CONSTITUTION ON INDIA

8/7/2019 CONSTITUTION ON INDIA

1/11

2010

SUBMITTED BY:

Dolly Parikh

Roll No: 418

MBA(TECH) TELECOM

Constitution of India


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Table of Content

Sr. No. Particulars Page No.

1. I tr ucti 3

2. Fu me t ls Rights 3

3. Sig i ic ce the Fu me t l Rights 4

4. Article 19 6

5. Article 19 (1)(g) 7

6. Fertilizer c rp r ti k mg r v/s u i I i thers

Overview

8

7. The se 8

8. Issues 9

9. Ju geme ts 9


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Introduction

C

N

N OF IN

IA

Constitution ofIndi isthesupremel w ofIndi .Itl ys down the fr meworkdefining

fundamental political principles, establishing the structure, procedures, powers and

duties, ofthegovernmentand spells outthe fundamentalrights, directiveprinciples and

duties of citizens. Passed by the Constituent Assembly on 26 November 1949, it came

into effect on 26 January1950. The date 26 January was chosen to commemorate the

declaration of independence of 1930. It declares the Union of India to be a sovereign,

socialist, secular, democratic republic, assuring its citizens of justice, equality, and

liberty and, to promote among them all, fraternity. The words "socialist", "secular",

"integrity" and "to promote amongthem all fraternity" were added to the definition in

1976 byconstitutional amendment.India celebratesthe adoption oftheconstitution on

26 January each year as Republic Day. It is the longest written constitution of any

sovereign country in the world, containing 444 articles in 22 parts, 12 schedules and

108 amendments, for a total of117,369wordsin the Englishlanguageversion. Besides

the English version, there is an official Hindi translation. After coming into effect, the

Constitution replaced the GovernmentofIndia Act1935 asthegoverning documentof

India. Beingthesupremelaw ofthecountry,everylawenacted bythegovernmentmust

conform to the constitution. B.R.Ambedkar , as chairman ofthe Constitution Drafting

Committee,wasthechief architectoftheIndian Constitution.

FUNDAMENTAL RIGHTS IN INDIA

Fundamental Rights is a charter of rights contained in the Constitution of India. It

guaranteescivillibertiessuchthatallIndianscan lead theirlivesin peace and harmony

as citizens of India. These include individual rights common to most liberal

democracies,such asequality beforelaw, freedom ofspeech and expression, freedom of

association and peaceful assembly, freedom to practice religion, and the right to

constitutional remedies for the protection of civil rights by means of writs such as

habeas corpus. Violations of these rights result in punishments as prescribed in the

Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are

defined as basichuman freedomswhicheveryIndian citizen hastherightto enjoy for a

proper and harmonious development of personality. These rights universally apply to

all citizens, irrespective of race, place of birth, religion, caste, creed, color or Gender.

They areenforceable bythecourts,subjectto certain restrictions.


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Thesix fundamentalrightsrecognised bytheconstitution are

1. Therightto equality

2. Therightto freedom

3. Therightto freedom fromexploitation

4. Therightto freedom ofreligion

5.

Cultural and educationalrights6. Therightto constitutionalremedies

Rightsmean those freedomswhich areessential forpersonalgood aswell asthegood of

thecommunity.Therightsguaranteed underthe Constitution ofIndia are fundamental

as they have been incorporated into the "fundamental Law of the land" and are

enforceablein a courtoflaw. However,this does notmean thatthey are absolute orthat

they areimmune from Constitutional amendment.

Fundamentalrights forIndianshave also been aimed atoverturningtheinequalities of

pre-independence social practices. Specifically, they have also been used to abolish

untouchability and henceprohibitdiscrimination on thegrounds ofreligion,race,caste,sex, or place of birth. They also forbid trafficking of human beings and forced labour.

They also protect cultural and educational rights of ethnic and religious minorities by

allowingthemto preservetheirlanguages and also establish and administertheir own

education institutions.

SIGNIFICANCE OF THE FUNDAMENTAL RIGHTS

y The fundamental rights were included in the constitution because they were

considered essential forthe development ofthepersonality of every individual

and to preservehuman dignity.

y

Thewriters ofthe constitution regarded democracy of no avail if civil liberties,like freedom of speech and religion were not recognized and protected by the

State. According to them, "democracy" is, in essence, a government by opinion

and therefore,themeans of formulatingpublic opinion should besecured to the

people of a democratic nation.

y For this purpose, the constitution guaranteed to all the citizens of India the

freedom ofspeech and expression and various other freedomsin the form ofthe

fundamentalrights.

y Allpeople,irrespective ofrace,religion,caste orsex,have been given therightto

move the Supreme Court and the High Courts for the enforcement of theirfundamentalrights.Itis notnecessarythatthe aggrieved partyhasto bethe one

to do so.

y Poverty stricken people may not havethe means to do so and therefore, in the

publicinterest, anyonecan commencelitigation in thecourton their behalf.This

is known as "Public interest litigation" .In some cases, High Court judges have

acted on their own on the basis of newspaperreports.


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y These fundamentalrightshelp notonly in protection butalso theprevention of

gross violations of human rights. They emphasize on the fundamental unity of

India by guaranteeing to all citizens the access and use of the same facilities,

irrespective of background.

y

Some fundamentalrights apply forpersons of any nationalitywhereas others are

available only to the citizens of India. The right to life and personal liberty is

availableto allpeople and so istherightto freedom ofreligion.

y Freedoms ofspeech and expression and freedomto reside and settlein anypart

of the country are reserved to citizens alone, including non-resident Indian

citizens. The right to equality in matters of public employment cannot be

conferred to overseascitizens ofIndia.

y Fundamental rights primarily protect individuals from any arbitrary state

actions, but some rights are enforceable against individuals. For instance, the

Constitution abolishes untouchability and also prohibits begar.Theseprovisionsactas a checkboth on state action aswell asthe action ofprivateindividuals.

y However, these rights are not absolute or uncontrolled and are subject to

reasonablerestrictions as necessary fortheprotection of generalwelfare.They

can also beselectivelycurtailed.

y The Supreme Court has ruled that all provisions of the Constitution, including

fundamental rights can be amended. However, the Parliament cannot alter the

basic structure of the constitution. Features such assecularism and democracy

fallunderthiscategory.

y Sincethe fundamentalrightscan only be altered by a constitutional amendment,

their inclusion is a check not only on the executive branch, but also on the

Parliamentand statelegislatures.

y Astate of nationalemergencyhas an adverseeffecton theserights. Undersuch a

state, the rights conferred by Article 19 (freedoms of speech, assembly and

movement, etc.) remain suspended. Hence, in such a situation, the legislature

may make laws which go against the rights given in Article 19. Also, the

Presidentmay by ordersuspend therightto movecourt fortheenforcement of

otherrights aswell.


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ARTICLE19

Article19 ofthe Constiution ofIndia isresponsible forthe Protection ofcertain rights

regarding freedom ofspeech,etc.

y (1)Allcitizensshallhavetheright

(a)to freedom ofspeech and expression;(b)to assemblepeaceably and withoutarms;

(c)to form associations orunions;

(d)to move freelythroughouttheterritory ofIndia;

(e)to reside and settlein anypartoftheterritory ofIndia; and

(g)to practice anyprofession, orto carry on any occupation,trade or business.

y Nothing in sub-clause(a) ofclause(1) shall affectthe operation of any existing

law, or prevent the State from making any law, in so far as such law imposes

reasonable restrictions on the exercise of the right conferred by the said sub-

clausein theinterests ofthesovereignty and integrity ofIndia,thesecurity ofthe

State, friendlyrelationswith foreign States,public order, decency ormorality, orin relation to contemptofcourt, defamation orincitementto an offence.

y (3) Nothing in sub-clause(b) ofthesaid clauseshall affectthe operation of any

existing law in so far as it imposes, or prevent the State from making any law

imposing,in theinterestofthesovereignty and integrity ofIndia orpublic order,

reasonablerestrictions on therightconferred bythesaid sub-clause.

y (4) Nothing in sub-clause(c) ofthesaid clauseshall affectthe operation of any


imposing, in the interests ofthethesovereignty and integrity ofIndia orpublic

order ormorality,reasonablerestrictions on theexercise oftherightconferred

bythesaid sub-clause.

y (5) Nothingin sub-clause(d) and (e) ofthesaid clauseshall affectthe operation

of anyexisting lawin so far asitimposes, orpreventtheState frommaking any

law imposing, reasonable restrictions on the exercise of any of the rights

conferred bythesaid sub-clauseseitherin the interests ofthegeneralpublic or

fortheprotection oftheinterests of anyScheduleTribe.

y (6) Nothing in sub-clause(g) ofthesaid clauseshall affectthe operation of any


imposing, in the interests of the general public, reasonable restrictions on the

exercise oftherightconferred bythesaid sub-clause, and,in particular, nothing

in thesaid sub-clauseshall affectthe operation of anyexistinglawin so far asit

relates to, or prevent the State from making any law relating to:

(i) the professional or technical qualifications necessary for practicing any

profession or carrying on any occupation, trade or business, or

(ii)thecarrying on bytheState, or by a corporation owned orcontrolled bythe

State, of any trade, business, industry or service, whether to the exclusion,

complete orpartial, ofcitizens or otherwise.


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ARITCLE19(1)(G)

Freedomto practice anyprofession orto carry on any occupation,trade or business on

whichtheStatemayimposereasonablerestrictionsin theinterestofthegeneralpublic.

Thus, there is no right to carry on a business which is dangerous or immoral. Also,

professional ortechnicalqualificationsmay beprescribed forpracticing anyprofession

orcarrying on anytrade.

THE CONSTITUTION (FIRSTAMENDMENT)ACT,1951

StatementofObjects and Reasons appended to the Constitution (FirstAmendment) Bill,

1951whichwasenacted asthe Constitution (FirstAmendment)Act,1951

The citizen's right to practise any profession or to carry on any occupation, trade or

business conferred by article 19(1)(g) is subject to reasonable restrictions which the

laws oftheStatemayimpose "in theinterests ofgeneralpublic".

ExamplesoftheArticle19(1)(g) inCases

y Ashoka KumarThakurv/s Union OfIndia & Ors on 10April, 2008

y M. Sambasiva Rao Alias Sambaiahv/s Osmania University, Rep. on 28 January,

1997

y Pramod Gupta & Anr.vsAnz Grindlays Bank& Anr. on 11March,1999

y K. PratapReddyvsInstituteOfRuralManagementon 30August, 2005

y Sindhi Education Society & Anr.vs ChiefSecretary,Govt.Of Nctof on 8July, 2010

y T.M.A.PaiFoundation & OrsvsStateOf Karnataka & Ors on 31October, 2002

y Indian Systems ofMedicinepractitionerscan also practicemodern medicine

y The Bengal Immunity Company v/s The State Of Bihar And Others on 4

December,1954

y J.Sampath Kumarv/s Bar CouncilOfIndia Represented on 28September,1994

y Kashi Prasad Sinha vsStateOfMadhya PradeshAnd Ors. on 17July,1958

y Mahatama Gandhi Nationalv/sStateOfRajasthan And Ors. on 23April, 2002

y Vasantha R.v/s Union OfIndia (Uoi)And Ors. on 8 December, 2000

y Tamil NaduTamil & EnglishSchools v/sTheStateOfTamil NaduRep. ByIts on

20April, 2000

y The Workmens Compensation Act,1923


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FERTILIZER CORPORATION KAMGAR V/S UNION OF INDIAAND OTHERS

BRIEF OVERVIEW OF THECASE

Thecasewas filed bythe Union memberswhich arethe factorymembers and theyhave

filed a case againstthe GovernmentofIndia.Theworkershad challenged thelegality of

sale of plants and equipment of the Sindri Fertilizer Factory. The government is

expected to follow a practice of asking for bids, orcontracts and tenders.The Union felt

that the company finalised to sell these plants had not followed the procedure. They

doubted thatthe government had done it officially or they had manipulated and used

unfairmeans.The Union also had problems as loss ofmachineryinturn implied loss of

jobs, around 11000 jobswerelost.Article14 ofthe Constitution ofIndia says thatthe

governmenttreats every individual equally. The Union asked why onlysome workers

lost their jobs. Also Article 19(1)(g) which allows them the freedom to practice their

profession.

THECASE

The petitioners (workers) challenged the legality of the sale of certain plants and

equipment of the Sindri Fertilizer Factory, whereby the highest tender submitted by

respondentNo.4was accepted bytheTender Committee and approved bythe Board of

Directors. The petitioners, amongst others, contended that (i) that the decision to sell

theplants and equipmentoftheFactorywastaken withoutcalling for anyreport;(ii)the

originaltender ofRs.7.6croreswasunaccountablyreduced to Rs.4.25crores; (iii)the

price of the plants and equipment, which was ultimately realised in the sale was

manipulated withulteriorpurposes; (iv)the decision to restrictfresh offers,in respect

ofthe reduced equipment,to the tenderers who had submitted tenders for morethan

Rs.4croreswasunfair and arbitrary; (v)thesaid decision resulted in a hugelossto thepublic exchequer and (vi) the sale had jeopardised the employment of 11000 odd

workerswho faced retrenchmentas a resultofthesale.

On behalf ofpetitioners3 and 4itwas furthercontended thatthesalewill deprivethem

of their fundamental right under Article 19(1) (g) to carry on their occupation as

industrialworkers and thatthesaleisin violation oftheprovisions ofArticle14 ofthe

Constitution being arbitrary and unfair.Therespondentsraised a preliminary objection

to the maintainability of the writ petition on the ground that the petitioners have no

locusstandi and thattheimpugned sale did notviolate any ofthe fundamentalrights of

the petitioners.ACT - Constitution of India-Article 19(1)(g)-Sale of redundant/retired

plants & equipment-Occupation of an industrialworker-Whether affected bysuchsale-

Article14- Whetherviolated-Article43A-Wrongscommitted bymanagement in public

sectorwhethercan beremedied-Article32-Accessto Justice-Public Property

bysale-When and bywhomcan thesale besetaside.


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ISSUES

1. To understand whetherthe GovernmentofIndia had violated Article19(1)(g)i.e

therightto practicethetrade ofthe Union members

2. To understand whetherthe GovernmentofIndia had violated therightto

EqualityunderArticle14

3. To understand whetherthe GovernmentofIndia had acted arbitrarily

JUDGEMENTS

The GovernmentofIndia won thecase.

The following are judgementsrelated to Article19(1)(g)

y The petitioners' right under Art. 19(1)(g) to carry on their occupation as

industrialworkerswas notaffected bythesale, norwastheir fundamentalright,

if any,underArticle14 ofthe Constitution violated.

y There is no substance in the grievance that the petitioners' right under Article

19(1)(g) is violated or is in the imminent danger of being violated by the

impugned sale, since not only did the sale not affect the employment of the

workersemployed in theFactory, butthose ofthemwho wererendered surplus

from time to time on account of the closure of the plants were absorbed in

alternateemploymentin thesamecomplex.

y Therightofpetitioners3 and 4 and ofthe otherworkers is not, in anymanner,

affected bythe

impugned sale.Therightto pursue a calling orto carry on an occupation is not

the same thing as the right to work in a particular post under a contract ofemployment.Iftheworkers areretrenched consequentupon and on accountof

the sale, it will be open to them to pursue their rights and remedies under the

Industrial Laws.Theclosure of an establishment in which a workman is forthe

time beingemployed does notbyitselfinfringehis fundamentalrightto carry on

an occupation whichisguaranteed byArticle19(1)(g) ofthe Constitution.

y Article 19(1)(g) confers a broad and general right which is available to all

personsto do workof anyparticularkind and oftheirchoice.Itdoes notconfer

the right to hold a particular job orto occupy a particularpost of one's choice.

Even underArticle311 of the Constitution,therightto continuein service falls

withthe abolition ofthepostin whichtheperson isworking.Theworkersin theinstantcasecan no morecomplain oftheinfringementoftheir fundamentalright

under Article 19(1)(g) than can a Government servant complain of the

termination of his employment on the abolition of his post. The choice and

freedom oftheworkersto workasindustrialworkersis notaffected bythesale.

Thesalemay atthehighestaffecttheirlocum, butitdoes notaffecttheirlocus,to

workasindustrialworkers.


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y Thesalehas jeopardised theemploymentof11000 odd workerswho face

retrenchmentas a resultofthesale. Petitioners3 and 4supportthispetition

underArticle32 ofthe Constitution bycontendingthatthesalewill deprivethem

oftheir fundamentalrightunderArticle19(1)(g)to carry on their occupation as

industrialworkers.Theycontend furtherthatthesaleisin violation ofthe

provisions ofArticle14,sinceitis arbitrary and unfair.Thelearned Attorney

General,who appears on behalf ofthe Union ofIndia,hasraised a preliminaryobjection to themaintainability ofthewritPetition on theground thatin the first

place,thepetitionershave no locusstandito filethepetition and secondly, that

theimpugned sale does notviolate any ofthe fundamentalrights ofthe

petitioners.

y The grievance of the petitioners is that two of their fundamental rights are

violated bythesale, oneunderArticle19(1)(g) and the otherunderArticle14 of

the Constitution. We find no substancein thegrievancethatthepetitioners' right

underArticle19(1)(g)isviolated orisin theimminentdanger of beingviolated

bythesale.ThatArticleconfers on allcitizenstherightto practise anyprofession

orto carry on any occupation trade or business. The right ofthepetitionerstocarry on an occupation is not infringed by the sale mediately or immediately,

actually orpotentially, fortwo reasons.In the firstplace,ShriR. C.Malhotra,who

is the Chief Engineer of the Sindri Unit, says in paragraph 5 of the counter-

affidavit filed by him on behalf of the FCI, that although the old plants and

equipment had to be shut down from 1976 to 1979 because they had become

redundant,unsafe orunworkable, no employee was deprived ofhisemployment

on that account. Shri Malhotra says further in the same paragraph and in

paragraph6 ofthecounter-affidavit,thatthemanagementoftheFCIhad decided

to deploytheworkmen workingin theplantsthathad to beshutdown in various

otherplantssetupunderthescheme ofmodernisation and rationalisation and in

thevarious facilitiesthathad been renovated in theSindricomplexitself.Thus,

notonly did thesale notaffecttheemploymentoftheworkersemployed in theFactory, but those of them who were rendered surplus from time to time on

account of the closure of the plants were absorbed in alternate employment in

the same complex. Secondly, the right of Petitioners 3 and 4 and of the other

workersto carry on the occupation of industrialworkers is not, in any manner

affected by the impugned sale. The right to pursue a calling or to carry on an

occupation is notthesamething astherightto workin a particularpostunder a

contractofemployment.Iftheworkers areretrenched consequentupon and on

account ofthesale, itwill be open to themto pursuetheirrights and remedies

undertheIndustrial Laws.

y

The closure of an establishment in which a workman is for the time beingemployed does not by itself infringe his fundamental right to carry on an

occupation which is guaranteed by Article 19(1)(g) of the Constitution.

Supposing a law were passed preventing a certain category of workers from

acceptingemploymentin a fertiliser factory,itwould bepossibleto contend then

that the workers have been deprived of their right to carry on an occupation.

Even assumingthatsome oftheworkersmayeventuallyhaveto beretrenched

in the instant case, it will not be possible to say that their right to carry on an


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occupation has been violated. Itwould be open to them, thoughundoubtedly it

will notbeeasy,to find outother avenues ofemploymentasindustrialworkers.

y Article 19(1) (g) confers a broad and general right which is available to all

personsto do workof any particularkind and oftheirchoice.Itdoes notconfer

therightto hold a particular job orto occupy a particularpostone'schoice. Even

underArticle 311 ofthe Constitution, the rightto continue in service fallswith

the abolition of the post in which the person is working. The workers in the

instantcasecan no morecomplain oftheinfringementoftheir fundamentalright

under Article 19(1)(g) than can a Government servant complain of the

termination of his employment on the abolition of his post. The choice and

freedom oftheworkersto workasindustrialworkersis notaffected bythesale.

Thesalemay atthehighestaffecttheirlocum, butitdoes notaffecttheirlocus,to

workasindustrialworkers.Thisisenoughunto the day on Art.19(1)(g).

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