Constitutional Law – I

Ans: The rule of law means that the State and its officials are governed by law and not by arbitrary power. A.V. Dicey explained it in his book The Law of the Constitution (1885).

Dicey’s three meanings

• Supremacy of law. No person can be punished or made to suffer except for a breach of law established in the ordinary courts. Arbitrary power and wide discretionary powers are excluded.
• Equality before the law. Every person, whatever his rank or status, is subject to the ordinary law and the ordinary courts.
• Constitution as the result of ordinary law. Individual rights come from judicial decisions in specific cases and are not merely declared in a document.

In the Indian Constitution

• Article 14 guarantees equality before the law and the equal protection of the laws. Article 21 protects life and personal liberty against State action except by a procedure established by law. Articles 32 and 226 give a remedy for the enforcement of rights.
• Kesavananda Bharati v. State of Kerala (1973) and Indira Nehru Gandhi v. Raj Narain (1975): the Supreme Court treated the rule of law as part of the basic structure.
• E.P. Royappa v. State of Tamil Nadu (1974) and Maneka Gandhi v. Union of India (1978): arbitrariness is the opposite of equality. State action must be fair, just and reasonable.
• A.D.M. Jabalpur v. Shivkant Shukla (1976), which upheld the suspension of habeas corpus during the Emergency, is now regarded as wrong. The Supreme Court disapproved it in K.S. Puttaswamy v. Union of India (2017).

Limits on Dicey’s view

Indian law accepts reasonable classification and recognises special powers for the State, such as preventive detention. It requires that these powers be exercised under law and subject to judicial review.

Ans: Article 5 of the Constitution deals with citizenship at the commencement of the Constitution on 26 January 1950. It says that every person who has his domicile in the territory of India and satisfies one of three conditions is a citizen of India.

Conditions under Article 5

• He was born in the territory of India; or
• either of his parents was born in the territory of India; or
• he had been ordinarily resident in the territory of India for not less than five years immediately before the commencement of the Constitution.

Meaning of domicile

Domicile means the place where a person has his permanent home and intends to live permanently. It is different from residence. A person acquires a domicile of origin at birth and may later acquire a domicile of choice. The Constitution does not define it, so the common law concept applies.

Related provisions

• Article 6: certain persons who migrated to India from Pakistan.
• Article 7: persons who migrated to Pakistan but returned under a permit for resettlement.
• Article 8: persons of Indian origin residing outside India.
• Article 9: a person who voluntarily acquires the citizenship of a foreign State does not become a citizen under Articles 5, 6 or 8.
• Article 11: Parliament may make laws on citizenship. It has done so in the Citizenship Act, 1955.

Sections: Art. 5Art. 6Art. 7Art. 8Art. 9Art. 11

Ans: The right to property was originally a fundamental right under Articles 19(1)(f) and 31 of the Constitution. The 44th Amendment Act, 1978 omitted both and made it a constitutional right under Article 300A, which is in Part XII. It remains in the Constitution but is no longer in the chapter on fundamental rights.

Article 300A

It says that no person shall be deprived of his property save by authority of law. The State may take property only by authority of a valid law. The text of Article 300A does not mention compensation or public purpose.

History

• Article 31 required the State to pay compensation when it acquired property. In State of West Bengal v. Bela Banerjee (1954) the Supreme Court held that compensation must be the just equivalent of the property.
• The First, Fourth, Seventeenth and Twenty-fifth Amendments tried to limit judicial review of the compensation. The Twenty-fifth Amendment added Article 31C.
• Articles 31A, 31B and 31C, which protect certain laws, remain in the Constitution.
• Kesavananda Bharati v. State of Kerala (1973) upheld parts of those amendments, but the basic structure doctrine limits Parliament.

Present position

• Jilubhai Nanbhai Khachar v. State of Gujarat (1995): the right to property under Article 300A is not part of the basic structure. A law taking property must still be valid and for a public purpose.
• K.T. Plantation v. State of Karnataka (2011): the Court read a public purpose into Article 300A. It held that the law must be valid and reasonable, and that adequate compensation is not an automatic requirement of Article 300A.
• Vidya Devi v. State of Himachal Pradesh (2020): the right to property is a human right, and the State cannot take it without lawful procedure.

Ans: The Citizenship Act, 1955, made under Article 11 of the Constitution, provides three ways in which Indian citizenship ends.

1. Renunciation (Section 8)

• An adult citizen of full capacity, who also holds the citizenship of another country, may make a declaration renouncing Indian citizenship.
• The declaration is registered by the prescribed authority, and from that date the person ceases to be a citizen.
• The Central Government may withhold registration of a declaration made during a war in which India is engaged.
• On renunciation, a minor child of the person also ceases to be a citizen, but may resume citizenship within one year of attaining majority.

2. Termination (Section 9)

• A citizen who voluntarily acquires the citizenship of another country ceases to be an Indian citizen on the date of the acquisition.
• If a question arises, the Central Government decides it, on the evidence and by the prescribed rules.
• Izhar Ahmad Khan v. Union of India (1962): the Supreme Court upheld Rule 3 of the Citizenship Rules, 1956, which makes the obtaining of a foreign passport conclusive proof that a person has voluntarily acquired foreign citizenship. It held the rule to be a valid rule of evidence.

3. Deprivation (Section 10)

The Central Government may order a person to be deprived of citizenship obtained by registration or naturalisation, or acquired in certain other ways, if it is satisfied that:

• citizenship was obtained by fraud, false representation or concealment of a material fact;
• the citizen has shown disaffection towards the Constitution;
• the citizen has unlawfully traded or communicated with an enemy during war;
• within five years of registration or naturalisation he was sentenced to imprisonment for not less than two years; or
• he has been ordinarily resident outside India for seven years continuously, without specified exceptions.

The person must be given a notice and a chance to be heard. Article 9 of the Constitution also bars a person from claiming citizenship under Articles 5, 6 and 8 if he has voluntarily acquired a foreign citizenship.

Sections: Art. 9CA 8CA 9CA 10

Ans: The right to work is the claim of a person to earn a living by suitable employment. In India it is not a fundamental right in the strict sense. It has come to be recognised through the Directive Principles and Article 21.

Constitutional basis

• Article 41 (Directive Principle): 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.
• Article 39(a): all citizens have the right to an adequate means of livelihood.
• Article 43: a living wage and decent conditions of work.
• Article 19(1)(g): the fundamental right to practise any profession or carry on any trade or business.
• Article 16: equality of opportunity in public employment.

Judicial approach

• Olga Tellis v. Bombay Municipal Corporation (1985): the right to life under Article 21 includes the right to livelihood. A person cannot be deprived of the means of livelihood except by a fair procedure.
• Delhi Transport Corporation v. D.T.C. Mazdoor Congress (1991): the termination of a permanent employee without a hearing is arbitrary and violates Articles 14 and 21.
• Delhi Development Horticulture Employees’ Union v. Delhi Administration (1992): the right to work under Article 41 is a directive that the State must work towards. It is not a right that courts can enforce directly.

Statutory right

The Mahatma Gandhi National Rural Employment Guarantee Act, 2005 gives every rural household whose adult members volunteer for unskilled manual work a legal entitlement to 100 days of wage employment in a financial year.

Ans: Equal pay for equal work means that persons doing the same work should receive the same pay, irrespective of sex or other irrelevant differences.

Constitutional basis

• Article 39(d) (Directive Principle): the State shall direct its policy towards securing equal pay for equal work for both men and women.
• Articles 14 and 16: equality before the law and equality of opportunity in public employment.

Judicial development

• Randhir Singh v. Union of India (1982): the Supreme Court held that although equal pay for equal work is not stated as a fundamental right, it can be enforced through Articles 14, 16 and 39(d), when persons doing the same work in government are paid unequally.
• Dhirendra Chamoli v. State of U.P. (1986): temporary workers doing the same work as regular workers are entitled to the same pay.
• Mackinnon Mackenzie & Co. v. Audrey D’Costa (1987): women stenographers were entitled to the same pay as men under the Equal Remuneration Act, 1976.
• State of Punjab v. Jagjit Singh (2017): temporary employees who work the same duties as regular employees are entitled to the minimum of the regular pay scale.

Limits

Equal pay does not mean equal pay for all. Differences in qualifications, experience, responsibility and the nature of duties can justify different pay. The classification must be reasonable and have a rational link with the object.

Statute

The Equal Remuneration Act, 1976 required equal pay for men and women for the same or similar work. It is now part of the Code on Wages, 2019.

Ans: Article 19(1)(b) of the Constitution gives all citizens the right to assemble peaceably and without arms. It protects meetings, processions and demonstrations. It is the basis of the right to protest.

Conditions

• The assembly must be peaceable. A violent or riotous gathering is not protected.
• It must be without arms.
• The right belongs only to citizens, not to foreigners.

Restrictions (Article 19(3))

The State may impose reasonable restrictions in the interests of the sovereignty and integrity of India or of public order. Examples are Section 144 of the Code of Criminal Procedure (now Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023), police permission rules, and the Indian Penal Code provisions on unlawful assembly.

Decided cases

• Himat Lal K. Shah v. Commissioner of Police, Ahmedabad (1973): a rule that required prior permission and gave the police an uncontrolled discretion to refuse it was struck down. The right to assemble on public streets may be regulated, but not taken away.
• Ramlila Maidan Incident, In re (2012): citizens have a fundamental right to assemble and protest peacefully, and it cannot be taken away by arbitrary executive or legislative action.
• Mazdoor Kisan Shakti Sangathan v. Union of India (2018): a blanket ban on protests at Jantar Mantar was held unreasonable. The State must balance the right with the needs of residents.

Sections: Art. 19(1)(b)Art. 19(3)

Ans: Article 22(1) and (2) of the Constitution protect a person who is arrested. Article 21 and the Code of Criminal Procedure add more protection.

Constitutional rights (Article 22(1) and (2))

• Right to be informed as soon as may be of the grounds of arrest.
• Right to consult and be defended by a legal practitioner of his choice.
• Right to be produced before the nearest magistrate within 24 hours of arrest, excluding the journey time.
• Right not to be detained beyond 24 hours without the magistrate’s authority.

Exceptions (Article 22(3))

These rights are not available to an enemy alien or to a person arrested under a law providing for preventive detention.

Additional safeguards from the courts

• D.K. Basu v. State of West Bengal (1997): the Supreme Court laid down guidelines for arrest and detention. They include police identification, an arrest memo attested by a witness, information of a relative, medical examination every 48 hours and a police control room record.
• Joginder Kumar v. State of U.P. (1994): arrest should not be made routinely. The police must be satisfied that it is justified.
• Arnesh Kumar v. State of Bihar (2014): the police must give reasons for arrest in offences punishable with up to seven years’ imprisonment.
• Nandini Satpathy v. P.L. Dani (1978) and Article 20(3): the right against self-incrimination applies during police interrogation.

Free legal aid for the arrested person is also part of the right to a fair procedure (Hussainara Khatoon v. State of Bihar (1979)).

Sections: Art. 22(1)Art. 22(2)Art. 22(3)

Ans: The right to a speedy trial is part of the right to life and personal liberty under Article 21. A procedure that is not reasonably quick is not “just, fair and reasonable” within the meaning of Maneka Gandhi v. Union of India (1978).

Leading cases

• Hussainara Khatoon v. State of Bihar (1979): thousands of undertrial prisoners in Bihar had been in jail for periods longer than the maximum sentence for their offences. The Supreme Court held that speedy trial is an essential part of Article 21 and ordered their release.
• A.R. Antulay v. R.S. Nayak (1992): the Court laid down guidelines on speedy trial and held that it covers investigation, inquiry, trial, appeal, revision and retrial.
• P. Ramachandra Rao v. State of Karnataka (2002): a seven-judge Bench held that no fixed time limit can be set for the trial of criminal cases. Each case must be judged on its facts.

Factors considered

• Length of the delay.
• Reasons for the delay.
• Whether the accused asserted the right.
• Prejudice to the accused.

Consequence of delay

A court may quash the proceedings or release the accused. Section 436A of the Code of Criminal Procedure (now Section 479 of the BNSS) allows the release on a personal bond of an undertrial prisoner who has served half of the maximum sentence for the offence.

Ans: Res judicata means “a matter already decided”. It is the rule that a matter finally decided by a competent court cannot be reopened between the same parties. Section 11 of the Code of Civil Procedure, 1908 states it for civil suits.

Application to writ petitions

• Daryao v. State of U.P. (1961): the Supreme Court held that the principle applies to petitions under Article 32. If a High Court has dismissed an Article 226 petition on the merits, after a full hearing and in a reasoned order, the same petitioner cannot file a fresh petition under Article 32 on the same facts and the same right.
• A petition dismissed in limine without a speaking order, or on a technical ground such as delay or the existence of another remedy, does not bar a later petition.
• The principle applies when a party has chosen the High Court first and has lost. A person may be free to go straight to the Supreme Court.

Exceptions and limits

• Habeas corpus: res judicata does not strictly apply, since liberty is at stake. A fresh petition may be heard on new grounds (Ghulam Sarwar v. Union of India (1967)).
• Public interest litigation: since the petitioner acts for others, constructive res judicata is applied with care (Forward Construction Co. v. Prabhat Mandal (1986)).
• Change in law or facts: a fresh petition is allowed.

Reason for the rule: there should be an end to litigation, and a person should not be harassed twice for the same cause.

Ans: A Uniform Civil Code (UCC) means a single set of personal laws on marriage, divorce, succession, adoption and maintenance that applies to all citizens, whatever their religion.

Constitutional provision

Article 44, a Directive Principle, says that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. It cannot be directly enforced by courts.

Judicial observations

• Mohd. Ahmed Khan v. Shah Bano Begum (1985): the Supreme Court regretted that Article 44 had remained a dead letter and said that a common civil code would help national integration.
• Sarla Mudgal v. Union of India (1995): a Hindu husband’s conversion to Islam to marry again does not dissolve his first marriage. The Court urged the Government to introduce a UCC.
• John Vallamattom v. Union of India (2003): the Court repeated that the State should secure a common civil code.
• Shayara Bano v. Union of India (2017): the Court set aside instant triple talaq.

Arguments

• For: it promotes equality, gender justice and national integration, and removes the conflict of personal laws.
• Against: it may interfere with freedom of religion under Articles 25 and 26 and with the cultural rights of minorities (Article 29).

Present position

Goa has a common civil code from Portuguese times. Uttarakhand enacted a Uniform Civil Code Act in 2024. At the national level, Parliament has not enacted a UCC. The Law Commission has examined the subject.

Ans: Article 26 gives every religious denomination or any section of it the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire property and to administer it in accordance with law. The Constitution does not define the term.

Meaning

• Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954): a religious denomination is a religious sect or body having a common faith and organisation and designated by a distinctive name.
• S.P. Mittal v. Union of India (1983): the Court applied three tests: a collection of individuals with a system of beliefs conducive to their spiritual well-being, a common organisation, and a distinctive name. Auroville was held not to be a religious denomination.
• Indian Young Lawyers Association v. State of Kerala (2018, the Sabarimala case): the majority held that Ayyappa devotees do not form a separate religious denomination.

Scope of Article 26

• A denomination has the autonomy to decide what rites and ceremonies are essential to its religion (Shirur Mutt).
• It can manage its own affairs in matters of religion, but not matters of administration of property, which the State may regulate by law.
• The rights are subject to public order, morality and health. They are not subject to the other fundamental rights, as Article 25 is.

Difference from Article 25

Article 25 protects individuals. Article 26 protects religious groups.

Ans: Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. It applies to every person, including foreigners.

Development

• A.K. Gopalan v. State of Madras (1950): the Court read “procedure established by law” as any procedure enacted by a valid law.
• Maneka Gandhi v. Union of India (1978): the Court overruled that view. The procedure must be just, fair and reasonable, and Articles 14, 19 and 21 are linked together.

Rights recognised under Article 21

• Right to live with human dignity (Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981)).
• Right to livelihood (Olga Tellis v. Bombay Municipal Corporation (1985)).
• Right to a clean environment (Subhash Kumar v. State of Bihar (1991)).
• Right to speedy trial and free legal aid (Hussainara Khatoon v. State of Bihar (1979)).
• Right to privacy (K.S. Puttaswamy v. Union of India (2017)).
• Right to education (Article 21A), and protection against custodial violence (D.K. Basu v. State of West Bengal (1997)).

Limits

The right to life does not include the right to die (Gian Kaur v. State of Punjab (1996)), though passive euthanasia is allowed under safeguards (Common Cause v. Union of India (2018)). The right can be restricted only by a valid law and a fair procedure.

Ans: The doctrine of severability, or separability, applies when only a part of a law is inconsistent with the fundamental rights. Article 13 makes a law void “to the extent of the inconsistency”. If the bad part can be separated from the good, only the bad part is void and the rest survives.

Tests (R.M.D. Chamarbaugwala v. Union of India, 1957)

• The court must find out the intention of the legislature: would it have enacted the valid part without the invalid part?
• If the valid and invalid parts are so mixed up that they cannot be separated, the entire law fails.
• If they are separable, the valid part stands, provided it is not rendered a different law by the removal.
• Even if separable, if the valid part is so thin that it will not be a complete scheme, it also fails.
• The test of separability looks at the text and the purpose of the statute.

Cases

• A.K. Gopalan v. State of Madras (1950): only Section 14 of the Preventive Detention Act, 1950 was held invalid. The rest of the Act was saved.
• State of Bombay v. F.N. Balsara (1951): only the offending parts of the Bombay Prohibition Act were struck.
• Kihoto Hollohan v. Zachillhu (1992): paragraph 7 of the Tenth Schedule was struck down as it lacked ratification by States. The rest of the Schedule survived.

The doctrine also applies to the severance of invalid words within a section, in a process called “blue pencil”.

Sections: Art. 13

Ans: The doctrine of eclipse says that a pre-Constitution law that is inconsistent with a fundamental right is not dead but only overshadowed. It becomes unenforceable. If the inconsistency is later removed, the law is revived without re-enactment.

Basis

Article 13(1) makes laws in force before the Constitution void “to the extent of the inconsistency” with Part III. The Supreme Court said that the word void here means only that the law is inoperative, since the law was valid when made.

Leading case

Bhikaji Narain Dhakras v. State of Madhya Pradesh (1955): the C.P. and Berar Motor Vehicles (Amendment) Act, 1947 gave the State a monopoly of motor transport. After 26 January 1950, it became inconsistent with Article 19(1)(g). The Constitution (First Amendment) Act, 1951 widened Article 19(6) to allow State monopolies. The Court held that the law was only eclipsed and revived once the amendment removed the shadow.

Limits

• Post-Constitution laws: a law made after 26 January 1950 that violates a fundamental right is void from the start. It is stillborn, and a later amendment does not revive it (Deep Chand v. State of U.P. (1959); Mahendra Lal Jaini v. State of U.P. (1963)).
• Persons: the eclipse applies to citizens. As against non-citizens, the pre-Constitution law remains valid, since they have no right under Article 19.

Sections: Art. 13(1)Art. 13(2)

Ans: The Constituent Assembly was the body that framed the Constitution of India. It was formed under the Cabinet Mission Plan of May 1946.

Composition

• It had 389 members: 296 from British India (292 from the Provinces and 4 from Chief Commissioners’ Provinces) and 93 from the Princely States.
• Members from the Provinces were elected indirectly by the provincial legislative assemblies. The Muslim League boycotted it at the start.
• After the partition, the membership came down to about 299.

Working

• First meeting on 9 December 1946, with Dr Sachchidananda Sinha as the temporary President. Dr Rajendra Prasad was elected President on 11 December 1946.
• Objectives Resolution moved by Jawaharlal Nehru on 13 December 1946 and adopted on 22 January 1947. It became the base of the Preamble.
• The Drafting Committee was set up on 29 August 1947 with Dr B.R. Ambedkar as Chairman.
• B.N. Rau was the Constitutional Adviser.
• The Constitution was adopted on 26 November 1949. The members signed it on 24 January 1950. It came into force on 26 January 1950.

The Assembly took about two years, eleven months and eighteen days, and held eleven sessions. Some provisions on citizenship and the interim parliament came into force on 26 November 1949.

Ans: The right to education in India rests on Article 21A and the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act).

Constitutional provisions

• Article 21A, inserted by the Constitution (Eighty-sixth Amendment) Act, 2002: the State shall provide free and compulsory education to all children of the age of six to fourteen years, in such manner as the State may by law determine.
• Article 45 now deals with early childhood care and education for children below six.
• Article 51A(k): a fundamental duty of a parent or guardian to provide opportunities for education to a child between six and fourteen.

Judicial development

• Mohini Jain v. State of Karnataka (1992): the right to education flows from the right to life in Article 21.
• Unni Krishnan J.P. v. State of Andhra Pradesh (1993): the right extends to children up to fourteen. After that, it is subject to the economic capacity of the State.

RTE Act, 2009 (in force from 1 April 2010)

• Free and compulsory elementary education in a neighbourhood school.
• Private unaided schools must reserve 25 per cent of seats in Class I for children from weaker and disadvantaged sections (Section 12(1)(c)). The Supreme Court upheld this in Society for Unaided Private Schools of Rajasthan v. Union of India (2012).
• Norms on pupil-teacher ratio, infrastructure and teacher qualifications.
• Prohibition of capitation fees, screening tests and physical punishment.
• In Pramati Educational and Cultural Trust v. Union of India (2014) the Court held that the Act does not apply to minority institutions.

Ans: Article 51A, in Part IV-A, lists the fundamental duties of citizens. It was inserted by the 42nd Amendment Act, 1976, on the recommendation of the Swaran Singh Committee. Originally ten duties were listed. The 86th Amendment Act, 2002 added the eleventh.

The duties

• (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
• (b) to cherish and follow the noble ideals that inspired the national struggle for freedom;
• (c) to uphold and protect the sovereignty, unity and integrity of India;
• (d) to defend the country and render national service when called upon;
• (e) to promote harmony and the spirit of common brotherhood, and to renounce practices derogatory to the dignity of women;
• (f) to value and preserve the rich heritage of our composite culture;
• (g) to protect and improve the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures;
• (h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
• (i) to safeguard public property and to abjure violence;
• (j) to strive towards excellence in all spheres of individual and collective activity;
• (k) who is a parent or guardian, to provide opportunities for education to his child or ward between the age of six and fourteen years.

Features

• The duties are addressed to citizens only.
• They are not enforceable by courts, and no penalty is attached to them in the Constitution.
• They are used as an aid in interpreting laws and in testing the reasonableness of restrictions.

Sections: Art. 51A

Ans: Article 12 says that, in Part III (Fundamental Rights), unless the context requires otherwise, “the State” includes:

• the Government and Parliament of India;
• the Government and 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.

Why it matters

Fundamental rights are generally enforceable against the State. An action by a private person is not usually a violation of a fundamental right. Article 12 therefore decides whom a petition under Article 32 or 226 can be filed against.

Who are “other authorities”?

• University of Madras v. Santa Bai (1954): the principle of ejusdem generis was used to limit the term to authorities of a governmental character.
• Rajasthan State Electricity Board v. Mohan Lal (1967): any authority with the power to make laws, rules or regulations that have the force of law is an “authority”.
• Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975): statutory corporations like ONGC, LIC and Industrial Finance Corporation are State.
• R.D. Shetty v. International Airport Authority (1979): a body that is an instrumentality or agency of the Government is State. The Court set out indicators, such as financial control, monopoly status, deep and pervasive State control, and public functions.
• Ajay Hasia v. Khalid Mujib Sehravardi (1981): a society running a government-sponsored college was an instrumentality of the State.
• Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002): the test is whether the body is financially, functionally and administratively dominated by or under the control of the Government.
• Zee Telefilms v. Union of India (2005): the Board of Control for Cricket in India was held not to be State.

The definition also applies to the Directive Principles in Part IV (Article 36).

Sections: Art. 12Art. 36

Ans: A constitution is the fundamental law of a country. It sets up the organs of government, defines their powers and relations, and states the rights of citizens. K.C. Wheare called it the whole system of government of a country, the collection of rules that establish and regulate the government. The Constitution of India, which came into force on 26 January 1950, is a written document.

Constitutional morality

• The idea comes from the historian George Grote. Dr Ambedkar spoke of it in the Constituent Assembly on 4 November 1948. He said that constitutional morality means a paramount reverence for the forms of the Constitution, and that it is not a natural sentiment but must be cultivated.
• It means respect for the values of the Constitution, such as liberty, equality, fraternity, the rule of law, the separation of powers and the rights of individuals, even when the majority or social opinion goes against them.
• It requires public officials to act within the Constitution and in line with its spirit, and not only its text.

Judicial use

• Manoj Narula v. Union of India (2014): the Court did not add a disqualification for ministers, but said that constitutional morality and good governance require the Prime Minister to avoid appointing persons with serious criminal charges.
• Navtej Singh Johar v. Union of India (2018): the Court held that constitutional morality, and not social morality, governs. Section 377 of the Indian Penal Code, so far as it criminalised consensual same-sex conduct between adults, was read down.
• Government of NCT of Delhi v. Union of India (2018): constitutional morality includes the principle of collective responsibility of the elected government.
• Indian Young Lawyers Association v. State of Kerala (2018): constitutional morality prevails over religious practices that violate fundamental rights.

Ans: The Government of India Act, 1919 implemented the Montagu-Chelmsford Reforms. It followed the declaration of 20 August 1917 by Montagu, the Secretary of State, that the British goal was the gradual development of self-governing institutions and the progressive realisation of responsible government in India.

Main features

• Diarchy in the provinces. Provincial subjects were divided into reserved subjects, administered by the Governor and his executive council, and transferred subjects, administered by ministers responsible to the legislature.
• Bicameral central legislature. A Council of State (the upper house) and a Legislative Assembly (the lower house), with a majority of elected members.
• Division of subjects. Central and provincial lists were separated. Residuary powers remained with the Centre.
• Franchise. It was extended, but limited by property, tax and education qualifications. Separate electorates were extended to the Sikhs, Indian Christians, Anglo-Indians and Europeans.
• High Commissioner. A High Commissioner for India in London took over some work of the Secretary of State.
• Public Service Commission to be set up, which was done in 1926.
• Statutory commission. It provided for a commission to review the working of the Act after ten years, which led to the Simon Commission.

Evaluation

The Act introduced responsible government only in part. The Governor-General and Governors kept big powers. It failed to satisfy nationalists, but it was a step towards federalism and responsible government, and it led to the Government of India Act, 1935.

Ans: “State” is defined in Article 12 for the purposes of Part III on Fundamental Rights. It is an inclusive definition.

Included

• Union: the Government of India and the Parliament of India.
• States: the Government and the Legislature of each State.
• Local authorities: municipalities, panchayats, improvement trusts, and the like.
• Other authorities: authorities within India or under the control of the Government of India that are not listed above.

Meaning of “other authorities”

An “authority” has the power to make rules or regulations with the force of law (Rajasthan State Electricity Board v. Mohan Lal (1967)). A body that is an instrumentality or agency of the State is also State. The factors are State funding, State control, monopoly status, and the performance of a governmental function (R.D. Shetty v. International Airport Authority (1979); Ajay Hasia v. Khalid Mujib (1981)).

Not State

Private bodies and persons are not State. The Board of Control for Cricket in India was held not to be State in Zee Telefilms v. Union of India (2005). Private individuals may still be liable under some rights, such as the abolition of untouchability (Article 17) and the prohibition of forced labour (Article 23).

Judiciary

Courts act as State when they perform administrative functions or make rules. Their judicial decisions are not treated as “law” for Article 13 (Naresh Shridhar Mirajkar v. State of Maharashtra (1966)).

Sections: Art. 12Art. 13

Ans: Citizenship is the legal bond between a person and the State. It gives the person certain rights and imposes duties. Part II of the Constitution (Articles 5 to 11) deals with citizenship, and Parliament has legislated under Article 11 in the Citizenship Act, 1955.

At commencement (Articles 5 to 8)

Persons domiciled in India who were born in India, or whose parent was born in India, or who had been resident for five years (Article 5); certain migrants from Pakistan (Articles 6 and 7); and persons of Indian origin abroad (Article 8).

Modes of acquisition under the Citizenship Act, 1955

• By birth (Section 3): for persons born in India on or after 26 January 1950, with later restrictions. A person born on or after 3 December 2004 is a citizen only if both parents are citizens, or one is a citizen and the other is not an illegal migrant.
• By descent (Section 4): for a person born outside India to a citizen parent.
• By registration (Section 5).
• By naturalisation (Section 6): for a person who has lived in India for the prescribed period.
• By incorporation of territory (Section 7).

Loss of citizenship

By renunciation (Section 8), termination (Section 9) and deprivation (Section 10).

Citizenship Amendment Act, 2019

It allows certain persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2014 to apply for citizenship, with relaxed residence requirements.

Rights reserved for citizens

Articles 15, 16, 19, 29 and 30; the right to vote; and eligibility for certain high offices.

Ans: An ex post facto law is a law that operates retrospectively, so that it punishes an act that was not an offence when it was done, or increases the punishment for it. Article 20(1) of the Constitution protects a person from such laws.

Article 20(1)

No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. Nor shall he 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.

Scope

• It applies only to criminal laws. Retrospective civil and tax laws are not barred (Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (1953)).
• It bars a conviction under a retrospective law and a heavier penalty than the law allowed at the time of the act.
• It protects against conviction and sentence, not against the trial itself. A change in procedure, such as the forum of trial, does not violate it (Kedar Nath Bajoria v. State of West Bengal (1953)).
• A law that reduces the punishment can be applied to earlier acts. This is a benefit to the accused (Ratanlal v. State of Punjab (1964)).
• T. Barai v. Henry Ah Hoe (1983): a later law that reduced the penalty for food adulteration was applied to an earlier offence, because it helped the accused.

The protection is available to citizens and non-citizens, and it cannot be suspended even during an Emergency (Article 359).

Sections: Art. 20(1)

Ans: The Constitution uses the word “minorities” in Articles 29 and 30 but does not define it. A minority is a group that is numerically smaller than the rest of the population and has a distinct religion, language or culture.

Constitutional provisions

• Article 29(1): any section of citizens with a distinct language, script or culture has the right to conserve it.
• Article 29(2): no citizen may be denied admission into an institution maintained or aided by the State on grounds only of religion, race, caste or language.
• Article 30(1): all minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice.
• Article 30(2): the State shall not discriminate against an institution on the ground that it is managed by a minority when giving aid.
• Articles 350A and 350B: instruction in the mother tongue at the primary stage, and a Special Officer for linguistic minorities.

Who is a minority?

• T.M.A. Pai Foundation v. State of Karnataka (2002): the State, and not India as a whole, is the unit for deciding whether a group is a linguistic or religious minority.
• Under the National Commission for Minorities Act, 1992, the Centre has notified the Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis). Jains were added in 2014.

Cases

St. Stephen’s College v. University of Delhi (1992): a minority institution may reserve a reasonable proportion of seats for its own community, but must also admit others on merit.

Ans: The fundamental duties in Article 51A balance the fundamental rights. They remind citizens that rights go with responsibilities.

Significance

• They remind citizens of their moral obligations towards the nation, society and the environment.
• They warn against anti-national and anti-social activities such as burning the flag, damaging public property and violence.
• They help courts to interpret ambiguous laws and to decide whether a restriction on a right is reasonable.
• They strengthen the Directive Principles. For example, the duty to protect the environment, in Article 51A(g), supports Article 48A.

Enforcement

• The Constitution does not provide a way to enforce them directly, and there is no penalty for breach.
• A.I.I.M.S. Students’ Union v. A.I.I.M.S. (2002): fundamental duties are not enforceable by a writ as such, but they are a constitutional obligation of every citizen.
• Parliament has enacted laws that give effect to some of them: the Prevention of Insults to National Honour Act, 1971; the Protection of Civil Rights Act, 1955; and the Wild Life (Protection) Act, 1972.
• Rural Litigation and Entitlement Kendra v. State of U.P. (1985) and later environment cases used Article 51A(g) to direct action to protect the environment.
• Bijoe Emmanuel v. State of Kerala (1986): students who refused to sing the national anthem for religious reasons were protected. Respect for the anthem does not mean that one must sing it.
• The Justice J.S. Verma Committee (1999) recommended steps to operationalise the duties, for example through educational programmes.

Sections: Art. 51A

Ans: The doctrine of separation of powers says that the three organs of government, the legislature, the executive and the judiciary, should be separate and should perform different functions, so that power is not concentrated in one hand. Montesquieu explained it in The Spirit of the Laws (1748).

Position in India

• The Constitution does not adopt the doctrine in its strict form. The executive is drawn from the legislature, as is usual in the parliamentary system. The ministers are members of Parliament and are responsible to it.
• In Ram Jawaya Kapur v. State of Punjab (1955) the Supreme Court said that the Indian Constitution has not recognised the doctrine of separation of powers in its absolute rigidity, but the functions of the different parts have been sufficiently differentiated.
• In re Delhi Laws Act (1951): the legislature cannot delegate its essential legislative functions.
• Kesavananda Bharati v. State of Kerala (1973) and Indira Nehru Gandhi v. Raj Narain (1975): separation of powers and judicial review are part of the basic structure.

Constitutional provisions

• Article 50: the State shall take steps to separate the judiciary from the executive in public services.
• Independence of the judiciary: tenure and salaries of judges are protected, and judges can be removed only by impeachment.
• Judicial review of legislative and executive action is a check on both.
• Checks: the executive may make ordinances, the legislature may impeach, and the courts may strike down laws.

The courts do not interfere in matters assigned to the legislature, such as the proceedings in the House, and refrain from deciding purely policy questions.

Ans: Article 17 says that “untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability is an offence punishable in accordance with law.

Features

• It is a fundamental right found in Part III. It can be enforced against the State and also against private persons.
• The Constitution does not define the word. It refers to the social practice of treating certain castes as impure and imposing disabilities on them.
• State of Karnataka v. Appa Balu Ingale (1993): Article 17 applies to private individuals, and the State must protect the victims.
• People’s Union for Democratic Rights v. Union of India (1982): Articles 17 and 23 are enforceable against private persons.

Laws

• The Protection of Civil Rights Act, 1955 (earlier the Untouchability (Offences) Act, 1955) punishes refusing entry to places of worship, wells, shops and hotels on the ground of untouchability.
• The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 punishes atrocities against members of these communities.
• Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013; see also Safai Karamchari Andolan v. Union of India (2014).

Sections: Art. 17

Ans: Article 20(3) of the Constitution says that no person accused of any offence shall be compelled to be a witness against himself.

Conditions

• The person must be accused of an offence at the time he is asked to make the statement.
• He must be compelled. A voluntary statement is not covered.
• He must be compelled to be a witness, that is, to give testimony or information that could incriminate him.

Scope under decided cases

• M.P. Sharma v. Satish Chandra (1954): the right covers oral and documentary evidence, but a search and seizure of documents is not compulsion to be a witness.
• State of Bombay v. Kathi Kalu Oghad (1961): giving specimen handwriting, signatures and fingerprints is not being a witness against oneself, because it is not testimony.
• Nandini Satpathy v. P.L. Dani (1978): the protection starts at the stage of police questioning. A person need not answer questions that may incriminate him.
• Selvi v. State of Karnataka (2010): involuntary narco-analysis, polygraph and brain mapping tests violate Article 20(3) and the right to privacy under Article 21.

Related

The protection also applies in the Evidence Act and the Code of Criminal Procedure (Section 161(2)), which allow a person to refuse to answer questions that may expose him to a criminal charge. The right is available to citizens and to non-citizens, and applies to criminal proceedings and not to departmental or civil inquiries.

Sections: Art. 20(3)

Ans: The right to assemble peaceably and without arms is protected by Article 19(1)(b). It is not absolute. Article 19(3) allows the State to make laws that impose reasonable restrictions on it.

Grounds for restriction (Article 19(3))

• The sovereignty and integrity of India.
• Public order.

The restriction must be made by a law, and it must be reasonable.

What is reasonable?

• State of Madras v. V.G. Row (1952): the test of reasonableness looks at the nature of the right, the object of the restriction, the extent and urgency of the evil, and the proportion of the restriction to it. It must not be excessive or arbitrary.
• Himat Lal K. Shah v. Commissioner of Police (1973): the police power to require permission for a meeting must be guided by clear standards. A rule that gave an uncontrolled power to refuse it was unreasonable.
• Kameshwar Prasad v. State of Bihar (1962): a rule that banned all demonstrations by government servants was held invalid in so far as it covered peaceful demonstrations.
• Ramlila Maidan Incident, In re (2012): restrictions must be reasonable, and a late-night police action to disperse a sleeping, peaceful gathering was held to be unjustified.
• Anuradha Bhasin v. Union of India (2020): orders under Section 144 of the Code of Criminal Procedure must be reasoned, proportionate and open to review, and cannot be used to suppress legitimate expression.

Public order

The State may stop an assembly only if it is likely to disturb public order, and not merely because it causes inconvenience. The right does not cover a violent or armed gathering.

Sections: Art. 19(1)(b)Art. 19(3)

Ans: The Constitution of India was adopted on 26 November 1949 and came into force on 26 January 1950. It is a detailed document, with 395 Articles in 22 Parts and 8 Schedules when it began. It has since grown by amendments. Its main features are these.

1. Written and lengthy

It is the longest written constitution of any sovereign country. It deals with the structure of government and with details such as services, elections, emergency powers and the position of States.

2. Drawn from many sources

The Government of India Act, 1935 gave the federal scheme, the three Lists and the Governor’s office. Britain gave the parliamentary system and the rule of law. The United States gave fundamental rights and judicial review. Ireland gave the Directive Principles. Canada gave the federation with a strong Centre. Germany’s Weimar Constitution gave emergency provisions. Australia gave the Concurrent List.

3. Preamble

It declares India a sovereign, socialist, secular, democratic republic and states the aims of justice, liberty, equality and fraternity.

4. Parliamentary democracy

The executive is responsible to the legislature. The President is the nominal head and the Council of Ministers headed by the Prime Minister holds real power.

5. Federal system with a strong Centre

It has a division of powers in the Seventh Schedule, a written constitution and an independent judiciary. It also has unitary features such as a strong Centre, single citizenship, emergency powers and the Governor’s role. The Supreme Court called it federal in structure with a unitary bias, and federalism is part of the basic structure (S.R. Bommai v. Union of India (1994)).

6. Fundamental rights and duties

Part III guarantees fundamental rights, enforceable by the Supreme Court and the High Courts. Part IV-A lists fundamental duties.

7. Directive Principles of State Policy

Part IV sets out goals of a welfare State. They are not enforceable in court but are fundamental in governance.

8. Independent judiciary and judicial review

The Supreme Court and the High Courts can strike down laws that violate the Constitution.

9. Secularism

The State has no religion and treats all religions equally. Articles 25 to 28 guarantee religious freedom.

10. Universal adult suffrage

Every citizen who is eighteen or older can vote (Article 326).

11. Single citizenship, integrated judiciary and emergency provisions

There is one citizenship for the whole country, one integrated judicial system, and special powers for national, State and financial emergencies (Articles 352, 356 and 360).

12. Amendment

Article 368 provides a procedure that is partly flexible and partly rigid. Parliament cannot alter the basic structure (Kesavananda Bharati v. State of Kerala (1973)).

Ans: The Directive Principles of State Policy are in Part IV (Articles 36 to 51). They are guidelines to the State for making laws and policy. Article 37 says they are not enforceable by any court but are nevertheless fundamental in the governance of the country, and that the State has a duty to apply them in making laws. The idea was taken from the Irish Constitution.

Importance

• Aims of a welfare State. They aim at social and economic democracy, so that political democracy has meaning. Ambedkar called them a novel feature of the Constitution.
• Guide to the legislature and executive. They tell Parliament and the State legislatures what goals to pursue, such as an adequate livelihood (Article 39(a)), equal pay (39(d)), the right to work (41), a living wage (43), and the village panchayats (40).
• Complement to fundamental rights. Fundamental rights protect individual liberty. Directive Principles aim at social welfare. The Supreme Court said they supplement each other and together make the conscience of the Constitution (Minerva Mills v. Union of India (1980)).
• Aid in interpretation. Courts use them to decide the scope of fundamental rights. For example, Article 21 has been read to include rights such as free legal aid (Article 39A) and a clean environment (Article 48A).
• Yardstick for the Government. People can judge the Government by how far it meets these goals, and they are a basis for the manifestos of political parties.
• Support for laws. A law made to give effect to Article 39(b) or (c) is protected from challenge under Articles 14 and 19 by Article 31C.
• Reasonableness of restrictions. Courts have treated a restriction in line with a Directive Principle as reasonable (State of Kerala v. N.M. Thomas (1976)).

Limits

They are not justiciable, and a person cannot go to court to enforce them directly. Critics call them pious wishes. In practice, courts and Parliament have used them to bring about reforms such as land reforms, the abolition of zamindari, and the right to education.

Ans: Fundamental duties are listed in Article 51A. The Constitution does not say how they are to be enforced. They are moral and civic duties of citizens, and they have no direct sanction. Still, they can be given effect in several ways.

1. Not directly enforceable

A citizen cannot be punished under Article 51A as such, and one cannot go to court to enforce a duty against another citizen. In A.I.I.M.S. Students’ Union v. A.I.I.M.S. (2002) the Supreme Court said that fundamental duties are not enforceable by a writ, but are a constitutional obligation of every citizen.

2. Enforcement through legislation

• Respect for the flag and anthem (51A(a)): the Prevention of Insults to National Honour Act, 1971.
• Abolishing practices derogatory to women and promoting harmony (51A(e)): the Protection of Civil Rights Act, 1955, the Indecent Representation of Women Act, 1986 and the Dowry Prohibition Act, 1961.
• Protecting the environment (51A(g)): the Environment (Protection) Act, 1986 and the Wild Life (Protection) Act, 1972.
• Safeguarding public property (51A(i)): the Prevention of Damage to Public Property Act, 1984.
• Education of children (51A(k)): the Right of Children to Free and Compulsory Education Act, 2009.

3. Enforcement through the courts

• Courts read them with rights. In Rural Litigation and Entitlement Kendra v. State of U.P. (1985) the Court used Article 51A(g) in giving directions to stop mining that damaged the environment.
• Courts use them to decide whether a restriction on a fundamental right is reasonable.
• Bijoe Emmanuel v. State of Kerala (1986): the duty to respect the national anthem does not force a person to sing it against religious faith.
• Shyam Narayan Chouksey v. Union of India (2018): the Court modified its earlier order and held that playing the national anthem in cinema halls is not mandatory.

4. Recommendations

The Justice J.S. Verma Committee on Fundamental Duties of Citizens (1999) recommended using existing laws and educational programmes to enforce them. The Law Commission and others have proposed that a failure of duty be taken into account in granting relief.

Conclusion

Enforcement is mostly indirect, through laws and judicial interpretation, and through education and awareness.

Sections: Art. 51A

Ans: Judicial review is the power of the courts to examine the validity of laws and executive acts and to declare them void if they are inconsistent with the Constitution. It rests on the supremacy of the Constitution. It began in Marbury v. Madison (1803) in the United States.

Constitutional basis in India

• Article 13: laws that are inconsistent with or take away fundamental rights are void.
• Articles 32 and 226: the Supreme Court and High Courts can issue writs to enforce fundamental rights.
• Articles 131 to 136: the jurisdiction of the Supreme Court in federal disputes and appeals.
• Articles 245 to 254 and the Seventh Schedule: courts can decide whether a law is within the legislative competence of Parliament or a State legislature.
• Article 368: courts review constitutional amendments for compliance with the basic structure.

Scope

• Legislative acts: a law can be struck down if it violates fundamental rights, goes beyond legislative power, or violates other constitutional provisions.
• Executive acts: orders and rules can be set aside if they are illegal, arbitrary or unconstitutional (Maneka Gandhi v. Union of India (1978)).
• Constitutional amendments: they are reviewable on the basic structure test (Kesavananda Bharati v. State of Kerala (1973); Minerva Mills v. Union of India (1980)). The Ninth Schedule laws are open to review (I.R. Coelho v. State of Tamil Nadu (2007)).
• Tribunals: the power of judicial review of the High Courts and the Supreme Court is part of the basic structure, so tribunal decisions remain open to challenge there (L. Chandra Kumar v. Union of India (1997)).

Limits

• Courts do not decide pure political questions or policy merits.
• They presume that a law is constitutional, and prefer an interpretation that saves it.
• Parliamentary proceedings are protected (Articles 122 and 212).

Judicial review is a basic feature of the Constitution and cannot be taken away even by an amendment.

Ans: The Preamble is the introduction to the Constitution. It states the source of authority of the Constitution, the nature of the State and the aims it seeks to secure.

Text and key words

• “We, the People of India” shows that the people are the source of authority.
• Sovereign, Socialist, Secular, Democratic, Republic. The words “socialist” and “secular” and the words “unity and integrity of the Nation” were added by the 42nd Amendment, 1976.
• Justice (social, economic and political), Liberty (of thought, expression, belief, faith and worship), Equality (of status and of opportunity) and Fraternity (assuring the dignity of the individual and the unity and integrity of the nation).

Significance

• It states the philosophy and objectives of the Constitution. It was based on the Objectives Resolution of Nehru.
• It helps in interpreting the Constitution when the text is unclear (Kesavananda Bharati v. State of Kerala (1973)).
• It shows that the Constitution is the people’s own and is not given by a foreign power.
• It provides the values from which the basic structure has been identified, such as democracy, secularism and republican form of government.

Is it part of the Constitution?

• In re Berubari Union (1960): the Preamble is not part of the Constitution, but is a key to the minds of the makers.
• Kesavananda Bharati (1973): the Preamble is part of the Constitution. It was adopted after the Constitution and is not a mere ornament. L.I.C. of India v. Consumer Education and Research Centre (1995) confirmed this.

Is it a basic structure?

The Preamble itself is not a separate part of the basic structure, but its main ideals are. Parliament can amend the Preamble under Article 368, as the 42nd Amendment did, but not in a way that destroys the basic features such as sovereignty, democracy, secularism, the republican form and the rule of law. S.R. Bommai v. Union of India (1994) held that secularism is part of the basic structure. The Preamble is not enforceable in court and cannot override a clear provision of the Constitution.

Ans: The Government of India Act, 1935 was passed after the Simon Commission, the Round Table Conferences and the White Paper of 1933. It was the longest Act that Parliament had passed on India, with 321 sections and 10 Schedules. It was the main source of the Constitution of India.

Main features

• All-India Federation. It proposed a federation of British Indian Provinces and Princely States. The federation never came into being because the required number of Princely States did not agree.
• Provincial autonomy. It ended diarchy in the provinces and gave full responsible government to the provinces from 1 April 1937. Ministers were responsible to the provincial legislatures. The Governors kept special powers.
• Diarchy at the Centre. Subjects such as defence, foreign affairs, ecclesiastical affairs and tribal areas were reserved to the Governor-General. The rest were transferred to ministers. This was never put into practice.
• Three Lists. The Federal, Provincial and Concurrent Lists divided legislative powers. Residuary powers were given to the Governor-General.
• Bicameral legislatures. The Federal Legislature had the Council of State and the Federal Assembly. Six provinces had two Houses.
• Federal Court. It was set up in 1937 at Delhi to decide disputes between units and to hear appeals. The Privy Council remained the final court.
• Reserve Bank of India was set up in 1935. A Federal Public Service Commission and Provincial Commissions were provided.
• Franchise. It was extended to about 10 per cent of the population. Separate electorates were extended to the Scheduled Castes, women and labour.
• Separation of Burma and Aden from India, and creation of the provinces of Sind and Orissa.

Criticism

Jawaharlal Nehru called it a “charter of slavery” and a machine with strong brakes but no engine. The Governor-General and the Governors kept wide discretionary powers, and the franchise was limited. The Congress and the Muslim League criticised it.

Influence on the Constitution

Many provisions of the present Constitution come from this Act, including the federal scheme, the Lists, the office of Governor, the Public Service Commissions, the emergency powers and much of the administrative detail.

Ans: The Government of India Act, 1919 gave effect to the Montagu-Chelmsford Reforms. It came into force in 1921.

Background

• The Morley-Minto Reforms of 1909 had given little power to Indians. The Lucknow Pact of 1916 between the Congress and the Muslim League increased the demand for self-government.
• The Montagu Declaration, 20 August 1917: the British aim was the gradual development of self-governing institutions and the progressive realisation of responsible government in India as an integral part of the British Empire.
• The Montagu-Chelmsford Report (1918) proposed the reforms.

Provisions

1. Provincial government: diarchy

• Provincial subjects were divided into transferred subjects, such as local self-government, education, public health, agriculture and public works, and reserved subjects, such as law and order, finance, land revenue, irrigation and justice.
• The Governor, with his executive council, administered the reserved subjects. Ministers chosen from the elected members of the legislative council administered the transferred subjects and were responsible to it.
• The Governor had power to override ministers.

2. Central government

• The Governor-General remained supreme, with an executive council of whom three were Indians.
• A bicameral legislature: the Council of State (60 members, 34 elected) and the Legislative Assembly (145 members, 104 elected).
• The Governor-General could certify bills and veto them, and could issue ordinances.
• The Indian legislature could not control the executive, and the budget was in part non-votable.

3. Division of subjects

The Devolution Rules divided subjects into central and provincial lists. Residuary powers remained with the Centre.

4. Franchise and electorates

The vote was given to only a small part of the population (about 3 per cent) on property, tax or education grounds. Separate electorates were retained for Muslims and extended to Sikhs, Indian Christians, Anglo-Indians and Europeans.

5. Other changes

• The post of High Commissioner for India in London.
• The Secretary of State’s powers over the Government of India were relaxed.
• A Public Service Commission (set up in 1926).
• A provision for a statutory commission after ten years.

Evaluation

The Act introduced some responsible government but kept the real power with the British. Diarchy was clumsy because the Governor controlled finance. The Act did not satisfy the Indian National Congress. It was a stage towards the Government of India Act, 1935.

Ans: Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It is the foundation of the right to equality and one of the most important guarantees in Part III.

Two ideas

• Equality before the law comes from the British idea of the rule of law. It is a negative concept: no one is above the law, and there is no special privilege.
• Equal protection of the laws comes from the American Fourteenth Amendment. It is positive: persons in like circumstances must be treated alike.

Reasonable classification

Equality does not mean identical treatment for all. The State may classify persons, if the classification meets two tests set in Ram Krishna Dalmia v. Justice S.R. Tendolkar (1958):

• It is based on an intelligible differentia that distinguishes those grouped together from others left out.
• The differentia has a rational relation to the object of the law.

The new concept: no arbitrariness

In E.P. Royappa v. State of Tamil Nadu (1974) the Court said that equality is opposed to arbitrariness. Maneka Gandhi v. Union of India (1978) held that any State action must be fair, reasonable and non-arbitrary. In Shayara Bano v. Union of India (2017) the Court struck down instant triple talaq as manifestly arbitrary.

Applicability

• It applies to every person, citizen or not, and to legal persons.
• It applies against the State, as defined in Article 12.
• It applies to executive as well as legislative action.

Exceptions

The President and Governors have immunity under Article 361. Article 31C and some others protect certain laws. Foreign sovereigns and diplomats have immunity under international law.

Importance

• It is a basic feature of the Constitution (Indira Nehru Gandhi v. Raj Narain (1975)).
• It provides the base for other guarantees, including Articles 15, 16 and 21, with which it forms a golden triangle (Maneka Gandhi).
• It controls the arbitrary exercise of power and requires natural justice.
• State of West Bengal v. Anwar Ali Sarkar (1952), Navtej Singh Johar v. Union of India (2018) and M. Nagaraj v. Union of India (2006) show its range.

Sections: Art. 14

Ans: Citizenship in India is regulated by Part II of the Constitution (Articles 5 to 11) and the Citizenship Act, 1955. There are two groups of modes: at the commencement of the Constitution, and after it.

A. At the commencement of the Constitution (26 January 1950)

• Domicile (Article 5): a person domiciled in India who was born in India, or whose parent was born in India, or who had been resident in India for five years.
• Migrants from Pakistan (Article 6): those who came before 19 July 1948 and stayed, and those who came later and registered.
• Persons who went to Pakistan and returned (Article 7) under a permit for resettlement.
• Persons of Indian origin living abroad (Article 8): by registration with a consul.

B. Under the Citizenship Act, 1955 (five modes)

• 1. By birth (Section 3). A person born in India on or after 26 January 1950 and before 1 July 1987 is a citizen. For a person born from 1 July 1987 to 2 December 2004, one parent must be a citizen at the time of birth. For a person born on or after 3 December 2004, both parents must be citizens, or one a citizen and the other not an illegal migrant.
• 2. By descent (Section 4). A person born outside India to a citizen parent, subject to the conditions in the Act, including registration of the birth at an Indian consulate.
• 3. By registration (Section 5). Persons of Indian origin who are ordinarily resident in India, persons married to citizens, minor children of citizens, and others.
• 4. By naturalisation (Section 6). A foreigner who has lived in India for the period required, usually 12 years in all, and who fulfils the qualifications of the Third Schedule, such as good character and knowledge of a language in the Eighth Schedule.
• 5. By incorporation of territory (Section 7). When a foreign territory becomes part of India, the Central Government specifies who becomes a citizen. Persons of the former French territory of Pondicherry are an example.

Citizenship Amendment Act, 2019

It relaxes the requirement for naturalisation for certain religious minorities who came from Afghanistan, Bangladesh and Pakistan on or before 31 December 2014.

A person may therefore acquire citizenship in five modes under the 1955 Act, in addition to the modes under Articles 5 to 8 at the start of the Constitution.

Sections: Art. 5-8CA 3CA 4CA 5CA 6CA 7

Ans: Double jeopardy means that a person should not be tried or punished twice for the same offence. Article 20(2) of the Constitution says that no person shall be prosecuted and punished for the same offence more than once. It reflects the common law pleas of autrefois acquit (previously acquitted) and autrefois convict (previously convicted).

Conditions for the protection

• The person must have been prosecuted before a court of law or a judicial tribunal, and not before an administrative or departmental body.
• He must have been punished in that prosecution. A prosecution that ends in acquittal is a bar under the Code of Criminal Procedure (Section 300, now Section 337 of the BNSS) and Section 26 of the General Clauses Act, 1897.
• The second proceeding must be for the same offence.

Decided cases

• Maqbool Hussain v. State of Bombay (1953): gold brought in by a person was confiscated by a customs authority, and he was later prosecuted in a criminal court. The Supreme Court held that the customs authority was not a court or judicial tribunal, so Article 20(2) did not apply.
• S.A. Venkataraman v. Union of India (1954): a departmental inquiry under the Public Servants (Inquiries) Act, followed by a criminal prosecution, is not barred. The inquiry was not a prosecution.
• State of Bombay v. S.L. Apte (1961): the offences must be the same in their ingredients. The Court held that a trial under Section 409 of the Indian Penal Code after a conviction under another Act was not barred where the offences were different.
• Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao (2011): a person was first convicted under Section 138 of the Negotiable Instruments Act. The Supreme Court held that a trial for the same facts under Section 420 of the Indian Penal Code was barred by Section 300(1) of the Code of Criminal Procedure, which is wider than Article 20(2).

Points to note

• The bar applies only to a second prosecution and punishment. A person may be tried twice if the first trial did not end in punishment.
• Departmental action and a criminal prosecution may go together.
• The protection is available to every person, citizen or foreigner.

Sections: Art. 20(2)

Ans: A constitution can be classified in different ways. The classification of Bryce and K.C. Wheare is commonly used.

1. Written and unwritten

• Written: contained in one or more documents, such as the Constitutions of India and the United States.
• Unwritten: based on conventions, customs and statutes, such as the British Constitution.

2. Enacted and evolved

• Enacted (conventional): made by a constituent assembly at a given time, such as the Indian Constitution.
• Evolved (cumulative): grown over time through custom and practice, such as the British Constitution.

3. Rigid and flexible

• Rigid: amended by a special procedure that is harder than the ordinary law-making process, such as the United States.
• Flexible: amended by the same process as ordinary laws, such as Britain.
• India is partly rigid and partly flexible (Article 368).

4. Unitary and federal

• Unitary: all powers are with the central government, such as Britain and France.
• Federal: powers are divided between the Centre and the units, such as the United States, Canada and Australia.

5. Presidential and parliamentary

• Presidential: the executive is separate from the legislature and the President is both head of State and of the government.
• Parliamentary: the executive is drawn from and responsible to the legislature, as in India and Britain.

6. Republican and monarchical

In a republic the head of State is elected, as in India. In a monarchy the head is hereditary, as in Britain.

7. Supreme and subordinate

In some systems the legislature is supreme (Britain). In others the Constitution is supreme and courts can review laws (the United States, India).

India

The Indian Constitution is written, enacted, partly rigid and partly flexible, federal with a unitary bias, parliamentary and republican, and gives supremacy to the Constitution.

Ans: The Drafting Committee was the committee of the Constituent Assembly that prepared the draft of the Constitution. It was appointed on 29 August 1947, with Dr B.R. Ambedkar as Chairman.

Members

• Dr B.R. Ambedkar (Chairman).
• N. Gopalaswami Ayyangar.
• Alladi Krishnaswami Ayyar.
• K.M. Munshi.
• Syed Mohammad Saadullah.
• N. Madhava Rau (who replaced B.L. Mitter, who had resigned).
• T.T. Krishnamachari (who replaced D.P. Khaitan, who died in 1948).

Role and work

• Preparing the draft. It examined the draft prepared by the Constitutional Adviser, B.N. Rau, in October 1947, and the reports of the committees of the Assembly, and prepared a Draft Constitution. It was submitted to the President of the Assembly in February 1948 and published for public discussion.
• Considering comments. It examined comments and amendments from the public, provincial governments and members, and prepared a revised draft in October 1948.
• Guiding the debates. The draft was discussed article by article in the second reading from November 1948 to October 1949. The Committee explained and defended the draft. Ambedkar led the defence.
• Final form. After the third reading (14 to 26 November 1949) the Constitution was adopted on 26 November 1949.
• The Committee met on about 141 days.

Importance of Dr Ambedkar

Ambedkar steered the draft through the Assembly. T.T. Krishnamachari told the Assembly that the burden of the work fell mostly on Ambedkar, because of the illness and absence of other members. Ambedkar is called the chief architect of the Constitution.

Assessment

The draft drew on the Government of India Act, 1935 and on constitutions of many countries, and it was adjusted to Indian needs. The Committee gave the Constitution its structure and language.

Ans: A Constituent Assembly is a body of representatives elected to frame the constitution of a country. India’s Constituent Assembly was formed under the Cabinet Mission Plan of 1946 for the following reasons.

1. The demand for self-government

• From the 1930s, nationalist leaders argued that a constitution for India must be made by Indians and not imposed by Britain. M.N. Roy first suggested a Constituent Assembly in 1934.
• The Congress adopted the demand officially in 1935 and repeated it later. Its position was that the Constitution of free India must be framed without outside interference by an assembly elected on adult franchise.

2. Failure of British constitutional reforms

The Government of India Acts of 1919 and 1935 were framed by the British and were not accepted. The August Offer (1940) and the Cripps Proposals (1942) accepted in principle that India would frame its own constitution after the war.

3. The Cabinet Mission, 1946

The Cabinet Mission (Pethick-Lawrence, Stafford Cripps and A.V. Alexander) rejected the demand for Pakistan and proposed a plan in May 1946. It provided for a Constituent Assembly of 389 members, with representatives from the Provinces and the Princely States.

4. The need for an agreed constitution

• There were many problems: communal differences, the status of the Princely States and the protection of minorities. An assembly of representatives was the best way to settle them by discussion.
• A new constitution was needed for a free India, with fundamental rights, a federal system and a democratic government.

5. Principle of popular sovereignty

The Constitution should have the authority of the people, and a body elected by the people, the Constituent Assembly, was the way to give it.

The Assembly first met on 9 December 1946 and took about three years to complete the Constitution.

Ans: Socialism is a political and economic idea that aims at a more equal society. The main idea is that the means of production, such as land, factories and resources, should be owned or controlled by society as a whole, so that wealth and opportunity are shared fairly and not concentrated among a few.

Basic ideas

• Social ownership or control of key industries and resources.
• Planned economic development instead of leaving everything to the market.
• Reduction of inequality of income and wealth.
• Provision of basic needs by the State, such as education, health and employment.

Socialism in India

• India followed democratic socialism, not the Marxist model. It worked through democratic means and kept private property and a private sector.
• The Constitution does not use the word at the start, but the Directive Principles reflect it. Article 39(b) and (c) require that ownership and control of material resources be distributed to serve the common good and that the economic system should not concentrate wealth.
• The 42nd Amendment (1976) added the word “socialist” to the Preamble.
• In D.S. Nakara v. Union of India (1983) the Court said that the Preamble’s socialism means an egalitarian society, with the aim of ending inequality of status and opportunity.
• Minerva Mills v. Union of India (1980) held that the balance between fundamental rights and Directive Principles is a basic feature.

Effect on the economy

• Five-Year Plans from 1951 set priorities for national development.
• Mixed economy: the Industrial Policy Resolution of 1956 reserved key industries for the public sector and left others to private firms.
• Public sector grew in steel, power, coal, railways and banking. Fourteen major banks were nationalised in 1969.
• Land reforms abolished zamindari and set ceilings on holdings.
• Controls and licensing regulated private industry and trade.
• Supporters say that this built an industrial base, reduced the power of landlords and expanded welfare.
• Critics say that licensing and controls slowed growth and efficiency. From 1991, India liberalised its economy, reducing the role of the State, though welfare policies continue.

Ans: A federation is a union of States or provinces that share power with a central government under a written constitution. K.C. Wheare defined the federal principle as the method of dividing powers so that the general and the regional governments are each, within a sphere, co-ordinate and independent. The United States is the model.

Essential features of a federal constitution

• Two levels of government: a central government and governments of the units, each with its own sphere.
• Division of powers: the constitution distributes legislative, executive and financial powers between the two. In India, it is done by the Seventh Schedule (Union, State and Concurrent Lists).
• Written constitution: a written document, so that the division of powers is certain.
• Supremacy of the constitution: both levels derive power from it and must obey it.
• Rigid constitution: the provisions on federalism cannot be changed by the Centre alone. In India, a change in the Lists and some other matters needs ratification by at least half the States (Article 368(2)).
• Independent judiciary: an independent court acts as umpire of disputes between the Centre and States. The Supreme Court has original jurisdiction under Article 131.
• Bicameral legislature: the second chamber represents the units. In India it is the Rajya Sabha.

India

The Constitution of India has most of these features. It also has strong unitary features, so it is described as quasi-federal, or as federal in structure with a unitary bias. The Constitution calls India a “Union of States” (Article 1). In S.R. Bommai v. Union of India (1994) the Supreme Court said that federalism is a basic feature of the Constitution.

Ans: Secularism means that the State has no religion of its own, treats all religions equally and does not discriminate on the ground of religion. The 42nd Amendment (1976) added the word “secular” to the Preamble, but secularism was present from the start in Articles 14, 15, 16 and 25 to 30. India follows a positive model, with equal respect for all religions, and not a strict separation of religion and State. S.R. Bommai v. Union of India (1994) held that secularism is a basic feature of the Constitution.

Freedom of religion: Articles 25 to 28

• Article 25(1): all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health and to the other provisions of Part III.
• Article 25(2): the State may regulate economic, financial, political or other secular activity connected with religious practice, and may provide for social welfare and reform and for opening Hindu religious institutions to all classes. The Explanation treats the wearing of the kirpan as a part of the Sikh religion, and extends “Hindus” to Sikhs, Jains and Buddhists.
• Article 26: religious denominations may manage their own affairs in matters of religion and own and administer property.
• Article 27: no person can be compelled to pay taxes for the promotion of a particular religion.
• Article 28: no religious instruction in institutions wholly maintained by the State, and no compulsory attendance at religious worship in aided or recognised institutions.

Decided cases

• Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954): the Court said that what is an essential part of religion is for the religion itself to decide. Religion includes rituals and practices as well as beliefs. The State may regulate secular matters, such as management of property.
• Ratilal Panachand Gandhi v. State of Bombay (1954): the freedom covers practice as well as belief, but the State may regulate administration of religious trusts.
• Rev. Stainislaus v. State of Madhya Pradesh (1977): the right to “propagate” religion does not include a right to convert a person to one’s own religion.
• Bijoe Emmanuel v. State of Kerala (1986): children who were Jehovah’s Witnesses could not be forced to sing the national anthem against their faith.
• Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Association (2000): no religion requires the use of loudspeakers, and noise pollution may be restricted under Article 25.
• Indian Young Lawyers Association v. State of Kerala (2018): the bar on women of a certain age entering the Sabarimala temple was held to violate Articles 14, 15 and 25. In 2019 the review was referred to a nine-judge Bench with wider questions on religious freedom. That Bench reserved its judgment on 14 May 2026, and no final verdict was available when this answer was written.

Nature

The freedom is not absolute. It is subject to public order, morality, health and other fundamental rights. It protects individuals (Article 25) and denominations (Article 26).

Ans: Diarchy means “dual government”, or rule by two authorities. The word comes from the Greek di (two) and arche (rule). It was introduced in the provinces of British India by the Government of India Act, 1919. The idea came from Lionel Curtis.

Features

• Division of provincial subjects. Provincial subjects were divided into two lists. Reserved subjects included law and order, finance, land revenue, irrigation and justice. Transferred subjects included local self-government, education, public health, agriculture, public works and excise.
• Two sets of administrators. The Governor and his executive councillors, who were responsible to the British Parliament and not to the legislature, ran the reserved subjects. Ministers, chosen from the elected members of the provincial legislative council and responsible to it, ran the transferred subjects.
• Governor’s control. The Governor could overrule ministers on any matter that he thought affected the reserved subjects, and he controlled finance.
• Legislative council. A single-chamber council with a majority of elected members.
• Separate electorates were available for several communities.

Working and failure

• Ministers had little control over finance, which was a reserved subject. They also depended on the Governor and the Indian Civil Service.
• There was no joint responsibility between the ministers and the executive councillors.
• The reserved and transferred subjects overlapped, so it was hard to separate them. For example, irrigation was reserved and agriculture was transferred.
• The Muddiman Committee (1924) and the Simon Commission (1927 to 1930) found its working unsatisfactory.

End

The Government of India Act, 1935 abolished diarchy in the provinces and introduced provincial autonomy from 1 April 1937. The 1935 Act proposed diarchy at the Centre, but it never came into effect.

Ans: The privilege against self-incrimination is the right of a person not to be forced to give evidence that may incriminate him. It comes from the common law maxim nemo tenetur seipsum accusare, which means that no man is bound to accuse himself. Article 20(3) of the Constitution gives it constitutional force.

Article 20(3)

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

Reasons for the privilege

• It prevents the use of torture and pressure to obtain confessions.
• It puts on the prosecution the burden of proving guilt by independent evidence.
• It protects human dignity and the presumption of innocence.

Elements

• A person accused of an offence. Formal accusation is needed. This is satisfied when an FIR has been lodged or a formal accusation made (M.P. Sharma v. Satish Chandra (1954)).
• Compulsion. Physical or mental pressure, threats or inducement.
• Witness. The person must be compelled to give a testimony. This covers oral statements and documents (M.P. Sharma).

What is not covered

• State of Bombay v. Kathi Kalu Oghad (1961): giving a specimen signature, handwriting or fingerprints is not being a witness, since these are only physical identification.
• Ritesh Sinha v. State of U.P. (2019): a magistrate may order a voice sample, since it is a physical, not testimonial, evidence.
• A search and seizure under a valid warrant is not compulsion to be a witness.

Extensions

• Nandini Satpathy v. P.L. Dani (1978): the right is available from the stage of police interrogation, and covers questions that could incriminate in other cases. The accused has the right to remain silent.
• Selvi v. State of Karnataka (2010): narco-analysis, polygraph tests and brain mapping, if done without consent, violate Article 20(3) and Article 21.

Limits

It does not apply to witnesses who are not accused. It is limited to criminal proceedings. A person may also waive it by choosing to testify.

Sections: Art. 20(3)

Ans: Fundamental rights are the basic rights of the people that are guaranteed by Part III of the Constitution (Articles 12 to 35). They are called fundamental because they are enforceable in the Supreme Court and High Courts, and a law that violates them is void (Article 13). Originally seven rights were listed. The right to property was removed in 1978, and six groups remain.

1. Right to equality (Articles 14 to 18)

• Article 14: equality before the law and equal protection of the laws.
• Article 15: no discrimination on grounds of religion, race, caste, sex or place of birth.
• Article 16: equality of opportunity in public employment.
• Article 17: abolition of untouchability.
• Article 18: abolition of titles.

2. Right to freedom (Articles 19 to 22)

• Article 19: freedom of speech and expression, assembly, association, movement, residence and profession, subject to reasonable restrictions.
• Article 20: protection in respect of conviction for offences.
• Article 21: protection of life and personal liberty. Article 21A: right to education.
• Article 22: protection against arrest and detention.

3. Right against exploitation (Articles 23 and 24)

Prohibition of traffic in human beings and forced labour, and of employment of children below 14 in factories and hazardous work.

4. Right to freedom of religion (Articles 25 to 28)

Freedom of conscience and the right to profess, practise and propagate religion, freedom to manage religious affairs, no compulsory tax for religion, and freedom from religious instruction in State institutions.

5. Cultural and educational rights (Articles 29 and 30)

Protection of the interests of minorities, and the right of minorities to set up and run educational institutions.

6. Right to constitutional remedies (Article 32)

The right to move the Supreme Court for enforcement of fundamental rights by writs. Dr Ambedkar called it the heart and soul of the Constitution. Article 226 gives a like remedy in the High Courts.

Features

• They are enforceable by the courts.
• They are not absolute and are subject to reasonable restrictions.
• Some are available only to citizens (Articles 15, 16, 19, 29, 30). Others are for all persons.
• They are against the State as defined in Article 12.
• Parliament can amend them, but not so as to alter the basic structure.
• They can be suspended during an Emergency, except Articles 20 and 21 (Article 359).

Ans: Free legal aid means providing legal services without charge to persons who cannot afford them, so that they are not denied justice because of poverty or any other disability.

Constitutional basis

• Article 39A (Directive Principle, inserted by the 42nd Amendment, 1976): the State shall secure that the legal system promotes justice on the basis of equal opportunity, and shall provide free legal aid by suitable legislation or schemes, so that opportunities for justice are not denied by economic or other disabilities.
• Article 14: equality before the law.
• Article 21: just, fair and reasonable procedure.
• Article 22(1): the right of an arrested person to consult and be defended by a lawyer of his choice.

Is it a fundamental right?

Article 39A is a Directive Principle and cannot be enforced as such. But the Supreme Court has held that free legal aid is part of the fundamental right to life and personal liberty under Article 21, especially for poor accused persons in criminal cases:

• Hussainara Khatoon v. State of Bihar (1979): free legal services to a poor accused are an essential element of a reasonable, fair and just procedure.
• M.H. Hoskot v. State of Maharashtra (1978): a prisoner has the right to a lawyer at State cost for an appeal.
• Khatri v. State of Bihar (1981): the State must provide a lawyer at the first appearance before the magistrate, and the right does not depend on the accused asking for it.
• Suk Das v. Union Territory of Arunachal Pradesh (1986): failure to provide legal aid vitiates the trial. The accused must be told of the right.

Statutory framework

• Legal Services Authorities Act, 1987 set up the National Legal Services Authority (NALSA), State and District Legal Services Authorities, and Lok Adalats. Persons eligible include women, children, SC and ST members, victims of trafficking, industrial workmen, persons in custody and persons whose income is below a limit.
• Section 304 of the Code of Criminal Procedure (now Section 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023) requires the court to provide a lawyer at State cost to an accused who cannot afford one in a sessions trial.

Conclusion

Free legal aid is a Directive Principle under Article 39A, and it is also a fundamental right through Article 21, in particular in criminal matters. In civil cases it is mostly provided under the statute.

Ans: Reasonable classification means grouping persons or things for the purpose of a law, in a way that has a rational basis. Article 14 forbids class legislation, which is a law that treats persons unequally without good reason. It does not forbid reasonable classification, because equal treatment of persons in different situations would itself be unequal.

Two tests

The Supreme Court laid them down in State of West Bengal v. Anwar Ali Sarkar (1952) and restated them in Budhan Choudhry v. State of Bihar (1955) and Ram Krishna Dalmia v. Justice S.R. Tendolkar (1958):

• Intelligible differentia: the classification must be based on a quality or characteristic that separates those who are grouped together from those left out.
• Rational nexus: the differentia must have a reasonable connection with the object that the law seeks to achieve.

Permitted bases

Geography, age, sex, profession, income, education, the nature of the business and the special needs of a group. Examples: women’s reservation in local bodies, higher tax for higher incomes, and separate rules for government servants.

Cases

• Anwar Ali Sarkar (1952): a law that allowed the government to send cases to special courts without any standard was struck down. It gave no basis for the classification.
• Ram Krishna Dalmia (1958): a law to investigate a single named company was upheld, because the company’s case was different.
• D.S. Nakara v. Union of India (1983): classifying pensioners by date of retirement for pension benefits had no rational nexus, and was struck down.
• Air India v. Nargesh Meerza (1981): a rule terminating air hostesses on first pregnancy was arbitrary.
• State of Kerala v. N.M. Thomas (1976): classification in favour of the Scheduled Castes and Tribes for promotion was valid.

How it protects equality

• It allows the law to deal with real differences, so that unequals are not treated equally.
• It controls the State, which must justify every classification by a rational object.
• Arbitrary and discriminatory laws are struck down. After E.P. Royappa v. State of Tamil Nadu (1974) and Maneka Gandhi v. Union of India (1978), a law must also be non-arbitrary. In Shayara Bano v. Union of India (2017) a practice was struck down as manifestly arbitrary.

Sections: Art. 14

Ans: An ex post facto law (Latin: “from a thing done afterwards”) is a law that changes the legal effect of an act that was done before the law was made. Article 20(1) of the Constitution gives protection against it in criminal cases.

The two limbs of Article 20(1)

• No conviction for an act that was not an offence under the law in force at the time of the act.
• No greater penalty than the law at the time of the offence provided.

Meaning of “law in force”

In Harla v. State of Rajasthan (1951) the Court held that a law must be published and made known to the public before it can be said to be in force. A person cannot be convicted under a law that was not published.

Scope

• Criminal laws only. A retrospective civil or tax law is valid (Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (1953)).
• Substantive law, not procedure. A change in the court or the procedure of trial does not offend Article 20(1), as the accused has no vested right in a procedure (Kedar Nath Bajoria v. State of West Bengal (1953)).
• Beneficial retrospective laws are allowed. A law that reduces or removes the punishment can be applied to earlier acts (Ratanlal v. State of Punjab (1964)).
• Reduced penalty applied. T. Barai v. Henry Ah Hoe (1983): a later law that reduced the punishment was applied to an offence committed earlier, since it benefited the accused. An increased penalty cannot be applied to an earlier offence.
• It is not a bar to preventive detention.

Features

• It is available to every person, citizen or foreigner.
• Article 20 cannot be suspended during an Emergency (Article 359).
• It is parallel to the common law principle nullum crimen sine lege (no crime without law) and to Article 11(2) of the Universal Declaration of Human Rights.

Sections: Art. 20(1)

Ans: Articles 2, 3 and 4 of the Constitution deal with the formation of new States and the change of State boundaries. They give the Union Parliament wide power, and the States have no right to remain as they are. For this reason India is called an “indestructible Union of destructible States”.

Article 2: admission or establishment of new States

Parliament may admit into the Union, or establish, new States on such terms and conditions as it thinks fit. It applies to territory outside the existing Union, such as Sikkim, which became a State by the 36th Amendment in 1975.

Article 3: formation of new States and alteration of areas, boundaries or names

• Parliament may by law (a) form a new State by separating territory from a State, or by uniting two or more States or parts of States, or by uniting a territory to a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; and (e) alter the name of any State.
• Procedure (proviso): a Bill for the purpose can be introduced in either House only on the recommendation of the President. If the Bill affects the area, boundaries or name of a State, the President must refer it to the legislature of that State for its views within a specified period.
• Parliament is not bound by the views of the State legislature (Babulal Parate v. State of Bombay (1960)). It need not send the Bill again if it makes amendments.

Article 4

A law under Article 2 or 3 may contain supplemental, incidental and consequential provisions, including changes in the representation in Parliament and the State legislatures. Such a law is not an amendment of the Constitution under Article 368, so it needs only a simple majority.

Limits

The power does not extend to ceding Indian territory to a foreign country. That needs a constitutional amendment (In re Berubari Union (1960)).

Examples

• States Reorganisation Act, 1956: States were reorganised on a linguistic basis.
• Bombay Reorganisation Act, 1960 (Maharashtra and Gujarat); Punjab Reorganisation Act, 1966 (Haryana).
• In 2000: Chhattisgarh, Uttarakhand and Jharkhand.
• Andhra Pradesh Reorganisation Act, 2014: Telangana became a State on 2 June 2014.
• Jammu and Kashmir Reorganisation Act, 2019: the State was divided into the Union Territories of Jammu and Kashmir and Ladakh.

Sections: Art. 2Art. 3Art. 4

Ans: The Constitution of India is federal in structure, but it contains several features that give the Union a dominant position. These are the unitary elements.

1. Strong Centre in the distribution of powers

• The Union List is larger than the State List, and in the Concurrent List the Union law prevails (Article 254).
• Residuary power rests with Parliament (Article 248).
• Parliament can legislate on a State subject in the national interest if the Rajya Sabha passes a resolution by a two-thirds majority (Article 249), during an Emergency (Article 250), by consent of States (Article 252) and to implement international treaties (Article 253).

2. Emergency powers

During a national emergency (Article 352), the Centre can legislate on State subjects and give directions to States, and the federal structure works as a unitary one. President’s Rule under Article 356 allows the Centre to take over the government of a State. Financial emergency is covered by Article 360.

3. Single Constitution and single citizenship

The States have no Constitution of their own, and all citizens have one citizenship.

4. Integrated judiciary

There is one hierarchy of courts, with the Supreme Court at the top. The High Court judges are appointed by the President.

5. All-India Services

The IAS, IPS and Indian Forest Service are common to the Union and the States and are controlled by the Centre (Article 312).

6. Role of the Governor

The Governor of a State is appointed by the President and holds office during his pleasure (Article 155 and 156). The Governor may reserve a Bill for the President (Article 200).

7. Union control over States

• The Union may give directions to States (Articles 256 and 257).
• Parliament can alter the boundaries of States and form new States (Article 3).
• The Constitution can be amended mainly by Parliament (Article 368).

8. Financial dependence

States depend on grants-in-aid and shares of Union taxes (Articles 268 to 275), recommended by the Finance Commission.

9. Other features

A single Election Commission, a Comptroller and Auditor-General, and uniform laws on criminal matters.

The Supreme Court said that the Constitution has a strong unitary bias but remains federal (State of West Bengal v. Union of India (1963); S.R. Bommai v. Union of India (1994)).

Ans: Article 19(1)(a) of the Constitution guarantees to all citizens the right to freedom of speech and expression. It is the basis of a free democracy, because people can form opinions and criticise the government only if they can speak and write freely.

Nature

• It is available to citizens only, not to foreigners.
• It is a fundamental right enforceable under Articles 32 and 226 against the State.
• It is not absolute. Article 19(2) permits reasonable restrictions by law on specified grounds.

Scope: what it includes

• Freedom of the press. Romesh Thappar v. State of Madras (1950) and Brij Bhushan v. State of Delhi (1950): freedom of the press is part of Article 19(1)(a), and pre-censorship was struck down. Indian Express Newspapers v. Union of India (1985) applied it to taxes on newsprint.
• Right to know and to information. State of U.P. v. Raj Narain (1975): citizens have the right to know about public acts. This led to the Right to Information Act, 2005.
• Commercial speech. Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. (1995): advertisements are protected, if they are not false or misleading.
• Broadcasting. Secretary, Ministry of I&B v. Cricket Association of Bengal (1995): airwaves are public property, and citizens have the right to use the electronic media.
• Right not to speak. Bijoe Emmanuel v. State of Kerala (1986): a person cannot be forced to sing the national anthem.
• Symbolic expression. Union of India v. Naveen Jindal (2004): the right to fly the national flag is part of the freedom of expression.
• Films. K.A. Abbas v. Union of India (1970): the film is a medium of expression, but may be subject to reasonable prior censorship.
• Internet. Shreya Singhal v. Union of India (2015): Section 66A of the Information Technology Act, 2000 was struck down as vague and as a restriction beyond Article 19(2). Anuradha Bhasin v. Union of India (2020): freedom of speech on the internet is protected, and an indefinite shutdown is not allowed.

Limits

The restrictions allowed under Article 19(2) are discussed in the answer on reasonable restrictions.

Sections: Art. 19(1)(a)Art. 19(2)

Ans: The Indian Constitution is a mixture of features, and it is hard to place it in a single class. Its nature can be seen from these aspects.

Nature

• Written, detailed and enacted by the Constituent Assembly.
• Federal in structure with a unitary bias. Article 1 calls India a “Union of States”. Dr Ambedkar said on 4 November 1948 that the Constitution can be both unitary and federal according to the requirements of time and circumstances.
• Parliamentary democracy with a nominal President.
• Partly rigid and partly flexible (Article 368).
• Supreme Constitution with judicial review, and not parliamentary sovereignty as in Britain.
• Secular, republican and welfare-oriented.

How the Supreme Court has interpreted it

• Federal nature. In State of West Bengal v. Union of India (1963) the Court held that India is not a true federation, since the States are not sovereign and the Centre is strong. In S.R. Bommai v. Union of India (1994) it held that federalism is a basic feature, and that the Constitution is federal in character with a bias towards the Centre in times of need.
• Basic structure. Kesavananda Bharati v. State of Kerala (1973): Parliament can amend any provision of the Constitution but cannot destroy its basic structure. Minerva Mills v. Union of India (1980) added that limited amending power is itself a basic feature.
• Living document. The Court has read the Constitution as a living instrument to be interpreted in the light of changing needs. Article 21 was widened in Maneka Gandhi v. Union of India (1978).
• Harmonious construction. Fundamental rights and Directive Principles are read together (Minerva Mills).
• Separation of powers and judicial review were held to be part of the basic structure (Indira Nehru Gandhi v. Raj Narain (1975); L. Chandra Kumar v. Union of India (1997)).
• Purposive approach. Courts look to the spirit and purpose of the provisions, and the Preamble, in interpretation.
• Secularism was held to be a basic feature (S.R. Bommai).

Ans: Article 32 gives every person the right to move the Supreme Court directly for the enforcement of the fundamental rights in Part III. It is itself a fundamental right. Dr Ambedkar called it the “heart and soul” of the Constitution.

Provisions

• 32(1): the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed.
• 32(2): the Supreme Court has power to issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever is appropriate, for enforcement of any of the rights.
• 32(3): Parliament may by law empower any other court to exercise these powers within its local limits, without affecting the Supreme Court’s power.
• 32(4): the right shall not be suspended except as the Constitution provides, as in an Emergency under Article 359.

Nature and scope

• Original and independent. A petitioner can come straight to the Supreme Court without first going to the High Court. The Court is a protector of fundamental rights. In Romesh Thappar v. State of Madras (1950) the Court said that it cannot refuse relief on the ground that another remedy exists.
• Only for fundamental rights. A petition cannot be based on an ordinary legal right.
• Against the State. It lies against the State as defined in Article 12, and in some cases, such as Articles 17, 23 and 24, against private persons.
• Wide remedial power. The Court may issue any appropriate direction. It has awarded compensation for violation of fundamental rights (Rudul Sah v. State of Bihar (1983); Nilabati Behera v. State of Orissa (1993)).
• Public interest litigation. A person acting in the public interest can approach the Court on behalf of those who cannot do so.
• The Court cannot impose conditions that obstruct the right. Prem Chand Garg v. Excise Commissioner (1963): a rule requiring a deposit of security for costs was held invalid.

Limits

• Res judicata: a matter decided by a High Court on the merits may bar the same petition in the Supreme Court (Daryao v. State of U.P. (1961)).
• Delay may be a ground to refuse relief.
• The Court generally does not interfere in questions of private rights or in disputed facts.

Article 32 and Article 226

Article 226 gives High Courts a wider power, since they may issue writs not only for fundamental rights but also “for any other purpose”.

Sections: Art. 32

Ans: The Directive Principles of State Policy are in Part IV of the Constitution (Articles 36 to 51). Article 37 says that they are not enforceable in court but are fundamental in the governance of the country, and it is the duty of the State to apply them in making laws.

Significance

• They state the aims of a welfare State and the goal of social and economic justice.
• They guide the legislature and the executive.
• They supplement the fundamental rights. The Supreme Court held that the two together form the conscience of the Constitution (Minerva Mills v. Union of India (1980)).
• Courts use them in interpreting the Constitution and laws, and in deciding whether restrictions are reasonable.
• They provide a basis for judging the performance of governments.

Classification

The Constitution does not classify them. Writers divide them into three groups.

1. Socialistic principles

• Article 38: promote the welfare of the people and minimise inequalities.
• Article 39: adequate livelihood for all, equitable distribution of resources, no concentration of wealth, equal pay for equal work, protection of workers and children.
• Article 39A: equal justice and free legal aid.
• Article 41: right to work, education and public assistance. Article 42: just and humane conditions of work and maternity relief. Article 43: living wage. Article 43A: workers’ participation in management.
• Article 47: raising the level of nutrition and public health.

2. Gandhian principles

• Article 40: village panchayats.
• Article 43: cottage industries. Article 43B: cooperative societies.
• Article 46: promotion of the educational and economic interests of the Scheduled Castes, Scheduled Tribes and weaker sections.
• Article 47: prohibition of intoxicating drinks and drugs.
• Article 48: organisation of agriculture and animal husbandry, and prohibition of cow slaughter and other cattle.

3. Liberal-intellectual principles

• Article 44: Uniform Civil Code.
• Article 45: early childhood care and education for children below six.
• Article 48A: protection of the environment and wild life.
• Article 49: protection of monuments of national importance.
• Article 50: separation of the judiciary from the executive.
• Article 51: promotion of international peace and security.

Ans: Habeas corpus is a Latin phrase that means “you may have the body”. It is a writ that directs a person who has detained another to produce the detained person before the court, so that the court may decide whether the detention is lawful. It is a remedy for illegal detention and a protection of personal liberty.

Constitutional provisions

The Supreme Court can issue it under Article 32, and the High Courts under Article 226. Article 21 and Article 22 protect the right to personal liberty.

Who may apply

The detained person, or any other person on his behalf. The rule of locus standi is relaxed, and a letter or telegram may be treated as a petition.

Against whom

It lies against the State and against private persons who unlawfully confine a person.

Grounds

• Detention without authority of law.
• Detention under a law that is unconstitutional.
• Failure to follow the procedure, such as production before a magistrate within 24 hours.
• Mala fide or arbitrary detention.
• Detention without proper grounds or without a chance to represent, under a preventive detention law.

Features

• The court looks at the legality of the detention at the time of the hearing (Kanu Sanyal v. District Magistrate, Darjeeling (1973)).
• The burden is on the detaining authority to justify the detention.
• A fresh petition is allowed on new grounds, as res judicata does not strictly apply.
• The court may also award compensation (Rudul Sah v. State of Bihar (1983); Nilabati Behera v. State of Orissa (1993)).

Cases

• A.D.M. Jabalpur v. Shivkant Shukla (1976): the majority held that during the Emergency a person could not seek habeas corpus. The view is now regarded as wrong.
• Sebastian M. Hongray v. Union of India (1984): the Army failed to produce two missing men in Manipur, and the Court awarded exemplary costs and compensation to their families.
• Bhim Singh v. State of J&K (1985): an MLA was held illegally detained and compensated.

Ans: Mandamus is a Latin word that means “we command”. It is a writ issued by a court to a public authority, directing it to perform a public duty that it has failed to perform. It is issued under Article 32 by the Supreme Court and under Article 226 by the High Courts.

Conditions

• The petitioner has a legal right to compel the performance of the duty.
• The duty is a public duty imposed by a statute or by the Constitution, and not a purely private or discretionary one.
• The petitioner has demanded performance and the authority has refused, or failed to act.
• There is no other adequate remedy (this is a rule of practice, not a bar).

Against whom it lies

• Public officials and authorities, and the State.
• Statutory bodies and, in some cases, private bodies performing a public function (Anadi Mukta Sadguru Trust v. V.R. Rudani (1989)).

Against whom it does not lie

• The President and the Governors, personally, in respect of the exercise of their powers (Article 361).
• A private person or body acting in a private capacity.
• A discretionary act, though the court may order that discretion be exercised properly and lawfully.
• A legislature, to make a law.

Cases

• Rashid Ahmed v. Municipal Board, Kairana (1950): the Court granted relief under Article 32 against a Municipal Board that had refused a trading licence without reason. It held that an appeal under the municipal law was not an adequate remedy that could bar the petition.
• Mohinder Singh Gill v. Chief Election Commissioner (1978): the court can direct the performance of a statutory duty.
• Bandhua Mukti Morcha v. Union of India (1984): the Court directed the State to enforce the laws against bonded labour.
• Union of India v. S.B. Vohra (2004): the Supreme Court held that the High Court should not have used mandamus to fix a higher pay scale, since this is a matter of policy for the executive.

Ans: Certiorari is a Latin word that means “to be certified” or “to be informed”. It is a writ issued by a superior court to an inferior court, tribunal or quasi-judicial authority to send up the record of a case, so that the court can examine it and quash the order if it is illegal. It is a corrective remedy. It is issued under Article 32 and Article 226.

Grounds

• Lack or excess of jurisdiction: the body has acted without or beyond its jurisdiction.
• Error of law apparent on the face of the record. The error must be obvious and need no long argument (Hari Vishnu Kamath v. Syed Ahmad Ishaque (1955)).
• Violation of natural justice: the party was not heard (A.K. Kraipak v. Union of India (1970), which applied the rules of natural justice to administrative action).
• Fraud or collusion in obtaining the order.
• Wrongful refusal to exercise jurisdiction, or an order that is arbitrary or perverse.

Against whom it lies

Courts, tribunals and authorities that have the duty to act judicially or quasi-judicially (T.C. Basappa v. T. Nagappa (1954)). It does not lie against a purely administrative or legislative act.

Limits

• It is not an appeal. The court does not re-examine the facts or substitute its view for that of the tribunal (Syed Yakoob v. K.S. Radhakrishnan (1964)). It corrects errors of jurisdiction and errors of law.
• Naresh Shridhar Mirajkar v. State of Maharashtra (1966): a writ of certiorari does not lie against a judicial order of the High Court itself.
• Radhey Shyam v. Chhabi Nath (2015): judicial orders of civil courts are not subject to a writ of certiorari under Article 226. They may be supervised under Article 227.

Certiorari and prohibition

Certiorari quashes an order already made. Prohibition stops proceedings that are still going on.

Ans: Quo warranto means “by what authority”. It is a writ that the court issues to call upon a person who holds a public office to show by what authority he holds it. If he has no legal right, he is ousted. It prevents illegal usurpation of public office. It is issued under Articles 32 and 226.

Conditions

• The office must be a public office, that is, one created by the Constitution or a statute, in which the public has an interest.
• The office must be substantive, a permanent post with duties, and not merely a servant’s job at the pleasure of someone.
• The person holding it must be not qualified for it, or was appointed in violation of the law.
• The petitioner need not be a person personally affected. Any person may apply, so that the public interest is protected. This is different from other writs.

Cases

• University of Mysore v. C.D. Govinda Rao (1964): the writ lies if the person holding the office has no right to it. The Supreme Court explained that it requires a public office of a substantive character.
• Kumar Padma Prasad v. Union of India (1992): the appointment of a person as a judge of the Gauhati High Court was quashed, as he did not have the qualification required by Article 217.

Where it does not lie

• Private offices, and offices of a ministerial or temporary nature.
• Where the defect is a mere irregularity that does not affect the right to the office.

Effect

The court declares the office vacant and ousts the person. Acts of the person, done as a de facto officer, are valid as against the public (de facto doctrine).

Ans: Prohibition is a writ that a superior court issues to an inferior court, tribunal or quasi-judicial body, forbidding it from continuing proceedings in excess of its jurisdiction, or in violation of natural justice or the law. It is a preventive writ. It is issued under Articles 32 and 226.

Grounds

• The inferior body is proceeding in a matter that is outside its jurisdiction, or has no jurisdiction at all.
• It is acting in excess of jurisdiction.
• It is violating the principles of natural justice.
• The law under which it is acting is itself unconstitutional.
• It is acting with bias or fraud.

Features

• It lies only against judicial and quasi-judicial authorities, and not against administrative or legislative bodies.
• It is issued while the proceedings are pending, before a final decision. Once the decision is given, the remedy is certiorari.
• It stops the inferior court at an early stage, and so saves cost and time.
• East India Commercial Co. v. Collector of Customs (1962): prohibition may be issued to prevent an authority from acting in excess of its jurisdiction, and it is available against authorities with jurisdictional defects.
• Hari Vishnu Kamath v. Syed Ahmad Ishaque (1955) described the similarity between prohibition and certiorari.

Prohibition and certiorari compared

• Stage: prohibition operates during the proceedings, and certiorari after the order.
• Nature: prohibition is preventive and certiorari is corrective.
• Grounds: both are issued for want of jurisdiction, excess of jurisdiction and breach of natural justice. Certiorari also lies for errors of law on the face of the record.

It is not issued against a body that has finished its work, or against a body that has discretion within the limits of its jurisdiction.

Ans: Public Interest Litigation (PIL) is a legal action brought in a court for the protection of the public interest or the rights of persons or groups who cannot approach the court themselves because of poverty, ignorance or social or economic disadvantage. It is not a statutory term. It was developed by the Supreme Court in the late 1970s.

Features

• Relaxed locus standi. Any public-spirited person or organisation can file a petition on behalf of the affected persons. The traditional rule that only the aggrieved person can sue is relaxed.
• Informal procedure. A letter or postcard may be treated as a writ petition (epistolary jurisdiction).
• Non-adversarial. The court works with the parties to find a remedy, and may appoint commissions and amici curiae.
• Wide relief. The court may issue directions, monitor their implementation and award compensation.
• Constitutional basis. Articles 32 and 226.

Key cases

• Hussainara Khatoon v. State of Bihar (1979): undertrial prisoners kept in jail for years.
• S.P. Gupta v. Union of India (1981): the Court recognised the right of any member of the public to approach the court for a public wrong.
• People’s Union for Democratic Rights v. Union of India (1982): the rights of construction workers in the Asiad project.
• Bandhua Mukti Morcha v. Union of India (1984): the release of bonded labourers.
• M.C. Mehta v. Union of India (1986 and after): environmental pollution.
• Vishaka v. State of Rajasthan (1997): guidelines against sexual harassment at the workplace.

Limits and guidelines

PIL has been misused for private or publicity purposes. In State of Uttaranchal v. Balwant Singh Chaufal (2010) the Court laid down guidelines. The court must be satisfied about the credentials of the petitioner and the correctness of the facts, and should impose costs on frivolous petitions. In B.A.L.C.O. Employees’ Union v. Union of India (2002) it said that PIL should not be used to challenge economic policy.

Ans: Article 19(2) allows the State to make a law that imposes reasonable restrictions on the freedom of speech and expression, in the interests of the following grounds only. No other ground can be used.

The grounds

• Sovereignty and integrity of India (added by the 16th Amendment, 1963).
• Security of the State. It covers serious threats such as rebellion and war. It is narrower than public order (Romesh Thappar v. State of Madras (1950)).
• Friendly relations with foreign States (added by the First Amendment, 1951).
• Public order (added by the First Amendment, 1951). Superintendent, Central Prison v. Ram Manohar Lohia (1960): public order means public peace and tranquillity, which is different from “law and order”.
• Decency or morality. Ranjit Udeshi v. State of Maharashtra (1965): obscene works can be banned. Aveek Sarkar v. State of West Bengal (2014): the test is contemporary community standards.
• Contempt of court.
• Defamation. Subramanian Swamy v. Union of India (2016) upheld criminal defamation.
• Incitement to an offence (added by the First Amendment).

Tests of reasonableness

• The restriction must have a close, direct connection with the ground, and must not be excessive or arbitrary (State of Madras v. V.G. Row (1952)).
• Both the substance of the law and the procedure are examined.
• S. Rangarajan v. P. Jagjivan Ram (1989): the link between the speech and the danger must be like a “spark in a powder keg”. It must be proximate and real.
• Shreya Singhal v. Union of India (2015): mere discussion or advocacy, even of an unpopular cause, is protected. Only incitement is punishable. Section 66A of the IT Act was struck down as vague.

Sedition

Kedar Nath Singh v. State of Bihar (1962) held that Section 124A of the Indian Penal Code is valid only when the words incite violence or disorder. In S.G. Vombatkere v. Union of India (2022) the Supreme Court put its use on hold.

Other points

The restriction must be made by a law, and not by an executive order. A ground not listed in the Article, such as economic loss, cannot justify a restriction.

Sections: Art. 19(1)(a)Art. 19(2)

Ans: The statement is true. The Constitution creates a federal system, but it contains many features that make the Union stronger than the States. Because of these, K.C. Wheare called it “quasi-federal”.

Federal features

• Two levels of government and a division of powers in three Lists in the Seventh Schedule.
• Written and supreme Constitution.
• Independent judiciary which decides Centre-State disputes (Article 131).
• Rigid amendment for some provisions, which need the ratification of half of the States (Article 368(2)).
• Bicameral Parliament with the Rajya Sabha representing the States.
• Article 1 calls India a “Union of States”.

Unitary features

• Strong Centre: a large Union List, residuary powers with the Union (Article 248), and the Union law prevails in the Concurrent List (Article 254).
• Power of Parliament over State subjects in the national interest, in an emergency, and for treaties (Articles 249 to 253).
• Emergency provisions (Articles 352, 356 and 360), under which the Centre can take control of the States.
• Governor appointed by the President (Article 155).
• Single citizenship, an integrated judiciary and common All-India Services.
• Power to form, alter or abolish States (Article 3).
• Financial dependence of the States on the Centre.
• Directions by the Union to the States (Articles 256 and 257).

Reconciling the two

• Dr Ambedkar said that the Constitution is federal in structure but can work as a unitary one in an emergency. Federation was a means of administrative convenience, not a union of sovereign States.
• The Supreme Court in State of West Bengal v. Union of India (1963) held that India has a strong Centre, and in S.R. Bommai v. Union of India (1994) held that federalism is a basic feature, so the Centre cannot abuse its power over the States. Article 356 is subject to judicial review.

The Sarkaria Commission (1988) and the Punchhi Commission (2010) examined Centre-State relations and recommended steps for cooperative federalism.

Ans: Fundamental rights (Part III) and Directive Principles (Part IV) both aim at justice, but they differ. Fundamental rights are enforceable by courts. They protect the individual against the State. Directive Principles are not enforceable. They direct the State to work for social and economic justice. The relationship between them has changed over time.

1. Fundamental rights are superior

• State of Madras v. Champakam Dorairajan (1951): the Directive Principles must conform to and run as subsidiary to the fundamental rights. A communal reservation in admission to medical colleges was struck down. The First Amendment followed, adding Article 15(4).

2. Harmonious construction

• In re Kerala Education Bill (1958): the Court said that the Directive Principles must be reconciled with the fundamental rights, as far as possible.
• State of Kerala v. N.M. Thomas (1976): Directive Principles may be used to decide whether a classification is reasonable.

3. Directive Principles gain strength

• I.C. Golaknath v. State of Punjab (1967): Parliament could not amend fundamental rights.
• The Twenty-fifth Amendment (1971) inserted Article 31C, which protects laws made to implement Article 39(b) and (c) from challenge under Articles 14, 19 and 31.
• Kesavananda Bharati v. State of Kerala (1973): the first part of Article 31C was upheld. The Court recognised that both Parts are essential, and that the Directive Principles have an important role.

4. Balance: Minerva Mills (1980)

The Court struck down the extension of Article 31C by the 42nd Amendment to all Directive Principles. It said that the Constitution is founded on the balance between Parts III and IV. To give absolute primacy to one over the other disturbs the harmony of the Constitution, which is a basic feature.

5. Directive Principles read into fundamental rights

• Unni Krishnan v. State of Andhra Pradesh (1993): the right to education is implicit in Article 21, read with Articles 41 and 45.
• Olga Tellis v. Bombay Municipal Corporation (1985): the right to livelihood, from Article 21 and Articles 39(a) and 41.
• Hussainara Khatoon v. State of Bihar (1979): free legal aid, from Article 21 and Article 39A.
• Randhir Singh v. Union of India (1982): equal pay for equal work, from Articles 14 and 16, read with Article 39(d).
• Subhash Kumar v. State of Bihar (1991): the right to a pollution-free environment, with Article 48A.

Differences

• Part III is enforceable, Part IV is not.
• Part III limits the State. Part IV directs it to act.
• Part III protects the individual. Part IV protects society.

Today the two are treated as complementary: the Directive Principles give content to the fundamental rights, and the rights are the means for achieving the goals.

Ans: Article 21 protects life and personal liberty. After Maneka Gandhi v. Union of India (1978), the Court has held that the procedure must be just, fair and reasonable, and has widened the scope of “personal liberty” in many recent cases.

1. Privacy

K.S. Puttaswamy v. Union of India (2017): a nine-judge Bench held that the right to privacy is a fundamental right under Article 21. It protects bodily integrity, personal choices and informational privacy. The earlier decisions in M.P. Sharma and Kharak Singh were overruled to the extent they held otherwise. Puttaswamy (II) (2018) upheld the Aadhaar Act with some limits.

2. Dignity, sexual orientation and gender identity

• National Legal Services Authority v. Union of India (2014): transgender persons have the right to self-identify their gender, and the Court recognised them as a third gender.
• Navtej Singh Johar v. Union of India (2018): Section 377 of the Indian Penal Code, so far as it penalised consensual sexual conduct between adults, was held unconstitutional.
• Joseph Shine v. Union of India (2018): the offence of adultery under Section 497 was struck down.

3. Choice of partner

• Shafin Jahan v. Asokan K.M. (2018): an adult has the freedom to choose her partner and religion, and the State and the courts cannot override that choice.
• Shakti Vahini v. Union of India (2018): the Court gave directions against honour killings and the interference of khap panchayats.

4. Death with dignity

Common Cause v. Union of India (2018): the right to die with dignity is a part of the right to life. Passive euthanasia and living wills were permitted with safeguards.

5. Free speech and access to the internet

Anuradha Bhasin v. Union of India (2020): the right to use the internet for trade and expression is protected under Articles 19(1)(a) and 19(1)(g), and a shutdown must be proportionate and reviewed.

6. Liberty and bail

• Arnab Goswami v. State of Maharashtra (2020): the Court said that the deprivation of personal liberty even for a single day is one day too many, and that courts must protect liberty against arbitrary use of State power.
• Joginder Kumar v. State of U.P. (1994) and Arnesh Kumar v. State of Bihar (2014): arrest should not be routine.

Trend

The Court has treated Article 21 as a source of new rights, based on dignity, autonomy and privacy, and has linked it with Articles 14 and 19.

Ans: Article 37 of the Constitution says: “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” The statement has two parts.

Not justiciable

• A person cannot go to court to compel the State to implement a Directive Principle. A law cannot be struck down only because it does not follow a Directive Principle.
• The reason is that the State has limited resources, and the goals are to be reached step by step. Many of them, like Articles 41 and 43, depend on the economic capacity of the State.
• The Constituent Assembly did not want the courts to take over the work of the legislature and executive.

Fundamental in governance

• Duty of the State: Article 37 says it is the duty of the State to apply them in making laws. The term “State” includes the Union and State legislatures and executives (Article 36).
• Moral and political force. Governments must justify their policies by these goals, and they can be called to account by the voters.
• Guide to the courts. Courts interpret laws in line with them. In Kesavananda Bharati v. State of Kerala (1973) and Minerva Mills v. Union of India (1980), the Court said that they are fundamental, and that the Constitution seeks a balance between them and the fundamental rights.
• Support for law. A law that gives effect to Article 39(b) and (c) is protected by Article 31C.

How they have been given effect

• Legislation: land reforms and abolition of zamindari (Article 39(b)), the Equal Remuneration Act, 1976 (Article 39(d)), the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (Article 41), the Right to Education Act, 2009 (Article 45), and the Environment (Protection) Act, 1986 (Article 48A).
• Amendments: Article 21A (right to education), Article 43B (cooperative societies).
• Judicial decisions: through Article 21, courts have enforced free legal aid (Article 39A), the right to livelihood (Article 41), and a clean environment (Article 48A).

So the Directive Principles cannot be enforced as such, but they guide the State, and are indirectly enforced through other rights and through laws.

Sections: Art. 36Art. 37

Ans: Public Interest Litigation developed in India in the late 1970s, through the Supreme Court’s decisions. Its growth can be seen in stages.

1. Background

• Traditionally, only a person whose own right was infringed could go to court (the rule of locus standi), and the proceedings were adversarial.
• After the Emergency (1975 to 1977), the Court wanted to regain public trust. Justices P.N. Bhagwati and V.R. Krishna Iyer led a move to make the courts available to the poor.
• The Constitution gave a base: Articles 32 and 226, the Directive Principles and Article 39A.

2. Early phase (1979 to 1981)

• Hussainara Khatoon v. State of Bihar (1979): a lawyer filed a petition on behalf of thousands of undertrial prisoners. It is regarded as the first PIL.
• S.P. Gupta v. Union of India (1981): the Court held that any member of the public can seek redress for a public wrong or injury to a class of persons who cannot approach the court.

3. Expansion (1980s)

• Bandhua Mukti Morcha v. Union of India (1984): bonded labour. The Court accepted a letter as a petition and appointed commissions to find the facts.
• People’s Union for Democratic Rights v. Union of India (1982): the rights of workers.
• M.C. Mehta v. Union of India (1986): environment and hazardous industries, with the doctrine of absolute liability.
• Sheela Barse v. State of Maharashtra (1983): the condition of women prisoners and children in jails.
• Olga Tellis v. Bombay Municipal Corporation (1985): pavement dwellers.
• Epistolary jurisdiction: letters and newspaper reports were treated as petitions.

4. Institutionalisation

• The Supreme Court set up a PIL cell to deal with letter petitions, and the High Courts made rules for PIL.
• Methods: appointment of commissioners and amici curiae, expert committees, and continuing mandamus, in which the court keeps the case open to monitor compliance (Vineet Narain v. Union of India (1998), on the CBI).
• Laws and guidelines created by PIL: Vishaka v. State of Rajasthan (1997) gave guidelines on sexual harassment at the workplace, later turned into the Sexual Harassment of Women at Workplace Act, 2013.
• The Legal Services Authorities Act, 1987 supported access to justice for the poor.
• Environmental PILs brought the principles of sustainable development, the polluter pays and the public trust doctrine.

5. Regulation and criticism

• Misuse for private and publicity interest led the Court to set controls: B.A.L.C.O. Employees’ Union v. Union of India (2002) and State of Uttaranchal v. Balwant Singh Chaufal (2010).
• The petitioner must show good faith. Costs may be imposed for frivolous petitions.
• Critics say that the courts enter policy and executive areas. Supporters say that PIL has made justice accessible.