OVERVIEW AND ARCHITECTURE

OF THE
INDIAN CONSTITUTIONAL
ARRANGEMENT
 Historical Background
■ Background of constitution during the British Period
■ Among the many countries, the Portuguese were the first to visit India.
■ Gradually the Dutch, the French and the British merchants became the rivals of the
Portuguese in India.
■ The British came to India in 1600 as traders under the name of the East India Company.
■ After defeating the rivals the British became rulers in India.
■ By the middle of 19th Century most of India was controlled by the British, either directly by the
East India Company or through the system of treaties and alliances with the Princely States.
■ During this period certain measures of constitutional reforms were introduced.

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 SOME IMPORTANT ACTS

■ Regulating Act (1773)

■ The Governor of Bengal was made the Governor General. The first man to be appointed to this
post was Warren Hastings.
■ For the assistance of the Governor General, an Executive Committee of four members was
created.
■ Supreme Court was set up at Calcutta, with a Chief Justice and three Assistant Judges.
■ The Regulating Act initiated the process of centralization in India.

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 ■ Pitts India Act (1784)
■ It introduces many significant changes in the Constitutional history of India.
■ A special court was established for better trial of the Company‘s officials in England for offences committed by
them in India.
■ The Regulating Act of 1773 made a provision that the Charter of the Company would be reviewed every 20 years.
■ Therefore, from time to time, Acts of 1793, 1813, 1833 and 1853 reviewed the Charter Act of the Company and
brought about some changes here and there.
■ The first Law Commission was established after the Charter Act of 1833.
■ The Rule of the East India Company was terminated when the British Indian Parliament passed the Indian
Committee’s Act of 1858.
■ The power to govern India was transferred from the Company to the Crown and India was to be governed by and
in the name of “Her Majesty”.
■ Again, the British Indian Parliament passed the Indian councils Act of 1861.
■ This Act is very important in the Constitutional history of India because it has created devolutional system of
administration in India.
■ The British Indian Parliament passed Indian Committee s Act of 1892 and the principle of indirect election was
introduced.

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 ■ The Indian Committee Act of 1909
■ The Indian Committee Act of 1909 which is mostly known as Morley-Minto
Morley Reforms of 1909 is a
significant event in constitutional history of India.
■ The significant provisions of this Act were:
– Enlargement of the size of the Central and Regional Legislative Committee’s;
– Powers and functions of the Central and Regional Committee’s were also increased;
– Provision for the appointment of an Indian member in the Executive Committee of the
Governor General;
– Introduced the system of Communal representation.

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 ■ Government of India Act of 1919:
■ The British Indian Parliament passed the Government of India Act of 1919 which is also known as
Montague-Chelmsford Reforms.
■ Significant provisions :
– It made many important changes in the Central and regional Government.
– Introduced a bicameral legislature at the centre.
centre
– Two Houses were- Legislative Assembly (Lower House) and Committee of States (Upper House).
– The system of direct election was introduced.
introduced
– A system of Diarchy was introduced in the Provinces.
Provinces
– Two lists of Subjects i.e. Central List & Regional List (departments) and divided them into Central
and Regional Governments
– It created a post of a High Commissioner for India
■ Thus this Act was an significant landmark in the constitutional development of India which opened a new
era of responsible Government.

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 ■ Government of India Act of 1935
■ The British Indian Parliament passed the Government of India Act of 1935 which was so valuable and
significant that most provisions of this Act were taken by the framers of the Indian Constitution.
■ The Act was a very lengthy written document.
■ It proposed to form an All India Federation.
■ All the provinces were to be members of a federation.
federation
■ Three major institutions set up were: The Federal Executive, The Federal Legislature & the Federal Courts
with corresponding institutions in the provinces.
■ It provides for a far greater degree of representations of the people in the Federal & the provincial
legislature.
■ It established a Central Court at Delhi. Central Court was to decide inter-state disputes and heard appeals
against the decisions of the High Courts.

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 ■ The Cripps Mission

■ The Second World War started in 1939 and Great Britain was fully involved in this war.

■ In 1942, the Cripps Mission was sent to India from Great Britain under the leadership of Sir Stafford Cripps.
■ The Cripps Mission provided some proposals to Indian people.
■ India would remain under the control of Her Majesty‘s Government.
Government
■ But the Cripps proposals were rejected by almost all the Parties and sections in India on different grounds.
■ The Indian National Congress, Muslim League, Hindu Mahasabha and Sikhs rejected the Cripps Proposal.

■ The Cabinet Mission Plan

■ The appointment of Cabinet Mission Plan was another significant step approved by the British Government in the process of Constitutional development.
■ The chief proposals of Cabinet Mission Plan were –
– i) To form a Union of India consisting of British Provinces and Indian States.
– ii) To establish a Constituent Assembly having 389 members.
– iii) An interim Government with fourteen representatives of the major Political Parties.

■ Initially, the Congress accepted the proposals but the Muslim League under the leadership of Md. Ali Zinnah rejected the proposals and left the Interim
Government.
■ Disagreement and conflict between the Congress and Muslim League continued.
continued
■ Now, Lord Mountbatten proposed a plan to Divide India into two parts- India and Pakistan.
■ The Congress and Muslim League accepted the plan.

■ Based on Mountbatten plan, the British Indian Parliament passed the Indian Independence Act on July 18, 1947 and ultimately in August 15, 1947 India
became an independent State.

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 INTRODUCTION
■ Constituent Assembly met for the first time on 9th December, 1946 and its last
session ended on 24th January, 1950.
■ It was endowed with the enormous task of preparing a Constitution for free India.
■ A Drafting Committee was constituted on August 29, 1947, with Dr. B. R. Ambedkar
as Chairman to prepare a Draft Constitution.
Constitution
■ This committee finally finished their work on November 26, 1949. The date is
therefore known as Constitution or National Law Day.
■ January 26, 1950, is the day the Constitution of India came into effect.

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 Key timelines in the 1948 constitutional
process
Britain decides on to grant independence to India and cabinet mission is
1946
dispatched to India to discuss modalities for transfer of power
14 August 1947 Proposal for creation of committees is tabled
29 August 1947 Drafting committee is established
Constituent Assembly formally convenes for the first time, following elections,
6 December 1947
to start the process of writing a constitution.
4 November 1947 Draft is finalized and submitted
1948 – 1949 Constituent Assembly meets in sessions open to the public
26 November 1949 Constituent Assembly adopts final draft making it official
26 January 1950 Entry into force of the new constitution [3]

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 Influence of Other Constitutions
■ United Kingdom
– Parliamentary government
– Concept of single citizenship
– Rule of law
– The legislative speaker and their role
– Legislative procedure
■ United States
– Bill of Rights
– Federal structure of government
– Electoral College
– Independent judiciary and separation of powers
– Judicial review
– President as commander-in-chief
chief of the armed forces
– Equal protection under law
■ Ireland
– Directive principles of state policy

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■ Australia
– Freedom of trade between states
– National legislative power to implement treaties, even on matters outside normal federal jurisdiction
– Concurrent List
– Preamble terminology
■ France
– Ideals of liberté, égalité, fraternité
■ Canada
– Quasi-federal government — a federal system with a strong central government
– Distribution of powers between the central and state governments
■ Soviet Union
– Fundamental Duties under article 51-A
– Mandated planning commission to oversee economic development
■ Other constitutions
– The emergency provision under article 356 (from the Weimar Constitution)
– Amending the constitution (from South Africa)
– Due process (from Japan)

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The Constitution Of India, 1950
PREAMBLE It came into effect on January 26, 1950.

The World’s longest codified constitution.

Originally : 22 PARTS India’s Supreme Law of the Land.

Now : 25 PARTS
The original text of the Constitution contained
395 articles. The number of articles has
increased to 448.
12 SCHEDULES
101 Amendments in 68 years –it is one of the
most frequently amended governing documents
in the world.
4 APPENDICES

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Parts of the Constitution of India, 1950
Part I –The Union and its Territory
Part XII –Finance, Property, Contracts and Suits
Part II –Citizenship
Part XIII –Trade, Commerce and Intercourse within the Territory
of India
Part III –Fundamental Rights
Part XIV –Services under the Union and the States
Part IV –Directive Principles of State Policy
Part XIVA –Tribunals
Part IVA –Fundamental Duties
Part XV –Elections
Part V –The Union
Part XVI –Special Provisions relating to Certain Classes
Part VI –The States
Part XVII –Official Language
Part VIII –The Union Territories
Part XVIII –Emergency Provisions
Part IX –The Panchayats
Part XIX –Miscellaneous
Part IXA –The Municipalities
Part XX –Amendment to the Constitution
Part IXB – The Co-operative Societies
Part XXI –Temporary, Transitional and Special Provisions
Part X –The Scheduled and Tribal Areas
Part XII –Short Title, Commencement, Authoritative Text
Part XI –Relations between the Union and the States

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 Preamble
■ In the legislative history of India, for the first time, the Government of India Act 1919 (Montague Chelmsford Reforms) had a
separate preamble.
■ However, government of India Act 1935 had NO preamble.
■ It is not incorrect to assume that idea of the Preamble was borrowed from the Constitution of USA.

■ The preamble is based on the Objectives which was drafted and moved in the Constituent Assembly by Shri Jawaharlal Nehru (the
first Prime Minister of India) on 13 December 1946.
■ Shri B. R. Ambedkar (the Chief Architect of the Constitution of India) said about the preamble:
– It was, indeed, a way of life, which recognizes liberty, equality, and fraternity as the principles of life and which cannot be
divorced from each other: Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can
liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the
many. Equality without liberty would kill individual initiative.
initiative Without fraternity, liberty and equality could not become a
natural course of things.
■ It begins with ‘We the People…’ which indicates that the people of India are its source, authority and subjects.
■ The Preamble of the Constitution contains the basic objectives of the Constitution such as:
– to secure to all its citizens social, economic and political justice;
– liberty of thought, expression, belief, faith and worship;
– equality of status and opportunity; and
– to promote among them fraternity so as to secure the dignity of the individual and the unity and integrity of the Nation.

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 The Preamble as a part of the Constitution:
■ Constitution Bench in the Re BeruBari Union case (AIR 1960 SC 845)
845 holds that:
– The Preamble could not be used as an implied limitation upon the power of a Sovereign Legislature to cede any part of its territory to a foreign
State.
– The only purpose of a Preamble was to show the general purposes for which makers of the Constitution made the several provisions in the
Constitution. But it could not be regarded as an independent source of any substantive power or prohibition Which could be drawn only from the
express provisions in the body of the Constitution or by implication therefrom.
– In this connection, it was observed that the preamble was “not a part of the Constitution”.

■ However, in Kesavananda Bharti v/s State of Kerala AIR 1973 SC 1461 case, Apex Court overruled earlier decisions and recognised that
– Preamble may be used to interpret ambiguous areas of the constitution where differing interpretations present themselves.
– Preamble is part of the Constitution and is subject to the amending power of the parliament as are any other provisions of the Constitution,
provided the basic structure of the Constitution is not destroyed.
destroyed

■ S R Bommai v. Union of India (1994) 3 SCC 1: (Preamble

Preamble has been held to be a part of the basis structure of the Constitution).
Constitution
– .....The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure,
structu unity and integrity
of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution. (Para 248)
– .......The provisions of the Constitution include the chapter relating to Fundamental Rights, the chapter relating to Directive
Directi Principles of State
Policy as also the preamble to the Constitution. Though, at one time, it was thought that preamble does not form part of the Constitution, that
view is no longer extant. It has been held by the majority of Judges in Kesavananda Bharati v. State of Kerala that preamble does form part of
the Constitution. It cannot be otherwise. The attempt to limit the said words to certain machinery provisions in the Constitution
Constitu is misconceived
and cannot be given effect to. It is difficult to believe that the said words do not take in fundamental provisions like the fundamental rights in
Chapter III..... (Para 281)

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 The Basic Structure of the Constitution
■ The "basic features" principle was first expounded in 1964,
1964 by Justice J.R. Mudholkar in his dissent, in the case of Sajjan
Singh v. State of Rajasthan (AIR 1965 SC 845). He wrote:
wrote

– It is also a matter for consideration whether making a change in a basic feature of the Constitution can be
regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter,
would it be within the purview of Article 368 ?

■ The leading case of Kesavananda Bharati v State of Kerala (1973 4 SCC 225) considered the contentious issue on the
scope of Parliament's power to amend the Constitution. The decision was entrusted to a thirteen judge bench, which was
legally capable of overruling the Golak Nath judgement (AIR 1967 SC 1643) –

– Eleven separate opinions were delivered. Majority on the Court is understood to have held that Parliament can
amend any provision of the Constitution (including fundamental rights), so long as it does not alter, abrogate, or
destroy the ‘basic structure’or ‘essential features’ of the Constitution.

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The Basic Structure of the Constitution Contd..

■ The Supreme Court in various judgments has held and observed reiterating that Parliament can amend the Constitution
but cannot destroy its "basic structure”.
■ Thus basic structure of Constitution are:

1) Supremacy of the Constitution

2) Republican and democratic form of government and sovereignty of the country

3) Secular and Federal character of the Constitution

4) Separation of powers between the legislature, executive and the judiciary

5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a
welfare State contained in Part IV.

6) The unity and the integrity of the nation.

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The Basic Structure of the Constitution Contd..

■ Judicial precedents on what constitutes basic structure of the constitution

– Indira Gandhi v. Raj Narain(AIR 1975 SC 865) –‘Democracy, including free and fair elections’, ‘separation of power’ and ‘rule of law’ declared
to be part of the basic structure.

– Minerva Mills v. Union of India (AIR 1980 SC 1789)- ‘Judicial review’ and balance between the Fundamental Rights and the Directive Principles
of State Policy was held to be a fundamental feature of the basic structure of the Constitution.

■ The concept of basic structure has since been developed by the Supreme Court in subsequent cases, such as
– Waman Rao v. Union of India (AIR 1981 SC 271),
– Bhim Singhji v. Union of India (AIR 1981 SC 234),
– S.P. Gupta v. President of India (AIR 1982 SC 149) (known as Transfer of Judges case),
– S.P. Sampath Kumar v. Union of India (AIR 1987 SC 386),
– P. Sambamurthy v. State of Andhra Pradesh (AIR 1987 SC 663),
),
– Kihota Hollohon v. Zachilhu and others (1992 1 SCC 309),
– L. Chandra Kumar v. Union of India and others (AIR 1997 SC 1125),
1125
– P. V. Narsimha Rao v. State (CBI/SPE) (AIR 1998 SC 2120),
– I.R. Coelho v. State of Tamil Nadu and others (2007 2 SCC 1),
• “Supreme Court held that all laws were subject to the test of being consistent with fundamental rights, which are a part of the basic
structure”.
– Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and others (JT 2007 (2) SC 1) (known as Cash for Query case).

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 Public Interest Litigation
■ Public Interest Litigation” means a legal action initiated in a court of law for the enforcement of public interest or general
interest in which the public or a class of the community have pecuniary interest or some interest by which their legal
rights or liabilities are affected.
– Janata Dal v/s H.S. Chowdhary (1992) 4 SCC 305 as cited in Ashok Kumar Pandey v/s State of W.B. (2004) 3
SCC 349 (Para 7).
■ A writ Petition may be moved not only by an aggrieved individual but also by a public spirited individual or a journalist or a
social action group, for the enforcement of the constitutional or legal rights of some other person, provided such other
person is unable to approach the Court for redress owing to :-
– Such person being in custody; or
– Such person belongs to a class or group of persons who are in a disadvantaged position on account of poverty,
disability or other social or economical impediment, & are unable to enforce their rights.
■ On several occasions Supreme Court has treated letters, telegrams or postcards or news reports writ petitions.
■ Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to
be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or
publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice
to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of
mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded
on personal vendetta. (Para- 12)
– Dattaraj Nathuji Thaware vs State Of Maharashtra & Ors (2005) 1 SCC 590

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Public Interest Litigation Contd..

■ PIL can be considered as an exception to the rule of ‘locus standi’, under which only an aggrieved person can file a
petition but here, petitions can be filed even when the applicant/s himself hasn’t suffered any injury or is not the victim.
When a person or a class of persons who suffer injury are unable to approach court due social or economic reason, then
any free spirited citizen of India can approach the court with bona fide intention for enforcement of such legal or
constitutional rights.
■ A petition can be moved under:
1. Article 32, before Supreme Court
2. Article 226, before High Court

■ PIL is often considered a result of judicial activism in India.

India ‘Activism is essential for participative public justice’- held
by Krishna Iyer J. in the case of fertilizer Corporation Kamgar Union vs. Union of India
■ Some landmark cases of PIL are:
 M.C. Mehta Vs state of Tamil Nadu- Petition for environmental protection.
 Bandhu Mukthi morcha Vs Union of India- Petition to protect human dignity and basic human rights.
 Hindustan Times v. Central Pollution Board- Petition where a newspaper article was accepted as a petition by the court.
 Vishaka v. State of Rajasthan- Petition filed on sexual harassment of women at workplace.
 Hussainara Khatoon v. State of Bihar- Petition representing prisoner’s right on free legal aid and fast hearing.

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 Fundamental Rights
Charter
Charter of fundamental rights contained in Part III (Articles 12 to 35)
of the Constitution of India.

These rights impose limitations on the powers of the State.

State The State
cannot take away or abridge these Fundamental Rights of the citizen 1. Right to
guaranteed by the Constitution. If it passes such a law it may be Equality
declared as unconstitutional by the Courts.
6. Right to
2. Right to
However, the Fundamental Rights are not absolute and are subject to Constitutional
Freedom
Remedies.
reasonable restrictions, based on social interests.

Significant changes in the Fundamental Rights –

•Formerly seven Fundamental Rights were enshrined in the

Constitution of India. However, Right to Property was removed 5. Cultural and 3. Right
from the list of Fundamental Rights by the 44th Amendment Act Educational against
Rights, and Exploitation
of the Constitution in the year 1976. Since then, it has been
made a legal right. 4. Right to
Freedom of
•86th Amendment Act -the Right to Education has been included Religion
in the list of Fundamental Rights as part of the Right to Freedom
by adding Article 21(A).

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Fundamental Rights Contd..

■ Fundamental rights have been considered to be the heart and soul of the Constitution &
have enjoyed a special and privileged place in the Constitution.
■ Object of fundamental rights is to foster a social revolution by creating a society
egalitarian to the extent that all the citizens are to be equally free from coercion or
restriction by the State.
■ In the case of State Of Maharashtra & Ors v/s Bhaurao Punjabrao Gawande (2008) 3
SCC 613, Apex Court stated that:
– Personal liberty is a precious right. So did the Founding Fathers believe because
while their first object was to give unto the people a Constitution whereby a
Government was established, their second object, equally important, was to protect
the people against the Government. That is why while conferring extensive powers
on the Government like the power to declare an emergency, the power to suspend
the enforcement of fundamental rights or the power to issue ordinances, they
assured to the people a Bill of Rights by Part III of the Constitution, protecting
against executive and legislative despotism those human rights which they
regarded as 'fundamental'. The imperative necessity to protect those rights is a
lesson taught by all history and all human experience.(Para 23)

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 Interpretation of Fundamental Rights
■ The fundamental rights enshrined in the Constitution have no fixed contents.
■ From time to time, Supreme Court has filled in the skeleton with soul and blood and made it vibrant.
■ Interpretation of the Constitution has to be such as to enable the citizens to enjoy the rights guaranteed
by Part III in the fullest manner.
 It is clear that the fundamental rights are no longer interpreted as isolated protections which directly arise
but collectively form a comprehensive test against the arbitrary exercise of state power in any area.
 The protection of fundamental rights has, therefore, been considerably widened.
– I.R. Coelho vs State Of Tamil Nadu & Ors (20072007) 2 SCC 1
 Article 21 of the Constitution has been interpreted to include the right to environmental protection.
– Bombay Dyeing & Mfg.Co.Ltd. v/s Bombay Environmental Action Group (2006) 3 SCC 434.
 Further, in India, till the Right to Information Act, 2005, was enacted there was no legislation securing
freedom of information.
 However, the Supreme Court by a liberal interpretation deduced the right to know and right to access
information on the reasoning that the concept of an open government is the direct result from the right to
know which is implicit in the right of free speech and expression guaranteed under Article 19(1)(a).
– M.Nagaraj & Others vs Union Of India & Others (2006) 8 SCC 212

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 Fundamental Duties: Part IVA

■ Part IVA of the Indian Constitution deals with Fundamental Duties.

■ Fundamental Duties of the citizens of India are mentioned in Article 51A of the Indian
Constitution.
■ The Fundamental Duties were added to the Constitution by the 42nd Amendment in
1976, upon the recommendations of the Swaran Singh Committee.
■ Originally ten in number, the Fundamental Duties were increased to eleven by the 86th
Amendment in 2002.
■ Fundamental duties are applicable only to citizens and not to the aliens.
■ The inclusion of Fundamental Duties brought our Constitution in line with article 29 (1)
of the Universal Declaration of Human Rights 1948 and the Constitutions of countries
like Japan, China, U.S.S.R. etc.

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 Fundamental Duties under the Constitution of
India
■ It shall be the duty of every citizens of India-

a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

c) to uphold and protect the sovereignty, unity and integrity of India;

d) to defend the country and render national service when called upon to do so;

e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and
an regional or
sectional diversities; to renounce practices derogatory to the dignity of women;

f) to value and preserve the rich heritage of our composite culture;

g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living
liv creatures;

h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

i) to safeguard public property and to abjure violence;

j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher
high levels of
endeavour and achievement.

k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and
fourteen years.

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 Enforceability of Fundamental Duties

■ Provisions as to fundamental duties cannot be enforced by writs. They can be promoted

only by constitutional methods. But they can be used for interpreting ambiguous
statutes.
– Mumbai Kamgar Sabha v/s Abdulbhai AIR 1976 SC 1455.

■ In A.I.I.M.S. Student’s Union v. A.I.I.M.S. AIR 2001 SC 3262, a three-Judge Bench of the
Supreme Court made it clear that:
– Fundamental duties, though not enforceable by a writ of the court, yet provide
valuable guidance and aid to interpretation and resolution of constitutional and
legal issues. In case of doubt, peoples’ wish as expressed through Article 51-A can
serve as a guide not only for resolving the issue but also for constructing or
moulding the relief to be given by the courts. The fundamental duties must be
given their full meaning as expected by the enactment of the Forty-second
Amendment.

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 Directive Principles of Our State Policy :
Part IV (Articles 36-51)
36
■ The concept of Directive Principles of State Policy was borrowed from the Irish
Constitution.
■ The Directive Principles of State Policy, embodied in Part IV of the constitution, are
directions given to the central and state governments to guide the establishment of a
just society in the country.
■ Dr. B R Ambedkar described these principles as ‘novel features’ of the Constitution.
■ Enforceability of DPSPs:
■ Article 37 of Indian Constitution:
– “The provisions contained in this Part (i.e. Part IV) shall not be enforceable by any
court, but the principles therein laid down are nevertheless fundamental in the
governance of the country and it shall be the duty of the State to apply these
principles in making laws.”
 Directive Principles of Our State Policy
ARTICLE 36: DEFINITION ARTICLE 44: UNIFORM CIVIL CODE FOR THE CITIZEN

ARTICLE 37: APPLICATION OF THE PRINCIPLES CONTAINED IN THIS PART ARTICLE 45: PROVISION FOR FREE AND COMPULSORY EDUCATION FOR
CHILDREN
ARTICLE 38: STATE TO SECURE A SOCIAL ORDER FOR THE PROMOTION OF
THE WELFARE OF THE PEOPLE ARTICLE 46: PROMOTION OF EDUCATIONAL AND ECONOMIC INTERESTS OF
SCHEDULED CASTES, SCHEDULED TRIBES AND OTHER WEAKER SECTIONS
ARTICLE 39: CERTAIN PRINCIPLES OF POLICY TO BE FOLLOWED BY THE
STATE ARTICLE 47: DUTY OF THE STATE TO RAISE THE LEVEL OF NUTRITION
AND THE STANDARD OF LIVING AND TO IMPROVE PUBLIC HEALTH
ARTICLE 39A: EQUAL JUSTICE AND FREE LEGAL AID
ARTICLE 48: ORGANIZATION OF AGRICULTURE AND ANIMAL
HUSBANDRY
ARTICLE 40: ORGANISATION OF VILLAGE PANCHAYATS
ARTICLE 48A: PROTECTION AND IMPROVEMENT OF ENVIRONMENT
ARTICLE 41: RIGHT TO WORK, TO EDUCATION AND TO PUBLIC ASSISTANCE AND SAFEGUARDING OF FORESTS AND WILDLIFE
IN CERTAIN CASES
ARTICLE 49: PROTECTION OF MONUMENTS AND PLACES AND
ARTICLE 42: PROVISION FOR JUST AND HUMANE CONDITIONS OF WORK OBJECTS OF NATIONAL IMPORTANCE
AND MATERNITY RELIEF

ARTICLE 50: SEPARATION OF JUDICIARY FROM THE EXECUTIVE

ARTICLE 43: LIVING WAGE, ETC., FOR WORKERS

ARTICLE 43A: PARTICIPATION OF WORKERS IN MANAGEMENT OF ARTICLE 51: PROMOTION OF INTERNATIONAL PEACE AND SECURITY
INDUSTRIES

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 ARTICLE 39: CERTAIN PRINCIPLES OF
POLICY TO BE FOLLOWED BY THE STATE
■ The State shall, in particular, direct its policy towards securing –
a) that the citizen, men and women equally, have the right to an adequate means of livelihood;
b) that the ownership and control of the material resources of the community are so distributed as
best to subserve the common good;
c) that the operation of the economic system does not result in the concentration of wealth and
means of production to the common detriment;
detriment
d) that there is equal pay for equal work for both men and women;
e) that the health and strength of workers, men and women, and the tender age of children are not
abused and that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength;
f) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against exploitation
and against moral and material abandonment.
abandonment

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 ARTICLE 39A: EQUAL JUSTICE AND FREE
LEGAL AID
■ Article 39A of Indian Constitution:
– The State shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free legal aid, by
suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other
disabilities.
■ By Constitutional 42nd Amendment Act of 1976, Article 39A has been incorporated in the
Constitution.
■ By combine interpretation of Arts. 14, 21 and 39A, the Supreme Court in Sheela Barse
v/s State of Maharashtra (1983) 2 SCC 96 held that the State should provide free legal
aid to a poor or indigent accused person who is arrested & put in jeopardy of his life or
personal liberty and it is a constitutional imperative mandate under Arts. 14 and 21.

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ARTICLE 39A
■ Hussainara Khatoon v/s State of Bihar (1981) 1 SCC 98
■ Supreme Court held that
– Article 39A also emphasises that free legal service is an inalienable element of
'reasonable, fair and just‘ procedure for without it a person suffering from
economic or other disabilities would be deprived of the opportunity for securing
justice. The right to free legal service is therefore, clearly an essential
ingredient of 'reasonable, fair and just' procedure for a person accused of, an
offence and it must be held implicit in the guarantee of Art. 21. This is a
constitutional right of every accused person who is unable to engage a lawyer
and secure legal services, on account of reasons such as poverty, indigence or
incommunicado situation and the State is under a mandate to provide a lawyer
to an accused person if the circumstances of the case and the needs of justice
so require, provided of course the accused person does not object to the
provision of such lawyer.

32
ARTICLE 39A

■ In Khatri v/s State of Bihar 1981 1 SCC 627 (famous Bhagalpur Blinded Prisoner’s
case) the Court held while relying upon Hussainara Khatoon case that:
– The right to free legal services is clearly an essential ingredient of reasonable,
fair and just procedure for a person accused of an offence and it is implicit in
the guarantee of Article 21 and the State is under a constitutional mandate to
provide a lawyer to an accused person if the circumstances of the case and the
needs of justice so require, provided of course the accused person does not
object to the provision of such lawyer.
lawyer The State should provide free legal aid to
an accused person who is unable to secure legal services on account of
indigence and whatever is necessary for this purpose has to be done by the
State. It cannot avoid its constitutional obligation to provide free legal services
to a poor accused by pleading financial or administrative liability..(para 5 & 6)

33
Fundamental Rights v/s Directive Principles
■ In Re The Kerala Education Bill, 1957 : AIR 1958 SC 956
■ Doctrine of Harmonious Construction :
■ Supreme Court had propounded the Doctrine of Harmonious Construction to avoid a situation of
conflict while enforcing DPSPs and the Fundamental Rights. It observed:
– ...As explained by this Court in the State of Madras v. Smt. Champakam Dorairajan ([1951]
S.C.R. 525, 531) and reiterated recently in Mohd. Hanif Quareshi v. The State of
Bihar ([1959] S.C.R. 629) "The directive principles of State policy have to conform to and run
as subsidiary to the Chapter on Fundamental Rights". Nevertheless, in determining the scope
and ambit of the fundamental rights relied on by or on behalf of any person or body the court
may not entirely ignore these directive principles of State policy laid down in Part IV of the
Constitution but should adopt the principle of harmonious construction and should attempt
to give effect to both as much as possible....(para
possible 8)
■ The court further said that where two interpretation of the law is possible, and one interpretation
validates the law while other interpretation makes the law unconstitutional and void, then the first
interpretation which validates the law should be adopted. But if only one interpretation is possible
which leads to conflict between DPSPs and FRs, the court has no option but to implement FRs in
preference to DPSPs.

34
Fundamental Rights v/s Directive Principles Contd..

■ Keshavnanda Bharti v/s State of Kerala (1973) 4 SCC 225

■ Parliament can amend any part of Constitution, but could not destroy Basic
Structure of the Constitution.
■ The second clause of Article 31C was as declared as unconstitutional and void as it
was against the Basic Structure of the Constitution propounded in this case itself.
■ However, the SC upheld the first provision of the Article 31C.
■ The court also held that the power of Judicial review cannot be taken out by
Parliament.
■ Parliament Reaction:
■ Parliament brought the 42nd Amendment Act in 1976, which extended the scope of
the above first provision of Article 31C
C by including within its purview any law to
implement any of the DPSPs specified in Part IV of the constitutional and not merely
Article 39 (b) or (c).

35
Fundamental Rights v/s Directive Principles Contd...

■ Minerva Mills Ltd. & Ors vs Union Of India & Ors (1980) 3 SCC 625
– A law under Article 31C would be protected only if it is made to implement directives in article 39b and 39 c and
not any other DPSPs.
– The extension to all DPSPs was declared as unconstitutional and void.
■ Supreme held that:
– The main controversy in these petitions centres round the question whether the directive principles of State
policy contained in Art IV can have primacy over the fundamental rights conferred by Part III of the
Constitution...... The competing claims of parts III and IV constitute the pivotal point of the case because, Article
31C as amended by section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive
principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or Article
19. The 42nd Amendment by its section 4 thus subordinates the fundamental rights conferred by Articles 14 and
19 to the directive principles...(para 40)
– ...The nature and quality of the amendment introduced by section 4 of the 42nd Amendment is therefore such
that it virtually tears away the heart of basic fundamental freedoms...(para 61)
– ...If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read
down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or
applied in opposition to the clear intention of the legislature..... Since the amendment to Article 31C was
unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if
those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still
save Article 31C from the challenge of unconstitutionality by reading into that Article words which destroy the
rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose...(para 65)

36
 SEPARATION OF POWERS
“Power corrupts and absolute Power tends to corrupt absolutely.”

■ The Doctrine of Separation of Powers or “trias politica", was proposed by Montesquieu, in his work, De l’espirit des lois,,
an 18th century French social and political philosopher in 1748 although the first thought of separating the legislative
power was proposed by John Locke, into: discontinuous legislative power, continuous legislative power and federative
power.

■ According to Montesquieu:-“when the legislature and executive powers are united in the same person, or in the same
body of magistrates, there can be no liberty….there is no liberty if the powers of judging is not separated from the
legislative and executive….there would be an end to everything, if the same man or the same body were to exercise those
powers”
– His publication, Spirit of the Laws, is considered one of the great works in the history of political theory and jurisprudence,
and it inspired the Declaration of the Rights of Man and the Constitution of the United States.
– Under his model, the political authority of the state is divided into legislative, executive and judicial powers.

■ The Doctrine of Separation of Power is the forerunner to all the constitutions of the world, which came into existence since the
days of the “Magna Carta”.
■ In 1787, The founding fathers of the United States of America, incorporated this principle into their constitution.
■ The sovereign power has been distributed among the three-wings
wings:
Legislature Executive Judiciary

37
Judicial Opinion on the Doctrine of Separation of
Powers
■ In India, the doctrine of separation of powers has not been accorded a constitutional
status.
■ Apart from the directive principle laid down in Article 50 which enjoins separation of
judiciary from the executive, the constitutional scheme does not embody any formalistic
and dogmatic division of powers.
■ The first major judgment by the judiciary in relation to Doctrine of separation of power.
The Supreme Court in Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549 held:
– “Indian Constitution has not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts or branches of
the government have been sufficiently differentiated and consequently it can be
very well said that our Constitution does not contemplate assumption by one organ
or part of the State of functions that essentially belong to another.”

38
■ Later in I.C.GolakNath v State of Punjab AIR 1967 SC 1643,
SubhaRao, C.J opined that:
– “The constitution brings into existence different constitutional entitles, namely the union, the
state and the union territories. It creates three major instruments of power, namely the
Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and
expects them to exercise their respective powers without overstepping there limits. They
should function with the spheres allotted to them”.
■ “Separation of Powers” is embedded in the Indian Constitutional set up as one of its basic features
in Keshavananda Bharati’s case. 1973) 4 SCC 225
■ Then in Indira Gandhi Nehru v. Raj Narain, AIR 1975 SC 2299
– where the dispute regarding P.M. election was pending before the Supreme Court, opined that
adjudication of a specific dispute is a judicial function which parliament, even under constitutional
amending power, cannot exercise i.e. the parliament does not have the jurisdiction to perform a
function which the other organ is responsible for otherwise there will be chaos as there will be
overlapping of the jurisdictions of the three organs of the state.

39
HISTORICAL JUDGMENTS
OF SUPREME COURT
 Champakam Doriarajan v/s State of Madras
(AIR
AIR 1951 SC 226)

Resulted into First Amendment into Indian Constitution

■ It was the first major judgment regarding reservations in Republic of India.
■ In its ruling the Supreme Court upheld the Madras High Court judgment, which in
turn had struck down the Government Order (G.O) passed in 1927 in the Madras
Presidency.
■ The G.O had provided caste based reservation in government jobs and college
seats.
■ The Supreme Court's verdict held that providing such reservations was in violation of
Article 16 (2) of the Indian Constitution..

41
 I C Golaknath v/s State of Punjab
1967 SCR (2) 762
Parliament's prevented from taking away individual rights

■ The issues involved were -

– whether Amendment is a “law” under the meaning of article 13(2), and
– whether fundamental rights can be amended or not.
■ The Apex court with the largest bench that had ever sat on an issue till that time arrived at a 6:5
majority & held that:
– Fundamental Rights are given a transcendental position in the constitution and are not amenable
to the Parliamentary restriction as stated in Article 13.
– A place of permanence is given to the Fundamental Rights in the Constitution.
– In order to amend Fundamental Rights, a new Constituent Assembly is necessary.
– Article 368 provides the procedure to amend the Constitution but does not confer power on
Parliament to amend the Constitution.

42
I C Golaknath v/s State of Punjab Contd..

 Doctrine Of Prospective Overruling

■ The judgment inter alia provides for Prospective Overruling of the law laid down by
this Judgment.
■ The doctrine of prospective overruling implies that the effects of the law to be laid
down will be applicable on the future dates only i.e. past decisions will not be
affected by this decision.
 Aftermath Of Golaknath case:
■ To nullify the Golaknath verdict, Parliament enacted the 24th Amendment to the
Constitution, laying down that its powers to amend the Constitution were
unrestricted and unlimited.

43
 Keshavnanda Bharti v/s State of Kerala
(1973) 4 SCC 225
Fundamental rights case
■ This is a landmark decision of the Supreme Court of India that outlined the basic structure doctrine of
the Constitution.

■ Issue : Was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter,
amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?

■ Verdict :
■ The 703-page judgment revealed a sharply divided court and, by a wafer-thin majority of 7:6, it was held that:
– Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic
structure or essential features of the Constitution.”
Constitution
– This was the inherent and implied limitation on the amending power of Parliament.
– It declared Article 31 C as unconstitutional and invalid on the ground that judicial review is basic
structure and hence cannot be taken away.

44
Keshavnanda Bharti v/s State of Kerala Contd..

■ Nature and special features of Indian Constitution: Philosophy and principle underlying the constitution:
■ Supreme court observed that:
■ ...Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with
diverse people speaking different languages and professing varying religions. It was chiselled and shaped by great
political leaders and legal luminaries, most of whom, had taken an active part in the struggle for freedom from the
British yoke and who knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and from
the point of view of exploitation of the millions of Indians.
Indians The Constitution is an organic document which must grow and
it must take stock of the vast socioeconomic problems, particularly, of improving the lot of the common man consistent
with his dignity and the unity of the nation... (para 482)
■ ...The Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the
other and each of them has to function within the four-corners
corners of the Constitutional provisions. All the functionaries, be
they legislators, members of the executive or the judiciary take oath of allegiance to the Constitution and derive their
authority and jurisdiction from its provisions. The Constitution has entrusted to the judicature in this country the task of
construing the provisions of the Constitution and of safeguarding the fundamental rights...(para 486)
■ ...Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy
and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former
remains constant but the latter is subject to change. The core of a religion always remains constant but the practices
associated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that
they cannot be changed or destroyed. In any event it cannot be destroyed from within...(para 651)
■ ...A Constitution cannot be regarded as a mere legal document to be read as a will or an agreement nor is Constitution
like a plaint or a written statement filed in a suit between two litigants. A Constitution must of necessity be the vehicle of
the life of a nation...(para 1437)

45
Keshavnanda Bharti v/s State of Kerala Contd…

 Basic Structure includes:

■ Supremacy of the Constitution
■ Republican and democratic form of government
■ Secular character of the Constitution
■ Separation of powers between the legislature, executive and the judiciary
■ Federal character of the Constitution
■ The mandate to build a welfare state
■ Unity and integrity of the nation
■ Sovereignty of India
■ Democratic character of the polity
■ Essential features of the individual freedoms secured to the citizens

■ This case upheld the changes in 24th amendment in Article 368 and Article 13 of Indian Constitution by
overruling Golaknath Judgment.

■ It determined the fabric of Indian constitution which is still relevant and serving as Fundamental Rights
case.

46
 Minerva Mills v Union of India
AIR 1980 SC 1789
Parliament limited by itself
 Facts of the Case:

■ The Parliament in order to serve general public interest came up with a noble solution by reconstructing bad assets of companies having
importance to the general public. Therefore, in accordance with the achievement of the said solution the Parliament enacted The sick textile
undertakings (taking over of management) Act, 1974 on December 24,24 1974.

■ Minerva Mills was a textile industry in the State of Karnataka engaged in the mass production of silk clothes and provided market to the
general public.

■ The Central Govt. was suspicious that company fulfilled the criteria to be classified as a sick industry.

■ Therefore, the Central Govt. in 1970 appointed a committee u/s 15 of the Industries (Development and Regulation) Act, 1951 for making a full
detailed report analyzing the affairs of Minerva Mills.

■ Relying on the Committee’s report, on October 19, 1971 the Central govt. empowered National Textile Corporation Limited (a body under the
1951 act) to take over the management of Minerva Mills u/s 18A of the 1951 act.

■ Earlier through 39th Constitutional (Amendment) Act, 1975 the Parliament inserted Nationalization Act, 1974 into Ninth Schedule which means
that any challenge on the said act was outside the purview of judicial review.

■ Now, the petitioner was not able to challenge this aspect of 39th amendment since this remedy was barred by 42ndAmendment.

■ The Parliament, in order to make its power and authority supreme, passed 42nd amendment to bar any challenge on constitutional
amendments in courts of law.
47
Minerva Mills v Union of India

 Issue:
– To check the Constitutional Validity of 42nd Constitutional (Amendment) Act, 1976.
 VERDICT:
– The Apex Court struck down Section 55 & 4 of the 42nd Amendment as it was in
violation of basic structure thereby upholding the Basic Structure doctrine laid down
by Kesavananda Bharti.
– The court held Section 55 of the amendment act 1976 void since it firstly made
challenge in court impossible & secondly it removes all the restrictions on the power of
Parliament under Article 368.
– As regards to Section 4 of the amendment act 1976 which tried to separate Article 14
and 19 from Article 31 C this was held void as it destroyed the basic feature.

48
 Indira Gandhi v Raj Narain
AIR 1975 SC 2299
The trigger that led to the imposition of emergency
■ In this landmark case regarding election disputes, the primary issue was the validity of 39th Amendment Act, 1975.
■ The Constitution (Thirty-ninth Amendment) Act, 1975 contains three principal features.
– First, Article 71 has been substituted by a new Article 71. The new Article 71 states that subject to the provisions of the Constitution,
Parliament may by law regulate any matter relating to or connected with the election of a President or Vice-President including the
grounds on which such election may be questioned.
– The second feature is insertion of Article 329A in the Constitution.
Constitution
■ There are six clauses in Article 329A.
– The first clause states that subject to the provisions of Chapter II of Part V [except sub-clause (e) of clause (1) of Article 102] no
election to either House of Parliament of a person who holds the office of Prime Minister at the time of such election or is appointed
as Prime Minister after such election; and to the House of the People of a person who holds the office of Speaker of that House at
the time of such election or who is chosen as the Speaker for that House after such election; shall be called in question, except
before such authority [not being any such authority as is referred to in clause (b) of Article 329]or body and in such manner as may
be provided for by or under any law made by Parliament and any such law may provide for all other matter relating to doubts and
disputes in relation to such election including the grounds on which such election may be questioned.
– Under the second clause the validity of any such law as is referred to in clause (1) and the decision of any authority or body under
such law shall not be called in question in any court.
– The third clause states that where any person is appointed as Prime Minister or, as the case may be, chosen to the office of the
Speaker of the House of the People, while an election petition referred to in Article 329(b) in respect of his election to either House
of Parliament or, as the case may be, to the House of the People is pending, such election petition shall abate upon such person
being appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of the House of the People, but
such election may be called in question under any such law as is referred to in clause (1).

49
 – The fourth clause which directly concern the present appeals states that no law made by Parliament before the commencement of
the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith,
shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1),
to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which
such election could be declared to be void under any such law and notwithstanding any order made by any court, before such
commencement, declaring such election to be void, such election to be void, such election continue to be valid in all respect and
any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no
effect.
– The fifth clause states that any appeal or cross appeal against any such order of any court as is referred to in clause (4) pending
immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be
disposed of in conformity with the provisions of clause (4)..
– The sixth clause states that the provisions of this article shall have effect notwithstanding anything contained in the Constitution.

■ The Supreme Court held clause 4 of Article 329 A as unconstitutional and void on the ground that it was outright denial
of the right to equality enshrined in Article 14.
■ It was the first time in independent India’s history that the Prime Minister’s election was set aside.
■ The Supreme Court also added the following features as “basic features” laid down in Keshavananda Bharti case –
– democracy,
– judicial review,
– rule of law and
– jurisdiction of Supreme Court under Article 32.

50
 Additional District Magistrate (ADM)
ADM) Jabalpur v Shivakant Shukla Case
(1976) 2 SCC 521
Popularly known as the Habeas Corpus case
 Widely considered as a violation of Fundamental Rights.
Rights
 Facts of the case:
■ On 25 June 1975, the then Prime Minister of India invoked Article 359 and imposed a state of Emergency citing “internal
disturbances”.
■ Consequently, all rights guaranteed by the Constitution under Article 14 (right to equality before the law), Article 21 (protection of life
and liberty) and Article 25 (protection against arrest and detention) – were suspended.
■ Thousands, mostly political rivals and some members of the Press, were detained without trial under Preventive Detention Laws, one
of which was the dreaded Maintenance of Internal Security Act (MISA).
(MISA
 Verdict:
■ The Supreme Court held that Liberty is confined and controlled by law, whether common law or statute. It is a regulated freedom. It is
not an abstract or absolute freedom. If extraordinary powers are given, they are given because the Emergency is extraordinary, and
are limited to the period of the Emergency and finally observed that:
that
– “In view of the Presidential Order dated 27th June 1975 no person has any locus to move any writ petition under Article 226
before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention
on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal
or is based on extraneous considerations.”
■ Thus Supreme Court declared that the rights of citizens to move the court for violation of Articles 14, 21 and 22 would remain
suspended during emergencies.

51
ADM Jabalpur v Shivakant Shukla Case Contd…

The only lone dissenting and clear voice was of Justice H.R.Khanna who paid the price of
Chief Justiceship of the Apex Court.
Tribute to Justice H.R.Khanna:
“Question then arises as to whether the rule that no one shall be deprived of his life or personal liberty without the authority of law still
survives during the period of emergency despite the Presidential order r suspending the right to move any court for the enforcement of the
right contained in article 21. The answer to this question is linked with the answer to the question as to whether article 21 is the sole
repository of the right to life and personal liberty. After giving the matter my earnest consideration, I am of the opinion that article 21 cannot
be considered to be the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right
of human beings in civilised societies governed by the rule of law”.

“Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a facet of higher values which mankind
began to cherish in its, evolution from a state of tooth and claw to a civilized existence. The principle that no one shall be deprived of his life
and liberty without the authority of law was not the gift of the Constitution.”
Constitution

“On the plain language of article 359(1), the President has no power to suspend the right to move any court for the enforcement of rights
which are not fundamental rights conferred by Part III of the Constitution.
Constitution Rights created by statutes are not fundamental rights conferred by
Part III of the Constitution and as such enforcement of such statutory rights cannot be suspended under article 359(1)...The Presidential
order cannot put the detenu in a worse position than that in which he would be if article 21 were repealed It cannot be disputed that if article
21 were repealed, a detenu would not be barred from obtaining relief under a statute in case there is violation of statutory provisions.
Likewise, in the event of repeal of article 21, a detenu can rightly claim in a court of law that he cannot be deprived of his life or personal
liberty without the authority of law. A provision which has the effect of ousting the jurisdiction of the court should be construed strictly. No
inference of the ouster of the jurisdiction of the court can not be drawn unless such inference is warranted by the clear language of the
provision ousting such Jurisdiction”.

Therefore, he reasoned that even in the absence of Article 21 in the constitution, the state has got
no power to deprive a person of his life or liberty without the authority of law.

52
 Maneka Gandhi v/s Union of India
1978 SCR (2) 621
Transformation of the judicial view on Article 21 of the Constitution of
India
■ Facts of the case:
■ Maneka Gandhi was issued a passport under the Passport Act 1967.
■ The regional passport officer, New Delhi, issued a letter addressed to Maneka Gandhi, in which she was
asked to surrender her passport under section 10(3)(c)of
10 the Act in public interest, within 7 days from the
date of receipt of the letter.
■ Maneka Gandhi immediately wrote a letter to the Regional Passport officer, New Delhi seeking in return a
copy of the statement of reasons for such order.
■ However, the government of India, Ministry of External Affairs refused to produce any such reason in the
interest of general public.
■ Later, a writ petition was filed by Maneka Gandhi under Article 32 of the Constitution in the Supreme
Court challenging the order of the government of India as violating her fundamental rights guaranteed
under Article 21 of the Constitution.

53
Maneka Gandhi v/s Union of India Contd..

■ ISSUES OF THE CASE–

■ Whether right to go Abroad is a part of right to personal liberty under Article 21.
■ Whether the Passport Act prescribes a ‘procedure’ as required by Article 21 before
depriving a person from the right guaranteed under the said article.
■ Whether section 10(3)(c) of the Passport Act is violative of Article 14,19(1) (a) and
21of the constitution.
■ Whether the impugned order of the Regional passport officer is in contravention of
the principle of natural justice.

54
Maneka Gandhi v/s Union of India Contd..

■ Verdict:
■ To the extent to which section 10(3)(c) of the Passport Act, 1967 authorises the passport authority
to impound a passport “in the interest of the general public”, it is violative of Article 14 of the
Constitution since it confers vague and undefined power on the passport authority.
■ Section 10(3)(c) is void as conferring an arbitrary power since it does not provide for a hearing to
the holder of the passport before the passport is impounded.
■ Section 10(3)(c) is violative of Article 21 of the Constitution since it does not prescribe ‘procedure’
within the meaning of that article and the procedure practiced is worst.
■ Section 10(3)(c) is against Articles 19(1)(a) and 19(1)(g) since it permits restrictions to be imposed
on the rights guaranteed by these articles even though such restrictions cannot be imposed under
articles 19(2) and 19(6).
■ The right to travel and go outside the country is included in the right to personal liberty guaranteed
under Article 21.

55
 Three Judges cases:

■ S. P. Gupta v. Union of India - 1982 (also known as the Judges' Transfer case)
■ Supreme Court Advocates-on Record Association vs Union of India - 1993
■ In Special Presidential Reference under Article 143(1) Of the Constitution of India
on Principles and Procedure regarding appointment of Supreme Court and High
Court Judges Vs Unknown on 1998

56
 S. P. GUPTA V. UNION OF INDIA
AIR 1982 SC 149
THE JUDGES' TRANSFER CASE
■ THE FIRST JUDGES CASE:
■ In the appointment of a judge of the Supreme Court or the High Court, the word
“consultation” in Article 124(2) and in Article 217(1) of the Constitution does not
mean “concurrence”.
■ It declared that the “primacy” of the CJI’s recommendation on judicial appointments
and transfers can be refused for “cogent reasons.”
■ In the event of a disagreement, the “ultimate power” would rest with the Union
Government and not the CJI
■ The ruling gave the Executive primacy over the Judiciary in judicial appointments for
the next 12 years.

57
 Supreme Court Advocates on Record Association V/S
Union of India
(1993) 4 SCC 441

■ THE SECOND JUDGES CASE

■ In 1993, hearing petitions regarding court vacancies, the First Judges Case has referred again to a nine-
judge Bench.
■ The Supreme court overruled the First Judges Case holding that in the event of conflict between the
President and the CJI with regard to appointments of Judges, it was the Chief Justice of India whose
opinion would not only have primacy, but would be determinative in the matter.
■ It also gave birth to the Collegium System.
■ Appointments of the judges would be decided by the CJI and
– the two most-senior judges after the CJI in the SC when it comes to appointing SC judges;
– the two most senior judges of the respective HC when it comes to appointing judges to that
particular HC.

58
In Re Principles and Procedure regarding appointment of Supreme Court
and High Court Judges
AIR 1999 SC 1

■ THE THIRD JUDGES CASE

■ The decision was rendered by 9 Judges bench and five judgments were delivered.
delivered
■ The Supreme Court had laid down the procedural norms for appointment of Judges
of Supreme Court and High Court.
■ The Court reaffirmed its 1993 judgment and expanded the Collegium to include the
CJI and the four most-senior judges of the court after the CJI.

59
 Waman Rao v Union of Indian
AIR 1981 SC 271
Constitutional validity of individual rights upheld
■ This case was a landmark decision in the constitutional jurisprudence of India.
■ SC ruled that
– Parliament had transgressed its power of constitutional amendment.
– all the amendments to the constitution which were made before 24 April 1973(the date on which
the court delivered its verdict in the Kesavananda Bharati case) and by which the Ninth Schedule
was amended from time to time by the inclusion of various Acts and Regulations therein are valid.
– But, all the amendments made after 24 April 1973 are open to challenge on the ground that they
are beyond the constitutent power of the Parliament, since they damage the basic strructure of the
Constitution.
■ Thus this case has helped in determining a satisfactory method of addressing grievances pertaining to
the violation of fundamental rights by creating a fine line of determination between the Acts prior to and
after the Keshavananda Bharati case.

60
 Mohammed Ahmed Khan v/s Shah Bano Begum
1985
A legal milestone in battle for protection of rights of Muslim women.
 Facts of case:

■ In April 1978, a 62-year-old

old Muslim woman, Shah Bano, filed a petition under section 125
CrPC demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer
in Indore, Madhya Pradesh.
■ Khan had granted her irrevocable talaq later in November.
 Issues Raised In This Case:-

– Whether Section 125 of the Code Of Criminal Procedure is concerned with Muslims or
not.
– Whether the amount of Mehr given by the husband on divorce is adequate to get the
husband rid and is liable to maintain his wife or not.
– whether Uniform Civil Code applies to all religions or not.

61
Mohammed Ahmed Khan v/s Shah Bano Begum Contd..

 Verdict:

■ The court held that Section 125[3]of Code Of Criminal Procedure solicited to Muslims too, without any sought of discrimination

■ It duly held that, since responsibility of Muslim husband towards her divorced wife is limited to the extent of " Iddat" period , even though this situation
does not contemplates the rule of law that is mentioned in Section 125 of CrPc.,1973

■ According to Supreme Court this rule according to Muslim Law was against humanity or was wrong because here a divorced wife was not in a condition to
maintain herself.

■ Thus at the end, after very long procedure court finally concluded that the husband’s legal liability will come to an end if divorced wife is competent to
maintain herself.

■ But this situation will be reversed in the case when wife is not able in a condition to finance or maintain herself after the Iddat period, she will be entitle
to receive maintenance or alimony under Section 125 of CrPc.

 Aftermath of Judgment:

■ The judgement given in Shah Bano Case was criticized among Muslims and according to them this decision was in conflict with the rules of "Quran" and
"Islamic Laws/ Islam".

■ In 1986, the Parliament of India passed an act titled The Muslim Women (Protection of Rights on Divorce) Act, 1986, that nullified the Supreme Court's
judgment in the Shah Bano judgment.
– Diluting the Supreme Court judgment, the act allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the
divorce, according to the provisions of Islamic law.
– This was in stark contrast to Section 125 of the Code.
– The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only."

62
 Indira Sawhney v Union of India
AIR 1993 SC 477
Reservation in central government jobs

■ Attempt to correct historic injustices constitutionally.

constitutionally
■ The decision is given by the 6:3 majority held that the decision of the Union
Government to reserve 27% Government jobs for SEBCs provided them Creamy layer
among them eliminated is constitutionally valid.
■ The court struck down the second provision of Office Memoranda and held that
reserving 10% Government jobs for economically backward classes among higher
caste is not valid.
■ The constitutional bench held in this matter that caste could be a factor for
identifying backward classes.

63
 S R Bommai v Union of India
AIR 1994 SC 1918
Power of President's Rule curtailed
■ Put an end to the arbitrary dismissal of State governments by a hostile Central government:
■ Held:

■ The power of the President to dismiss a State government is not absolute.

■ The President should exercise the power only after his proclamation (imposing his/her rule) is approved by both
Houses of Parliament.

■ Till then, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution
relating to the Legislative Assembly.

■ "The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found
necessary for achieving the purposes of the Proclamation," the Court said.

■ "In case both Houses of Parliament disapprove or do not approve the Proclamation, the Proclamation lapses at
the end of the two-month period. In such a case, the government which was dismissed revives.

■ Also the Court made it amply clear that a Presidential Proclamation under Article 356 is subject to judicial
review.

64
 IMPORTANT JUDGMENTS
DELIVERED BY THE SUPREME
COURT RECENTLY
 TRIPLE TALAQ CASE
■ Set aside the practice of triple talaq:
■ Facts of case:
■ Shayara Bano was married for 15 years. In 2016, her husband divorced her through talaq–e-
bidat (triple talaq).
■ This is an Islamic practice that permits men to arbitrarily and unilaterally effect instant and
irrevocable divorce by pronouncing the word ‘talaq
talaq’ (Arabic for divorce) three times at once in oral,
written or, more recently, electronic form.
■ Ms Bano argued before the Supreme Court of India that three practices – triple talaq, polygamy,
and nikah halala (the practice requiring women to marry and divorce another man so that her
previous husband can re-marry her after triple talaq)
talaq –were unconstitutional.
■ Specifically, she claimed that they violated several fundamental rights under the Constitution of
India (Constitution) namely, Articles 14 (equality before the law), 15(1) (prohibition of
discrimination including on the ground of gender), 21 (right to life) and 25 (freedom of religion).

66
TRIPLE TALAQ CASE Contd..

■ The Supreme Court focused solely on the practice of triple talaq.

■ Thus held by majority (3:2)that Practice of Talaq-e e-biddat or triple talaq is not protected under Article 25
of Constitution as it is not an essential religious practice.
practice Thus Court observed:
– Last of all, the Attorney General pointed out, the prevailing international trend all around the world,
wherein the practice of divorce through ‘talaqtalaq-e-biddat’, has been statutorily done away with (-for
details, refer to Part-5 – Abrogation of the practice of ‘talaq-e-biddat’ by legislation, the world over,
in Islamic, as well as, non-Islamic States). On the basis of the submissions noticed above, it was
contended, that it was extremely significant to note, that a large number of Muslim countries, or
countries with a large Muslim populations such as, Pakistan, Bangladesh, Afghanistan, Morocco,
Tunisia, Turkey, Indonesia, Egypt, Iran and Sri Lanka had undertaken significant reforms and had
regulated divorce law. It was pointed out, that legislation in Pakistan requires a man to obtain the
permission of an Arbitration Council. Practices in Bangladesh, it was pointed out, were similar to
those in Pakistan....It was submitted, that even Islamic theocratic States, have undergone reform in
this area of the law, and therefore, in a secular republic like India, there is no reason to deny
women, the rights available all across the Muslim world. The fact that Muslim countries have
undergone extensive reform, it was submitted, also establishes that the practice in question is not
an essential religious practice...(para 235).
– Shayara Bano vs Union of India (2017) 9 SCC 1

67
 SABARIMALA

■ Devotion Cannot Be Subjected To Gender Discrimination:

■ The Supreme Court delivered one of the most keenly awaited judgment by a 4:1 majority,
the Court has permitted entry of women of all age groups to the Sabarimala temple,
holding that ‘devotion cannot be subjected to gender discrimination’.
■ The lone woman in the bench, Justice Indu Malhotra, dissented.

 Indian Young Lawyer’s Association & Ors. V/S State of Kerala & Ors
(2017) 10 SCC 689

68
 HOMOSEXUALITY

■ 157-Year-Old
Old Law Criminalizing Consensual Homo-Sexual
Homo Acts Between Adults Struck Down:

■ The Five Judge Bench declared Section 377 IPC unconstitutional, insofar as it criminalises
consensual sexual acts of adults in private.
■ This decision overturns the 2013 ruling in Suresh Kumar Koushal vs. Naz Foundation in which the
court upheld the law.
■ However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts,
and bestiality remain in force.

 Navtej Singh Johar& Ors. V/S Union of India (2018) 10 SCC 1

69
 ADULTERY

■ ‘Husband Is Not The Master Of Wife’, 158 Year Old Adultery Law Under Section 497 IPC
Struck Down

■ The Supreme Court struck down Section 497 of the Indian Penal Code, which criminalizes
adultery, as unconstitutional.
■ The Court however clarified that:
– adultery will be a ground for divorce;
– if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could
be prosecuted for abetment of suicide under Section 306 of the IPC.

 Joseph Shine V. Union of India (2018) 2 SCC 189

70
 EUTHANASIA

■ Right To Die With Dignity A Fundamental Right:

■ Supreme Court of India held that:
– Right to die with dignity is a fundamental right.
– Passive euthanasia and a living will also legally valid.
– Right to live with dignity also includes the smoothening of the process of dying
in case of a terminally ill patient or a person in Persistent vegetative state with
no hope of recovery.

 Common Cause (A Regd. Society) V. Union of India & Anr (2018) 5 SCC 1

71
 SECTION 498A IPC

■ Modifies The Earlier Directions Issued To Prevent Misuse Of 498A IPC, Says No To
‘Welfare Committees’:
Committees
■ Supreme Court of India has modified its directions issued in Rajesh Sharma case for
preventing misuse of Section 498A of Indian Penal Code.
■ A three judges’ bench led by CJI has withdrawn the earlier direction issued by a two
judges bench that complaints under Section 498A IPC should be scrutinized by Family
Welfare Committees before further legal action by police.
 Social Action Forum For Manav Adhikar V. Union of India
(2018) 10 SCC 443

72
LIVE STREAMING OF SUPREME COURT PROCEEDINGS
OF CONSTITUTIONAL IMPORTANCE

■ Sunlight Is The Best Disinfectant: Live-Streaming

Streaming Of Court Proceedings In Larger Public
Interest Allowed

■ Supreme Court held that the Court proceedings shall be live-streamed in the larger
public interest.
■ Live streaming of court proceedings will effectuate the "public right to know" and bring in
more transparency in judicial proceedings..
■ However, the process of live-streaming should be subjected to carefully structured
guidelines.
 Swapnil Tripathi V/S Supreme Court of India
(2018) 10 SCC 639

73
 LYNCHING

■ Lynching Incidents Condemned:

■ While condemning the practice of cow vigilantism, lynching and mob violence, the Apex Court has issued a host of
guidelines underlining preventive, remedial and punitive measures for the purposes of preventing such heinous
activities.
■ The Three-Judge Bench of the Supreme Court recognized the act of lynching as unlawful and while condemning the
inhumane act of cow vigilantes remarked:
– “That there cannot be a right higher than the right to live with dignity and further to be treated with humanness that the law
provides. What the law provides may be taken away by lawful means; that is the fundamental concept of law. No one is
entitled to shake the said foundation. No citizen can assault the human dignity of another, for such an action would comatose
the majesty of law. In a civilized society, it is the fear of law that prevents crimes. Commencing from the legal space of
democratic Athens till the legal system of modern societies today, the law makers try to prevent crimes and make the people
aware of the same but some persons who develop masterly skill to transgress the law jostle in the streets that eventually
leads to an atmosphere which witnesses bloodshed and tears. When the preventive measures face failure, the crime takes
place and then there have to be remedial and punitive measures.
measures Steps to be taken at every stage for implementation of law
are extremely important.”

 Tehseen S. Poonawalla V. Union of India & Ors. (2018) 9 SCC 501

74
 VICTIM APPEAL AGAINST ACQUITTAL

■ Victim Can File Appeal Against Acquittal Without Seeking Leave To Appeal: SC,
Justice Gupta Dissents
■ Deciding the issue by a 2:1 majority judgment,
judgment a three-judge bench said that Section
372 of CrPC (which deals with provision of appeals in criminal cases) has to be given
"realistic, liberal, progressive" interpretation to benefit the victim of an offence.
■ Besides the state, a victim can also file an appeal under Section 372 of the Criminal
Procedure Code without prior approval of the appellate court.
 Mallikarjun Kodagali (Dead) ... vs The State Of Karnataka
Criminal Appeal Nos. 1281-82
82 of 2018 Decided on October 12, 2018

75
STAY IN CIVIL/CRIMINAL PROCEEDINGS NOT MORE
THAN SIX MONTHS
■ Stay In Civil/Criminal Proceedings Not To Be Granted Beyond Six Months; Further
Extension Only By Speaking Order:
■ In a very significant judgment, the Supreme Court directed that in all pending cases
where stay against proceedings of a civil or criminal trial is operating, the same will
come to an end on expiry of six months from today unless in an exceptional case by
a speaking order such stay is extended.
– It also held that where stay is granted in future, the same will end on the expiry
of six months from the date of such order unless a similar extension is granted
by a speaking order.

 Asian Resurfacing of Road Agency Pvt. Ltd.& Anr. VS. Central

Bureau of Investigation
Criminal Appeal Nos. 1375-1376
1376 of 2013 Decided on March 28, 2018

76
 SC-ST
ST ACT MISUSE
■ Supreme Court Issues Directions To Prevent Misuse Of SC/ST Act:
■ There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima
facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.
■ In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public
servant can only be after approval of the appointing authority and of a non-public servant after approval
by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded.
Such reasons must be scrutinized by the Magistrate for permitting further detention.
■ To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP
concerned to find out whether the allegations make out a case under the Atrocities Act and that the
allegations are not frivolous or motivated.
■ Any violation of direction (2) and (3) will be actionable by way of disciplinary action as well as contempt
 Dr. Subhash Kashinath Mahajan V. State of Maharashtra & Anr.
(2018) 6 SCC 454

77
 SLP AGAINST DEATH SENTENCE

■ The Supreme Court held that:

– ….Special Leave Petitions filed in those cases where death sentence is awarded by the courts
below should not be dismissed without giving reasons, at least qua death sentence. There may be
cases where at the Special Leave Petition stage itself, the Court may find that insofar as conviction
is concerned there is no scope for interference at all as such a conviction for offence under
Section 302 is recorded on the basis of evidence which is impeccable, trustworthy, credible and
proves the guilt of the accused beyond any shadow of doubt. At the same time, if death penalty is
to be affirmed even while dismissing the Special Leave Petition in limine, it should be by a
reasoned order on the aspect of sentence, at least... (para 15).
 Babasaheb Maruti Kamble V. State of Maharashtra
■ Review Petition (Criminal) No. 388 of 2015 In Special Leave Petition (Criminal) No. 458 of 2015
■ Decided on November 1, 2018

78
 WITNESS EXAMINATION IN CRIMINAL TRIAL
■ Directions Issued On Examination Of Witnesses In Criminal Trial
■ The following practice guidelines should be followed by trial courts in the conduct
co of a criminal
trial, as far as possible:
i. a detailed case-calendar must be prepared at the commencement of the trial after framing of
charges;
ii. the case-calendar must specify the dates on which the examination-in-chief and cross-
examination (if required) of witnesses is to be conducted;
iii. the case-calendar must keep in view the proposed order of production of witnesses by parties,
expected time required for examination of witnesses, availability of witnesses at the relevant
time, and convenience of both the prosecution as well as the defence, as far as possible;
iv. testimony of witnesses deposing on the same subject-matter must be proximately scheduled;
v. the request for deferral under Section 231(2)) of the Cr.P.C. must be preferably made before the
preparation of the case-calendar;

79
vi. the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-
examination of each witness, or set of witnesses;
witnesses

vii. while granting a request for deferral of cross-examination

examination of any witness, the trial courts must specify a
proximate date for the cross-examination of that witness, after the examination-in-chief of such
witness(es) as has been prayed for;

viii. the case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless
departure from the same becomes absolutely necessary;
necessary

ix. in cases where trial courts have granted a request for deferral, necessary steps must be taken to
safeguard witnesses from being subjected to undue influence, harassment or intimidation.
 State of Kerala V. Rasheed
Criminal Appeal No. 1321 of 2018 Decided on October 30, 2018

80
 Pre-Constitutional
Constitutional Position of Right to
Property
■ The Constitution of India derives its foundation from the Government of India Act, 1935 and the Universal Declaration of Human
Rights (1948).

■ Section 299 of the Government of India Act, 1935 secured the right to property and contained safeguards against expropriation
without compensation and against acquisition for a non-public
public purpose. Article 17 of the Universal Declaration of Human Rights
(1948) also recognises the right to private property and India is a signatory to that Declaration.

■ The Constituent Assembly examined the constitutions of various countries, which guarantee basic rights.

■ The debates in the Constituent Assembly when the draft Article 19(1)(f) and Article 31 came up for discussion clearly indicate that
the framers of our Constitution attached sufficient importance to property to incorporate it in the chapter of fundamental rights.

■ Article 19(1)(f) of the Indian Constitution which declared that ‘all the persons shall have the right ‘to acquire, hold and dispose of property’
along with Art.31 which provided certain safeguards against the compulsory acquisition of individual properties which was based on English
concept of private property and was modelled on basis of Sec 299 of Government of India Act, 1935. As regards the constitutional
provision relating to it Art 19 (1)(f) was subjected to reasonable restrictions under art 19(5).

81
 Post Constitutional Developments

■ After the Constitution of India came into force, the following agrarian reforms were introduced:
– (1) Intermediaries were abolished
– (2) Ceiling was fixed on land holdings
– (3) The cultivating tenant within the ceiling secured permanent rights
– (4) In some states, the share of the landlord was regulated by the law
– (5) In one state, the tiller of the soil secured cultivating rights against the absentee
landlord, and in some states, the rural economy was re-adjusted
re in such a way, that the
scattered bits of land of each tenant were consolidated in one place by a process of
statutory exchange. [14]
■ These reforms certainly implement the Directive principles of state policy.

82
 Abolition of Right to Property: The Forty-Fourth
Forty Constitution Amendment
1978
 Transformation From Fundamental Right to Legal Right

■ The aftermath of the emergency witnessed not only changes in the political environment of the country but also in the realm of constitutional law .

■ The Constitution (42nd Amendment) Act, 1976 made comprehensive changes in the Constitution primarily with the objective of removing “the impediments to growth of
the Constitution”.

■ The amendments were to spell out high ideas of secularism, socialism, democracy, to make Directive principles more comprehensive and give them precedence over
fundamental rights .

■ The Act of 1976 widened the scope of 31(c) so as to cover all the Directive Principles to be given precedence over the fundamental rights.

■ Further three new articles 39 A ,43A and 48A were inserted in Part IV .

■ In 1980, the Supreme Court re-established its power as the protector of the Constitution in the Minerva Mills v/s Union of India (1980) 3 SCC 625, by declaring
unconstitutional the part of the Forty-second Amendment, which prevented any constitutional amendment from being “called in question in any Court on any ground”.
The Court also struck down the amendment that gave precedence to the Directive Principles over the fundamental rights35 and reiterated that,
• “All constitutional amendments made after the decision in Kesavananda Bharati case would have to be decided by reference to the ‘basic structure’
doctrine…”

■ After the Janta Government took over the reins at he Centre , it sought to undo the amendments made under 42nd Amendment Act.

■ It enacted 44th Amendment Act ,1978 which brought about one of the most significant change as it resulted in the deletion of right to property as a fundamental right
and provided for its reincarnation as art 300-A to recognize it as a legal right.

■ The scope of Art 300-A was determined by the Supreme Court in Jilubhai Nanbhai Khachar v. State Of Gujarat AIR 1995 SC 142 and it was held that
– Right to property does not form the basic structure of the Constitution and also expression ‘property’ in article 300-A has to be understood in the context of
the sovereign power of eminent domain of the State.

83
LAND REFORMS IN INDIA
 Introduction

■ The term ‘land reforms’ refers to reforms undertaken in the land tenure system.
■ Land reform usually refers to redistribution of land from the rich to the poor.
■ More broadly, it includes regulation of ownership, operation, leasing, sales, and
inheritance of land (indeed, the redistribution of land itself requires legal changes).
■ Thus, in a broad sense, land reform refers to an improvement in agro-economic
institutions.

85
 NEED FOR LAND REFORMS

■ Land ownership was highly unequal at the time of Independence.

■ There was a parasitic class of intermediaries who played no role in production.
■ On the other hand, the vast majority of actual cultivators were either tenants or
subtenants, without any security of tenure.
tenure
– According to the National Commission on Agriculture (1976), this was the root cause of the
state of chronic crisis in which Indian agricultural economy was enmeshed before the
attainment of Independence.
■ Before Independence, there were three major systems of land tenure, namely:
i. Zamindari System,
ii. Mahalwari System and
iii. Ryotwari System.

86
NEED FOR LAND REFORMS Contd….

 Zamindari System
■ The Zamindari system was introduced by Lord Cornwalis in 1793 through permanent
settlement that fixed the land rights of zamindars in perpetuity without any provision
for fixed rents or occupancy rights for actual cultivators.
■ Under the permanent settlement, zamindars were found to be more interested in
higher rent than in agricultural improvement.
improvement
■ During the early nineteenth century, efforts were made to undo the adverse effects
of permanent settlement and to provide for temporary settlement as a matter of
policy.
■ Regulation VII of 1822 Act provided for temporary settlement with provision for
periodic settlement in parts of the United Provinces.

87
NEED FOR LAND REFORMS

 Ryotwari System
■ In the provinces of Madras and Bombay, ryotwari system was prevalent.
■ Each ryot was recognised by law as the proprietor with the right to transfer or
mortgage or sub-let his land.
 Mahalwari System
■ In parts of United Provinces and Punjab, Regulation VII of 1822 Act and Regulation
IX of 1833 Act provided for Mahalwari Settlement with the entire village community.
■ This required each peasant of the village to contribute to total revenue demand of
the village on the basis of the size of holding.

88
NEED FOR LAND REFORMS

■ In 1885, the Bengal Tenancy Act was passed with a view to conferring occupancy
rights upon ryots who were in continuous possession of land for 12 years.
■ The tenant could not be evicted by the landlord, except by a decree of court.
■ Similarly, the Bihar Tenancy Act of 1885 and Orissa Tenancy Act of 1914 granted
occupancy rights to tenants.
■ Besides, the Madras Tenancy Act of 1908 provided for protection of ryots from
eviction as long as they paid the rents.
■ Nevertheless, since majority of actual cultivators were unrecorded tenants-at-will,
these legal measures could not bring much relief to the tiller of the soil.

89
NEED FOR LAND REFORMS

■ The leased-in area constituted nearly 35 per cent of the total operated area in
1950-51.
■ Most of the leases were unwritten and tenants did not have legal security of tenure.
■ The rents varied from 50 per cent to 70 per cent of gross produce.
■ In addition, tenants were often asked to provide free labour to landlords.
■ After Independence therefore, it became necessary to undertake some land reforms
measures for removing the feudal character of the agrarian economy and paving the
way for rapid agricultural growth with social justice.

90
NEED FOR LAND REFORMS

■ Broadly speaking, the objectives of agrarian reforms are as follows:

i. To change the unequal and unproductive agrarian structure;
ii. To remove exploitative agrarian relations, often known as patron-client
patron relationship
in agriculture,
iii. To promote agriculture growth with social justice.

91
 LAND REFORMS MEASURES

■ After Independence, the Indian National Congress appointed the Agrarian Reforms
Committee under the Chairmanship of J.C. Kumarapppa, for making an in-depth
study of the agrarian relations prevailing in the country.
■ The committee submitted its report in 1949 which had a considerable impact on the
evolution of agrarian reforms policy in the post-independence period.
■ The committee recommended that all intermediaries between the state and the tiller
should be eliminated and the land must belong to the tiller subject to certain
conditions.

92
LAND REFORMS MEASURES Contd..

■ Various agrarian reform measures undertaken after independence.

independence
■ The steps include
i. abolition of intermediaries,
ii. fixation of ceilings on land holdings and
iii. redistribution of surplus land among landless or semi-landless peasants.
■ Besides, any special measures adopted to prevent alienation of tribal land and
consolidate fragmented holdings come within the broad definition of agrarian
reforms.

93
 I. Abolition of Intermediaries

■ Following the recommendation of Kumarappa Committee, all the states in India enacted legislation for the abolition of
intermediary tenures in the 1950s, although the nature and effects of such legislation varied from state to state.

■ In West Bengal and Jammu & Kashmir, legislation for abolishing intermediary tenures was accompanied by
simultaneous imposition of ceilings on land holdings.

■ In other states, intermediaries were allowed to retain possession of lands under their personal cultivation without limit
being set, as the ceiling laws were passed only in the1960
1960s.

■ As a result, there was enough time left for the intermediaries to make legal or illegal transfers of land.

■ Besides, in some states, the law applied only to tenant interests like sairati mahals etc. and not to agricultural holdings.

■ Therefore, many large intermediaries continued to exist even after formal abolition of zamindari.

■ Nevertheless, it has been estimated that consequent upon the legal abolition of intermediaries between 1950 and
1960, nearly 20 million cultivators in the country were brought into direct contact with the Government.

94
 II. Tenancy Reforms
■ The Agrarian Reforms Committee recommended against any system of cultivation by tenants and
maintained that leasing of land should be prohibited except in the case of widows, minors and disabled
persons.
■ Tenancy reforms undertaken by various states followed four distinct patterns.
I. Tenancy laws of several states including Andhra Pradesh (Telengana region), Bihar, Himachal Pradesh, Karnataka,
Madhya Pradesh and Uttar Pradesh banned leasing out of agricultural land except by certain disabled categories
of landowners, so as to vest the ownership of land with the actual tillers. But concealed tenancy continued to exist
in all these states.
II. The state of Kerala banned agricultural tenancy altogether without having any exception.
III. States like Punjab, Haryana, Gujarat and Haryana did not ban tenancy as such. But tenants after continuous
possession of land for certain specified years, acquired the right of purchase of the land they cultivated. In fact, a
tendency towards reverse tenancy in which large farmers leased-in land from marginal farmers was set in since the
advent of green revolution in the mid-sixties.
IV. States like West Bengal, Orissa, Tamil Nadu and Andhra area of Andhra Pradesh did not ban leasing-out of
agricultural land. But share-croppers were not recognised as tenants. The State of West Bengal recognised share-
croppers as tenants only with effect from 1979, with the launching of ‘Operation Barga”

95
 III. Ceilings on Land Holding

■ The term ‘ceiling on land holdings’ refers to the legally stipulated maximum size beyond which no
individual farmer or farm household can hold any land.
■ Like all other land reforms measures, the objective of such ceiling is to promote economic growth
with social justice.
■ It has been duly recognised by India’s planners and policy makers that beyond a point any large
scale farming in Indian situation becomes not only uneconomic, but also unjust.
■ Small farms tend to increase economic efficiency of resource use and improve social equity
through employment creation and more equitable income distribution.
■ Hence, even if large farms produce relatively more output per unit of area, they cannot be
considered more efficient in a situation of widespread unemployment and under-employment
prevalent in this country.

96
 IV. Bhoodan and Gramdan

■ The Bhoodan movement was launched in 1951, immediately after the peasant uprising in
Telengana region of Andhra Pradesh, and after some years, another movement known as Gramdan
came into being in 1957.
■ The objective was to persuade landowners and leaseholders in each concerned village to renounce
their land rights, after which all the lands would become the property of a village association for the
egalitarian redistribution and for purpose of joint cultivation.
■ Vinoba Bhave hoped to eliminate private ownership of land through Bhoodan and Gramdan and
maintained that the movement would go a long way to ensure the just redistribution of land, the
consolidation of holding and their joint cultivation.
cultivation
■ However, the movement failed to achieve its targeted objectives and the degree of success in
respect of both land acquisition and land distribution was very limited.

97
 V. Protection of Tribal Land

■ All the concerned states ratified laws for prevention of alienation of the tribals from land.

■ In all the scheduled areas, land transfer from tribal to non-tribal population was prohibited by law.

■ But due to various legal loopholes and administrative lapses, alienation of the tribals from their
land continued on a large scale.

■ In fact, mortgaging of land to moneylenders due to indebtedness, poverty and acquisition of tribal
land for irrigation, dams and other public purposes were largely responsible for alienation of tribal
land.

■ Since land is the main source of livelihood for the tribal people and they do not have much upward
mobility, indiscriminate acquisition of tribal land for public purposes should be avoided.

98
 VI. Consolidation of Holdings
■ The term ‘Consolidation of holdings’ refers to amalgamation and redistribution of the fragmented land with a view to bringing
together all plots of land of a cultivator in one compact block.
■ Due to growing pressure of population on land and the limited opportunities for work in the non-agricultural
non sector, there is an
increasing trend towards sub-division
division and fragmentation of land holdings.
■ This makes the task of irrigation management, land improvement and personal supervision of different plots very difficult
■ Generally speaking, the consolidation acts provided for :
i. prohibition of fragmentation below standard area,

ii. fixation of minimum standard area for regulating transfers,

iii. schemes of Consolidation by exchange of holdings,

iv. reservation of land for common areas,

v. procedure for payment of compensation to persons allotted holdings of less market value in exchange,

vi. administrative machinery for carrying consolidation schemes, and

vii. filing of objections, appeals and penalties.

■ However, due to lack of adequate political and administrative support, the progress made in terms of consolidation of holding was
not very satisfactory, excepting in Punjab, Haryana and western Uttar Pradesh where the task of consolidation was accomplished.
■ But in these states, there is a need for reconsolidation again due to subsequent fragmentation of holdings under the population
pressure.

99
 Landmark Judgments of Supreme Court of India on
Constitutional Law
1 Shayara Bano v. Union of India & others (Triple Talaq Case); (2017)9SCC1
2 Justice K S Puttaswamy & Anr.. v. Union of India & Ors. (Right to Privacy Case;
2017(10)SCALE1
3 Rajbala v. State of Haryana; (2016) 2 SCC 445
4 Nabam Rebia and Ors. v. Deputy Speaker and Ors.; (2016)8SCC1
5 Supreme Court Advocates on Record Association v. Union of India; 2015 AIR SCW 5457
6 Shreya Singhal v. Union of India 2015; Indlaw SC 211
7 Charu Khurana v. Union of India (UOI); (2015)1SC C 192
8 Pramati Educational and Cultural Trust and Ors. v. Union of India (UOI) and Ors;
(2014)8SC C 1
9 State of Maharashtra v. Indian Hotel and Restaurants Association; (2013) 8 SCC 519
10 Lily Thomas v. Union of India & Ors; (2013) 7 SCC 653
11 People’s Union of Civil Liberties v. Union of India; (2013) 10 SCC 1
12 Abhay Singh v. State of Uttar Pradesh and Ors; (2013) 15 SCC 435
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13 Union of India v. R. Gandhi, President, Madras Bar Association; (2010) 11 SCC 1201
14 M. Nagaraj and Others v. Union of India & Others; AIR 2007 SC 71
15 I.R. Coelho (Dead) By Lrs v. State of Tamil Nadu & Ors; (2007) 2 SCC 1
16 P.A. Inamdar and Others v. State of Maharashtra; (2005) 6 SCC 537
17 L. Chandra Kumar v. Union of India; AIR 1997 SC 1125
18 People's Union of Civil Liberties v. Union of India; AIR 1997 SC 568
19 S.R. Bommai v. Union of India; AIR 1994 SC 1918
20 Bijoe Emmanuel & Ors v. State of Kerala; AIR 1987 SC 748
21 Minerva Mills Ltd. & Ors. v. Union of India & Ors; AIR 1980 SC 1789
22 Maneka Gandhi v. Union of India; AIR 1978 SC 597
23 Indira Nehru Gandhi v. Raj Narain & Another;
Another AIR 1975 SC 1590
24 Kesavananda Bharati v. State of Kerala; AIR 1973 SC 1461
25 E. M. Sankaran Namboodiripad v. T. Narayanan Nambiar; AIR 1970 SC 2015

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 SOURCES
1) 164.100.133.129:81/econtent/Uploads/Constitutional_Development_in_India.pdf

2) Samaraditya Pal, India’s Constitution: Origins & Evolution, First Edition, 2014.

3) www.legalservicesindia.com/.../Fundamental-Duties-under-the-Constitution-as-Legally

4) Krithika,, R. (21 January 2016). "Celebrate the supreme law". The Hindu. N. Ram. ISSN 0971-751X.
0971 OCLC 13119119.

5) Bahl, Raghav (27 November 2015). "How India Borrowed From the US Constitution to Draft its Own". The Quint.

6) Dhavan, Rajeev (26 November 2015). "Document for all ages: Why Constitution is our greatest achievement". Hindustan Times.

7) Yellosa, Jetling (26 November 2015). "Making of Indian Constitution". The Hans India.

8) Sridhar, Madabhushi. "Evolution and Philosophy behind the Indian Constitution (page 22)" (PDF). Dr.Marri Channa Reddy Human Resource Development Institute (Institute of
Administration), Hyderabad.

9) https://www.gktoday.in/gk/preamble-of-indian-constitution/.

10) M Laxmikanth. "4". Indian Polity (4th ed.). McGraw Hill Education. p. 4.5. ISBN 978-1-25
25-906412-8.

11) "Fundamental rights in The Preamble,Free Law Study material,IAS Law Notes,Study material for Ancient India Law". www.civilserviceindia.com. Retrieved 2015-10-11

12) "Indian Constitution: Sixty years of our faith". The Indian Express.

13) “India - The Constitution“. Countrystudies.us.

14) nja.gov.in/Concluded_Programmes/...13.../1.Architecture%20of%20constitution.pdf

15) https://ccs.in/internship_papers/2002/25.pdf

16) awzmag.com/.../right-to-property-in-india-an-overview-from-constitutional-perspecti...

17) https://www.springer.com/cda/content/document/cda.../9789811042072-c2.pdf

18) https://www.insightsonindia.com/wp-content/uploads/2013/08/land-reforms-1.pdf

19) https://en.wikipedia.org/wiki/Directive_Principles

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 JUSTICE CONSISTS NOT IN BEING NEUTRAL BETWEEN
RIGHT AND WRONG, BUT IN FINDING OUT THE RIGHT AND
UPHOLDING IT WHEREVER FOUND, AGAINST THE WRONG.

THEODORE ROOSEVELT

INJUSTICE ANYWHERE IS A THREAT TO JUSTICE EVERYWHERE.

Martin Luther King Jr

 This journey is heartening where periodic observations are
always checked & corrected by the Apex Court.

Judicial Activism is many a times criticized by the legal pandits

and is perceived as an encroachment on the area of separation
of powers and yet, common man’s faith in the judiciary being
enormous and intact and commitment of the Highest Courts
and of other courts to the objectives and principles of the
Constitution being undoubted supreme.

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105