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CONSTITUTION OF INDIA

INTRODUCTION

Constitution is a document which provides a basic legal framework by which the entire country is regulated. In the context of India, a Constituent Assembly was set up in the year 1946 to frame the Constitution of India. It appointed number of committees for suggesting recommendations in framing the Constitution of India and finally the Constitution of India was adopted by Constituent Assembly on 26th November, 1949 and Constitution of India came into force on 26th January, 1950. The Constitution of India contains 395 Articles, which are divided into 22 Parts and 12 Schedules. The Constitution deals with Structure of the Government, Rights of the Citizens, Principles to be followed by the State in the governance of the country, etc. Constitution of India is considered all supreme and has the overriding effect over all the laws governing the various aspects of our system. The Constitution of India is said to be mother of all laws i.e., all the laws have their origin in the Constitution of India.

PREAMBLE TO CONSTITUTION OF INDIA

Preamble to the Constitution of India reads as: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC‟ and to secure to all its citizens JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all FRATERNITY assuring the dignity of the Individual and unity and integrity of the Nation. Although Preamble does not contain any substantive law, yet it is considered to be the most sacred part of the Constitution of India. If any provision of Constitution of India is ambiguous, then that provision has to be interpreted in the light of the contents of Preamble. The Supreme Court, in number of cases, has held that Constitution is to be read and interpreted in the light of visions and values, pledges and sentiments expressed in the Preamble. The Preamble truly represents the soul of our Constitution.

STRUCTURE OF THE CONSTITUTION - WHETHER FEDERAL OR UNITARY

The constitution generally may be unitary type or federal type. Under unitary type of constitution, all powers flow from a single top authority. But under federal system, there are different layers of authority and each layer has separate powers all decided by the constitution. Our constitution is basically federal but with certain unitary features. The federal features of our constitution are 1. Dual authority: We have two sets of government i.e., government, at the centre and government, at

various state levels. 2. Distribution of power: The constitution distributes the power to make law by way of Union List (where

only union can make laws) State List (where only states can make laws) and Concurrent List (where both the union and the states can make laws).

3. Supremacy of Constitution: The three pillars of our legal system i.e., legislature. executive and judiciary all are subordinates to the Constitution of India. i.e., none of them can surpass the provisions of Constitution of India.

4. Independence of Judiciary: The judiciary of our country is totally independent and neither the legislature nor the executive can control the judiciary.

5. Written Constitution: The Constitution of India is a written document. However, even our constitution has aforesaid federal features, in times of need, it becomes unitary i.e., union has more powers than the state under the following circumstances:




1. The union list contains 97 entries out of which 96 have been specifically named and the 97th item has been left blank and is unknown as residuary item under which any new item which has not found a place in any of the list can be included. This being in the union list it effectively means that on any new subject, only parliament can make a law.

2. Under state list, only state can pass law but Article 246 permits the Parliament to pass law on state list matters under five circumstances. These circumstances are a matter of:

a) National Interest; b) Emergency; c) Dispute between two or more states; d) To give effect to an international agreement; and e) Breakdown of constitutional machinery in a state.

Thus parliament has more powers under these five circumstances even in the state list. 3. Under concurrent list, if any law is pass on a particular matter by Union as well as State and if there is

an inconsistency between two laws then the union law will prevail over the state law. 4. India, we have a single citizenship system unlike in the case of USA where there is a concept of dual

citizenship. Thus, it can be held that the Indian Constitution establishes a system of government at the most Quasi-Federal (not strictly federal) or it a federation with a strong centralized tendency.

FREEDOM OF TRADE. COMMERCE AND INTERCOURSE

The constitution of India in Part XIII, wide Articles 301 to 305, deals with freedom of Trade, Commerce and Intercourse. Out of these Articles, Article 301 creates an overall limitation on all the powers of the Union and the State legislature. The bar on state powers to interfere in free trade, commerce and intercourse (Article 301) is loosened by Articles 302, 303 and 304. Article 305 provides for state monopoly.

Study of the Articles 302 to 305 will reveal when and how the Constitution of India permits the Government to restrict freedom of trade, commerce and intercourse.

Article 301: The trade and commerce throughout the territory of India shall be free and without restriction. The restriction can generally be by way of taxes. The taxes may be compensatory where they are levied for any service provided it is not taken as restriction. But if the tax is levied to regulate or to prevent certain people from carrying on business, it amounts to restriction.

Thus the object of Article 301 is to break down the barriers between the states and to make the country as one unit with a view to encourage trade and commerce.

Article 302: However, the Parliament can impose restrictions on freedom of trade, commerce and intercourse in public interest.

Article 303 : The Parliament, while imposing restrictions under Article 302, cannot discriminate between different states. However, the Parliament can discriminate in case of scarcity of goods.

Article 304: It enables state legislature to impose taxes on goods coming from other states, if goods produced within the state are subjected to such taxes.

Article 305: Any law passed by the Union thereby creating the state monopoly shall not be affected by the provisions of Part XIII of the Constitution of India.

DISTRIBUTION OF LEGISLATIVE POWERS

IMPORTANT PROVISIONS

Since India is a federal State, there is distribution of powers among the Centre and the states. In this regard, Article 246 provides for the following lists:




i) List I or the Union List This list includes subjects over which Parliament has the exclusive power to legislate. The list contains 97 items, some of which are defence, foreign affairs, citizenship, currency, judiciary, central taxes, etc.

ii) List II or the State List This list contains 66 items over which the state legislature have the exclusive power to legislate. Some of the important items are public health and sanitation, pilgrimage, roads, agriculture, state taxes, etc.

iii) List III or the Concurrent List This list contains 47 entries over which both Parliament and the state legislatures can legislate. Some of the important items are marriage, economic and social planning, trade unions, etc.

It may be noted that Parliament has exclusive powers to make any law with respect to any mailer which is not covered in any of three lists. This is known as residual)‟ power of legislature.

POWER OF THE PARLIAMENT TO MAKE LAWS ON STATE LIST MATTERS

Normally the state legislature has the exclusive powers to make laws with respect to subjects enumerated in the state list. But Article 246 of our constitution empowers Parliament to make laws even on state list matters under the following five circumstances

1. In the National Interest (Article 249): National Interest has not been defined but whenever parliament feels that it is necessary to pass laws on state list matters in public interest, it is covered under this Article

2. During proclamation of emergency (Article 250): While proclamation of emergency is in operation, Parliament shall have the power to make laws for whole or any part of the territory of India on any matter in the state list. Here emergency includes periods of internal disturbances, external aggression, etc.

3. On request of two or more states (Article 252): If there is a dispute between two or more states and they pass a resolution in their assemblies to refer the matter to Parliament for any law on state list matters concerning them, the Parliament can pass law.

4. Legislation for enforcing international agreements (Article 253): If there is any international agreement between foreign country and India, and to give effect to such agreement if a law is to be passed, the Parliament can pass the law even if the matter is contained in state list.

5. Breakdown of Constitutional machinery In a state (Article 356): Parliament can make law with respect to all state matters as regard the state in which there is breakdown of constitutional machinery and is under President Rule.

Article 356 is activated when there is a situation of breakdown of the constitutional machinery in the States. In such a case, the President may dissolve a State Legislature and dismiss the State Government. This is done upon the report of the Governor of the disturbed State that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.

When this article is activated, the powers shift from the state legislature to the President. Literally interpreted, the provision empowers the Central Government to dismantle State Governments and Legislatures, and to assume powers until the situation normalizes.

PITH AND SUBSTANCES RULE

The rule of pith and substance is applied when a law dealing with a subject in one list also touches a subject in another list. In such cases the pith and substance of the legislation i.e., thç true object of legislation is to be determined. If on such examination, it is found that the legislation in its existence is within the legislative competent of the legislature which enacted it, it is valid even if it accidentally encroached on a subject in another list.




„Pith means a substance in the stem of a plant and „substance means an important and essential part of something. The term is used in law to ascertain the essential part of the law which the legislatures mean the most important in framing the law. While making any law in any matter contained in List I or II or III, the legislatures may slightly encroach other List. If challenged, the Court will apply the doctrine of pith and substance of the law and determine the validity of the law.

COLORABLE LEGISLATION

The theory behind this concept is “You cannot do indirectly what you cannot do directly”. The object of distribution of legislative powers to different legislatures is that they ought to act within their respective boundaries marked by the specific entries. There are some cases where the legislature passes an Act which outwardly purports to be dealing with a subject within its legislative competence but in substance it covers a subject not within its powers. Such type of law is called colorable legislation and it will be struck down by the Court.

PLENARY POWERS

When a legislative power is given with respect to any subject, the legislatures have the power to make laws on such subject and also any matter incidental to such subject. This is called giving plenary of powers. For example, when a power is given on tax matter, the legislatures have the power to make law for imposition of tax, refund of tax, and also not to impose and collect tax.

DELEGATED LEGISLATION

Delegated legislation means law making by authorities other than legislatures (i.e., Executive nd Judiciary) on the basis of power given by the legislatures. It is a process „which proceeds from any authority other than the sovereign power and is, therefore, dependent for its continued existence and validity on some superior or supreme authority.

When any law is enacted, it becomes necessary to delegate powers for carrying out the policy laid down in the law. Generally, ancillary and subsidiary powers are delegated and the legislative functions are retained in the hands of the legislatures. The delegatee is authorized to make rules only on subsidiary and ancillary matters within the authority given. A rigid legislative procedure is not feasible for execution of the legislative schemes; In each law there are clauses which empowers others to make rules for „removal of difficulties; in executing the policy.

WRITS

Writs are extra ordinary remedies in cases where there is either no remedy available under the ordinary law or the remedy available is inadequate.

Articles 32 and 226 of our Constitution empower anyone, whose rights are violated, to seek writs. Under Article 32, the Supreme Court can be moved for enforcement of fundamental rights only. However, under Article 226, High Court can be moved for enforcement of any right including fundamental rights.

Depending upon circumstances, the various types of writs can be issued, which are discussed below:

WRIT OF HABEAS CORPUS

The words „habeas corpus‟ literally means „to have a body‟. It is a remedy available to a person who is confined without legal justification. Through this writ, the court let it know the reasons for detention of the person and if there is no justification, order the authority concerned to set the person free. The writ of habeas corpus, thus, entails the authority to produce the person before the court. The applicant of this




writ may be the prisoner or any person on his behalf to safeguard s liberty. It seeks immediate relief from unlawful detention, whether in prison or private custody.

The writ of habeas corpus is the nature of an order calling upon the person who has detained another to produce the latter before the Court in order to let the Court know, the ground of his detention and to set him free if there is no legal justification. This is a very powerful safeguard to the subject against arbitrary acts of private individuals and also executives.

WRIT OF MANDAMUS

Mandamus literally means a command. This writ of command is issued by the Supreme Court or High Court when any government, court, corporation or any public authority has to do a public duty but fails to do so. To invoke the performance of such duty, this writ of mandamus is issued. It should be noted that it should not be discretionary duty of the authority which is challenged. It should be a compulsory one, the applicant too should have a legal right to enforce such performance. It may further be noted that this writ cannot be issued against President or the Governor.

WRIT OF PROHIBITION

Writ of Prohibition is issued by Supreme Court or High Court to subordinate court preventing latter from usurping the jurisdiction which is legally not vested in it. The writ lies in both for excess of jurisdiction or absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of the proceeding but before the order is made. It may be noted that this writ is available against judicial and quasi-judicial body.

WRIT OF CERTIORARI

If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the affected party can move this writ for a direction against such lower court or tribunal to ignore such decisions based on wrong jurisdiction. The writ of certiorari is issued to sub-ordinate judicial or quasi-judicial body by Supreme Court or High Court when they act: a) Without or in excess of jurisdiction; b) In violation of the prescribed procedure; c) In contravention of principles of natural justice; d) Resulting in an error of law apparent on the face of record.

The writs of prohibition and certiorari are of the same nature, the only difference being that the writ of prohibition is issued at an earlier stage, before the order is made and the writ of certiorari is available on a later stage i.e., after the order has been passed.

WRIT OF QUO WARRANTO

The term „Quo Warranto‟ means “what is your authority”. Whenever any public office is held by any one not qualified to hold it, it can he challenged by this writ by any person. An order issued by the court to uch an authority to explain under what valid grounds he is holding such a post. If it is found on investigation that he is not entitled to the office, the court may restrain him from acting in the office and declare the office to be vacant.

This is a procedure by which the Court enquires into the legality of the claim which a party asserts to a public office and to oust him. For this purpose, the office must be a public office and is created by a statute or by the Constitution. There must be a violation of the Constitution or the statute in appointing such person to that office. The basic thing is that the public has an interest to see that an unlawful claimant does not usurp a public office.




FUNDAMENTAL DUTIES

Rights and duties go hand in hand. Thus, Article 51A of Constitution of India imposes the nÜnber of Fundamental duties on every citizen of India, However, they are not enforceable in the court of law.

Following are some of the important fundamental duties: 1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the

National Anthem. 2. To uphold and protect the sovereignty, unity and integrity of India. 3. To defend the country and render National service when called upon to do so. 4. To promote harmony and spirit of common brotherhood amongst all the people of India transacting

religious, linguistic and regional or sectional diversities. 5. To renounce practices derogatory to the dignity of women. 6. To value and preserve the rich heritage of our composite culture.

FUNDAMENTAL RIGHTS

INTRODUCTION

A man, by birth, has certain rights which are universal and inalienable i.e., he cannot be deprived of them. It is the function of the State to recognize these rights and allow them of free play so that the human liberty is preserved, human personality is developed and an effective cultured, social and democratic life is promoted. The aforesaid rights are recognized in the form of fundamental rights in Part III of the Constitution of India. Constitution of India guarantees six categories of fundamental rights. They are 1. Right to equality (Articles 14 to 18) 2. Right to freedom (Articles 19 to 22) 3. Right against exploitation (Articles 23 & 24) 4. Right to freedom of religion (Articles 25 to 28) 5. Cultural and educational rights (Articles 29 & 30) 6. Right to constitutional remedies (Article 32)

CONCEPT OF STATE

The significance of concept of „State‟ in the context of fundamental rights is that generally the fundamental rights are available against the State. The term “State” is defined in Article 12 of the Constitution of India. As per this, unless the context otherwise provides, the term “state” includes 1. The Government and Parliament of India; 2. The Government and legislature of each of the states; and 3. All local or other authorities:

a. Within the territory of India; or b. Under the control of the Government of India

The expression ‘local authority’ includes the following: 1. Municipalities; 2. District Boards; 3. Panchayats, etc. The expression „other authority‟ includes the following: 1. Electricity authorities; 2. Universities; 3. Income tax Department, etc.

The expression „under the control of the Government of India‟ covers into the definition of State, not only every authority within the territory of India, but also those functioning outside India provided such authorities are under the control of the Government of India.




The question, whether a corporation acting as instrumentality or agency of Government is „State‟ or not, was decided by the Supreme Court in the case of R.D.Shetty v. International Airport Authority and later on followed in the case of Ajay Hasia v. Khalid Mujib. It was decided in the aforesaid cases that in general a corporation acting as an instrumentality or agency of the government is not a state within the meaning of Article 12 of the Constitution of India. However, following are some of the instances where a corporation acting as a instrumentality or agency of the Government. can be regarded as a State within the meaning of Article 12 of Constitution of India: 1. lf the entire share capital is held by the government 2. If the Government exercises deep and persuasive control over the corporation 3. Where the corporation enjoys monopoly status 4. If the functions of the corporation are of public importance and closely relates to Government

functions. 5. If a department of Government is transferred to a corporation.

Where court exercises a judicial functions, it cannot be regarded as State as the expression „State‟ covers only legislature and executive and not judiciary. However, where a court exercises non-judicial functions, it can be considered as State. [A. R. Antulay v. R. S. Nayak]

JUSTIFIABILITY/ AMEND ABILITY OF FUNDAMENTAL RIGHTS

Article 13 of Constitution of India invalidates any pre or post constitutional law which is against the fundamental rights. It also restricts the amendability of Fundamental Rights.

The question whether a fundamental right can be amended, abridged or taken away has been examined in various cases and finally settled in the Golaknath Case. In this case it was held that fundamental rights can neither be abridged nor amended nor taken away by the law and for this purpose, the term law includes a Constitutional Amendment. Thus, fundamental rights can‟t be affected even by constitutional amendment.

The aforesaid decision was set aside by inserting a provision in Article 13 i.e. Article 13(4) which says that “Nothing in Article 13 shall apply to any amendment of this Constitution.”

Further, the aforesaid provisions of Article 13(4) was challenged in the case of Keshavanand Bharati v. State of Kerala, where the Supreme Court has dismissed the petition and upheld the validity of Article 13(4) and held that fundamental rights can be affected by a Constitutional Amendment but the basic structure of the constitution cannot be amended.

Article 13 came up from judicial review in number of cases and the courts have evolved various doctrines for interpreting the provisions of Article 13.

Doctrine of Severability: It provides that only that part of the law will be declared invalid which is inconsistent with the fundamental rights and the rest of the law will stand. However, invalid part of the law will be severed only if it is severable, i.e., if after separating the invalid part, the valid part is capable of giving effect to the legislature‟s intent, then only it will survive otherwise the court shall declare the entire law as invalid.

Doctrine of Eclipse: It provides that a law made before the commencement of the constitution remains eclipsed or dormant to the extent it comes under the shadow of fundamental rights i.e., is inconsistent with it, but the eclipsed or dormant part becomes active and effective again if the inconsistency brought about by the fundamental rights is removed by the amendment to the Constitution of India.

Doctrine of Waiver of Rights: It provides that a person has the liberty to waive the enjoyment of such rights as are conferred on him by the state, provided that such person must have the knowledge of his rights and the waiver should be voluntarily. However, citizens cannot waive of any of the fundamental rights. [Basheshar Nathv.IT Commissioner]




RIGHT TO EQUALITY [ARTICLES 14 TO 18]

Right to equality is one of the basic fundamental human rights afforded by the constitution of modern democratic states including India. The constitution of our country espouses the principles of equality of status and opportunity in its very Preamble and further gave a practical effect in Article 14 to 18, which are as follows: i) Equality before the law (Article 14) ii) Prohibition of discrimination on grounds only of religion, race, caste, sex, place of birth. (Article 15) iii) Equality of opportunity in matters of public employment (Article 16) iv) Abolition of untouchability (Article 17) v) Abolition of Titles (Articles 18) Equality before the law

Article 14 of Constitution of India provides:

“The State shall not deny to any person equality before law or equal protection of the laws within the territory of India.”

The expression „equality before law‟ is a negative concept and it implies the absence of any special privilege in favour of any individual, whatever be his rank or status, and the equal subjection of all classes to the ordinary law.

The expression „equal protection of the laws‟ is a positive concept and it implies equality of treatment in equal circumstances. In other words same law should be applicable among equals or same law should not be applicable among unequals. In order that “right to equal treatment in similar circumstances” should make sense, the law shall have to make a classification between persons who are equally situated. Thus, if there is a reasonable basis of classification, the legislature would be entitled to treat different classes differently.

In Ramkishan Dalmiya v. Justice Tendulkar, the Supreme Court has summarized the rules with respect to permissible classification, which are as follows 1. Article 14 forbids class legislation, but does not forbid classification. 2. Permissible classification must satisfy following two conditions

1. The distinction between those who are included and those who are left out from the provisions of an Act should be clear; and

2. Such distinction should have a reasonable relationship with purpose of the Act. 3. The classification may be founded on different basis, namely geographical or according to the

objects or occupation or the like. 4. Even a single individual may be treated as a class by himself on account of some special

circumstances or reasons applicable to him and not applicable to others. 5. It is not necessary for the state to prove that the law provides equality but it is up to the affected

persons to prove whether equality is violated or not.

It may be noted that Article 14 applies to any person and is not limited to citizens alone. Thus, a corporation, which is only on artificial person but not a citizen, is also entitled to the benefit of this Article.

Prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth

Article 15 provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. Further no citizen shall be deprived of the following rights on grounds only of religion, race, caste, sex, place of birth: a) Access to shops, public restaurants, hotels and places of public entertainment; b) The use of wells, tanks, bathing ghats, roads and places of resorts, maintained out of State funds.

The significance of the word „only‟ used in Article 15 is that if there are any grounds on discrimination other than grounds of religion, race, caste, sex, place of birth, then such discrimination is not prohibited. [Yusuf v. State of Bombay]

The rights guaranteed in Article 15 are subject to the following exceptions 1. The State can make any special provision for women and children;




2. The State can make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and Schedule Tribes.

Equality of Opportunity in Matters of Public Employment Article16 guarantees equality of opportunity to all citizens in the matter of appointment to any office under the State. The aforesaid rule is subject to the following exceptions: 1. The Parliament can make any law prescribing any requirement as to resident in a State in respect of

any particular class or classes of employment in that state. 2. The State can make provisions for the reservation of post in favour of any backward classes of

citizens. 3. Offices connected with religious institutions may be reserved for the persons of a particular religion

Abolition of Untouchabillty

Article 17 provides that untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.

Abolition of Titles

Articles 18 abolishes all the titles conferred on various Indian Citizens by British Government and the use of those titles is prohibited as it results in creating superior and inferior classes of citizens. However, Military titles, Academic titles or Titles recognizing merit or work of an extra-ordinary nature can be conferred and used.

RIGHT TO FREEDOM [ARTICLES 19 TO 221]

Article 19

Article 19 guarantees the following six freedoms to the citizens of India: 1. Right to freedom of speech and expression. 2. Right to assemble peacefully and without arms. 3. Right to form associations or unions. 4. Right to move freely throughout the territory of India. 5. Right to reside and settle in any part of territory of India. 6. Right to practice any profession or to carry on any trade, business or occupation. It may be noted that the aforesaid rights are not absolute and hence reasonable restrictions may be imposed on them. The phrase reasonable restrictions connotes that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of an excessive nature. In determining the reasonableness of statute, the court would see both the nature of the restrictions and procedures prescribed by the statute for enforcing the restrictions on the individual freedom. The reasonableness of a restriction has to be determined in an objective manner and from the point of view of the interest of the general public and not from the point of view of the persons upon whom the restrictions are imposed. The court is required to ascertain the reasonableness of the restrictions and not of the law which permits the restrictions.

The word „restriction‟ also includes cases of prohibition and the state can establish that a law, thought purporting to deprive a person of his fundamental right, under certain circumstances amounts to a reasonable restriction only.

Right to Freedom of Speech and Expression [Article 19(1)(a)]: Freedom of speech and expression is a very important aspect of democracy. The freedom of speech and expression means the right to express one‟s convictions and opinions freely, by words of mouth, writing, printing, pictures or any other mode.

The right to speech and expression includes right to make good or bad speech. One may express oneself even by sign. It also includes the expression of idea through dramatic performance, cinematographic and any other mode of expression.




In Maneka Gandhi v. Union of India, it was decided that the freedom of speech and expression includes the freedom of press and thus imposition of pre-censorship on publication of views, ideas, analysis, etc violates freedom of speech and expression.

In the case of Bijoe Emmanuel v. State of Kerala, it was held that the right to freedom of speech and expression also includes the right to remain silent. It was decided that a person cannot be compelled to sing a National Anthem if he does not want to do so because of some religious objections.

Freedom of speech shall, however, not be used as a license to distort and misrepresent orders of court and present an incomplete and one-sided picture tending to scandalize court and subject it to ridicule. [Narmada Bachao Andolan v. Union of India]

Permissible restrictions 1. Sovereignty and integrity of India 2. Security of the state 3. Friendly relations with foreign States 4. Public order 5. Decency and morality 6. Contempt of court 7. Defamation 8. Incitement to an offence.

Right to assemble peacefully and without arms [Article 19(1)(b)]: It is the right to citizens to assemble peacefully and without arms.

However reasonable restrictions may be imposed on this right in the interest of: 1. The sovereignty and integrity of India; 2. Public order.

Right to form association and union [Article 19 (1)(c)]: Right to form associations and unions is guaranteed so that the people can form a group of people having the similar views.

In Sitharamachary v. Sr. Dy. Inspector of Schools, it was held that this right necessarily implies a right not to be a member of an association. Thus, no one can be compelled to become a member of an association.

This right is subject to reasonable restrictions which may be imposed in the interest of: 1. Sovereignty and integrity of India; 2. Public order; 3. Morality

Right to move freely throughout the territory of India [Article 19(1)(d)]: Right to move freely is confined only to the territory of India and it cannot be extended to travel abroad.

This right is also subject to some reasonable restrictions which may be imposed: 1. In the interest of the general public; 2. For the protection of interest of any scheduled tribe.

Right to reside and settle in any part of territory of India [Article 19 (1)(e)]: The right to freedom of residence is intended to remove internal barriers within the territory of India to enable every citizen to travel freely and settle down in any part of the State or Union territory.

This freedom is also subject to reasonable restrictions which may be imposed 1. In the interest of general public; 2. For the protection of interest of any scheduled tribe.

Right to practice any profession or carry on any trade, business or occupation [Article 19 (1)(g)]: Article 19 (1)(g) provides that all citizens shall have the right to practice any profession or to carry on any occupation, trade or business.

This right is also subject to reasonable restrictions which may be imposed: 1. In the interest of the general public;




2. To prescribe professional or technical qualification necessary for carrying on any profession, trade or business;

3. To enable the State to carry on any trade or business to the exclusion of Private Citizens. This means that the creation of State monopoly shall not be considered to deprive a citizen of the freedom of trade and occupation.

Banking Business will be done only by the State and not by any private person was challenged before the Supreme Court. However the Supreme Court rejected the petition and held that the law is valid as State has got the power to create a monopoly in its favour.[R. C. Cooper v. Union of India] Article 20

Article 20 guarantees to all persons, whether citizens or non-citizens, the three rights. They are as follows:

1. Protection against ex-post facto laws: Ex-post facto laws are laws which punish what had been lawful when done, If a particular act was not an offence according to the law of the land at the time when the person did that act, then he cannot be convicted under a law which, with retrospective effect, declares that act as an offence. Even the penalty for the commission of an offence cannot be increased with retrospective effect.

Thus, the meaning of the above two provisions is that so far as criminal law creates a new offence or increases the penalty, it shall be applicable only to those offences which are committed after its coming into force and cannot cover those offences which have already been committed in the past.

Exceptions

i) Protection under this Article is available only for offences and their punishments under criminal law and not for any civil liability, where retrospective laws can be passed.

ii) Article 20 prohibits the conviction under ex-post facto law only in respect of substantive law but not in respect of procedural law, as no one has vested right in procedure. [Shiv Bhadur Singh v. State of Vindhya Pradesh]

2. Protection against double jeopardy: No person can be prosecuted and punished for the same offence more than once, However if a person has been let off after prosecution, without being punished, he can be prosecuted again.

3. Protection against self-incrimination: A person accused of any offence cannot be compelled to be a witness against himself. In other words, an accused cannot be compelled to state anything which goes against him.

Article 21

Article 21 of the constitution confers on every person the fundamental right to life and personal liberty. It says that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

Thus Article 21 seeks to prevent encroachment upon personal liberty by the executive except in accordance with law and in conformity with the provisions of the law. The scope, application and effect of Article 21 may be well understood through the following important judicial decisions.

In Philips Alfred Malvin v. V. J. Gonsalvis, it was held that „right to life‟ includes those things which make life meaningful. E.g. the right of a couple to adopt a son.

In one of the leading cases, “life” has been interpreted as a decent life in a democratic society.

In A. K. Gopalan v. State of Madras, a very narrow meaning was given to the expression personal liberty confining it to the liberty of the persons i.e., of the body of a person. It was held only if the person‟s physical movement is totally restricted, then there was need for law and procedure, otherwise his personal liberty would be restricted in any way without violating Article 21.




That the expression “Personal liberty” is not limited to bodily restraint or to confinement to person only is well illustrated by Kharak Singh v. State of U.P. In this case, the question raised was of the validity of the police regulation authorizing the police to conduct what are called domiciliary visits against bad characters and to have surveillance over them. The court held that such visits were an invasion on „the part of the police, of the sanctity of a man‟s house and intrusion into his personal security and his right to sleep, and therefore violative of personal liberty of the individual, unless authorized by a valid law.

In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi, it was held that right to 7avel abroad is included within the expression „personal liberty‟ and therefore, no person can be deprived of his right to travel except according to the procedure established by law. Since a passport is essential for the enjoyment of this right, the denial of-a passport amounts to deprivation of personal liberty. The view of this case was reiterated in Maenka Gandhi v. Union of India by the Supreme Court.

At present, personal liberty includes various other liberties like right to bail, public interest, litigation, right to free legal aid, right to speedy trial, etc.

The expression “procedure established by law” means procedure laid down by statute or prescribed by the law of the State.

Article 22 Article 22 lays down certain specific safeguards against arbitrary arrest and detention. These safeguards are i) A person who is arrested cannot be detained in custody, unless he has been informed of the grounds

for such arrest; ii) Such person shall have the right to consult and to be defended by lawyer of his choice. Such person

must be produced before the nearest Magistrate within 24 hours of arrest, excluding the tiite of journey; and

iii) Such a person shall not be detained in custody beyond 24 hours without the authority of the Magistrate.

It may be noted that aforesaid safeguards are not available to i) Alien enemies; and ii) Persons arrested or detained under preventive detention law.

The object of „preventive detention‟ is to detain a person with the intention of preventing him from committing an offence. It can be done without a charge being proven. The reasons can be varied; generally it is for defence purposes, public order and security and continuance of supply of essentials.

In order to ensure that this provision is not used illegitimately, the following safeguards have been provided - No person can be detained beyond a period of three months unless this period has been enhanced by

a parliamentary law or an advisory board of jeople qualified to be high court judges has seen sufficient cause in detaining him beyond that period.

He has been intimated the grounds of his detention. He was given a fair chance of presenting his defence.

RIGHT AGAINST EXPLOITATION [ARTICLES 23 & 24]

Introduction

Articles 23 and 24 guarantee certain rights to weaker sections of the society to prevent theft exploitation by unscrupulous individuals or even by the State. Article 23 imposes a complete ban on traffic in human beings and forced labour. Article 24 prohibits employment of children in factories, etc.

Article 23

Article 23 provides that traffic in human beings and begar and other similar forms of for.e labour are prohibited and any contravention of this provision shall be an offence punishable accordance with law”




Traffic in human beings means to deal in men and women like goods such as to sell or let or otherwise dispose off them. It includes not only slavery but also traffic in women or the crippled for immoral or other purposes.

Begar is a system where a person is compelled to render involuntary and free service. Even if there is payment of wages, a person cannot be compelled to work against his will.

Article 24

Article 24 provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

Various laws like The Factories Act, 1948, The Employment of Children Act, 1938, The Child Labour (Prohibition and Regulation) Act, 1986 are some of the legislations which protect employment of child labour.

RIGHT TO FREEDOM OF RELIGION [ARTICLES 25 TO 28]

Article 25

It guarantees to every person freedom of conscience and the right to profess, practice and rxogate any religion freely.

Article 26 It guarantees to every religious denomination the following rights:

i) The right to establish and maintain institutions for religious and charitable purposes. ii) The right to manage its own affairs in matters of religion. iii) Right to own and acquire movable and immovable property. iv) Right to administer that property in accordance with law.

Article 27

It provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

Article 28

It provides that no religious instructions shall be provided in any educational institution wholly maintained out of State funds. However, this prohibition shall not apply to any educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instructions shall be imparted in such institution.

CULTURAL AND EDUCATIONAL RIGHTS [ARTICLES 29 & 30]

Article 29

It provides the following: i) My section of the citizens residing in the tetory of hidia having distinct language, script or culture

of its own shall have the right to consee the same; and ii) No citizen shall be denied admission into any educational institution maintained by the State on

grounds only of religion, race, caste, language or any of them.

Article 30

It provides the following: i) All minorities, whether based on religion or language, shall have the right to establish and

administer educational institutions of their choice; and ii) The State shall not, in granting aid to educational institutions, discriminate any educational

institution on the ground that it is under the management of the minority, whether based on religion or language.




RIGHT TO CONSTITUTIONAL REMEDIES [ARTICLE 32]

Article 32 guarantees the enforcement of fundamental rights. Article 32 makes it a fundamental right that a person, whose fundamental right is violated, has a right to move the Supreme Court for the enforcement of his fundamental rights. Thus, a person need not first exhaust the other remedies and then go to the Supreme Court. On the other hand, he can directly raise the matter before the highest court of the land and the Supreme Court may pass the appropriate orders and writs for the enforcement of the right, the violation of which has been alleged.

‘Ubi jus ibi remedium’ means where there is a right there is a remedy. A right without a remedy is useless. The fundamental rights guaranteed by the Constitution are protected by adequate remedial measures. The Constitution of India provides such remedial measures to all citizen of violation of any fundamental rights. Such remedies are available in the nature of -

1. Habeas corpus; 2. Mandamus 3. Prohibition; 4. Quo warranto; and 5. Certiorari.

Article 32 of the Constitution gives such fundamental rights to a citizen to move to Supreme Court for any violation of fundamental rights.

DIRECTIVE PRINCIPLES OF STATE POLICY

MEANING OF DIRECTIVE PRINCIPLES OF STATE POLICY

Directive principles of State Policy are contained in Part IV, Articles 37 to 51, of the Constitution of India. They are declared as fundamental to the governance of the country. The State shall apply these principles in framing the laws. But these can‟t be enforced by the intervention of the court.

IMPORTANT DIRECTIVE PRINCIPLES OF STATE POLICY

Following are some of the important directive principles of state policy 1. State to secure a social order for the promotion of the welfare of the people. 2. Certain principles and policies to be followed by the State, such as

a) Equal pay for both men and women; b) The ownership and control of the material resources of the community are so distributed as best

to sub-serve the common good; c) Prevention of concentration of economic wealth to the common detriment.

3. Equal justice and free legal aid. 4. Organization of village panchayats 5. The State shall endeavor to secure the citizens a uniform civil code throughout the territory of India. 6. The State shall endeavor to protect and improve the environment and to safeguard the forest and

wildlife of the country. 7. The State shall take steps to separate the judiciary from the executive 8. The State shall endeavor to promote international peace and security.

RELATIONSHIPS OF DIRECTIVE PRINCIPLES OF STATE POLICY WITH FUNDAMENTAL RIGHTS.

There is no conflict between Fundamental Rights (FR) and Directive Principles (DP) of State Policy Both are important to achieve the objectives of the Constitution. But what will be the legal position if a law is enacted to enforce a DP which violates the FR. To understand the correct position, we may look into the various stages of development.




In the initial stages, if any law was passed giving effect to FR but violating DP then DP was totally ignored. In State of Madras v. Champakam Dorairajan, it was held that the DP cannot override the FR. The DP have to conform and to run as subsidiary to the FR. Subsequently, the Supreme Court applied the principle of harmonious construction by which whenever any law involves with both FR and DP, an attempt was made to give effect to both, to the extent possible, and when it become impossible, DP was ignored.

Subsequently, Article 31-C was inserted in the Constitution of India by an amendment, which provided that any law passed to give effect to the directive principles of prevention of concentration of economic wealth to the common determent (MRTP Act) cannot be challenged even it violates Article 14 or 19.

Subsequently, Article 31-C was amended and its scope was widened in the sense that any law passed to give effect to any DP cannot be challenged even if it violates FR under Article 14 or 19.

In Keshvanand Bharti v. Union of India, the court observed that the FR and DP are meant to supplement each other. It can well be said that the DP prescribes the goals to be attained and FR lays down the means to achieve them.

Therefore the present position is that the violation of FR is legally enforceable but if it is due to any law giving effect to DP, it cannot be enforced as far as Article 14 or 19 are concerned.

ORDINANCE MAKING POWERS OF THE PRESIDENT OF INDIA

Normally, Parliament has legislative powers and it alone can pass laws on Union list matters. However, our constitution under Article 123 gives special legislative powers to President of India by promulgating ordinance under certain circumstances. Following are the important provisions regarding ordinance making powers of the President of India: 1. The President gets the powers only when the Parliament is not functioning. Even if one house of

Parliament is not functioning, the President can pass an ordinance. 2. The President has powers to pass ordinance on the matters on which the Parliament has powers. 3. The Councils of Ministers should suggest the passing of an ordinance on such matters. 4. The President himself should also be satisfied about the need for the ordinance and he cannot be

compelled. 5. Once an ordinance is passed, it should be placed before both the Houses of Parliament and

approved by them within six weeks of their respective dates of re-assembly. 6. The ordinance lapses if it is not approved within the aforesaid six weeks or if it is rejected earlier or if

the President himself withdraws the ordinance. 7. The ordinance cannot be challenged except on the limited grounds of mala fide intention in passing

the ordinance. [Cooper’s Case] Note: Article 213 of the Constitution of India deals with Ordinance making powers of the Governor of a state, on the same lines as given under Article 123.

104626 870997 Super Summary Notes Gcl Constitution of India

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