Constitution of India

CONSTITUTION OF INDIA

Characteristics of a Federal Constitution

Dual Government

Governments. One at each of the States and the Other at the Centre. Both deriving powers from a common source called Constitution. Both are independent in their own areas.

(2)

Division of Powers

(3)

Written Constitution

(4)

Supreme Judiciary

(5)

Supremacy of Constitution

(6)

Dual Citizenship

other for the Union. India is an exception. Except Jammu & Kashmir, NO other State enjoys Dual Citizenship.

Contd….2… -: 2

:-(7)

Rigidity of Constitution

(8)

Single Judiciary

Salient Features of Indian Constitution

(1) Lengthiest and most detailed Constitution originally comprising of 395 Articles, 8 Schedules and 20 Parts (now it has 444 Articles, 12 Schedules). US has only 7, Australia has 128 and Canada has 147 Articles. The bulkiness of the Constitution is due to the inclusion of even administrative provisions like, Official Language, Public Services, Administered Areas, Union Territories, etc. This is primarily to prevent abuse of authority by any Organ of the State. Nothing has been left to the initiative of Administrators. In the words of Dr. Bhimrao Ambedkar “This is because Democracy in India is only a top-dressing in Indian soil which is essentially undemocratic. It is, therefore, wiser NOT to trust the Legislators to prescribe the form of administration”. (2) Indian Constitution is described as “Basket of

Borrowings” with most provisions having been taken from Government of India Act, 1935. British Constitution contributed Cabinet form of Government, Civil Services, Office of Speaker, CAG, Parliamentary

form, Rule of Law. US Constitution gave Fundamental Rights, Judicial Review, Independent Judiciary, Preamble, Role of Vice-President as Chairman of Rajya Sabha. Canada contributed Federation with Strong Centre, Residuary Powers to the Union. Irish contributed manner of Election of President, Nomination of Member in Legislative. Germany gave Emergency Powers and Suspension of Fundamental Rights during Emergency. Fundamental Duties given by Japan. Procedure of Amendment of Constitution taken from South Africa.

(3)

Sovereign,

Socialistic, Secular and Democratic Republic.

Contd…..3… -: 3

:-(4) Parliamentary form of Government with Union Council of Ministers headed by Prime Minister forming part of Legislature. President is only a figure head.

(5) Our Constitution is partly rigid and partly flexible. The basic structures of the Constitution can NOT be amended while some features of Federal Structures can be amended through special majority of both the Houses of Parliament and ratification by Half of the States. It is flexible because in 60 years, it has been amended more than 100 times.

(6) It provides Fundamental Rights duly protected by Article-13 & Article-32.

(7) It has Directive Principles of State Policy aiming to establish a Welfare State with Socio and Economic Justice.

(8) Our Constitution is Federal in structure and Unitary in Spirit. It is Federal because of Written Constitution, Division of Powers, Dual Government, Supremacy of Judiciary, Independent Judiciary and Primacy of Constitution. It is Unitary in spirit because of unequal representation in Rajya Sabha, Appointment of Governors, who function as Agents of Central

Government. Emergency provisions “Destructible States in indestructible Union”.

(9) Universal Adult Suffrage (Franchise) powers to all men and women of 18 years and above irrespective of Religion, Race, Caste, Sex and Property.

(10) We have a unified Supreme Judiciary with Supreme Court at the top as Interpreter of the Constitution and Guarantor of Fundamental Rights and Minority Rights vested with the Powers of Judicial Review.

(11) Though it is a Federation, it provides for only a Single Citizenship.

Unique Features which NO other Constitution in

the World has

(1) Preventive detention even during normal times (Article-22). (2) Ordinance making Powers of President – President

usurping (encroaching) the Powers of Legislature (Article-123).

Contd…..4…

-: 4

:-(3) Special Leave Petition (Article-136).

(4) Advisory Jurisdiction of Supreme Court (Article-143).

(5) Fundamental Duties (Article-151-A). Though Fundamental Duties - Right to Work is a Fundamental Right in Japan whereas it is only a Directive Principle in India.

(6) Anti-Defection Law (Schedule-X) – Legislators dis-trusting themselves.

Preamble of the Constitution

Preamble has been described as “Political Horoscope”, “Key to the Minds of Framers of Constitution”, “Soul of Constitution” and it walks before Constitution.

Preamble indicates what he had thought and dreamt before Freedom Struggle and during Freedom Struggle. Preamble indicates 3 Principles

:-(1) It indicates the People of India is the ultimate authority and source of Constitution (We, the People of India do hereby adopt, enact and give unto ourselves this Constitution).

(2) What Rights and Fundamental Duties which People want to secure to all Citizens.

(3) The type of Government and Polity which was to be established.

(4) “We, the People of India” indicates that our Constitution is NOT the gift of British as Canadian Constitution in 1867 or Australian Constitution in 1900 nor our Constitution was imposed onus like that of Japanese Constitution of 1946. In other words, the Constitution of India was made “for the People of the People and by the People”.

The Preamble does NOT have any Article number as such it is a part of the Constitution. Supreme Court, in Perubari Case declared that Preamble is NOT the part of Constitution it can NOT be regarded as a source of substantive Powers because such Powers have been in the body of the Construction. The purpose of Constitution is that it should be resorted to when there is any ambiguity in the Law. This decision was in 1960.

Contd……5… -: 5

:-In 1973, in Kesavananda Bharati case (Fundamental Rights case), the Supreme Court overruled its earlier decision and held that Preamble is part of Constitution and the Constitution should be read and interpreted only with reference to the Preamble.

Can Preamble be amended especially when it has

no Article No.?

This has been examined in the Fundamental Rights case in 1973. The argument was that the Preamble limits the scope of Article-368 and as such it isi beyond Amendment. However, Supreme Court declared that :

(1) Preamble is part of the Constitution.

(2) It can be amended subject to the condition that it does NOT affect the basic structure of the Constitution.

Whether Preamble was ever amended?

Through 42nd _{Amendment Act, 1976, three Terms were}

included in the Preamble :

(1) Secular (2) Socialistic (3) Integrity

These Terms are NOY new because they had already been included in spirit in various provisions of the Constitution.

Secular

Socialistic

Integrity

Contd…..6… -: 6

:-Union and its Territory

Article-1 says that India i.e Bharat is Union of States. The term Federation is NOT found anywhere in the

Constitution. The term Union was specifically suggested by Dr. Ambedkar which implies 2 things

:-(1) Indian Union is

NOT the result of any Agreement of Independent & Sovereign State.

(2) The States do NOT

have the right to secede (break away).

Americans had to wage a Civil War to establish that the Sates have NO right to break and that their Federation is indestructible. It is always better to make it clear this position at the outset rather than leaving this to speculation and posterity.

The States and Territories thereof are specified in the 1st

Schedule. Territory of India consists of

:-(1) Territories of the

States – which share the Powers with the Union.

(2) Union Territories –

which are administered directly by the Union.

(3) Such other

Territories as may be acquired.

At present, we have

States 28

--Union Territories

07 (1) Delhi (2) Andaman & Nicobar Islands (3) Lakshadweep (4) Dadra & Nagar Haveli (5) Pondicherry (6) Daman & Diu (7) Chandigarh

Whether the Country can acquire any Territory

The Powers to acquire a new Territory is an attribute of sovereign functions and for this NO legislation is required. The territory can be acquired through Occupation, Subjugation, Conquest, Lease or Gift. These acquired territories will be subsequently converted into Union Territory and then added to the States.

Contd…..7… -: 7

:-Administration & Establishment of a New State

The Constitution gives the powers to the Parliament to admit a new State or to establish a new State on such terms and conditions as deems fit.

Administration of a State means admitting a State which already exists. Establishment of a State means formation and administration of a new State which has NOT in existence.

There is NO provision in the Constitution which gives right to the new State after admission to claim any equality with other State because the administration and formation is on such terms and conditions, as prescribed by the Parliament.

Article-3 gives the Procedure for forming or establishing a State. The State can be formed by

:-(1) Separation of a territory from any State. (2) By Uniting two or more States.

(3) By Uniting any part of the State.

(4) By Uniting any territory to any part of any State.

Parliament has also the powers to increase or decrease the area and also to change the name of the State or Union Territory.

Parliament is competent to do the aforesaid changes without the consent of the affected State. This can be done by passing a Law by parliament by simple majority. Two conditions are to be satisfied :

(1) No Bill for formation of a new State or altering the boundaries or changing the name should be introduced in either House of Parliament, except on the recommendation of the President.

(2) If the bill affects the area or boundary or name of any State, President, before recommending, should refer to

the Bill to the concerned State Legislature for its views within such stipulated period as specified by President.

Contd……8… -: 8

:-If the State Legislature does NOT express its views within the stipulated time or if the State has expressed opposing views even then, the Bill can be recommended, introduced and passed in Parliament. In other words, President or Parliament is NOT bound by the views of the State and the Bill can be passed. These amendments “are NOT treated as amendments for the purpose of Article-368 eventhough it amends Schedule-1”.

Therefore, the very existence of a State, its name, its territory, its boundary, etc. totally depends on the sweet will of the Union. That is why, we say that India is an indestructible Union with destructible States.

Cession of Territory

Article-3 empowers the Parliament to decrease the area of any State. The decrease may happen in 2 ways

:-(1) Where a part of a territory of a State/Union Territory is taken out and added to another State.

(2) Where a part of a territory of any State/Union Territory is taken out and given to a Foreign Country.

Whether Part (2) above is possible?

This came up before Supreme Court in a reference made by President under Article-143. India and Pakistan entered into an Agreement in 1958 to resolve border dispute. The Agreement was for “Transfer of 50% of Perubari area (measuring an area of 9 Sq. Miles) to Pakistan in exchange of Kuchbehar area. When the Agreement was to be implemented, there was a strong agitation in West Bengal. At this stage, President referred the matter to Supreme Court with 2 questions

:-(1)Whether any legislative action is necessary to implement Perubari Agreement

(2)If so, whether a Law of Parliament under Article-3 is enough or an amend-ment under Article-368 is required.

Contd…..9… -: 9

:-Supreme Court held that the Article-3 deals with only the internal adjustments of the territories of the constituent States because the area diminished in one State continuous to be the area under the Union.

Article-3 does NOT, therefore, provide for ceding the territory to a Foreign State. Therefore, the Agreement can be implemented only after amending the Constitution through Article-368. Supreme Court also held that to cede territory is an attribute of Sovereign Power of the State.

Fundamental Rights (Article-35)

Article-12 defines State. The term includes State Executives, State Legislatures, Union Executives and Union Legislature including those of local or any other Authorities functioning under them. The term State includes Judiciary also.

Article-13 also called “Judicial Review” taken from US Constitution. The Powers of the Supreme Court and High Courts facilitates to pronounce upon the Constitutionality of Legislature and Executive acts to protect the Constitution. High Court exercises these Powers under Article-226 and the Supreme Court under Article-32.

Article-13 provides that the State shall NOT make any Law which takes away or abridges any of the rights conferred in Part-3 of the Constitution and if any Law is made abridging or taking away any of such rights, that Law is void to the extent of inconsistency.

Supreme Court held that Judicial Review is a basic structure which means that the Judicial Review can NOT be

taken away even through amendment of the Constitution. Article-13 also defines Law which includes Ordinance, Rule, Order, By Law, Regulation, Notification, Custom or Usage.

24

_{Amendment Act added the following}

:-“Nothing in Article-13 shall apply to any amendment made through Article-368. This is to overcome the decision of Supreme Court in Golak Nath case in which Supreme Court declared that Parliament has NO Powers to amend any part of the Constitution”. Contd…..10… -: 10

:-Four Doctrines

(1)

Prospective

Over-ruling

This Doctrine was propounded by Supreme Court in the famous Golak Nath case. While Supreme Court has nullified the Powers of Parliament to amend the Constitution in that case in 1967, through Prospective Over-ruling, Supreme Court protected all past amendments declaring that the

Parliament can NOT henceforth amend the

Constitution

(2)

Doctrine of Severability

This doctrine means if an offending Provision can be separated from that which is constitutional, then only that Part which is offending is to be declared as void and NOT the entire Law. In other words, when a Part of the Law is declared unconstitutional by the Court, then a question arises whether the whole Law is invalid or only that Provision which is unconstitutional is invalid. Supreme Court decided only the offending Provision is invalid because Article-13 clearly says

“to the extent of

repugnancy”.

(3)

A Citizen can NOT waive his Fundamental Rights. It is NOT open to an accused to give up Constitutional Rights and get convicted. These rights have been put in the Constitution NOT only for the benefit of the individual but also in the interest but also in the interest of the Society. It is an obligation imposed on the State by the Constitution. No person can relieve the State of this obligation. In other words, it is the duty of the Court to protect the right of the Citizen against themselves.

(4)

Doctrine of Eclipse

This Doctrine means that a Law which violates a Fundamental Right is NOT totally void but it becomes unenforceable i.e. it remains dormant. It is only over-shadowed by Fundamental Right and they remain for all past transactions.

Contd…..11… -: 11

:-Fundamental Rights

Legal Right

A Legal Right is an interest protected by an ordinary Law and enforced in the Court of Law. While an ordinary Legal Right is protected and enforced by an ordinary Law. A Constitutional Right is a right guaranteed in the Constitution and which can NOT be taken away without amending the Constitution.

Fundamental Right is a right included in the Constitution in Part-3 duly protected by Article-13 and Article-32 of the Constitution. In other words, a right available in Constitution but NOT included in Parat-3 is called Constitutional Right.

Therefore, all Constitutional Rights are Legal Rights but all the Legal Rights are NOT Constitutional Rights. Similarly, all Fundamental Rights are Constitutional Rights but all the Constitutional Rights are NOT Fundamental Rights.

Salient features of Fundamental Rights

2) These rights are protected from abridgement (curtailment) by Article-13.

3) Adequate machinery has been provided to protect Fundamental Rights through Supreme Court and High Court (Article 32 & 226).

4) Article-32 itself is a Fundamental Right. Therefore, it can NOT be denied to any citizen.

5) Fundamental Rights are not absolute but subject to certain restrictions. Some have been prescribed in the Constitution and some can be prescribed by Legislators. 6) Fundamental Rights can be suspended during

Emergency under Article-352 & Article-359. Article-19 stands automatically suspended. And in respect of others, except Article-20 & 21, President is to notify the suspension.

7) For the first time in the constitutional history, 44th

Amendment Act, 1978 deleted a Fundamental Right (viz.) Right to Property – Article-31.

Contd…..12… -: 12

:-Above all, Fundamental Rights are not free for exception. Under Article-31A, added through First Amendment Act, 1951, if any law is made to implement agrarian reforms, that law can NOT be questioned even if it violates Article-14, 19 & 31. Similarly under Article-31-B, added through First Amendment Act, 1951, if any law is made for implementing land reforms and included in Schedule 9, that law gets judicial immunity from Article-14, 19 & 31. Similarly, if any Law is made to implement any Socialistic Principle given in Article-39B & 39C, that law cannot be questioned, even if it violates Article-14, 19 & 31. This was added through 25th _{Amendment Act, 1971.}

In addition, Fundamental Duties is another exception to Fundamental Rights. If there is a clash between

Fundamental Duty and Fundamental Right, the former will prevail over the latter.

There are 7 Fundamental Rights

1) Right to Equality : Article-14 to 18;

2) Right to Freedom : Article-19 to 22;

3) Right against exploitation : Article-23 & 24; 4) Right to Freedom of Religion : Article-25 to

28;

5) Cultural and Educational Rights : Article-29 & 30; 6) Right to Property : Article -31

(since deleted)

7) Right to Constitutional Remedies : Article-32 to 35.

Availability of Fundamental Rights

Some Fundamental Rights are available only to the Citizens and some others are to both the Citizens & Non-Citizens.

What are the special privileges and rights available

only to the citizens

?

1)

Article-15 Prohibition of discrimination on the grounds of Religion, Race, Caste, Sex or Place of Birth. (RRCSP)

2)

Article-16 The right of Equality of opportunity in the matters of Public Appointment and Public Employment under the State.

Contd….13… -: 13

:-3)

Freedom of speech and expression, Freedom of Assembly, Freedom to form Union or Association, Freedom to move throughout the Territory of India, Freedom to reside and settle in any part of India, Freedom to acquire, hold and dispose of property (deleted through 44th _{Amendment Act 1978) and}

Freedom to practice any Profession, Trade , Business or Occupation.

4)

Article-29 & 30 - Cultural and educational rights.

In addition, there are certain offices under the Constitution, which can be occupied only by the citizens (viz.) President, Vice President, Governor etc.

In addition, right to vote for elections to Lok Sabha and Assembly, is available only to the citizens and they can alone become the Members of Union and state Legislatures.

Article-14 to 18 consists Right to Equality. Article-14 prohibits discrimination in a general way. Article-15 prohibits discrimination against any Citizen on the grounds of Religion, Race, Caste, Sex or Place of birth. Article-16 generates Public Appointment and Public Employment under the State. Article-17 abolishes Untouchability. Article-18 abolishes Titles.

Article-14 says that the State shall NOT deny to any person equality before Law or equal protection of Law. Available to citizens and Non-Citizens, negative in character, injunction (ban) against the State. This right has 2 components:

1) Equality before Law; 2) Equal protection of Law.

Equality before Law is of English origin and equal protection of Law is of American.

Equal before Law :

This means absence of discrimination. Right from the Prime Minister to Peon, all are equal in the eyes of law, based on rule of law. And the rule of law is a man can be punished only for a breach of law and not for anything else and equality before law is no one is above law. Constitution is supreme law of land. In short, King is not the law and the law is the King. However you are tall, law is taller than you. Rule of law is better than rule of man.

Now the question is whether there are any exceptions to this principle of equality before law?

Contd…..14…

-: 14

:-There are certain exceptions, which have been given in the Constitution itself.

1) President or Governor is not answerable in any Court of Law for any act done or purported to have done, in exercise of their Powers (Article 361).

2) No civil proceedings can be instituted against President or Governor during the term of office until 60 days of notice in writing is given.

3) No criminal proceedings can be initiated or continued against President or Governor during the term of office. 4) No process of arrest of President or Governor can be

issued, from any court of law during the term of their office.

5) Under International Law, Foreign Sovereigns, Ambassadors and Diplomats enjoy full immunity from judicial process.

The above immunity does not apply to impeachment proceedings against President or suits against Government of India.

In addition to the above, Article 31A, 31B, 31C and Fundamental Duties are exceptions to Article 14, as explained in salient features of Fundamental Rights.

Equal protection of law

This means right of equal treatment in similar circumstances both with regard to privileges and liabilities of law. If there is any reasonable basis for classification, the legislature can make reasonable classification. In other words, it is only guarantee of equal treatment under equal circumstances, permitting differential treatment when the circumstances differ.

Equal protection of law does not mean that every law must be general nor does it mean that the same law should apply for all. It does not also mean that every law should have universal application because all persons are not by very nature in the same position. The different needs of different classes of people require different treatments. In fact, identical treatments in unequal circumstances will amount to inequality. Therefore, a reasonable classification is NOT only permissible (Permissible Classification) (V.Imp.) but also essential. Nevertheless, the classification should not be arbitrary.

[Recall Section-303 of IPC, Airhostess case, Pension case and adultery case]

Contd……15… -: 15

:-Supreme Court recently held that the government can NOT discriminate among women on account of marriage. Supreme Court allowed an appeal of Mrs. Savitha and her Father challenging the Railway Board circular which provided that the married daughter of the retiring official was eligible for government accommodation, only if the retiring father has no son. Supreme Court held this circular “Gender biased” and commented that “a son is a son till he marries and gets his wife; and a daughter is a daughter for life”.

Article 15 : Protective discrimination

1) The State shall not discriminate against any citizen on the ground of Religion, Race, Caste, Sex or Place of birth.

2) No citizen shall be, on ground of Religion, Race, Caste, Sex or Place of birth, be subjected to any disability or restrictions or conditions with regard to shops, restaurants, hotels, motels, use of wells, bathing guards, tanks, roads, public resorts etc., which are maintained wholly or partly out of State funds or dedicated to general public.

a) The State can make special provision for protection of women and children.

b)Similarly, the State can make special provisions for advancement of socially and educationally backward classes of citizens or SC & ST (added through First Amendment Act, 1951 – as result of Supreme Court decision in Chenpakam Durairajan case).

The above exceptional classes of people (viz.) women, children, socially & educationally backward classes, SCs & STs require special protection and affirmative action of the State.

Even though the principle of equality demands prohibition of discrimination, the discrimination is protected in the above cases, in social interest. This is, therefore, called Protective Discrimination.

The women are protected because their physical structure and maternal functions place them at a disadvantage in their struggle for their subsistence in the gender biased society and their physical well-being becomes the duty of the society.

Contd…..16… -: 16

:-93

rd _{Amendment Act, 2005 amended Article-15 and} added the following

“The State can make special provisions for the advancement of society and educationally backward classes of citizens, SCs & STs relating to their admission to educational institutions aided or unaided by the State, other than minority institutions referred to in Article-30.”

Article – 16 has two provisions

1. There shall be an equality of opportunity for all Citizens in the matter of public employment and public appointment to any office under the State.

2. No citizen shall on the ground only of Religion, Race, Caste, Descent (inheritance), Place of Birth, or Resident,

be ineligible or discriminated against in respect of any employment or office under the State.

The above provisions have following exceptions

(i) This is an exception to the provision which forbids discrimination on the grounds of Religion, Race, Caste, Descent, Place of Birth or Resident. This empowers only the Parliament to regulate by Law, the extent to which it is permissible for the State, to depart from the above provision. Accordingly, Parliament has passed Public Employment (requirement as to residents) Act 1957. This Act exempts Himachal Pradesh, Manipur, Tripura & Andhra Pradesh.

(ii) The 2nd _{exception is that the State can make the special}

provision for appointment of post in favour of any backward class citizens which are not adequately represented in services under the State.

(iii) The 3rd _{exception is that the State can make special}

provision for reservation in matters of promotion to any class of post in services of the States in favour of SC & ST (not for OBC), which have not been adequately represented in services under the States. This was added through 77th _{Amendment Act, 1995, to overcome the}

Supreme Court decision in Indira Sawhney case.

Contd…..17… -: 17

:-(iv) The 4th _{exception is: 81 Amendment Act 2000 added}

Article 16 (4B), to end 50% ceiling on reservation for SC & ST and OBC in the backlog vacancies, which could not be filled up in previous years due to non availability of eligible candidates; it has been provided that these vacancies should be considered as a separate class and should be filled in succeeding years and such vacancies should not be considered together with the vacancy of the year in which they are being filled up for the purpose of ceiling of 50% reservation of the year.

(v) 85th _{Amendment Act 2001 extended the benefit of}

reservation in favour of SCs and STs (not for OBCs) in matters of promotion with consequential seniority from April, 1995.

(vi) The 6th _{exception is that the equality provision will not}

prevent the relaxation of qualifying marks in any examination and also lowering the standards of evaluation for reservation in matters of promotion for SCs& STs. (Article-335 amended through 82nd

Amendment Act, 2000).

In addition to the above, the officers connected to a religious institution may be reserved for member professing that particular religion or belonging to that particular denomination.

Article-17 : Abolition of Untouchability

Article-17 abolishes untouchability and forbids its practice in any form. If it is practiced, it is an offence and punishable under Law.

Untouchability has not been defined but the Supreme Court held the term should be understood as a practice which had developed in the country historically i.e. a practice which contemptuously looks down a group of persons purely based on their birth. The purpose of the Article is to liberate the Indian Society from the blind, ritualistic, strict traditional belief.

Article-18 : Abolition of Titles

(i) Article-18(1) prohibits the States to confer Titles to any person, military and academic distinctions are exempted;

Contd……18… -: 18

:-(ii) It prohibits Indian Citizens from accepting any Title from any Foreign State;

(iii) This Article prohibits any foreigner holding office of profit under the State from accepting any Titles from any foreign State without President’s consent;

(iv) It also prohibits a person, both citizen and non citizen holding any office of profit under the State, from accepting any present or emoluments or office of any kind from any foreign State without Presidential consent.

Article-18 is only a Directory. There is NO penalty prescribed for violation of these provisions, though Parliament can always make a law.

Supreme Court recently held that conferment of Titles of Bharat Ratna, Padma Vibhushan, Padma Bhushan, Padma Sri etc. are NOT violation of Article-18. These awards indicate the State’s recognition of the good work done by the Citizens and does NOT violate the principles of equality.

Article-19 : Right to Freedom

Right to Freedom consists of Article-19, 20, 21 and 22, put together called

“Magna Carta of Civil Liberties”.

Article-19 gives 7 freedoms; Article-20 provides protection in respect of conviction for offences; Article-21 deals with protection of life and personal liberty; Article-22 is protection against arrest and detention.

Article-19 gives 7 Freedoms

(i) Freedom of Speech and Expression; (ii) Freedom of Assembly;

(iii) Freedom to form Union & Association;

(iv) Freedom to move throughout the Territory of India (v) Freedom to reside and settle in any Part of India, (vi) Freedom to acquire hold and dispose of property

(deleted through 44th _{Amendment Act, 1978)}

(vii) Freedom to practice any profession, trade or business or occupation.

Contd……19… -: 19

:-Each of these freedoms can be restricted and the grounds of restriction are given in the Constitution itself. That is why we say that what Article-19 gives by one hand is taken by the other hand.

Man is a National being. He desires to do many things. But in a civilized society, the desires have to be controlled, reconciled and to be regulated in their exercise by similar desires of other fellow citizens. There cannot be any right, which is absolute and injurious to the society.

The restrictions so imposed cannot be arbitrary. Article-19 is available only to the citizens.

(1) Freedom of Speech and Expression:

This includes

Press Freedom

The Freedom of Speech and Expression includes, freedom to silence also (in respect of expulsion of three children from the school in the National anthem case; and LIC house journal case).

Prasar Bharati was established on the directions of the Supreme Court, as a result of interpretation of this Article, so also Right to Information Act 2005, Right to know about the candidates contesting the elections.

The freedom of speech and expression can be restricted in the interest of Sovereignty, Integrity, Public Order, Morality, Contempt of court, Decency, Defamation, Friendly relations with Foreign States, incitement to offence or security.

Freedom of Press: The Indian Constitution does not provide for the freedom of Press separately. It is implicit in Article 19. The restrictions that limit the freedoms in the case of individuals apply to the press also.

(2)

Freedom of Assembly

(3)

Freedom to form Union and Association

Contd…..20… -: 20

:-(4)

Freedom to move throughout the territory of

India

(5)

Freedom to reside and settle in any part of India

(6)

Freedom to acquire hold and disposal of property

has been placed as Article 300A, as Constitutional Right. (7)

Freedom to practice any profession, trade,

business or

occupation

This can be restricted in the interest of the following

(ii) For the sake of professional / technical qualifications; (iii) To enable the State to carry on any trade or

business exclusively, to the exclusion of other citizens.

Article-20 : Protection against ex-post facto Law,

Double Jeopardy, self-incrimination has 3

provisions namely

:-1)

Protection against ex-post facto Law

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. Similarly, he shall not 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. In other words, if an act is not an offence at the time when it was committed, it cannot be made as an offence at a later date subsequent to the commission of offence (i.e.) ex-post facto law is a law which imposes a penalty retrospectively.

This Act imposes a limitation on the law making powers of the Legislature.

Normally a Legislature can make retrospective and prospective law but this clause prohibits retrospective criminal law.

Contd……21… -: 21

:-This does not however apply to civil liability or change of procedure (i.e.) a Law can be imposed retrospectively. Supreme Court, however, clarified an ex-post facto provision can be extended, if it is beneficial.

2)

Protection against Double Jeopardy (danger)

a) No person can be prosecuted and punished for the same offence more than once.

b)In this case, the person must be accused of an offence; the prosecution should have taken place before a Court. c) The person should have been punished in the said

proceedings.

d)The offence must be the same, for which he was prosecuted and punished earlier.

In British and American Constitutions, the protection is available against second prosecution also. The first prosecution should have taken place before a Court. In other words, the proceedings before Customs Authority or Departmental Authorities or Administrative Authorities cannot be considered as judicial proceedings.

No person accused of any offence shall be compelled to be a witness against himself. This is based on the principle of natural justice that every person is innocent until and unless the otherwise is proved. Therefore, it is for the prosecution to establish the guilt of the accused and the accused person need not make any statement against his will under the spell of compulsion, which may expose him for prosecution for a crime. The ingredients are :

a) The person should be accused of any offence;

b)Protection is against any compulsion to be a witness and against himself.

This does not apply to compulsory production of material objects or specimen handwriting or finger impression or blood specimens. Article-20 cannot be suspended even during Emergency.

Contd……22…

-: 22

:-Article-21 : Provides protection of Life and

Personal Liberty

No person shall be deprived of his life or personal liberty except by a procedure established by Law.

The Act does not refer to due process of law, as in US Constitution. It only says “the procedure established by law thereby placing the Legislature in a more important position”.

The procedural due process involves: 1) providing notice;

2) opportunity to be heard; 3) impartial tribunal and 4) orderly procedure.

These are not required in the procedure established by law.

In A.K. Gopalan Vs Union of India, Supreme Court held that our Constitution embodies English concept of personal liberty and not due process. Therefore, if a competent

legislature has made a law providing that a person may be deprived of his personal liberty in certain circumstances, in certain manner, the validity of that law cannot be questioned.

However, Supreme Court in Menaka Gandhi case in July 1977, overruled its earlier decisions and declared that the personal liberty covers a variety of right, which are included in Article-19.

Through various decisions, Supreme Court amplified (widened) the term personal liberty and included the following rights:

1) Right to live with human dignity and all that goes along with it viz.) adequate nutrition, clothing, shelter, reading, writing, free moving, mingling with fellow human beings;

2) Right to livelihood because the easiest way to deprive a person of his life, is to deprive him his means of livelihood (Bombay Civil Service case);

3) Right to minimum wages (Asiad workers case); 4) Right to subsistence Allowance;

Contd…….23… -: 23

:-5) Right to privacy (even a woman of easy virtue has right to privacy – domiciliary visits banned);

6) Right against inhuman treatments;

7) Right to Education (Supreme Court in Mohini Jain case held that Capitation Fee deprives the children of their education. Based on this, today right to education is a Fundamental Right);

8) Supreme Court also held, it is the professional obligation of all doctors, to extend the medical help to the injured immediately, without waiting for legal formalities;

9) Right against solitary confinement (Shobhraj case); 10) Right to speedy trial;

11) Right against the use of third degree methods;

12) Imprisonment of a poor person for non-payment of debts (to be poor is no crime);

13) Right against hand cuffing; 14) Right against illegal arrest;

15) Right against custodial violence; 16) Right to bear child;

17) Over loading of school bus violates Article 21;

18) Donation of organ by husband to his ailing father is not violation of Article 21;

19) Right to electricity;

20) Compensation for Medical negligence (like, child birth after sterilization);

Contd……24… -: 24

:-21) Before sending a pregnant woman to jail, the government should ensure pre-natal and postnatal care for mother and child. The birth place of the child should be shown as Registration Office and not Jail.

22) Interim compensation for rape victim (Miss Subhra Chakraborty case in 1995).

In a case of Rudal Shah, though he was acquitted by the Sessions Court on 30th _{June, 1968, he was released from}

the Jail only on 16th _{October, 1982. Supreme Court fined the}

Bihar Government Rs.50000/-.

Virginity Test violates Article-21. Holding of beauty contest is against Article-21. Telephone tapping is violation of Right to privacy.

Death sentence and killing a person by rope, is not violation of Article-21.

Right to bail is a right included in Article 21 (Bail is the rule and Jail is exception).

Prevention of sexual harassment at work places (Visakha Vs State of Rajasthan) is included in Article-21.

Article-21 cannot be suspended even during emergency.

Article-21(A) : Right to Education

The State shall provide free and compulsory education to all children of the age of 6 – 14 years in such manner as the State may, by law, determine.

The right to education comes from Right to life.

Supreme Court in Unnikrishnan case declared Right to Education is a Fundamental Right.

This article was added through 86th _{Amendment Act,}

2002.

It is a fundamental duty for parents and guardians to send their wards to school.

Article-22: Protection against arbitrary arrest

Article-22 deals with 2 separate matters. 1) Those arrested under ordinary law of crime;

2) Those arrested under the law of preventive detention. Contd……25… -: 25

:-Article-22 guarantees 4 rights to persons arrested

under ordinary law of crimes.

a) Right to be informed as soon as possible, of the ground of arrest;

b)Right to consult and be represented by a lawyer of his choice;

c) Right to be produced before a Magistrate within 24 hours of his arrest, excluding journey time from the place of arrest to the place of Magistrate;

d)Freedom from detention beyond the said period, except by an order of the Magistrate.

The above 4 are not available to 2 groups of people:

1) Enemy alien;

2) A person arrested and detained under preventive detention law.

Safeguard against preventive detention:

1) The government can detain a person in custody only for 3 months;

2) For detention beyond 3 months, a report should be obtained from Advisory Board, as to whether the detention is justified or not;

3) Advisory Board consists of persons who are or who have been or who are qualified to be appointed as Judges of High Court;

4) Maximum detention period will be prescribed by Parliamentary law;

5) A person can be detained also in accordance with provisions of any law made by Parliament;

6) The person so detained should be informed about the ground of detention as soon as may be, unless such disclosure is against the public interest;

7) A person detained must have earliest opportunity to represent against his detention.

Contd…….26… -: 26

:-Parliament may by Law prescribe :

a) The procedure to be followed by the Advisory Board in an enquiry;

c) Circumstances and clauses of the case in which a person can be detained for more than 3 months without getting the opinion of Advisory Board.

44th _{Amendment Act, 1978 made the following changes :}

1) The detention period before getting the opinion of Advisory Board reduced from 3 months to 2 months.

2) The composition of Advisory Board was changed as follows:

a) The Board to be constituted on the recommendation of Chief Justice of High Court;

b)Chairman should be serving Judge of High Court;

c) 2 members should be normally serving and in rare case retired High Court Judges.

It also abolished the provision of preventive detention without reference to Advisory Board.

Curiously, even after 32 years, the amendments made through 44th _{Amendment Act 1978, have not been notified by}

the Government.

Article-23 : Right against exploitation

Traffic in human beings and beggars and similar forms of forced labour are prohibited. Any contravention is punishable under law. However, State can impose compulsory service for public purpose provided that the State shall not discriminate on the grounds of Religion, Race, Caste and Place of Birth.

Traffic in human being means selling and buying of men and women like goods. It includes Bonded Labour and also Devadasi system.

Contd…….27… -: 27

No child, below the age of 14 years, is employed to work in any factory or mine or in any employment of hazardous nature. This Article does NOT prohibit the employment of children in harmless work. It does not also prohibit employment of the children above 14 years.

Article-25 -28 :

Secularism has been declared as basic structure of the Constitution in S.R. Bommai case by the Supreme Court. If any political party preaches against secularism, it can be de-recognized and also if any State government functions against Secularism, Article-356 (i.e.) President’s Rule can be imposed.

Article-25 :

Freedom of Conscience and free

Profession, Practice and Propagation of

Religion

Subject to Public Order, Morality and health and other provisions of Part III, all persons are equally entitled to freedom of conscience and right to freely profess, practice and propagate the religion.

Nothing prevents the State from making Law on the following

:-1. To regulate or restrict any economic, financial or political or other secular activities associated with the religious practices;

2. To provide social welfare or social reform or throwing open Hindu religious institutions of public character to all sections of Hindus.

Article-26:

Freedom to manage Religious Affairs

Subject to public order, morality and health every religious denomination has the following 4

rights:-(i) To establish & maintain Institutions for religious and charitable purpose;

(ii) To manage its own affairs in the matter of religion; (iii) To acquire and own Movable and Immovable

(iv) To administer such property as per law. (They cannot dispose of the property).

Contd……28… -: 28

:-Article-27 : Freedom from payment of taxes

It states that no person shall be compelled to pay any tax, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. If any State aid is extended to all religious institutions including the secular ones, without any discrimination, then Article 27 does not apply.

Article-28 : Prohibits imparting of religious

instructions or religious worship in educational

institutions.

There are four categories of Educational Institutions :-(i) Established and wholly maintained out of State

funds;

(ii) Administered by the State but established by the endowments or trusts;

(iii) Recognized by the State; (iv) Aided by the State.

 In the case of item 1, no religious instruction can be

imparted.

 In the case of item 2, religious worship or instructions is

permitted.

 In the case of item 3 and 4, religious worship or instruction can be imparted only with the consent of the individual and if they are minors, the consent of the guardian should be obtained.

Article-29 & 30 : Cultural and Educational Rights

or Minority Rights

The first proviso to Article 29 guarantees to every section of citizens, to conserve their distinct Language, Script or Culture (LSC).

Clause 2 of the Article provides that no citizen can be denied admission to any educational institution maintained by the States or receiving aid out of State funds on the grounds of Religion, Race, Caste or Language (RRCL).

Even though Article 29 relates to minorities, its purview is not confined to them alone, because this is available to any section of citizens i.e.) available to majority also. For example - in Maharashtra, Punjabis or Biharis are minorities. In other words, the deciding factor is the population of the minorities in that particular area.

Contd……29… -: 29

:-Article 30 :

All minorities whether based on religion

or language have the Right to establish and

administer Educational Institutions of their choice.

In granting aid to educational institutions, the State shall not discriminate against any educational institution on the ground that it is under the management of a minority based on religion or language.

In making any law for compulsory acquisition of property of any educational institution of such minorities, the State should ensure that the amount fixed for acquisition is adequate under the law and should not restrict the right guaranteed under their clause.

Article 31: Right to Property

(deleted)

Right to property has been deleted through 44th

Amendment Act 1978 and placed as Article 300A as Constitutional Right.

1st _{Amendment Act, 1951 inserted in Article-31(A) and}

Article-31(B) and 25th _{Amendment Act, 1971 incorporated}

Article-31(C).

Besides Article-31, there are 3 other Articles (viz.)

2) Article-31(B) - Provides that none of the acts and regulation in the 9th _{Schedule shall be land reforms.}

Initially 9th _{schedule had only 13 acts and today it has}

over 264 acts. e.g.) Tamil Nadu reservation act has been incorporated in 9th _Schedule.

3) Article-31(C) - It empowers Parliament and State Legislatures to make Law to secure the Directive Principles (i.e.) protection of implementation of socialistic Principles given in Article-39(B) and 39(C). Such Laws cannot be questioned.

[These have been discussed under salient features of Fundamental Rights of Article- 14.]

Today the position is Article-39(B) & (C) can alone prevail over the Fundamental Rights of Article-14, 19 and 31. Contd…….30… -: 30

:-Article 32 : Right to Constitutional remedies

This provides a guaranteed remedy for enforcing Fundamental Rights conferred in Part III of the Constitution. This remedial right itself is a Fundamental Right, by being included in Part III. Therefore, Supreme Court cannot refuse to entertain any application seeking protection against violation of F.Rs. Thus, Supreme Court is guarantor of FR and custodian of secular and minority rights.

That is the reason, why Dr. Ambedkar had declared in Parliament in his introductory speech as follows

:-“If I am asked to name any particular Article in this Constitution as the most important, without which the entire Constitution will become a nullity, I can not refer to any other Article

except Article 32

Article-32 has 4 provisions

:-(1) Class-1 - guarantees of a right to move Supreme Court for enforcement of Fundamental Rights.

(2) Class-2 empowers the Supreme Court to issue appropriate directions/orders including, Prerogative

Writs in the nature of ‘Habeas Corpus’, ‘Writ of Mandamus’, ‘Prohibition’, ‘Certiorari’ and ‘Quo-Warranto’ for enforcement of Fundamental Rights.

(3) Class-3 empowers the Parliament to make a Law empowering any other Court to exercise within the local limits of its jurisdiction all or any of the Power exercisable by Supreme Court under the above Class. (4) Class-4 provides that this right to Constitutional

remedy cannot be suspended except as otherwise provided in the Constitution.

What is except as otherwise provides?

When the National emergency under Article-352 has been declared, the President can suspend Article-32 in respect of all Fundamental Rights except Article-20 & 21.

Contd……31… -: 31

:-This Power is derived from Article-359. Supreme Court & High Court under Article-32 & 226 can issue following Writs for enforcement of Fundamental Rights :

(1)

Writ of Habeas Corpus

Habeas Corpus cannot be issued in the following cases :

(i) Where the person against whom the Writ is issued or the person who is detained is not within the jurisdiction of the Court;

(ii) To secure the release of a person imprisoned by the Court on a criminal charge or under Preventive Detention Law;

(iii) To interfere with the proceedings of Contempt of Court or Contempt of Parliament.

(2)

Writ of Mandamus

Writ of Mandamus cannot be issued :

(i) if the duty is discretionary nature.

(ii) to any private individual unless the State is in collusion.

(iii) Mandamus is not issued against the President or any Governor.

Contd……32… -: 32

:-(3)

Prohibition –

The difference between ‘Mandamus’ and ‘Prohibition’ is that the former commands activity and the latter commands inactivity. Besides, the former is issued not only against Judicial Authorities but also can be issued