Class Notes on Constitutional Law – Unit I (1st Sem / 3 year LL.B)
Introduction to Indian Constitution
The framing of the Constitution was completed on November 26, 1949 when the Constituent Assembly formally adopted the new Constitution. The Constitution came into force with effect from January 26, 1950.
The Constitution contains the fundamental law of the land. It is the source of all powers of, and limitations on, the three organs of State, viz. the executive, legislature and judiciary. No action of the state would be valid unless it is permissible under the Constitution. Therefore, it is imperative to have a clear understanding of the nature and working of the Constitution.
Objectives of The Constitution
The Constitution of Independent India was framed in the background of about 200 years of colonial rule, mass-based freedom struggle, the national movement, partition of the country and spread of communal violence. Therefore, the framers of the Constitution were concerned about the aspirations of the people, integrity and unity of the country and establishment of a democratic society. Their main was to give India a ‘Constitution’ which will fulfill the cherished ideas and ideals of the people of this country.
The Constitution begins with a Preamble which declares India to be a Sovereign, Socialist, Secular, Democratic, Republic. The Preamble also mentions the goals of securing justice, liberty and equality for all its citizens and promotion of national unity and integrity on the basis of fraternity among the people assuring dignity of the individual.
Salient Features of the Indian Constitution
The main features of Indian Constitution are the following:
- A written Constitution: The Indian Constitution is mainly a written constitution. A written constitution is framed at a given time and comes into force or is adopted on a fixed date as a document. As you have already read that our constitution was framed over a period of 2 years, 11 months and 18 days, it was adopted on 26th November, 1949 and enforced on January 26, 1950. Certain conventions have gradually evolved over a period of time which have proved useful in the working of the constitution.
- Federal Policy: The Constitution of India does not use the term ‘federal state’. It says that India is a ‘Union of States’. There is a distribution of powers between the Union/Central Government and the State Governments. Since India is a federation, such distribution of functions becomes necessary. There are three lists of powers such as Union List, State List and the Concurrent List.
- Parliamentary Democracy: India has a parliamentary form of democracy. This has been adopted from the British system. In a parliamentary democracy there is a close relationship between the legislature and the executive. The Cabinet is selected from among the members of legislature. The cabinet is responsible to the latter. In fact the Cabinet holds office so long as it enjoys the confidence of the legislature. In this form of democracy, the Head of the State is nominal. In India, the President is the Head of the State. Constitutionally the President enjoys numerous powers but in practice the Council of Ministers headed by the Prime Minister, which really exercises these powers. The President acts on the advice of the Prime Minister and the Council of Ministers.
- Fundamental Rights and Duties: Fundamental Rights are one of the important features of the Indian Constitution. The Constitution provides for six Fundamental Rights about which you will read in the following lesson. Fundamental Rights are justiciable and are protected by the judiciary. In case of violation of any of these rights one can move to the court of law for their protection.Fundamental Duties were added to our Constitution by the 42nd Amendment. It lays down a list of ten Fundamental Duties for all citizens of India. While the rights are given as guarantees to the people, the duties are obligations which every citizen is expected to perform.
- Directive Principles of State Policy: The Directive Principles of State Policy which have been adopted from the Irish Constitution, is another unique feature of the Constitution of India. The Directive Principles were included in our Constitution in order to provide social and economic justice to our people. Directive Principles aim at establishing a welfare state in India where there will be no concentration of wealth in the hands of a few.
- Partly rigid and Partly flexible: A constitution may be called rigid or flexible on the basis of its amending procedure. The Constitution of India provides for three categories of amendments. In the first category, amendment can be done by the two houses of Parliament simple majority of the members present and voting of before sending it for the President’s assent. In the second category amendments require a special majority. Such an amendment can be passed by each House of Parliament by a majority of the total members of that House as well as by the 2/3rd majority of the members present and voting in each house of Parliament and send to the President for his assent which cannot be denied. In the third category besides the special majority mentioned in the second category, the same has to be approved also by at least 50% of the State legislatures.
- Language Policy: India is a country where different languages are spoken in various parts of the country. Hindi and English have been made official languages of the central government. A state can adopt the language spoken by its people in that state also as its official language.
- Special Provisions for Scheduled Castes and Scheduled Tribes: The Constitution provides for giving certain special concessions and privileges to the members of these castes. Seats have been reserved for them in Parliament, State legislature and local bodies, all government services and in all professional colleges.
- A Constitution Derived from Many Sources: The framers of our constitution borrowed many things from the constitutions of various other countries and included them in our constitution. That is why; some writers call Indian Constitution a ‘bag of borrowings’.
- Independent Judiciary: Indian judiciary is independent an impartial. The Indian judiciary is free from the influence of the executive and the legislature. The judges are appointed on the basis of their qualifications and cannot be removed easily.
- Single Citizenship: In India there is only single citizenship. It means that every Indian is a citizen of India, irrespective of the place of his/her residence or place of birth. He/she is not a citizen of the Constituent State like Jharkhand, Uttaranchal or Chattisgarh to which he/she may belong to but remains a citizen of India. All the citizens of India can secure employment anywhere in the country and enjoy all the rights equally in all the parts of India.
- 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. The Indian Constitution establishes political equality in India through the method of universal adult franchise.
- Emergency Provisions: The Constitution makers also foresaw that there could be situations when the government could not be run as in ordinary times. To cope with such situations, the Constitution elaborates on emergency provisions. There are three types of emergency; a) emergency caused by war, external aggression or armed rebellion; b) emergency arising out of the failure of constitutional machinery in states; and c) financial emergency.
Theory of Basic Structure
- Supremacy of Constitution
- Republican and Democratic form of Government
- Secular Character of Constitution
- Separation of Powers between the Legislature, the Executive and the Judiciary
- Federal Character of Constitution
Nature of the Indian Constitution – Federal, Unitary, Quasi-federal
In a Democratic government, Constitution plays a primary role in efficient governance. Constitution is a set of fundamental principles or established precedents according to which a State can be governed. Constitutions may be classified into two categories. Such as: Federal or Unitary.
What is Federal and Unitary Constitution?
In a Unitary Constitution, all the powers of a Government are concentrated in a central authority. The States or the different constituents of the Country are subordinate to such central authority. However, in Federal Constitution, powers are distributed among the center and the States. States are not subordinates of the central government. Constitution of USA, Australia are considered to be federal in nature.
Is Indian Constitution a federal or unitary in nature?
Indian Constitution is an hybrid of both federal and unitary nature of a Constitution and hence rightly termed as ‘Quasi-federal‘ Constitution. It means a federal set up where despite having two clear sets of government – central and the states, more powers are given to the Central Government.
Prof. Wheare put-forth his view that to say a Constitution is federal in nature, it should displays federal character predominantly.
Following are the defining features of federalism:
- Distribution of Powers between center and states
- Supremacy of the Constitution
- Written Constitution
- Rigidity of the Constitution
- Independent Judiciary
Factors that affect the federal character of the Constitution of India are:
- Appointment of the Governor of a State
- Power of the parliament to make laws on subjects in the State list.
- Power to form new states and to change existing boundaries
- Emergency Provisions
The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’ has been grappling the Apex court in India because of the theoretical label given to the Constitution of India, namely, federal, quasi-federal, unitary. The first significant case where this issue was discussed at length by the apex Court was State of West Bengal V. Union of India. The main issue involved in this case was the exercise of sovereign powers by the Indian states. The legislative competence of the Parliament to enact a law for compulsory acquisition by the Union of land and other properties vested in or owned by the state and the sovereign authority of states as distinct entities was also examined. The apex court held that the Indian Constitution did not propound a principle of absolute federalism. Though the authority was decentralized this was mainly due to the arduous task of governing the large territory. The court outlined the characteristics, which highlight the fact that the Indian Constitution is not a “traditional federal Constitution”.
Thus, it can be said that Indian Constitution is primarily federal in nature even though it has unique features that enable it to assume unitary features upon the time of need.
Principles of Federalism
The Indian Constitution is basically federal in form and is marked by the traditional characteristics of a federal system, namely, supremacy of the Constitution, division of power between the Union and State Governments, existence of an independent judiciary and a rigid procedure for the amendment of the Constitution.
There is an independent judiciary to determine issues between the Union and the States, to be exercised in fields assigned to them respectively. However, there are marked differences between the American federation and the Indian federation. They are:
- America has a dual citizenship, while in India, there is single citizenship
- States in America have a right to make their own Constitutions, whereas no such power is given to States in India
- Indian Constitution exhibits a centralizing tendency in several of its provisions
- In certain circumstances, the Union is empowered to supersede the authority of the State or to exercise powers otherwise vested in the States
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 1
- S. R. Bommai v. Union of India, AIR 1994 SC 1918 8
- State of West Bengal v. Union of India, AIR 1963 SC 1241 24
- Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 39
- Kuldip Nayar v. Union of India, AIR 2006 SC 3127
- State of Haryana v. State of Punjab, AIR 2002 SC 685
WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a [SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
November, 1949, do HEREBY ADOPT, ENACTAND GIVE TO
OURSELVES THIS CONSTITUTION.
Part I – The Union and Its Territory
Article 1: Name and territory of the Union
Article 2: Admission or establishment of new states
Article 3: Formation of new States and alteration of areas, boundaries or names of existing States
Article 4: Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters
- In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 47
- Ram Kishore Sen v. Union of India, AIR 1966 SC 644
- Union of India v. Sukumar Sengupa, AIR 1990 SC 1692
- N. Masthan Sahib v. Chief Commissioner Pondicherry, AIR 1962 SC 797
- R. C. Poudyal v. Union of India, AIR 1993 SC 1804
- Babulal Parate v. State of Bombay, AIR 1960 SC 51
Part II – Citizenship
Article 5: Citizenship at the commencement of the Constitution
Article 6: Rights of citizenship of certain persons who have migrated to India from Pakistan
Citizenship by Birth
Article 7: Rights of citizenship of certain migrants to Pakistan
Rights of Overseas Citizens
Article 8: Rights of citizenship of certain persons of Indian origin residing outside India
Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens
Article 10: Continuance of the rights of citizenship
Article 11: Parliament to regulate the right of citizenship by law
Every person who is a citizen of a Commonwealth country specified in the First Schedule shall, by virtue of that citizenship, have the status of a Commonwealth citizen in India.
Whether a Corporation a citizenship or not
The freedom under article 19 are limited to citizens and if literally constructed these freedoms would not be available to corporations, because corporations cannot be talked of as having or possessing citizenship. But it has been held that shareholders can challenge the validity of a law on the grounds of violation of their fundamental rights and the company may be joined in such proceeding with proper pleading. The decisions relevant to the point are following:-
A company is not a citizen and cannot invoke article 19(1)(g).
- Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, AIR 1965 SC 40 (48)
- Bennet Coleman and Co. Ltd. v. Union of India, AIR 1973 SC 106: (1972) 2 SCC 788: 1973 (1) SCJ 177
- D.C & G.M. v. Union of India AIR 1983 SC 937
Domicile – Meaning
The country that a person treats as their permanent home, or lives in and has a substantial connection with. The state in which a person has his/her permanent residence or intends to make his/her residence, as compared to where the person is living temporarily.
Kinds of Domicile
- Domicile of origin
- Domicile of choice
- Domicile by operating of law
Elements constituting Domicile
Domicile depends on intent, location of a home where a person regularly sleeps, and some conduct.
Under the Indian Constitution, there is only one domicile viz. the domicile of the country and there is no separate domicile for a State.
Pradeep Jain (Dr.) v. Union of India, AIR 1984 SC 1420 : (1984) 3 SCC 654: 1984 Ed Case 237, para 8-9
Citizenship by Migration
Migration must be with intention to reside permanently in India. Such intention may be formed even later.
Part III – Fundamental Rights
Kinds of Rights
- Natural or Human Rights
- Moral Rights
- Legal Rights – Civil and Political Rights
- Fundamental Rights in India
Natural Rights are those rights that are available to each and every being, including human beings. Rights that are specific to Human beings are also called as Human Rights. Natural rights deals with right to life, right to movement, etc.
Article 21 deals with right to protection of life and personal liberty.
At the same time, when a person lives alone in an island, he does not have right but freedom. Only when a man lives as a group or in a community, rights evolve. Because, when a man lives in a group, there is always conflict and absolute freedom cannot be assured. Hence, the concept of right is correlated with duties.
Every right has an obligation to duty. Recognition of freedom of others forms the basis of rights. Our rights is based on other’s duties and other’s rights based on our duties. State does not create rights, but only recognizes, maintains and co-ordinates the rights of its people.
Origin of Fundamental Rights
The rights that are basic to the advancement of the human race are called Fundamental Rights. All other rights are derived from these rights as direct implications or application of their principles. It is an accepted belief among the philosophers that these rights are nothing but “natural human rights”, which distinguish between humans and animals and which have been so instrumental in bringing humans from the stone age to the present age. Among all, the right to life and liberty is considered to be the most basic.
The history of legally enforceable fundamental rights probably starts from Magna Carta, which was a list of rights extracted from Kind John by the people of England in 1214 AD. This was followed by the “Bill of Rights” in 1689 in which Englishmen were given certain civil and political rights that could not be taken away. Later on the French compiled the “Declaration of the rights of Man and of the Citizen” after the French Revolution in 1789.
The most important advancement in history of fundamental rights occurred when the USA incorporated certain fundamental rights in the form on “Bill of Rights” in their constitution by the way of first 10 amendments. These rights were deemed to be beyond the vagaries of politics. The protection by the constitution meant that these rights could not be put to vote and were not dependent on the whims of politicians or of the majority.
After this, nearly all democracies of the world have given a constitutional sanctity to certain inalienable rights available to their citizens. (Source: Hanumant.com)
The need for Fundamental Rights
1. Rule of Law
These rights are a protection to the citizens against the govt and are necessary for having the rule of law and not of a a govt or a person. Since explicitly given by the constitution to the people, these rights dare not be transgressed by the authority. The govt. is fully answerable to the courts and is fully required to uphold these rights.
2. First fruits of the freedom struggle
After living in subjugation for such a long time, people had forgotten what is meant by freedom. These rights give people hope and belief that there is no stopping to their growth. They are free from the whims of the rulers. In that sense, they are first fruits of the lengthy freedom struggle and bring a sense of satisfaction and fulfillment.
3. Quantification of Freedom
Every Indian citizen in free to practice a religion of his choice, but that is not so in the gulf countries. Our right to speech and expression allows us to freely criticize the govt. but this is not so in China. (Source: Hanumant.com)
Fundamental Rights in India
As regard India Simon Commission and Joint Parliamentary Committee had reject the idea of enacting declaration of Fundamental right on the ground that the abstract declaration is useless. Although the demand of the people was not met by the British Parliament under the government of India Act 1935 yet the enthusiasm of the people to have such right in the constitution was not impaired. The recommendation of the Nehru Committee was included in the constitution in 16 May’1946 by the cabinet mission.
PART III talks about the fundamental rights such as:
- Right to Equality (Article 14 – 18)
- Right to Freedom (Article 19 – 22)
- Right against Exploitation (Article 23 – 24)
- Right to freedom of Religion (Article 25 – 28)
- Cultural and Educational Right (Article 29 – 30)
- Right to Constitution Right (Article 32)
Art. 19(1)a – 19(1)g and Art. 19(2) places reasonable restriction on rights. Our rights are not absolute rights.
Definition of State
Article 12 of the Constitution defines the State as follows:
“In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”
The definition of the term “the State” specifies the authorities and instrumentalities functioning within or without the territory of India, which shall be deemed to be “the State” for the purpose of part III of the Constitution. The definition is inclusive and not exhaustive. Therefore, authorities and instrumentalities not specified in it may also fall within it if they otherwise satisfy the characteristics of “the State” as defined in this article.
A local authority having a legal grievance may be able to take out a writ. Thus, a writ was issued on the petition of a local authority against a public utility concern, for the latter’s failure to fulfil its statutory obligation to supply power to the local authority, a consumer;
Corporation of City of Nagpur v. N.E.L & Power Co., AIR 1958 Bom 498
Mr. Justice Bhagwati has given following test for determining whether an entity is an instrumentality or agency of the State –
- Share capital of the corporation is held by Government
- Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation
- State protected monopoly status of a corporation
- Existence of deep and pervasive State control
- If the functions of the corporations of public importance and closely related to governmental functions
Article 13: Laws inconsistent with or in derogation of the fundamental rights
- A.K. Gopalan Vs. State of Madras. 1951
By unanimous decision declared that Section 14 of the Act invalid and thus manifested its competence to declare void any parliamentary enactment repugnant to the provisions of the Constitution.
- Minerva Mills case, 1980
Supreme Court had trunk down section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24, 19 and 31 of the Part III of the Constitution, on the ground that Part III and Part IV of the Constitution are equally important and absolute primacy of one over the other is not permissible as that would disturb the harmony of the Constitution.The Supreme Court was convinced that anything that destroys the balance between the two part will, by that very fact, destroy an essential element of the basic structure of our constitution
Doctrine of Severability
Article 13 of the Indian Constitution provides for Doctrine of Severability which states that All laws in force in India before the commencement of Constitution shall be void in so far they are inconsistent with the provisions of the Constitution.
A law becomes invalid only to the extent to which it is inconsistent with the fundamental rights. So only that part of the law will be declared invalid which is inconsistent, and the rest of the law will stand. However, on this point a clarification has been made by the courts that invalid part of the law shall be severed and declared invalid if really it is severable, i.e if after separating the invalid part the valid part is capable of giving effect to the legislature’s
intent, then only it will survive, otherwise the court shall declare the entire law as invalid.
- A.K. Gopalan v. State 0f Madras
held that the preventive detention minus section 14 was valid as the omission of the Section 14 from the Act will not change the nature and object of the Act and therefore the rest of the Act will remain valid and effective.
- D.S. Nakara v. Union of India
the Act remained valid while the invalid portion of it was declared invalid because it was severable from the rest of the Act.
- R.M.D.C. v.Union of India, AIR 1957 S.c. 628
1. The intention of the legislature is the determining factor in determining whether the valid parts of a statue are severable from the invalid parts.
2. If the valid and invalid provisions are so inextricably mixed up so that they cannot be separated from the other, then the invalidity of a portion must result in the invalidity of the Act in its entirety.
3. Even when the provisions which are invalid, are distinct and separate from those which are invalid if they form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.
4. If after the invalid portion is expunged from the Statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be stuck down as void as otherwise it will amount to judicial legislation.
Doctrine of Eclipse
It states that an existing law which is inconsistent with a fundamental right become inoperative from the date of the commencement of the constitution, it cannot be accepted as dead altogether. The Doctrine of Eclipse is based on the principle that a law which violates fundamental rights, is not nullity or void ab initio but becomes, only unenforceable i.e. remains in a moribund condition. “It is over-shadowed by the fundamental rights and remains dormant, but it is not dead.” .
- Bhikhaji v. State of M.P., AIR 1955 S.c. 781
“In this case the provisions of.C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorized the State Government to take up the entire motor transport business in the Province to the exclusion of motor transport operators. This provision though valid when enacted, but became void on the commencement of the Constitution in 1950 as they violated Article 19(1 )(g) of the Constitution. However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st Amendment Act) so as to authorize . the Government to monopolise any business. The Supreme Court held that the effect of the amendment was to remove the shadow and to make the impugned Act free from blemish or infirmity. It became enforceable against citizens as well as non-citizens after the constitutional impediment was removed. This law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of such removal”. (Courtesy: Adv. Smita via LegalServices.co.in)
Right to Equality (Article 14-18)
Application of the same laws uniformly to all of them will, therefore, be inconsistent with the principle of equality.
Article 14 – Equality before law
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
It is the core article under Right to Equality. It deals with two kinds of rights. It states that the State shall not deny to any person
- Right to equality before the law.
- Right to Equal Protection before the law.
1. Right to Equality before the law
It is a negative concept because it means that no man is above the law or in other words all individuals are subject to the Law of the land. Rule of law means the absolute supremacy of ordinary law of land as opposed to the influence of arbitrary power of the ruler.
The three principles which govern the Rule of law are:
- (I) No man shall be punished either in body or goods (material) except for the violation of law in force. Further, the violation of law shall be established in an ordinary court of land in an ordinary legal manner.
- (II) All individuals irrespective of their social or economic understanding are subject to ordinary law of land. Further, all the individuals are subject to the jurisdiction of the court. I.e. all individuals can be sued before the court. A person can appear before the court in form of attorney or himself.
- (III) The constitution is the result of ordinary Law of land.
However the third rule had been modified in its application under the Indian constitution where the third law reads as the Constitution is Supreme law of Land and all laws passed by the legislature shall conform to it to be legally valid.
Significance of Rule of law
(i) It is the adoption of rule of law that has changed the constitution from Rex Lex (king is law) to Lex Rex (Law is king)
(ii) The rule of law is essential to maintain an individual’s liberty. Therefore, Rule of law is an essential feature of democracy.
Protection of Rule of Law
The constitution under article 32 and 226 confers the power on Supreme Court and the High Court’s respectively to safeguard the Rule of law by exercising the writ jurisdictions. Further the constitution emphasizes that the Rule of Law is an immutable Principle of Governance of the Country.
In Keshavananda Bharati Vs State of Kerala, 1973 case Supreme Court held that the Rule of Law is a part of basic structure of the constitution and cannot be destroyed.
Exceptions to the Rule of Law
- (1) Article 361- The President or the Governor of State is not answerable to a court of law with regard to exercise of its executive functions.
- (2) No criminal proceedings whatsoever can be instituted against the President and Governor of State during his/her term of office. He should be first remove impeached to continue the proceedings against him.
- (3) No civil proceedings in which relief is claimed can be instituted against the President or the Governor of State in a court, except of the expiry under a 2 month notice served on the President and Governor.
- (4) According to the International Laws- The visiting subject to the jurisdiction of local court.
2. Equal protection before Law
- (1) It originated as a concept in USA.
- (2) It is a positive concept.
- (3) It means equality of treatment in equal circumstances. Among equals the law shall be equal and equally administered. “The like should be treated alike”. All the persons placed in equal circumstances shall be treated similarly. Therefore, it ensures equality among equals. It does not mean inequality among equals.
- (4) It allows State to classify individuals on a reasonable basis into similar groups. Once such a classification is made, the law shall apply equally among all the people within a group. Then no person within a group shall be treated differently. However, the State is free to discriminate people between the groups.
- (5) The concept of equal protection before law is also called “Positive Discrimination” on the Part of the State and the policy of reservation is legally justified under it.
- (6) This concept is based on the Aristotelian Principle that ‘Equality can exist only among the equals and equality cannot exist among unequals.
Thus the Legislative may:
- (i) Exempt certain classes of property from taxation such as charities, libraries etc.
- (ii) Impose different specific takes upon different trades and professions.
- (iii)Tax income and property of individuals in different manner etc.
Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc on 28 August, 1981
A.H. under A.I. was retired from service in the following contingencies:
- (a) On attaining the age of 35 years;
- (b) On marriage if it took place within four years of the service; and
- (c) On first pregnancy.
The court held that the last portion of regulation 46 (i) (c) struck down. The provision ‘or on first pregnancy whichever occurs earlier’ is unconstitutional, void and violative of Article 14 of the Constitution and will, therefore, stand deleted. It will, however, be open to the Corporation to make suitable amendments.
It is undisputed that what Art. 14 prohibits is hostile discrimination and not reasonable classification. If equals and unequals are differently treated, there is no discrimination so as to amount to an infraction of Art. 14 of the Constitution. A fortiori if equals or persons similarly circumstanced are differently treated, discrimination results so as to attract the provisions of Art. 14.
- Bhagwati Justice of the Supreme Court in Maneka Gandhi v Union of India
- Ramana Dayaram Shetty v International Airport Authority (IAA)
- Mithu v State of Punjab
- Ramakrishna Dalmia v Justice Teldolkar
- Air India v Nergesh Meerza and others
- Indian Council of Legal Aid and Advice, etc. etc. v Bar Council of India and another
Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Mrs. Valsamma Paul v Cochin University and others
Githa Hariharan v Reserve Bank of India
Pranatosh Roy (Dr.) v University of Calcutta
Vishaka v State of Rajasthan
Rajesh Kumar Gupta v State of U.P.
P. Sagar v State of A.P.
Dattareya v State of Bombay
Women Reservation Bill
Article 16 – Equality of opportunity in matters of public employment
M.R. Balaji v State of Mysore
Devadasan v Union of India
State of Kerala v N.M. Thomas
Akhil Bharatiya Karmachari Sangh v Union of India
Indira Sawhney & others v Union of India and others
Promotions – Before & After the 77th Amendment of the Constitution
Article 17 – Abolition of Untouchability
“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.
- Casteism is a great enemy.
- Casteism is founded on “Manusmrithi” in the ancient India.
- Several Acts such as: the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Protection of Civil Rights Act, 1955
Article 18 – Abolition of titles
No title, not being a military or academic distinction, shall be conferred by the State.
No citizen of India shall accept any title from any foreign State.
No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State
Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri Awards:
The Order of Leopold
The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the following six freedoms:
Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, “freedom of press” has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.
Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.
Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.
Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics.
Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion. Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.
Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade.
The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:
Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty.
19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
- (a) to freedom of speech and expression;
- (b) to assemble peaceably and without arms;
- (c) to form associations or unions;
- (d) to move freely throughout the territory of India;
- (e) to reside and settle in any part of the territory of India; and
- (f) omitted
- (g) to practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,
- (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
- (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise
Maneka Gandhi vs Union Of India
20. Protection in respect of conviction for offences
- (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
- (2) No person shall be prosecuted and punished for the same offence more than once
- (3) No person accused of any offence shall be compelled to be a witness against himself
According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. “Compulsion” in this article refers to what in law is called “Duress” (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self incrimination. The other principle enshrined in this article is known as the principle of double jeopardy, that is, no person can be convicted twice for the same offence, which has been derived from Anglo Saxon law. This principle was first established in the Magna Carta.
21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law
Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law. This means that a person’s life and personal liberty can only be disputed if that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year. In 1996 however another Supreme Court ruling nullified the earlier one.) “Personal liberty” includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under “personal liberty” in Article 21.
In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to primary education part of the right to freedom, stating that the State would provide free and compulsory education to children from six to fourteen years of age. Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008. It is now soon to be tabled in Parliament for approval before it makes a fundamental right of every child to get free and compulsory education.
The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency.