 1948 and has been ordinarily resident in India since his migration, or Article 7: Citizenship of certain migrants to Pakistan This article deals with the rights of people who had migrated to Pakistan after March 1, 1947, but subsequently returned to India. Article 8: Citizenship of certain persons of Indian origin residing outside India This article deals with the rights of people of Indian origin residing outside India for purposes of employment, marriage, and education. Article 9 People voluntarily acquiring citizenship of a foreign country will not be citizens of India. Article 10 Any person who is considered a citizen of India under any of the provisions of this Part shall continue to be citizens and will also be subject to any law made by the Parliament. Article 11: Parliament to regulate the right of citizenship by law The Parliament has the right to make any provision concerning the acquisition and termination of citizenship and any other matter relating to citizenship. Citizenship of India constitutional provisions  Citizenship in India is governed by Articles 5 – 11 (Part II) of the Constitution.  The Citizenship Act, 1955 is the legislation dealing with citizenship. This has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005.  Nationality in India mostly follows the jus sanguinis (citizenship by right of blood) and not jus soli (citizenship by right of birth within the territory). Citizenship Act, 1955 Citizenship of India can be acquired in the following ways: 1. Citizenship at the commencement of the Constitution 2. Citizenship by birth 3. Citizenship by descent 4. Citizenship by registration 5. Citizenship by naturalization 6. By incorporation of territory (by the Government of India) Termination of Indian Citizenship Termination of citizenship is possible in three ways according to the Act: 1. Renunciation: If any citizen of India who is also a national of another country renounces his Indian citizenship through a declaration in the prescribed manner, he ceases to be an Indian citizen. When a male person ceases to be a citizen of India, every minor child of his also ceases to be a citizen of India. However, such a child may within one year after attaining full age become an Indian citizen by making a declaration of his intention to resume Indian citizenship. 2. Termination: Indian citizenship can be terminated if a citizen knowingly or voluntarily adopts the citizenship of any foreign country. 3. Deprivation: The government of India can deprive a person of his citizenship in some cases. But this is not applicable for all citizens. It is applicable only in the case of citizens who have acquired the citizenship by registration, naturalization, or only by Article 5 Clause (c) (which is citizenship at commencement for a domicile in India and who has ordinarily been a resident of India for not less than 5 years immediately preceding the commencement of the Constitution). 4. ‘State’ under Article 12 of the Constitution of India Introduction Most of the Fundamental rights provided to the citizens are claimed against the State and its instrumentalities and not against the private bodies. Article 12 gives an extended significance to the term ‘state’. It is very important to determine what bodies fall under the definition of a state so as to determine on whom the responsibility has to be placed. Article 12 of the Indian Constitution states that, In other words, for the purposes of Part III of the constitution, the state comprises of the following: 1. Government and Parliament of India i.e the Executive and Legislature of the Union 2. Government and Legislature of each State i.e the Executive and Legislature of the various States of India 3. All local or other authorities within the territory of India 4. All local and other authorities who are under the control of the Government of India Key terms discussed under the article 1 Government (Union and state) 2 Parliament and state legislature 3 Local authorities 4 Other authorities 5 Territory of India 6 Control of the government of India Government (Union and state), Parliament and State Legislature  Parliament: The parliament comprises of the President of India, the lower house of the parliament that is the Lok Sabha as well as the upper house of the Parliament that is the Rajya Sabha.  Executive: It is that organ which implements the laws passed by the legislature and the policies of the government. The rise of the welfare state has tremendously increased the functions of the state, and in reality, of the executive. In common usage, people tend to identify the executive with the government. In contemporary times, there has taken place A big increase in the power and role of the executive in every state. The executive includes the President, Governor, Cabinet Ministers, Police, bureaucrats, etc.  Legislature: The legislature is that organ of the government which enacts the laws of the government. It is the agency which has the responsibility to formulate the will of the state and vest it with legal authority and force. In simple words, the legislature is that organ of the government which formulates laws. Legislature enjoys a very special and important in every democratic state. It is the assembly of the elected representatives of the people and represents national public opinion and power of the people.  Government: The law-making or legislative branch and administrative or executive branch and law enforcement or judicial branch and organizations of society. Lok Sabha (the lower house) and Rajya Sabha (the upper house) form the legislative branch. Indian President is the head of the state and exercises his or her power directly or through officers subordinate to him. The Supreme Court, High Courts, and many civil, criminal and family courts at the district level form the Judiciary.  State Legislature: The legislative body at the state level is the State Legislature. It comprises of the state legislative assembly and the state legislative council. Local Authorities Local Authority: As per Section 3(31) of the General Clauses Act, 1897, The term Local authority includes the following: 1. Local government: According to Entry 5 of the List II of VII Schedule ‘local government’ includes a municipal corporation, improvement trust, district boards, mining settlement authorities and other local authorities for the purpose of local self- government or village administration. 2. Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within the meaning of the term local authority, village panchayat is also included. Other Authorities The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore, its interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes over time. For example- State includes Delhi Transport Corporation, ONGC and Electricity Boards, but does not include NCERT as neither is it substantially financed by the government nor is the government’s control pervasive. The test laid down in the case of Ajay Hasia is not rigid and therefore if a body falls within them, then it must be considered to be a State within the meaning of Article 12. It was discussed in the case that– “whether in the light of the cumulative facts as established the body is financially, functionally and administratively dominated by or under the control of Government. Such control must be particular to the body in question and must be pervasive. Whether State includes Judiciary? Article 12 of the Constitution does not specifically define ‘judiciary’. This gives the judicial authorities the power to pronounce decisions which may be contravening to the Fundamental Rights of an individual. If it was taken into the head of ‘State’, then as per the article, it would be by the obligation that the fundamental rights of the citizens should not be violated. Accordingly, the judgments pronounced by the courts cannot be challenged on the ground that they violate fundamental rights of a person. On the other hand, it has been observed that orders passed by the courts in their administrative capacity (including by the Supreme Court) have regularly been challenged as being violative of fundamental rights. Conclusion The Constitution of India not only gives fundamental right to the citizens but also imposes the duty on the state to ensure that the fundamental rights are protected. The court through its interpretations has widened the scope of the term State to include a variety of statutory and non- statutory bodies under its umbrella. The need to determine what falls within the meaning of state is, to assign the party on whom the duty to implement such right is placed upon. Not only that, the definition of state under Article 12 has several words which may not have definite meanings, words such as local authorities, control of government, other authorities, etc. and as seen in the above sections, the courts have, through the course of their judgments, described the extent of the article by laying down a test and discussing the meaning of the terms. 5 Define Law –Judicial Review-Amendment in the Constitution Art 13 and Art 368 Introduction Without an amending provision, the Constitution is not complete. Indispensability of amending provision in the Constitution In the very nature of a Constitution, an appropriate provision for its modification is deemed inherent. Because a government built on the idea of popular sovereignty must be particularly sensitive to changing situations, a democratic Constitution must be particularly flexible to the evolving conditions; As the public will change, it is necessary to make new assertions possible. The Indian Constitution blends the United States written Constitution’s “theory of basic law” with the United Kingdom’s “idea of parliamentary sovereignty” to grant the Parliament constituent authority subject to checks and balances. How does the country benefit from the same Constitution? One of the responses to such queries is that the Indian Constitution recognises the need for changes in response to changing societal requirements. Second, there has been sufficient flexibility in the application of the Constitution in practice. In implementing the Constitution, both political practice and judicial decisions have demonstrated maturity and flexibility. Because of these elements, the Indian Constitution is a living document rather than fixed rules. Procedure for constitutional amendments in India Types of Amendment: 1. Amendment with a simple majority of the Parliament. 2. Amendment with a special majority of the Parliament. 3. Amendment with a special majority of the Parliament and ratification of half of the state legislatures. Informal methods of Amendment: 1. Judicial Interpretation 2. Constitutional usages and conventions Many provisions in the Constitution state that they can be changed by a simple bit of legislation passed by Parliament. In such circumstances, no specific procedure for modification is necessary. Thus, the line between an amendment and ordinary law is obfuscated; the Parliament can change both in this easy manner. The majority of members voting in favour of a proposal is defined as a simple majority. Present and voting in each House (similar to the normal legislative process). It is not covered by Article 368. The following are some provisions that can be amended by a simple majority: 1. Formation of new states and changes to existing State’s regions, borders, or names (Art.3). 2. Legislative Councils in states are abolished or created (Art.169). 3. Second Schedule: the President, Governor’s, Speaker’s, and Judge’s emoluments, allowances, and privileges. Article 368 of the Constitution contains a provision for amending the other provisions of the Constitution. The following are some provisions that can be amended by a special majority: 1. Fundamental Rights 2. Directive Principles of State Policy By a special majority of Parliament and ratification by the States, those sections relating to the federal government’s structure can be changed. A great majority of Parliament and a simple majority of state legislatures must concur. The states are not required to approve the law within a specific time frame (Art. 368 is silent on the time frame to ratify the Amendment by State legislatures). The following are some provisions that can be amended by a special majority with ratification by half of the states: 1. Election of the President and its manner. 2. The extent of the Union and State’s executive powers. 3. The power of Parliament to revise the Constitution and its method (Art.368 itself). The bill is brought to the President for assent once officially approved by both Houses of Parliament and ratified by state legislatures if required. The President must approve the Constitutional Amendment bill. He is unable to withhold his assent to the bill or return it to Parliament for reconsideration. The bill becomes an Act once the President signs it, and the Constitution is amended as per the contents of the Act. Limitations on amending power: 1. The Amendment must not alter the basic structure of the Constitution. 2. An Amendment relating to the federal structure of the government can be made only with a special majority and consent by half of the State legislatures. Amenability of Fundamental Rights in India The Supreme Court gave Parliament unlimited power to amend the Constitution in the early years of independence, as demonstrated by the decisions in Shankari Prasad (1951) and Sajjan Singh’s (1965) cases. Years following the Constitution being revised at will to suit the interests of the existing regime, the Supreme Court ruled in Golaknath case (1967) that Parliament’s amending authority could not touch Fundamental Rights and that this power would be reserved for a Constituent Assembly. Whether the Constitution’s Fundamental Rights can be altered under Art.368 has been a source of contention in Indian Courts. Art.13(2) of the Constitution forbids enacting any law that deprives or restricts Part III of the Constitution containing Fundamental Rights. In Shankari Prasad Singh v. Union of India and State of Bihar The Constitutional legitimacy of the First Amendment Act was challenged because it sought to abridge the Fundamental Rights assured by Part III of the Indian Constitution. According to the Supreme Court, Art.368 of the Constitution grants the right to alter the Constitution, including Fundamental Rights. The Supreme Court of India considered whether an amendment to the Constitution could be viewed as a “law” within the meaning of Art. 13(2) in this case, it was held that an amendment was made under Art. 368 of the Constitution is not a ‘law’ within the meaning of Art. 13(2) and thus cannot be challenged on this basis. Thereby the Court held that even though it abridges a Fundamental Right, an amendment is valid. In Sajjan Singh v. State Of Rajasthan The Constitutional Amendment Act of 1964, generally referred to as the 17th Amendment Act, was challenged. Because it curtailed the jurisdictional power of High Courts under Art. 226 but had not been accepted by legislatures of half of India’s States, as stipulated by Art. 368(2). The Supreme Court ruled that the challenged Amendment was constitutional because it did not intend to reform Art. 226 of the Constitution and so did not trigger ratification by Indian states under the proviso Art. 368(2). The Supreme Court upheld the decision in the Shankari Prasad’s case, ruling that the issue was appropriately adjudicated under Article 13 (2) and held that the term “amendment” refers to any change to the Constitution’s provisions. In I.C. Golak Nath v. State of Punjab The Supreme Court overturned its previous rulings in Shankari Prasad and Sajjan Singh, holding that an amendment was made under Art. 368 of the Constitution would be considered as a law under Art. 13(2), and no such amendment could be allowed to abrogate the Fundamental Rights enshrined in part III of the Constitution. The Court’s concern was that, while the Acts in question may have curtailed Fundamental Rights, prior rulings had found them to be legitimate. They invoked the theory of prospective overruling to say that the Amendment would still be considered for those laws. They did, however, expressly say that, as of the date of the ruling, Parliament would not have the power to amend any provisions of Part III of the Constitution. The 24th Constitutional Amendment Act aimed to incorporate Art. 13(4) into the Constitution to invalidate the impact of Golak Nath’s decision, stating that “Nothing in this article shall pertain to any amendment of this Constitution enacted under Art. 368”. In Kesavananda Bharati v. State of Kerala The case is commonly referred to as the Fundamental Rights case. Golak Nath’s case and the 24th, 25th, 26th, and 29th Constitutional Amendment Acts were challenged. It explained the Amendment’s scope. The 24th Constitutional Amendment Act, which declared that Parliament had the power to abridge any Fundamental Rights, was held valid. While overruling its earlier judgment in the Golak Nath’s case, the Supreme Court ruled that Justice Sikri gave a superficial list, and the following components were proclaimed as basic structure: Sovereignty of the Constitution, Segregation of power, Republic and democratic form of government, Secular trait of the Constitution, Federal trait of the Constitution, Sovereignty and unification, Freedom and nobility of the individual, Welfare state, Parliamentary system. According to the Court, the power to amend the Constitution is also implied, and the 24th Constitutional Amendment Act just made it plain and declaratory. The basic structure, however, cannot be altered. In S.R. Bommai v. Union Of India In this case the Supreme Court supported the President’s dismissal of the administrations following the demolition of the Babri Masjid. It is an example of its application (Separation of power between State and Central government). The 42nd Amendment included provisions stating that the power to amend is unrestricted and that amendments are not subject to judicial scrutiny. In Minerva Mills Ltd. v. Union of India The legality of the Constitution’s 42nd Amendment Act of 1976 was challenged in the Supreme Court because it obliterated the Constitution’s basic structure. The Supreme Court ruled that the Amendment was unconstitutional because it granted Parliament public authority to amend the Constitution’s provisions and stripped courts of their ability to judge any modification to the Constitution, including those affecting Fundamental Rights. The Court further held that the power of judicial review was acknowledged as part of the Constitution’s basic structure. In Waman Rao v. Union of India The Supreme Court elucidated the prospective essence of the doctrine. The doctrine of basic structure would bear on to all Constitutional Amendments sanctioned after 24th April 1973 (the judgement date of the Kesavananda Bharati case). Art.13(2) expresses, ‘The State shall not pass any legislation that deprives or restricts the rights granted by Part-III of the Constitution, and any law passed in violation of this clause shall be null and void to the degree of the breach.’ The bench had decided that the term ‘law in Art. 13 must be interpreted to refer to rules or regulations enacted under regular legislative authority, rather than amendments to the Constitution enacted with Constituent authority under Art. 368. According to the fundamental structure doctrine, Parliament might alter any portion of the Constitution, including Fundamental Rights. Doctrine of Severability In Kihoto Hollohan v. Zachillhu, the Supreme Court held that the Doctrine of Severability applies to the Constitutional Amendments. Analysis of amendment procedure in India 1. There is no stipulation for a unique body to amend the Constitution, such as a Constitutional Convention (as in the United States) or a Constitutional Assembly. 2. The constituent power is vested in Parliament, with state legislatures only having it in a few instances. 3. The Parliament has the power to propose a constitutional amendment. State legislatures cannot introduce any bill or proposal to change the Constitution (unlike in the United States) except in one case: adopting a resolution urging the Parliament to create or abolish legislative councils in the states. The Parliament can either accept or condemn such a resolution or take no action on it. 4. There is no set time limit for state legislatures to approve or reject a proposed amendment. It is also unclear if states may revoke their approval once it has been granted. 5. If both Houses of Parliament are stuck over the approval of a Constitutional Amendment Bill, there is no provision for a joint session (Art.108). 6. The amendment procedure’s provisions are just too ambiguous. As a result, they give rise to court action. Conclusion Overall, it may be said that Amenability is an absolute necessity to make the Constitution a more relevant document in light of changing circumstances, reality and match society’s evolving needs and ambitions. It guarantees that the constitutional framework and the current government’s policies and programmes are in harmony. On a final note, it is resolved to adopt a Joint Parliamentary Committee that might be formed for in-depth debate and consensus-building. It also discusses forming a special committee or body (as in the United States) to consider constitutional amendments. Amendments should be confined to parts of the Constitution that do not comprise the core philosophy. 6 An Overview of Right to Equality under Article 14 of the Constitution Introduction Article 14 basically states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. To treat all citizens equally is the basic concept of liberalism and Article 14 ensures the same to our citizens. The liberty of any person is directly connected to the equality he/she is getting in society. Equality before Law Equality before Law basically means that all persons should be treated equally no matter whether they are poor or rich, male or female, upper caste or lower caste. This state cannot provide any special privileges to anyone in the country. It is also known as legal equality. Equality before the law and absolute equality On one hand, Equality before Law prohibits providing any special privilege to any community or people. It does not talk about equal treatment in equal circumstances. According to it, there must be a very ideal condition and the state does not need to interfere in society by providing additional privileges in society. Equality before the law and Rule of Law In Fact, the Rule of Law which is given by Prof. Dicey says that no one here is beyond or above the law and is equal in front of the law. Rule of Law guarantees every person the Equality before Law. Equal protection of the Laws According to this principle, everybody who resides in India should be treated equally and will get equal protection of the law. It guarantees all people inside the territory of India should be treated equally and the state cannot deny it (for equal protection of the law). Equality – A positive concept: Basawaraj v. the Spl. Land Acquisition Officer In the famous case of Basawaraj v. The Spl. Land Acquisition Officer It was held that here the appellant was negligent on their part as the appellant was not able to show the sufficient cause for the delay and thus here their appeal was rejected. Access to Justice By equality before the law, it means everyone has access to justice. No one can be barred from access to justice. Here all should be treated equally in front of the judicial system. The word “Access to Justice” includes some basic rights of a person. By term access to justice, we mean that every person should have the right to appear in court. Protection against arbitrariness There is a thin line of difference between being arbitrary and non-arbitrary actions. The right to equality prevents the arbitrary action of the state. The doctrine of legitimate expectation The doctrine of legitimate expectation is basically not a legal right but rather it is a moral obligation on the part of the administration to look and make laws that provide equality to all people in a territory. It gives the right of judicial review in administrative law to protect the interest of people when public authority fails to do so (or when Public authority rescinds from the representation made to a person). Constitutional Validity of Special Courts It was discussed earlier that Equality before Law is not absolute and has several exceptions to it Article 246(2), is one of such exceptions. Article 246(2) states that: “Notwithstanding anything in clause (3), Parliament and subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule”(here List III is Concurrent List). Administrative discretion The main purpose of administrative discretion is to maintain equality in all sections of society. However, this administrative discretion should not go beyond the line and should be used with proper care. The discretion may amount to arbitrariness. Reasonable Classification Test Here, in the case of Ram Krishna Dalmia v. Justice Tendolkar, the Supreme Court describes the jurisprudence of equality before the law. The test to determine whether conducts of state are constitutionally valid or not. The very famous “classification test” has been given in this case only. Here the High Court held that a Government can make a commission to enquire a case when it is necessary to do so. Here the main purpose of the government is to make any commitment to help matters of public importance. Conclusion At last, I would like to conclude that as our country is democratic we have been provided certain fundamental rights to every citizen and ensure that these rights should not be infringed by anyone even by the state. Right to Equality which is provided by our constitution is not actually being properly enforced even after so much legal obligation related to it has been put forward by our judicial system. Our judiciary along with the other two organs of state are working very hard to maintain equality among all the citizens of our country then also until the citizens are not aware of their rights it becomes very difficult to eradicate inequality. The role of the citizens became very vital for the protection of their own rights. 7 Article 19 of the Indian Constitution Freedom of Speech and Expression Introduction Article 19(1) of the Constitution of India guarantees six fundamental freedoms to every citizen of India, namely- 1. Freedom of speech and expression; 2. Freedom to assemble peacefully and without arms; 3. Freedom to form associations, unions or co-operative societies; 4. Freedom to move freely throughout the territory of India; 5. Freedom to reside and settle in any part of the territory of India, and 6. Freedom to practice any profession, or to carry on any occupation, trade or business. These six fundamental freedoms are the natural and basic freedoms inherent in the status of a citizen. However, these freedoms are not absolute or uncontrolled but are subject to certain reasonable restrictions. In this article, the author will take you through the six fundamental freedoms provided under Article 19 along with the relevant case laws. Freedom of speech and expression [Article 19(1)(a) and 19(2)] Article 19(1)(a) guarantees the freedom of speech and expression to all citizens. Freedom of speech and expression is the foundation of a democratic society and is one of the most cherished rights of a citizen. It is the first condition of liberty and plays an important role in forming public opinion. Meaning of freedom of speech and expression Freedom of speech and expression means the right to speak, and the right to express oneself through any medium-by words of mouth, writing, pictures, signs, internet etc. Every citizen has a right to hold an opinion and to be able to express it, including the right to receive and impart information. The expression ‘freedom of speech and expression’ has a wide connotation. It includes the freedom of the propagation of ideas, their publication and circulation. Scope of freedom of speech and expression There are various facets of the freedom of speech and expression which have been recognised by the courts. Freedom of the press: Freedom of the press is perhaps the most important freedom under the right to free speech and expression. In Bennett Coleman & Co v. Union of India(1972), the Hon’ble Supreme Court held that the freedom of the press embodies the right of the people to free speech and expression. It was held that “Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content.” In the landmark case of Romesh Thappar v. The State Of Madras(1950), the Supreme Court observed that, “freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible”. The Court in this case held that the freedom of circulation is as important as the freedom of publication. 2 Right to know and to obtain information: In the State of U.P. v. Raj Narain (1975), The Supreme Court observed that the right to know is derived from the concept of freedom of speech. The Court further held that the people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. Thus, the right to obtain information and disseminate it is an important fundamental right. In India, we have the Right to Information Act, 2005 which provides for the right of a citizen to secure access to information under the control of public authorities. 2. Right to know the antecedents of the candidates at election: In Union of India v. Association For Democratic Reforms (2002), the Hon’ble Supreme Court held that the voters have a fundamental right to know the antecedents of the candidate contesting election including his/her criminal past. 3. Right to reply: In LIC v. Prof. Manubhai D. Shah(1992), the Supreme Court ruled that the right to reply, including the right to get that reply published in the same news media in which something was published against or in relation to a citizen, is protected under Article 19(1)(a). 4. Right to silence: Right to speak includes the right to not speak or the right to remain silent. In Bijoe Emmanuel v. State of Kerala (1986), the Supreme Court upheld the right to silence of three children who were expelled from school because they refused to sing the National Anthem. The Court held that no person can be compelled to sing the National Anthem if he has genuine conscientious objections based on his religious belief. Hence, the right to speak and the right to express includes the right not to express and to be silent. 5. Right to fly the national flag: In the case of Union of India v. Naveen Jindal (2004), the Supreme Court held that flying the National Flag with respect and dignity is an expression and manifestation of one’s allegiance and feelings and sentiments of pride for the nation and therefore, is a fundamental right protected under Article 19(1)(a). However, the flying of the National Flag cannot be for commercial purposes or otherwise and can be subject to reasonable restrictions. Reasonable restrictions on the right to free speech and expression The right to free speech and expression is not an absolute right and is subject to reasonable restrictions. As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of: 1 sovereignty and integrity of India, 2 the security of the state, 3 public order, decency or morality, Freedom of assembly [Article 19(1)(b) and 19(3)] The object of holding an assembly or a meeting is the propagation of ideas and to educate the public. Hence, the right to assemble is a necessary corollary of the right to free speech and expression. Article 19(1)(b) provides for the right to assemble peaceably and without arms. This includes the right to hold public meetings, hunger strikes, and the right to take out processions. However, the assembly must be peaceful and without arms. Reasonable restrictions on right to freedom of assembly According to Clause 3 of Article 19, the right to freedom of assembly could be restricted on the following grounds: 1 In the interests of the sovereignty and integrity of India, 2 In the interests of public order. Freedom to form associations, unions or co-operative societies [Article 19(1)(c) and 19(4)] Article 19(1)(c) provides for the right to form associations, unions or cooperative societies. An association refers to a group of persons who have come together to achieve a certain objective which may be for the benefit of the members of the welfare of the general public or a scientific, charitable or any other purpose. Freedom of movement and residence [Article 19(1)(d), 19(1)(e) and 19(5)] Article 19(1)(d) and (e) are complementary to each other and confer a right upon the citizens to move freely or/and to reside and settle in any part of the country. Freedom of movement Article 19(1)(d) provides for the right to move freely throughout the territory of India. This means the right to locomotion, i.e., the right to move as per one’s own choice. This right includes the right to use roads and highways. Freedom of profession, occupation, trade or business [Article 19(1)(g) and 19(6)] Article 19(1)(g) provides for the fundamental right of the citizens to practice any profession or to carry on any occupation, trade or business. The Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997) has observed that the sexual harassment of working women in workplaces violates the fundamental right under Article 19(1)(g). In this case, comprehensive guidelines and binding directions were issued by the court to prevent the incidents of sexual harassment of women at workplaces in both public and private sectors. Conclusion In the landmark case of Maneka Gandhi v. Union of India (1978), the Supreme Court said that it is possible that a right does not find express mention in any clause of Article 19(1) and yet it may be covered by some clause of that Article. This is true for freedom of the press is one such important fundamental right which, though not expressly mentioned, is implicit in Article 19(1)(a). Lastly, it is noteworthy that earlier Article 19(1) provided for seven fundamental freedoms i.e. Clause(f) provided for the freedom to hold and acquire property which was deleted by the Constitution (Forty-Fourth Amendment) Act, 1978. 8 Protection in respect of Conviction for Offences: Blend of Constitutional & Procedural Laws Art 20 Article 20 of the Indian Constitution makes up of 3 clauses. i.e. Ex-post facto law, Doctrine of Double Jeopardy and Prohibition against self-incrimination. Provision against Ex post facto law: Clause (1) of Article 20 The provision in question, i.e. Article 20 (1) says that one must not be prosecuted and convicted in accordance with those laws which didn’t exist at the time of the commission of the offence by the accused and also must not be inflicted with punishments greater than those existing at the time of commission. This provision negates the chance of retrospective implementation of laws regarding criminal offences. In simpler speak, this provision brings a clampdown to the legislative prerogative of the legislation by prohibiting retrospective implementation of a law having criminal nature. The Landmark judgement governing this doctrine came in the year 1953, in case of Kedar Nath v. State of West Bengal. In this case, the Hon’ble Supreme Court of India observed that, whenever an act is declared as a criminal offence and/or provides penalty for same by the legislature, it is always prospective in nature and can’t be implemented retrospectively to uphold what is being said under Article 20 (1). Double jeopardy: Clause (2) of Article 20 “Nemo debet bis vexari pro una et eadem causa” The Doctrine of Double Jeopardy, which traces back its origin to American jurisprudence of punishment, means that ‘no person can be prosecuted and punished twice for the same offence in subsequent proceedings’. And, Article 20 (2), which reads that no one could be convicted and punished more than once for the same offence involving the same set of facts guarantees against the multiple convictions and Double jeopardy. In the case of Venkataraman v. Union of India, the Supreme Court of India established that this provision deals exclusively with Judicial punishments and provides that no person is prosecuted twice by the judicial authorities. The most crucial landmark judgement came in case of Maqbool Hussain v. State of Bombay, where the person accused was possessing some amount of gold, which was against lex loci at the time and gold was confiscated by the customs authority. And, later when the person was prosecuted before a criminal court, the court was confronted with the question whether this amounts to Double Jeopardy. But, the Supreme Court observed that departmental proceedings, i.e. by Customs Authority, in this case, doesn’t amount to trial by a judicial tribunal, thus the proceedings before the criminal court is not barred in this case and the proceedings can go on. In a nutshell Departmental Proceedings are independent of trial by a judicial court or tribunal. Prohibition against self-incrimination: Clause (3) of Article 20 Another foremost rule which provides for protection from a conviction for offences is ‘Prohibition against Self-incrimination.’ The same is provided by the Constitution of India in Part III under Article 20 (3). It describes that no one could be forced to utter and provide such information or evidence orally or by documentary means which could be used against himself during the further trial procedure. Also, the term ‘Witness’ includes both, Oral and documentary evidence as held in M.P. Sharma v. Satish Chandra. As held in the same case, however, there is no restriction where a search for document or seizures is being done by the authorities. However, the information and evidence produced voluntarily by the accused is permissible. Conclusion If we would bother to analyse all the clauses of the Article 20 of the Indian Constitution, we would come across this interesting inference that these clauses i.e. Article 20(1), Article 20(2) and Article 20(3) reflects protection of convicted persons from excess of Legislation, Judiciary and Executive actions respectively. 9 The Right to Life and Personal Liberty is assured by the Indian Constitution under Article 21 : According to Article 21: Right to Life “Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.”  This fundamental right is available to every person, citizens and foreigners alike.  Article 21 provides two rights:  Right to life  Right to personal liberty The fundamental right provided by Article 21 is one of the most important rights that the Constitution guarantees. The Supreme Court of India has described this right as the ‘heart of fundamental rights’. The right specifically mentions that no person shall be deprived of life and liberty except as per the procedure established by law. This implies that this right has been provided against the State only. State here includes not just the government, but also, government departments, local bodies, the Legislatures, etc. Interpretation of Article 21 1. AK Gopalan Case (1950): Until the 1950s, Article 21 had a bit of a narrow scope. In this case, the SC held that the expression ‘procedure established by law’, the Constitution has embodied the British concept of personal liberty rather than the American ‘due process’. 2. Maneka Gandhi vs. Union of India Case (1978): This case overturned the Gopalan case judgement. Here, the SC said that Articles 19 and 21 are not watertight compartments. The idea of personal liberty in Article 21 has a wide scope including many rights, some of which are embodied under Article 19, thus giving them ‘additional protection’. The court also held that a law that comes under Article 21 must satisfy the requirements under Article 19 as well. That means any procedure under law for the deprivation of life or liberty of a person must not be unfair, unreasonable or arbitrary. Read the Maneka Gandhi case in detail in the linked article. 3. Francis Coralie Mullin vs. Union Territory of Delhi (1981): In this case, the court held that any procedure for the deprivation of life or liberty of a person must be reasonable, fair and just and not arbitrary, whimsical or fanciful. 4. Olga Tellis vs. Bombay Municipal Corporation (1985): This case reiterated the stand taken earlier that any procedure that would deprive a person’s fundamental rights should conform to the norms of fair play and justice. 5. Unni Krishnan vs. State of Andhra Pradesh (1993): In this case, the SC upheld the expanded interpretation of the right to life. The Court gave a list of rights that Article 21 covers based on earlier judgments. Some of them are: 1. Right to privacy 2. Right to go abroad 3. Right to shelter 4. Right against solitary confinement Right to Life and Suicide Section 309 of the Indian Penal Code (IPC) makes attempted suicide a criminal offence which is punishable with imprisonment and fine.  There were many debates on whether this should continue since mental health experts have argued that people who attempt suicide need adequate counselling and not punishment.  The Mental Healthcare Act, 2017 was passed by the Parliament and the law came into force in 2018. This Act is meant to provide “for mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during delivery of mental healthcare and services.” Right to Life and Euthanasia There are many debates on whether the right to life also extends to the right to die, especially to die with dignity. Euthanasia is a topic that is frequently seen in the news. Many countries have legalised euthanasia (the Netherlands, Belgium, Colombia, Luxembourg). Euthanasia is the practice of intentionally ending life in order to relieve suffering and pain. It is also called ‘mercy killing’. There are various types of euthanasia: Passive and Active. Passive Euthanasia: This is where treatment for the terminally-ill person is withdrawn, i.e., conditions necessary for the continuance of life are withdrawn. Active Euthanasia: This is where a doctor intentionally intervenes to end someone’s life with the use of lethal substances. 10 Article 22 of the Indian constitution talks about the protection of life and personal liberty. Article 22:  It deals with the protection against arrest and detention in certain cases.  This article is applicable to both citizens and non-citizens.  This provision extends certain procedural safeguards for individuals in case of an arrest.  The idea behind this right is to prevent arbitrary arrests and detention.  The article provides the following safeguards:  Article 22(1) – Any person who is in custody has to be informed as to why he has been arrested. Further, he cannot be denied the right to consult an advocate.  Article 22(2) – The arrested individual should be produced before a judicial magistrate within 24 hours of his arrest.  Article 22(3) – Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention These safeguards are, however, not applicable to  Enemy aliens  People arrested under preventive detention law. Right against 11 Right against Exploitation Article 23 – Prohibition of traffic in human beings and forced labour Article 23(1): Traffic in human beings and the beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law. Article 23(2): Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.  Exploitation implies the misuse of others’ services by force and/or labour without payment.  There were many marginalized communities in India who were forced to engage in manual and agricultural labour without any payment.  The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless persons into labour and forcing helpless women into prostitution is unconstitutional.  The Article also makes trafficking unconstitutional.  Trafficking involves the buying and selling of men and women for illegal and immoral activities.  Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide scope because of the inclusion of the terms ‘forced labour’ and ‘traffic’. Article 23 protects citizens not only against the State but also from private citizens.  The State is obliged to protect citizens from these evils by taking punitive action against perpetrators of these acts (which are considered crimes), and also take positive actions to abolish these evils from society.  Under Article 35 of the Constitution, the Parliament is authorized to enact laws to punish acts prohibited by Article 23.  Clause 2 implies that compulsory services for public purposes (such as conscription to the armed forces) are not unconstitutional.  Laws passed by the Parliament in pursuance of Article 23:  Suppression of Immoral Traffic in Women and Girls Act, 1956  Bonded Labour System (Abolition) Act, 1976 Article 24 – Prohibition of employment of children in factories, etc. Article 24 says that “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.”  This Article forbids the employment of children below the age of 14 in any hazardous industry or factories or mines, without exception.  However, the employment of children in non-hazardous work is allowed. Laws that were passed in pursuance of Article 24 in India. The Factories Act, 1948 This was the first act passed after independence to set a minimum age limit for the employment of children in factories. The Act set a minimum age of 14 years. In 1954, this Act was amended to provide that children below the age of 17 could not be employed at night. The Mines Act of 1952 This Act prohibits the employment of people under the age of 18 years in mines. The Child Labour (Prohibition and Regulation) Act, 1986 This was a landmark law enacted to curb the menace of child labour prevalent in India. It described where and how children could be employed and where and how this was forbidden. This Act designates a child as a person who has not completed his/her 14th year of age. The 1986 Act prohibits the employment of children in 13 occupations and 57 processes. Child Labour (Prohibition & Regulation) Amendment Act, 2016 This Act completely forbids the employment of children below 14 years of age. It also bans the employment of people between the ages of 14 and 18 in hazardous occupations and processes. Punishments to violators of this law were made stricter by this amendment act. This Act allows children to be employed in certain family occupations and also as artists. Child Labour (Prohibition and Regulation) Amendment Rules, 2017 The government notified the above Rules in 2017 to provide a broad and specific framework for prevention, prohibition, rescue, and rehabilitation of child and adolescent workers. The Rules clarified on issues concerning the employment of family enterprises and also provides safeguards for artists in that the working hours and conditions are specified. 12 Right to Freedom of Religion The Constitution of India guarantees the right to freedom of religion to not only individuals but also religious groups in India. This is enshrined in Articles 25 to 28. Article 25 (Freedom of conscience and free profession, practice, and propagation of religion) Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens.  The above-mentioned freedoms are subject to public order, health, and morality. That regulates and restricts any financial, economic, political, or other secular activity associated with any religious practice.  That provides for the social welfare and reform or opening up of Hindu religious institutions of a public character to all sections and classes of Hindus. Under this provision, Hindus are construed as including the people professing the Sikh, Jain, or Buddhist religions, and Hindu institutions shall also be construed accordingly. People of the Sikh faith wearing & carrying the kirpan shall be considered as included in the profession of the Sikh religion. Article 26 (Freedom to manage religious affairs) This Article provides that every religious denomination has the following rights, subject to morality, health, and public order. 1. The right to form and maintain institutions for religious and charitable intents. 2. The right to manage its own affairs in the matter of religion. 3. The right to acquire the immovable and movable property. 4. The right to administer such property according to the law. Article 27 (Freedom as to payment of taxes for promotion of any particular religion) According to Article 27 of the Constitution, there can be no taxes, the proceeds of which are directly used for the promotion and/or maintenance of any particular religion/religious denomination. Article 28 (Freedom as to attendance at religious instruction or religious worship in certain educational institutions)  This provides that no religious instruction shall be provided in State-run educational institutions. What is Secularism? The word ‘secularism’ means separate from religion.  It entails the separation of religion from the government, social, economic, and cultural aspects of life.  Here religion is an entirely personal matter.  India is a secular country with no state religion.  However, this in India, also means that there is equal respect for all religions and faiths.  The word is also a part of the Basic Structure of the Constitution. It was added by the 42nd Amendment to the Constitution.  This concept enjoys high regard in Indian democracy.  Secularism has also been an inalienable part of Indian culture as seen by the multitude of faiths that have co-existed in this country for centuries.  All religious groups in India have the same powers without any discrimination. Indian and Western Models of Secularism The term secularism, as explained above, indicates the separation of the State from religion. This concept, however, has slightly differing connotations in the Indian and the western polity. This is discussed below.  In the Western model, secularism connotates complete separation of the State from the Church. This owes its origin to the French Revolution where the revolution sought to establish a ‘secular’ government, one which did not influence the church or the clergy. 13 Article 30 of the Indian Constitution Right of minorities to establish and administer educational institutions. Introduction Article 29 and Article 30 of the Indian Constitution grant special rights to minorities in India. It guarantees fundamental rights to minorities in India in terms of cultural and educational rights. These rights are absolute in nature and are made with the intent to protect and guarantee freedom and the Right to Life to these minorities. Article 30 guarantees the Right to Education to Indian minority communities by giving them a right to establish educational institutions for their communities and run them with the internal administration of choice. Article 30 of the Indian Constitution and its purpose Article 30 discusses the right of minorities to establish and administer educational institutions. This right is given to minorities to form and govern their own educational institutions. It is also called the ‘Charter of Education Rights’. Article 30(1): All religious and linguistic minorities have the right to establish and administer educational institutions of their choice. Article 30(2): The State shall not, when granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. Article 30, as it is read, makes provisions for minority communities in India to establish and administer educational institutions in India. It guarantees them the right to avail themselves of aid from the government like other educational institutions. Article 30 guarantees them equality and non-discrimination in education. Minorities’ educational institutions in India are of the following kinds: 1. Educational institutions that seek approval, recognition, and aid from the state government where they have established their institution, 2. Educational institutions that seek only approval and recognition from the state government, and 3. Educational institutions that seek neither recognition nor aid from the state government. The administration of these institutions is also in varied manner. The educational institutions that seek recognition, aid, or both from the state government are subject to minimal state interference. These institutions have to follow the directions the state government gives in this regard on matters like manner and standard of academics, syllabus, employment of teachers in these institutions, sanitation standards to be maintained, and other rules and regulations. Cases on Article 30 of the Indian Constitution Secretary of Malankara Syrian Catholic College v. T. Jose and Ors. (2006) The Ahmedabad St. Xaviers College v. State of Gujarat and Anr. (1974) In this case, the Supreme Court reflected on the purpose and spirit behind Article 30. The Court stated that the spirit behind Article 30 is the moral obligation of the nation towards minority communities. It is to ensure that the religious minorities and linguistic minorities of the country are not restricted from establishing, administering, and imparting education in their choice. They are given utmost respect and freedom to instil the values and beliefs of their community in their children and shape them as responsible citizens of the country and pioneers of their community. This classification of minorities and the classification of minorities’ educational institutions was clarified by the Supreme Court in T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002), where the Supreme Court recited guidelines on Article 29 and Article 30 of the Constitution. The Court clarified that the determination of religious minorities and linguistic minorities is to be done state-wise, not nationally. These minority communities and their educational institutions, therefore, must follow the standard rules and regulations, and policies of their respective state governments. These rules, regulations and policies are state-made with the supervision and guidance of the centre. These regulations are made in adherence with the public order, morality, security and sovereignty of the nation. Importance of protection of minorities As the largest democracy in the world and making a home for diverse people, it is a primary duty of the Indian government to uphold the values of the Constitution. This includes the protection of the country’s minority communities. It is a general tendency for minorities’ interests to be sidelined due to the importance and privilege enjoyed by the majority community. Thus, to protect the interests of the minorities, laws must be made in a manner that their rights are protected at par with the majority privilege and rights. This is why special provisions are made for minorities. The Indian laws provide privilege to the majority community. Certain policies have been criticized to be discriminatory to the minorities of the country. They lead to protests. Mentioned below are some instances of protests in the country due to the majority- minority conflicts:  During the Delhi communal violence, several people were killed, most of whom were Muslims. This incited further protests about the lack of protection for the minorities. The capital city has been known to have seen the highest number of religious protests.  The 2020 Farm Bill protests by the Sikhs which was due to the community’s rights being hampered by the structure of the Bill.  The 2019 Citizenship Amendment Act was violative of the minorities’ rights as it had different procedural provisions for the majority and the minorities.  The Anti-Conversion laws by states that prosecute Muslim men who marry Hindu women are criticized to be discriminatory in nature. Therefore, policies, regulations and special laws to protect the minorities’ rights are essential in India. National Commission for Minorities As of 2020, the Commission has been renamed the National Commission for Minorities and functions under the jurisdiction of the Ministry of Minorities. The Commission’s ambit covers only religious minorities (Muslims, Christians, Sikhs, Parsis and Jains) and excludes the linguistic minorities. Formed with a Chairperson, Vice-Chairperson and five members, the Commission performs the following functions:  Evaluates the condition of minorities of India and the governments’ (Central and States) effort to improve it,  Checks the functioning of laws made for the benefit of minorities,  Makes recommendations for enacting laws that would improve the minorities conditions in India, In P.A. Inamdar and Ors. v. State of Maharashtra and Ors. (2005), the Supreme Court gave a landmark judgement where it held that the reservation policy during admissions would not be applicable to minority educational institutions. Rather, it shall be on the basis of merit and shall be equally open to children of all religious and linguistic groups of India. Conclusion Indian minorities have suffered several hardships in the form of violence, discrimination, hate and lack of representation. To curb these atrocities, the Union Government, legislators and policymakers have come up with laws, legislation, regulations and special rights for the minority communities. One such right is guaranteed to them under Article 30. The minority communities to establish and administer educational institutions of their choice. They are given administrative autonomy with minimum interference from the government. This is done with a view to ensuring equality and equal opportunities for the religious and linguistic minorities of the nation when it comes to education. Even with various governmental efforts over the years, the violence, discrimination and hate are believed to have continued till today. Time will tell what becomes of Indian minorities and the extent to which their atrocities are reduced by the government. 14 Article 32 and Art 226 of the Indian Constitution Nature of Writ Jurisdiction Concept and Purpose Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’.The main purpose of Writ Jurisdiction under Article 32 is the enforcement of Fundamental Rights. Dr Ambedkar stated that: “If I was asked to name any particular article in this Constitution as the most important- an article without which this Constitution would be a nullity— I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.” Nature of Writ Jurisdiction The nature of Writ Jurisdiction provided under this Article is discretionary. There are five important factors for guiding this discretion. Factors Guiding the Meaning Discretion 1. Locus Standi Right to bring an action or to be heard before a court. 2. Alternative Relief Remedies sought in a lawsuit in various or alternative forms. 3. Res Judicata A case that has been decided. 4. Questions of the Fact An issue that involves resolution of a factual dispute or controversy. A defence to an equitable action, that bars recovery by the plaintiff because of 5. Laches the plaintiff’s undue delay in seeking relief. Types of Writs There are five types of Writs as provided under Article 32 of the Constitution: 1. Habeas Corpus  Meaning It is one of the important writs for personal liberty which says “You have the Body”. The main purpose of this writ is to seek relief from the unlawful detention of an individual. It is for the protection of the individual from being harmed by the administrative system and it is for safeguarding the freedom of the individual against arbitrary state action which violates Fundamental Rights under Articles 19, 21 & 22 of the Constitution. This writ provides immediate relief in case of unlawful detention.  When Issued? Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without any authority of law. Important judgments on Habeas Corpus In the case of ADM Jabalpur v. Shivakant Shukla which is also known as the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during an emergency (Article 359). Circumstances when the writ of Habeas Corpus cannot be issued: 1. The detention is lawful. 2. The case is being prosecuted for failure to comply with a legislative or judicial mandate. 3. A competent court authorized the detention. 4. The jurisdiction of the court on detention is ultra vires. Quo Warranto  What does the writ of Quo Warranto mean? Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of public offices and it is issued to restrain persons from acting in public office to which he is not entitled to. The court issues the Writ of Quo Warranto in the following cases: 1. When the public office is in question and it is of a substantive nature. A petition against a private corporation cannot be filed. 2. The office is created by the State or the Constitution. 3. The claim should be asserted on the office by the public servant i.e. respondent.  Important Case Laws In the case of Ashok Pandey v. Mayawati , the writ of Quo Warranto was refused against Ms Mayawati (CM) and other ministers of her cabinet even though they were Rajya Sabha members.  Circumstances when the writ of Quo Warranto cannot be issued 1. The writ of Quo Warranto cannot be issued for any private organization or person. 2. The writ of Quo Warranto cannot be issued for any body or an organisation that does not fall under the definition of “State” as defined under Article 12. 3. Absence of alternative remedy cannot be a ground for issuing a writ of Quo Warranto. In the case of Bharati Reddy v. The State Of Karnataka (2018), the Hon’ble Supreme Court held that a writ of quo warranto cannot be issued based on assumptions, inferences, or speculations concerning the fact of accomplishment of qualifying conditions. There must be an establishment of the fact that a public officer is abusing lawful powers not vested to him within the public authority. 3. Mandamus  Writ of Mandamus Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct performance of mandatory and purely ministerial duties and is issued by a superior court to a lower court or government officer. However, this writ cannot be issued against the President and the Governor. Its main purpose is to ensure that the powers or duties are not misused by the administration or the executive and are fulfilled duly. Also, it safeguards the public from the misuse of authority by administrative bodies. Conditions for issue of Mandamus 1. There must rest a legal right of the applicant for the performance of the legal duty. 2. The nature of the duty must be public. 3. On the date of the petition, the right which is sought to be enforced must be subsisting. 4. The writ of Mandamus is not issued for anticipatory injury. Limitations The courts are unwilling to issue the writ of mandamus against high dignitaries like the President and the Governors. In the case of S.P. Gupta v. Union of India , judges were of the view that a writ cannot be issued against the President of India for fixing the number of judges in High Courts and filling vacancies. But in Advocates on Records Association v. Gujarat , the Supreme Court ruled that the judges’ issue is a justiciable issue and appropriate measures can be taken for that purpose including the issuance of mandamus. 4. Certiorari  What does Writ of Certiorari mean? Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of the jurisdiction and the decision of the case is based on it. The writ can be moved to higher courts like the High Court or the Supreme Court by the affected parties. There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued against purely administrative or ministerial orders and that it can only be issued against judicial or quasi- judicial orders.  When is a writ of Certiorari issued? It is issued to quasi-judicial or subordinate courts if they act in the following ways: 1. Either without any jurisdiction or in excess. 2. In violation of the principles of Natural Justice. 3. In opposition to the procedure established by law. 4. If there is an error in judgement on the face of it.  Important Judgements on writ of Certiorari Then in the case of T.C. Basappa v. T. Nagappa & Anr. , it was held by the constitution bench that certiorari maybe and is generally granted when a court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction. Circumstances when the writ of Certiorari cannot be issued: The writ of certiorari cannot be issued against: 1 An individual 2 A company 3 Any private authority 4 An association 5 An aggrieved party who has an alternative remedy 5. Prohibition  What does Writ of Prohibition mean? It is a writ directing a lower court to stop doing something which the law prohibits it from doing. Its main purpose is to prevent an inferior court from exceeding its jurisdiction or from acting contrary to the rules of Natural Justice.  When is the writ of Prohibition issued? It is issued to a lower or a subordinate court by the superior courts in order to refrain it from doing something which it is not supposed to do as per law. It is usually issued when the lower courts act in excess of their jurisdiction. Prohibition is a writ of preventive nature. The principle of this is ‘Prevention is better than cure’.  Important Case Laws Then in the case of Bengal Immunity Co. Ltd , the Supreme Court pointed out that where an inferior tribunal is shown to have seized jurisdiction which does not belong to it then that consideration is irrelevant and the writ of Prohibition has to be issued as a right.  Circumstances when the writ of Prohibition cannot be issued: 1. A writ of prohibition cannot be issued when a subordinate or a tribunal court is acting within the ambit of its jurisdiction. 2. A writ of prohibition cannot be issued in the situation of a mistake of a fact or law. 3. A writ of prohibition is not allowed for administrative authorities discharging administrative, executive or ministerial functions. Principle of res judicata Res Judicata is defined under Section 11 of the Civil Procedure Code, 1908. It is the Latin phrase for “a matter decided.” It means that a subsequent suit cannot be filed on the same cause of action and the same dispute by the parties to the suit. The principle of Res Judicata is based on three maxims: 1. Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause) 2. Interest republicae ut sit finis litium (it is in the interest of the state that there should be an end to litigation) 3. Res judicata pro veritate occipitur (a judicial decision must be accepted as correct) In the case of Ajay Hasia v. Khalid Mujib (1981), under Article 12, the term “local authority” refers to a unit of local self-government such as a municipal committee or a village panchayat. Suspension of fundamental rights The fundamental rights are merely suspended in their enforcement under Article 359, not their totality. During the emergency, the rights outlined in Articles 20 and 21 cannot be suspended. Key differences between Article 32 and Article 226 : a tabular representation Article 32 Article 226 1. Article 32 is a fundamental right in itself. The 1. Article 226 has discretionary powers to Supreme Court cannot refuse to consider any petition High Court within judicial principles to under Article 32. consider any petition. 2. Under Article 32, writ petitions are issued to 2. Under Article 226, writ petitions can be enforce fundamental rights. issued to enforce fundamental rights or for any other purpose. 3. During the time of emergency, Article 32 is 3. During the time of emergency, Article 226 suspended. cannot be suspended. 4. Orders passed under Article 32 will supplant orders 4. The orders passed under Article 226 cannot passed under Article 226. supplant orders under Article 32. 5. Article 32 has territorial jurisdiction over the entire 5. Article 226 has limited territorial country of India. jurisdiction. Conclusion The constitutional remedies provided to the citizens are the powerful orders with immediate effect. And the writs are mostly invoked against the state and are issued when PILs are filed. The Writ Jurisdictions which are conferred by the Constitution though have prerogative powers and are discretionary in nature and yet they are unbounded in its limits. The discretion, however, is exercised on legal principles. Therefore, the first essential on which the constitutional system is based in the absence of arbitrary power. Hence, the decision must be taken on the basis of sound principles and rules and should not be based on whims, fancies or humour. And if a decision is not backed by any principles or rules, then such a decision is considered arbitrary and is taken not in accordance with the rule of law. ARTICLE 38: STATE TO SECURE A SOCIAL ORDER FOR THE PROMOTION OF THE WELFARE OF THE PEOPLE (1) 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 the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. 15 Article 39 of the Indian Constitution Introduction The Directive Principles of the State Policy (DPSP) has been enumerated under Part IV of the Indian Constitution from Articles 36 to 51. The drafters/ framers of the Indian Constitution have taken this concept of the Directive Principle of the State Policy (DPSP) from the Irish Constitution, 1937 which has further borrowed the said concept from the Spanish Constitution. As rightly said by Dr. B.R Ambedkar, these Directive Principles of the State Policy (DPSP) form the novel feature of the Indian Constitution. The Fundamental Rights along with the Directive Principles are the heart and soul of the Indian Constitution. Classification of the Directive Principles of the State Policy (DPSP) The Indian Constitution does not explicitly mention any classification of the Directive Principles of the State Policy (DPSP). However, on the basis of the content of the various Articles, they can be classified under three major categories, that are: 1. Socialistic Principles, (Article 38, 39, 39A, 41, 42, 43, 43A and 47) 2. Gandhian Principles and (Article 40, 43, 43B, 46, 47, 48) 3. Liberal-intellectual Principles. (Article 44, 45, 48, 48A, 49, 50, 51) Article 39 of the Indian Constitution Article 39 of the Indian Constitution, specifically deals with the provisions or principles of policy that shall be undertaken by the state. Article 39 contains six sub-clauses, that are: 1. That all the citizens irrespective of their sex whether men or women shall equally have the right to adequate means of livelihood. [Article 39(a) of the Indian Constitution] 2. That the resources and the ownership of those resources and materials shall be distributed in such a way that it fulfils the common goal. [Article 39(b) of the Indian Constitution] 3. That the economic system shall be executed in such a way that the concentration of wealth and means of production shall not result in a common detriment. [Article 39(c) of the Indian Constitution] 4. That equal pay for equal work shall be promoted. [Article 39(d) of the Indian Constitution] 5. That the health and strength of workers irrespective of whether men, women or children shall not be abused or manipulated. Further, economic necessity/condition shall not be the reason for entering such avocation that is unsuitable for specific age or strength. [Article 39(e) of the Indian Constitution] 6. That appropriate opportunities shall be given to children that would help them in building in a healthy manner, and in the condition of freedom and dignity. 1 Garib Kalyan Rozgar Yojana This scheme was an outcome of the COVID-19 pandemic under which the government aims at promoting employment opportunities to all those migrant workers who have got displaced and further providing them the funds to re-establish their ventures. 2 Deen Dayal Upadhyaya Antodaya Yojana The purpose of Deen Dayal Upadhyaya Antodaya Yojana (DAY) is to skill and train people residing in rural as well as urban areas. The chief purpose of the scheme is to expand and generate more and more employment and further provide funds to people so that they can set up their ventures. Conclusion Article 39 of the Indian Constitution make sure that the state while or before framing the policies, regulations, etc. shall put due consideration on ensuring adequate means of livelihood to every person irrespective of the fact that such person is a male or female, equal pay for equal work shall be promoted that aims at curbing the stereotype behaviour of the society towards the women, the employees shall be protected or safeguarded from any kind of exploitation, due consideration shall be made on the health of children and further ensuring enough opportunity to the youths for their development. The only loophole that can be mentioned here is the non-inclusivity of other genders within the scope of Article 39 of the Indian Constitution as it includes only males and females. 16 ARTICLE 39A: EQUAL JUSTICE AND FREE LEGAL AID The State shall secure that the operation of the legal system promotes justice, on a 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: ORGANISATION OF VILLAGE PANCHAYATS The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. ARTICLE 41: RIGHT TO WORK, TO EDUCATION AND TO PUBLIC ASSISTANCE IN CERTAIN CASES The State shall, within the limits of its economic capacity and development, make effective provision 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: PROVISION FOR JUST AND HUMANE CONDITIONS OF WORK AND MATERNITY RELIEF The State shall make provision for securing just and humane conditions of work and for maternity relief. ARTICLE 43: LIVING WAGE, ETC., FOR WORKERS The State shall endeavor 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 co-operative basis in rural areas. ARTICLE 43A: PARTICIPATION OF WORKERS IN MANAGEMENT OF INDUSTRIES 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 organisation engaged in any industry 17 ARTICLE 44: UNIFORM CIVIL CODE FOR THE CITIZEN INTRODUCTION : The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Uniform Civil Code resonates with one country one rule, to be applied to all religious communities. The term, ‘Uniform Civil Code’ is explicitly mentioned in Part 4, Article 44 of the Indian Constitution. Article 44 says, “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.” Context: Uniform Civil Code in India is a widely debated topic lately since the first petition was filed in 2019 to seek for framing of a UCC to promote national integration and gender justice, equality, and dignity of women. A Uniform Civil Code means that all sections of the society irrespective of their religion shall be treated equally according to a national civil code, which shall be applicable to all uniformly. They cover areas like- Marriage, divorce, maintenance, inheritance, adoption and succession of the property. It is based on the premise that there is no connection between religion and law in modern civilization. What is Article 44? Article 44 corresponds with Directive Principles of State Policy stating that State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India. The Hindu code bill -The bill was drafted by Dr.B R Ambedkar to reform Hindu laws, which legalized divorce, opposed polygamy, gave rights of inheritance to daughters. Amidst intense opposition of the code, a diluted version was passed via four different laws. Succession Act-The Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005 The Hindu Marriage Act Minority and Guardianship Act Adoptions and Maintenance Act Special Marriage Act:  It was enacted in 1954 which provided for civil marriages outside of any religious personal law.  Judicial interventions: Shah Bano case (1985):- A 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She approached the courts and the District Court and the High Court ruled in her favour. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law. The Supreme Court ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. Further, It recommended that a uniform civil code be set up. Daniel Latifi Case:- Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to equality under Articles 14& 15 as well as the right to life under Article 21. The Supreme Court while holding the law as constitutional, harmonised it with section 125 of CrPC and held that the amount received by a wife during iddat period should be large enough to maintain her during iddat as well as provide for her future. Thus under the law of the land, a divorced Muslim woman is entitled to the provision of maintenance for a lifetime or until she is remarried. Sarla Mudgal Case:- In this case, the question was whether a Hindu husband married under the Hindu law, by embracing Islam, can solemnise a second marriage. The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955. Conversion to Islam and marrying again, would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after converting to Islam would be an offence under section 494 of the Indian Penal Code(IPC). John Vallamattom Case:- In this case, a priest from Kerala, John Vallamattom challenged the

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