Lesson 20 Constitution of India

Lesson 20 Constitution of India 275 276 EP-IL&GL
Lesson 20
Constitution of India BROAD FRAMEWORK OF THE CONSTITUTION
The Constitution of India came into force on January 26, 1950. It is a comprehensive document containing 395
Articles (divided into 22 Parts) and 12 Schedules. Apart from dealing with the structure of Government, the
Constitution makes detailed provisions for the rights of citizens and other persons in a number of entrenched
LESSON OUTLINE provisions and for the principles to be followed by the State in the governance of the country, labelled as “Directive
LEARNING OBJECTIVES Principles of State Policy”. All public authorities – legislative, administrative and judicial derive their powers
directly or indirectly from it and the Constitution derives its authority from the people.
– Learning Objectives India is a Sovereign Socialist Secular Democratic
Preamble
– Broad Framework of the Constitution Republic with a Parliamentary system of
Government. The Republic is governed in terms The preamble to the Constitution sets out the aims and aspirations of the people of India. It is a part of the
– Preamble
of the Constitution. All our laws derive their Constitution (AIR 1973 SC 1961). The preamble declares India to be a Sovereign, Socialist, Secular, Democratic
– Structure authority and force from the Constitution and the Republic and secures to all its citizens Justice, Liberty, Equality and Fraternity. It is declared that the Constitution
– Fundamental Rights Constitution derives its authority from the people. has been given by the people to themselves, thereby affirming the republican character of the polity and the
The preamble to the Constitution sets out the aims sovereignty of the people.
– Definition of State
and aspirations of the people of India.
– Justifiability of Fundamental Rights The polity assured to the people of India by the Constitution is described in the preamble as a Sovereign,
The Constitution of India came into force on
– Right to Constitutional Remedies
Socialist, Secular, and Democratic Republic. The expression “Sovereign” signifies that the Republic is externally
January 26, 1950. It is a comprehensive document
and internally sovereign. Sovereignty in the strict and narrowest sense of the term implies independence all
– Directive Principles of State Policy containing 395 Articles (divided into 22 Parts) and
round, within and without the borders of the country. As discussed above, legal sovereignty is vested in the
12 Schedules.
– Fundamental Duties people of India and political sovereignty is distributed between the Union and the States.
Fundamental rights are envisaged in Part III of the
– Ordinance Making Powers The democratic character of the Indian polity is illustrated by the provisions conferring on the adult citizens the
Constitution. Directive Principles of State Policy
– Legislative Powers of the Union and the States contains certain Directives which are the guidelines right to vote and by the provisions for elected representatives and responsibility of the executive to the legislature.
– Power of Parliament to make Laws on State for the future Government to lead the Country. The word “Socialist”, added by the 42nd Amendment, aims to secure to its people “justice—social, economic
Lists Constitution lays down that the executive power of
and political”. The Directive Principles of State Policy, contained in Part IV of the Constitution are designed for
the Union shall be vested in the President and the
– Freedom of Trade, Commerce and Intercourse the achievement of the socialistic goal envisaged in the preamble. The expression “Democratic Republic” signifies
executive power of the State is vested in the
– Constitutional Provisions relating to State that our government is of the people, by the people and for the people.
Governor and all executive action of the State has to
Monopoly be taken in the name of the Governor. The Supreme Structure
– The Judiciary Court, which is the highest Court in the Country is
an institution created by the Constitution. Constitution of India is basically federal but with certain unitary features.
– Writ Jurisdiction of High Courts and Supreme
Court The subject of Constitutional law is of abiding The majority of the Supreme Court judges in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, were
interest and is constantly in the process of of the view that the federal features form the basic structure of the Indian Constitution. However, there is some
– Types of Writs
development. The basic objective of this lesson is controversy as to whether the Indian Constitution establishes a federal system or it stipulates a unitary form of
– Delegated Legislation to make the students understand the basic frame Government with some basic federal features. Thus, to decide whether our Constitution is federal, unitary or
work of the Constitution and important provisions quasi federal, it would be better to have a look at the contents of the Constitution.
stipulated therein.
The essential features of a Federal Polity or System are—dual Government, distribution of powers, supremacy
of the Constitution, independence of Judiciary, written Constitution, and a rigid procedure for the amendment of
The preamble to the Constitution states: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute the Constitution. The political system introduced by our Constitution possesses all the aforesaid essentials of a
India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: federal polity as follows:
JUSTICE, social, economic and political; (a) In India, there are Governments at different levels, like Union and States.
LIBERTY of thought, expression, belief, faith and worship; (b) Powers to make laws have been suitably distributed among them by way of various lists as per the
EQUALITY of status and of opportunity; Seventh Schedule.
and to promote among them all (c) Both Union and States have to follow the Constitutional provisions when they make laws.
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation. (d) The Judiciary is independent with regard to judicial matters and judiciary can test the validity of law
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independently. The Supreme Court decides the disputes between the Union and the States, or the FUNDAMENTAL RIGHTS
States inter se.
The Constitution seeks to secure to the people “liberty of thought, expression, belief, faith and worship; equality
(e) The Constitution is supreme and if it is to be amended, it is possible only by following the procedure of status and of opportunity; and fraternity assuring the dignity of the individual”. With this object, the fundamental
explained in Article 368 of the Constitution itself. rights are envisaged in Part III of the Constitution.
From the above, it is clear that the Indian Constitution basically has federal features. But the Indian Constitution
The Concept of Fundamental Rights
does not establish two co-ordinate independent Governments. Both the Governments co-ordinate, co-operate
and collaborate in each other’s efforts to achieve the ideals laid down in the preamble. Political philosophers in the 17th Century began to think that the man by birth had certain rights which were
universal and inalienable, and he could not be deprived of them. The names of Rousseau, Locke, Montaesgue
Judicial View
and Blackstone may be noted in this context. The Declaration of American Independence 1776, stated that all
The question as to whether the Indian Constitution has a federal form of Government or a unitary constitution men are created equal, that they are endowed by their creator with certain inalienable rights: that among these,
with some federal features came up in various cases before the Supreme Court and the High Courts. But in are life, liberty and the pursuit of happiness. Since the 17th century, it had been considered that man has certain
most cases, the observations have been made in a particular context and have to be understood accordingly. essential, basic, natural and inalienable rights and it is the function of the State to recognise these rights and
The question rests mostly on value judgement i.e. on one’s own philosophy. allow them a free play so that human liberty may be preserved, human personality developed and an effective
cultural, social and democratic life promoted. It was thought that these rights should be entrenched in such a
Peculiar Features of Indian Federalism way that they may not be interfered with, by an oppressive or transient majority in the Legislature. With this in
Indian Constitution differs from the federal systems of the world in certain fundamental aspects, which are as view, some written Constitutions (especially after the First World War) guarantee rights of the people and forbid
follows: every organ of the Government from interfering with the same.
(1) The Mode of Formation: A federal Union, as in the American system, is formed by an agreement between a The position in England: The Constitution of England is unwritten. No Code of Fundamental Rights exists
number of sovereign and independent States, surrendering a defined part of their sovereignty or autonomy to a unlike in the Constitution of the United States or India. In the doctrine of the sovereignty of Parliament as
new central organisation. But there is an alternative mode of federation, as in the Canadian system where the prevailing in England it does not envisage a legal check on the power of the Parliament which is, as a matter of
provinces of a Unitary State may be transformed into a federal union to make themselves autonomous. legal theory, free to make any law. This does not mean, however, that in England there is no recognition of these
basic rights of the individual. The object in fact is secured here in a different way. The protection of individual
India had a thoroughly Centralised Unitary Constitution until the Government of India Act, 1935 which for the first
freedom in England rests not on constitutional guarantees but on public opinion, good sense of the people,
time set up a federal system in the manner as in Canada viz., by creation of autonomous units and combining
strong common law, traditions favouring individual liberty, and the parliamentary form of Government. Moreover,
them into a federation by one and the same Act.
the participation of U.K. in the European Union has made a difference. (See also the Human Rights Act, 1998).
(2) Position of the States in the Federation: In a federal system, a number of safeguards are provided for the
The position in America: The nature of the Fundamental Rights in the U.S.A. has been described thus: The
protection of State’s rights as they are independent before the formation of federation. In India, as the States
very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy,
were not previously sovereign entities, the rights were exercised mainly by Union, e.g., residuary powers.
to place them beyond the reach of majorities and officials, to establish them as legal principles to be applied by
(3) Citizenship etc: The framers of the American Constitution made a logical division of everything essential to the Courts.
sovereignty and created a dual polity with dual citizenship, a double set of officials and a double system of the
The fundamental difference in approach to the question of individual rights between England and the United
courts. There is, however, single citizenship in India, with no division of public services or of the judiciary.
States is that while the English were anxious to protect individual rights from the abuses of executive power, the
(4) Residuary Power: Residuary power is vested in the Union. In other words, the Constitution of India is neither framers of the American Constitution were apprehensive of tyranny, not only from the executive but also from
purely federal nor purely unitary. It is a combination of both and is based upon the principle that “In spite of the legislature. While the English people, in their fight for freedom against autocracy stopped with the establishment
federalism the national interest ought to be paramount as against autocracy stepped with the establishment of of Parliamentary supremacy, the Americans went further to assert that there had to be a law superior to the
supremacy of law”. legislature itself and that the restraint of such paramount written law could only save them from the fears of
absolution and autocracy which are ingrained in the human nature.
Test your knowledge
So, the American Bill of Rights (contained in first ten Amendments of the Constitution of the U.S.A.) is equally
When did the constitution of India come into force? binding upon the legislature, as upon the executive. The result has been the establishment in the United States
of a ‘Judicial Supremacy’, as opposed to the ‘Parliamentary Supremacy’ in England. The Courts in the United
(a) January 26, 1947 States are competent to declare an Act of Congress as unconstitutional on the ground of contravention of any
(b) January 26, 1948 provision of the Bill of Rights.
(c) January 26, 1949 The position in India: As regards India, the Simon Commission and the Joint Parliamentary Committee had
rejected the idea of enacting declaration of Fundamental Rights on the ground that abstract declarations are
(d) January 26, 1950
useless, unless there exists the will and the means to make them effective. The Nehru Committee recommended
Correct answer : d the inclusion of Fundamental Rights in the Constitution for the country. Although that demand of the people was
not met by the British Parliament under the Government of India Act, 1935, yet the enthusiasm of the people to
have such rights in the Constitution was not impaired. As a result of that enthusiasm they were successful in (i) within the territory of India; or
getting a recommendation being included in the Statement of May 16, 1946 made by the Cabinet Mission-
(ii) under the control of the Government of India.
(which became the basis of the present Constitution) to the effect that the Constitution-making body may adopt
the rights in the Constitution. Therefore, as soon as Constituent Assembly began to work in December, 1947, in The expression ‘local authorities’ refers to authorities like Municipalities, District Boards, Panchayats, Improvement
its objectives resolution Pt. Jawahar Lal Nehru moved for the protection of certain rights to be provided in the Trusts, Port Trusts and Mining Settlement Boards. The Supreme Court has held that ‘other authorities’ will
Constitution. The rights as they emerged are contained in Part III of the Constitution the title of which is include all authorities created by the Constitution or statute on whom powers are conferred by law and it is not
“Fundamental Rights”. The Supreme Court in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 held that necessary that the authority should engage in performing government functions (Electricity Board, Rajasthan v.
Part III of the Constitution protects substantive as well as procedural rights and hence implications which arise Mohanlal, AIR 1967 SC 1957). The Calcutta High Court has held that the electricity authorities being State within
there from must efficiently be protected by the Judiciary. the meaning of Article 12, their action can be judicially reviewed by this Court under Article 226 of the Constitution
of India. (In re: Angur Bala Parui, AIR 1999 Cal. 102). It has also been held that a university is an authority
Inclusion of Fundamental Rights in Part III of the Constitution (University of Madras v. Shanta Bai, AIR 1954 Mad. 67). The Gujarat High Court has held that the President is
Part III of the Indian Constitution guarantees six categories of fundamental rights. These are: “State” when making an order under Article 359 of the Constitution (Haroobhai v. State of Gujarat, AIR 1967, Guj.
229). The words “under the control of the Government of India” bring, into the definition of State, not only every
(i) Right to Equality – Articles 14 to 18; authority within the territory of India, but also those functioning outside, provided such authorities are under the
(ii) Right to Freedom – Articles 19 to 22; control of the Government of India. In Bidi Supply Co. v. Union of India, AIR 1956 SC 479, State was interpreted
to include its Income-tax department.
(iii) Right against Exploitation – Articles 23 and 24;
The Supreme Court in Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331 and in R.D. Shetty v. International
(iv) Right to Freedom of Religion – Articles 25 to 28; Airports Authority, AIR 1979 SC 1628, has pointed out that corporations acting as instrumentality or agency of
(v) Cultural and Educational Rights – Articles 29 and 30; government would become ‘State’ because obviously they are subjected to the same limitations in the field of
constitutional or administrative law as the government itself, though in the eye of law they would be distinct and
(vi) Right to Constitutional Remedies – Articles 32.
independent legal entities. In Satish Nayak v. Cochin Stock Exchange Ltd. (1995 Comp LJ 35), the Kerala High
[Earlier the right to property under Article 31 was also guaranteed as a Fundamental Right which has been Court held that since a Stock Exchange was independent of Government control and was not discharging any
removed by the 44th Constitutional Amendment Act, 1978. Now right to property is not a fundamental right, it is public duty, it cannot be treated as ‘other authority’ under Article 12.
now only a legal right.
Test for instrumentality or agency of the State
Apart from this, Articles 12 and 13 deal with definition of ‘State’ and ‘Law’ respectively. Articles 33 to 35 deal with
the general provisions relating to Fundamental Rights. No fundamental right in India is absolute and reasonable In Ajay Hasia v. Khalid Mujib, AIR 1981 SC 481, the Supreme Court has enunciated
restrictions can be imposed in the interest of the state by valid legislation and in such case the Court normally the following test for determining whether an entity is an instrumentality or agency of
would respect the legislative policy behind the same. People’s Union for Civil Liberties v. Union of India, (2004) the State:
2 SCC 476.
(1) If the entire share capital of the Corporation is held by the Government, it would
From the point of view of persons to whom the rights are available, the fundamental rights may be classified as go a long way towards indicating that the corporation is an instrumentality or
follows: agency of the Government.
(a) Articles 15, 16, 19 and 30 are guaranteed only to citizens. (2) Where the financial assistance of the State is so much as to meet almost the entire expenditure of the
corporation it would afford some indication of the corporation being impregnated with government
(b) Articles 14, 20, 21, 22, 23, 25, 27 and 28 are available to any person on the soil of India—citizen or
character.
foreigner.
(3) Whether the corporation enjoys a monopoly status which is conferred or protected by the State.
(c) The rights guaranteed by Articles 15, 17, 18, 20, 24 are absolute limitations upon the legislative power.
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State
For convenience as well as for their better understanding it is proper to take each of these separately. But some
agency or an instrumentality.
related terms are necessary to be understood first.
(5) If the functions of the corporation are of public importance and closely related to government functions,
Definition of State it would be a relevant factor in classifying a corporation as an instrumentality or agency of government.
With a few exceptions, all the fundamental rights are available against the State. Under Article 12, unless the (6) If a department of government is transferred to a corporation, it would be a strong factor supporting an
context otherwise requires, “the State” includes – inference of the corporation being an instrumentality or agency of government.
(a) the Government and Parliament of India; An important decision on the definition of State in Article 12 is Pradeep Kumar Biswas v. Indian Institute of
(b) the Government and the Legislature of each of the States; and Chemical Biology, (2002) 5 SCC 111. A seven Judge Bench of the Supreme Court by a majority of 5:2 held that
CSIR is an instrumentality of “the State” falling within the scope of Article 12. The multiple test which is to be
(c) all local or other authorities: applied to ascertain the character of a body as falling within Article 12 or outside is to ascertain the nature of
financial, functional and administrative control of the State over it and whether it is dominated by the State Rights. So only that part of the law will be declared invalid which is inconsistent, and the rest of the law will stand.
Government and the control can be said to be so deep and pervasive so as to satisfy the court “of brooding However, on this point a clarification has been made by the Courts that invalid part of the law shall be severed
presence of the Government” on the activities of the body concerned. and declared invalid if really it is severable, i.e., if after separating the invalid part the valid part is capable of
giving effect to the legislature’s intent, then only it will survive, otherwise the Court shall declare the entire law as
In Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649, the Supreme Court applying the tests laid down in
invalid. This is known as the rule of severability.
Pardeep Kumar Biswas case held that the Board of Control for cricket in India (BCCI) was not State for purposes
of Article 12 because it was not shown to be financially, functionally or administratively dominated by or under The doctrine has been applied invariably to cases where it has been found possible to separate the invalid part
the control of the Government and control exercised by the Government was not pervasive but merely regulatory from the valid part of an Act. Article 13 only says that any law which is inconsistent with the fundamental rights is
in nature. void “to the extent of inconsistency” and this has been interpreted to imply that it is not necessary to strike down
the whole Act as invalid, if only a part is invalid and that part can survive independently. In A.K. Gopalan v. State
Judiciary although an organ of State like the executive and the legislature, is not specifically mentioned in Article
of Madras, A.I.R.1950 S.C. 27, the Supreme Court ruled that where an Act was partly invalid, if the valid portion
12. However, the position is that where the Court performs judicial functions, e.g. determination of scope of
was severable from the rest, the valid portion would be maintained, provided that it was sufficient to carry out the
fundamental rights vis-a-vis legislature or executive action, it will not occasion the infringement of fundamental
purpose of the Act.
rights and therefore it will not come under ‘State’ in such situation (A.R. Antualay v. R.S. Nayak, (1988) 2 SCC 602).
While in exercise of non-judicial functions e.g. in exercise of rule-making powers, where a Court makes rules which From above, it is clear that this doctrine applies only to pre constitutional laws as according to Article 13(2), State
contravene the fundamental rights of citizens, the same could be challenged treating the Court as ‘State’. cannot even make any law which is contrary to the provisions of this Part.
Justifiability of Fundamental Rights Doctrine of Eclipse
Article 13 gives teeth to the fundamental rights. It lays down the rules of interpretation in regard to laws inconsistent The another noteworthy thing in Article 13 is that, though an existing law inconsistent with a fundamental right
with or in derogation of the Fundamental Rights. becomes in-operative from the date of the commencement of the Constitution, yet it is not dead altogether. A law
made before the commencement of the Constitution remains eclipsed or dormant to the extent it comes under
Exsiting Laws: Article 13(1) relates to the laws already existing in force, i.e. laws which were in force before the the shadow of the fundamental rights, i.e. is inconsistent with it, but the eclipsed or dormant parts become active
commencement of the Constitution (pre constitutional laws). A declaration by the Court of their invalidity, however, and effective again if the prohibition brought about by the fundamental rights is removed by the amendment of
will be necessary before they can be disregarded and declares that pre-constitution laws are void to the extent the Constitution. This is known as the doctrine of eclipse.
to which they are inconsistent with the fundamental rights.
The doctrine was first evolved in Bhikaji Narain Dhakras v. State of M.P., A.I.R. 1955 S.C. 781. In this case, the
Future Laws: Article 13(2) relates to future laws, i.e., laws made after the commencement of the Constitution validity of C.P. and Berar Motor Vehicles Amendment Act, 1947, empowering the Government to regulate,
(post constitutional laws). After the Constitution comes into force the State shall not make any law which takes control and to take up the entire motor transport business, was challenged. The Act was perfectly a valid piece
away or abridges the rights conferred by Part III and if such a law is made, it shall be void to the extent to which of legislation at the time of its enactment. But on the commencement of the Constitution, the existing law became
it curtails any such right. inconsistent under Article 13(1), as it contravened the freedom to carry on trade and business under Article
The word ‘law’ according to the definition given in Article 13 itself includes – 19(1)(g). To remove the infirmity the Constitution (First Amendment) Act, 1951 was passed which permitted
creation by law of State monopoly in respect of motor transport business. The Court held that the Article by
“... any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of reason of its language could not be read as having obliterated the entire operation of the inconsistent law or
India, the force of law.”
having wiped it altogether from the statute book. In case of a pre-Constitution law or statute, it was held, that the
It is clear that like definition of State in Article 12, the definition of ‘law’ in Article 13 is not exhaustive, e.g. it does doctrine of eclipse would apply. The relevant part of the judgement is:
not speak of even laws made by Parliament or State Legislatures which form the largest part of the body of laws.
“The true position is that the impugned law became as it were, eclipsed, for the time being, by the fundamental
Because of this nature of the definition, the issue came up before the Supreme Court as to whether a Constitutional right. The effect of the Constitution (First Amendment) Act, 1951 was to remove the shadow and to make the
Amendment by which a fundamental right included in Part III is taken away or abridged is also a law within the
impugned Act free from all blemish or infirmity.”
meaning of Article 13. The Court twice rejected the view that it includes a Constitutional Amendment, but third
time in the famous Golaknath case (A.I.R. 1967 S.C. 1643) by a majority of 6 to 5, the Court took the view that However, there was a dispute regarding the applicability of the doctrine of eclipse, whether it should be applicable
it includes such an amendment and, therefore, even a Constitutional amendment would be void to the extent it to both pre-Constitution and post-Constitution laws or only to pre-constitution laws. Some decisions were in
takes away or abridges any of the fundamental rights. By the Constitution (Twenty-Fourth Amendment) Act, favour of both laws and some were in favour of pre-constitution laws only. There is no unambiguous judicial
1971 a new clause has been added to Article 13 which provides that— pronouncement to that effect.
“Nothing in this Article shall apply to any amendment of this Constitution made under Article 368” Waiver
Article 13 came up for judicial review in a number of cases and the Courts have evolved doctrines like doctrine The doctrine of waiver of rights is based on the premise that a person is his best judge and that he has the liberty
of eclipse, severability, prospective overruling, acquiescence etc. for interpreting the provisions of Article 13. to waive the enjoyment of such rights as are conferred on him by the State. However, the person must have the
knowledge of his rights and that the waiver should be voluntary. The doctine was discussed in Basheshar Nath
Doctrine of Severability v. C.I.T., AIR 1959 SC 149, where the majority expressed its view against the waiver of fundamental rights. It
One thing to be noted in Article 13 is that, it is not the entire law which is affected by the provisions in Part III, but was held that it was not open to citizens to waive any of the fundamental rights. Any person aggrieved by the
on the other hand, the law becomes invalid only to the extent to which it is inconsistent with the Fundamental consequence of the exercise of any discriminatory power, could be heard to complain against it.
The Article has been invoked in many cases. Some of the important cases and observations are as under: Equality is a comparative concept. A person is treated unequally only if that person is treated worse than others,
and those others (the comparison group) must be those who are ‘similarly situated’ to the complainant. (Glanrock
Single Person Law
Estate (P) Ltd. v. State of T N (2010) 10 SCC 96)
A law may be constitutional, even though it relates to a single individual, if that single individual is treated as a class by
Legislative classification
himself on some peculiar circumstances. The case is Charanjit Lal Chowdhary v. Union of India, AIR 1951 SC 41, in
this case, the petitioner was an ordinary shareholder of the Sholapur Spinning and Weaving Co. Ltd. The company A right conferred on persons that they shall not be denied equal protection of the laws does not mean the
through its directors had been managing and running a textile mill of the same name. Later, on account of mis- protection of the same laws for all. It is here that the doctrine of classification steps in and gives content and
management, a situation had arisen that brought about the closing down of the mill, thus affecting the production of significance to the guarantee of the equal protection of the laws. To separate persons similarly situated from
an essential commodity, apart from causing serious unemployment amongst certain section of the community. The those who are not, legislative classification or distinction is made carefully between persons who are and who
Central Government issued an Ordinance which was later replaced by an Act, known as Sholapur Spinning & Weaving are not similarly situated. The Supreme Court in a number of cases has upheld the view that Article 14 does not
Co. (Emergency Provisions) Act, 1950. With the passing of this Act, the management and the administration of the rule out classification for purposes of legislation. Article 14 does not forbid classification or differentiation which
assets of the company were placed under the control of the directors appointed by the Government. As regards the rests upon reasonable grounds of distinction.
shareholders, the Act declared that they could neither appoint a new director nor could take proceedings against the
The Supreme Court in State of Bihar v. Bihar State ‘Plus-2’ lectures Associations, (2008) 7 SCC 231 held that
company for winding up. The petitioner filed a writ petition on the ground that the said Act infringed the rule of equal
now it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law
protection of laws as embodied in Article 14, because a single company and its shareholders were subjected to
and confers equal protection of laws. It prohibits the state from denying persons or class of persons equal
disability as compared with other companies and their shareholders. The Supreme Court dismissed the petition and
treatment; provided they are equals and are similarly situated. It however, does not forbid classification. In other
held the legislation as valid. It laid down that the law may be constitutional even though it applies to a single individual
words, what Article 14 prohibits is discrimination and not classification if otherwise such classification is legal,
if on account of some special circumstances or reasons applicable to him only, that single individual may be treated
valid and reasonable.
as a class by himself. However, in subsequent cases the Court explained that the rule of presumption laid down in
Charanjit Lal’s case is not absolute, but would depend on facts of each case. Test of valid classification
For a valid classification there has to be a rational nexus between the classification made by the law and the Since a distinction is to be made for the purpose of enacting a legislation, it must pass the classical test enunciated
object sought to be achieved. For example a provision for district-wise distribution of seats in State Medical by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. Permissible classification
colleges on the basis of population of a district to the population of the State was held to be void (P. Rajandran must satisfy two conditions, namely; (i) it must be founded on an intelligible differentia which distinguishes
v. State of Mysore, AIR 1968 SC 1012). persons or things that are grouped together from others left out of the group; and (ii) the differentia must have a
rational nexus with the object sought to be achieved by the statute in question.
Right of equality
After considering leading cases on equal protection clause enshrined in Article 14 of the constitution, the five-
Articles 14 to 18 of the Constitution deal with equality and its various facets. The general principle finds expression Judge Bench of the Supreme Court in Confederation of Ex-Servicemen Assns. v. Union of India, (2006) 8 SCC
in Article 14. Particular applications of this right are dealt with in Articles 15 and 16. Still more specialised 399 stated: “In our judgement, therefore, it is clear that every classification to be legal, valid and permissible,
applications of equality are found in Articles 17 and 18. must fulfill the twin test; namely :
Article 14: Equality before the law and equal protection of the laws (i) the classification must be founded on an intelligible differentia which must distinguish persons or things
Article 14 of the Constitution says that “the State shall not deny to any person equality before the law or the equal that are grouped together from others leaving out or left out; and
protection of the laws within the territory of India”. (ii) Such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation
As is evident, Article 14 guarantees to every person the right to equality before the law or the equal protection of in question”.
the laws. The expression ‘equality before the law’ which is barrowed from English Common Law is a declaration The classification may be founded on different basis, such as, geographical, or according to objects or occupation
of equality of all persons within the territory of India, implying thereby the absence of any special privilege in or the like. What is necessary is that there must be a nexus between the basis of classification and the object of
favour of any individual. Every person, whatever be his rank or position is subject to the jurisdiction of the the Act under consideration. A legal and valid classification may be based on educational qualifications (State of
ordinary courts. The second expression “the equal protection of the laws” which is based on the last clause of Bihar v. Bihar State ‘Plus-2’ lecturers Associations and Others, (2008) 7 SCC 238)
the first section of the Fourteenth Amendment to the American Constitution directs that equal protection shall be
A law based on a permissible classification fulfills the guarantee of the equal protection of the laws and is valid.
secured to all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges
On the other hand if it is based on an impermissible classification it violates that guarantee and is void. Reiterating
without favouritism or discrimination. Article 14 applies to all persons and is not limited to citizens. A corporation,
the test of reasonable classification, the Supreme Court in Dharam Dutt v. Union of India, (2004) 1 SCC 712 held
which is a juristic person, is also entitled to the benefit of this Article (Chiranjit Lal Chowdhurary v. Union of India,
that laying down of intelligible differentia does not, however mean that the legislative classification should be
AIR 1951 SC 41). The right to equality is also recognised as one of the basic features of the Constitution ( Indra
scientifically perfect or logically complete.
Sawhney v. Union of India, AIR 2000 SC 498).
Scope of Article 14
As a matter of fact all persons are not alike or equal in all respects. Application of the same laws uniformly to all
of them will, therefore, be inconsistent with the principle of equality. Of course, mathematical equality is not The true meaning and scope of Article 14 has been explained in several decisions of the Supreme Court. The
intended. Equals are to be governed by the same laws. But as regards unequals, the same laws are not rules with respect to permissible classification as evolved in the various decisions have been summarised
complemented. In fact, that would itself lead to inequality. by the Supreme Court in Ram Kishan Dalmiya v. Justice Tendulkar, AIR 1958 SC, 538 as follows:
of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our
(i) Article 14 forbids class legislation, but does not forbid classification.
Constitution, a court would certainly be disabled from passing an order upholding the violation of Article 14.
(ii) Permissible classification must satisfy two conditions, namely, (a) it must be
Article 15: Prohibition of discrimination on grounds of religion etc.
founded on an intelligible differentia which distinguishes persons or things
that are grouped together from others left out of the group, and (b) the differentia Article 15(1) prohibits the State from discriminating against any citizen on grounds only of:
must have a relation to the object sought to be achieved by the statute in
(a) religion
question.
(b) race
(iii) The classification may be founded on different basis, namely geographical, or according to objects or
occupations or the like. (c) caste
(iv) In permissible classification, mathematical nicety and perfect equality are not required. Similarly, non (d) sex
identity of treatment is enough.
(e) place of birth or
(v) Even a single individual may be treated a class by himself on account of some special circumstances or
(f) any of them
reasons applicable to him and not applicable to others; a law may be constitutional even though it
relates to a single individual who is in a class by himself. Article 15(2) lays down that no citizen shall be subjected to any disability, restriction or condition with regard to –
(vi) Article 14 condemns discrimination not only by substantive law but by a law of procedure. (a) access to shops, public restaurants, hotels and places of public entertainment; or
(vii) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon (b) the use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partially
him who attacks it to show that there has been a clear transgression of the constitutional principles. out of State funds or dedicated to the use of the general public.
Article 15(3) and 15(4) create certain exceptions to the right guaranteed by Article 15(1) and 15(2). Under Article
A remarkable example of the application of the principle of equality under the Constitution is the decision of the
15(3) the State can make special provision for women and children. It is under this provision that courts have
Constitution Bench of the Supreme Court in R.K. Garg v. Union of India, AIR 1976 SC 1559. The legislation
upheld the validity of legislation or executive orders discriminating in favour of women (Union of India v.
under attack was the Special Bearer Bonds (Immunities and Exemptions) Act, 1981. It permitted investment of
Prabhakaran, (1997) 2 SCC 633).
black money in the purchase of these Bonds without any questions being asked as to how this money came into
the possession. Article 15(4) permits the State to make special provision for the advancement of –
In a public interest litigation it was contended that Article 14 had been violated, because honest tax payers were (a) Socially and educationally backward classes of citizens;
adversely discriminated against by the Act, which legalized evasion. But the Supreme Court rejected the challenge,
(b) Scheduled casts; and
taking note of the magnitude of the problem of black money which had brought into being a parallel economy.
(c) Scheduled tribes.
Finally it should be mentioned that Article 14 invalidates discrimination not only in substantive law but also in
procedure. Further, it applies to executive acts also. Article 16: Equality of opportunity in matters of public employment.
In the recent past, Article 14 has acquired new dimensions. In Maneka Gandhi v. Union of India, AIR 1978 SC Article 16(1) guarantees to all citizens equality of opportunity in matters relating to employment or appointment
597, the Supreme Court held that Article 14 strikes at arbitrariness in State action and ensures a fairness and of office under the State.
equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential
Article 16(2) prohibits discrimination against a citizen on the grounds of religion, race, caste, sex, descent, place
element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence (See also Ramana
of birth or residence.
Dayaram Shetty v. International Airport Authority, AIR 1979 SC 1628; Kasturi Lal v. State of J&K, AIR 1980 SC
1992). In Ajay Hasia v. Khalid Mujib, AIR 1981SC 487, the Supreme Court held “ …. what Article 14 strikes at is However, there are certain exceptions provided in Article 16(3), 16(4) and 16(5). These are as under:
arbitrariness because an action that is arbitrary must necessarily involve negation of equality….. Wherever (1) Parliament can make a law that in regard to a class or classes of employment or appointment to an
therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” office under the Government of a State on a Union Territory, under any local or other authority within the
under Article 12, Article 14 immediately springs into action and strikes down such action.” In this case the State or Union Territory, residence within that State or Union Territory prior to such employment or
system of selection by oral interview, in addition to written test was upheld as valid, but allocation of above 15 appointment shall be an essential qualification. [Article 16(3)]
per cent of the total marks for interview was regarded as arbitrary and unreasonable and liable to be struck
down as constitutionally invalid. (2) A provision can be made for the reservation of appointments or posts in favour of any backward class of
citizens which in the opinion of the State is not adequately represented in the services under the State.
Possession of higher qualification can be treated as a valid base or classification of two categories of employees, [Article 16(4)]
even if no such requirement is prescribed at the time of recruitment. If such a distinction is drawn no complaint
can be made that it would violate Article 14 of the Constitution (U.P. State Sugar Corpn. Ltd. v. Sant Raj Singh, (3) A law shall not be invalid if it provides that the incumbent of an office in connection with the affair of any
(2006) 9 SCC 82. religious or denominational institution or any member of the governing body thereof shall be a person
professing a particular religion or belonging to a particular denomination. [Article 16(5)]
In Secy., State of Karnataka v. Umadevi, (2006) 4 SCC 1, the Supreme Court has held that adherence to the rule
The Supreme Court in Secy. of State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 held that adherence to the rule that the National awards do not amount to “titles” within the meaning of Article 18(1) and they should not be used
of equality in public employment is a basic feature of the Constitution and since the rule of law is the core of the as suffixes or prefixes. If this is done, the defaulter should forfeit the National award conferred on him/her,
Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14. following the procedure laid down in regulation 10 of each of the four notifications creating these National
Equality of opportunity is the hallmark and the Constitution has provided also for affirmative action to ensure that awards.
unequals are not treated as equals. Thus any public employment has to be in terms of the Constitutional Scheme.
Rights Relating to Freedom
Test your knowledge
Articles 19-22 guarantee certain fundamental freedoms.
As per The Declaration of American Independence 1776, which of the following The six freedoms of citizens
rights are endowed by the creator on all men?
Article 19(1), of the Constitution, guarantees to the citizens of India six freedoms, namely:
(a) Life
(a) freedom of speech and expression;
(b) Liberty
(b) assemble peaceably and without arms;
(c) Virtue
(c) form associations or unions
(d) Pursuit of happiness
(d) move freely, throughout the territory of India;
Correct answer: a, b, and d
(e) reside and settle in any part of the territory of India;
Article 17: Abolition of untouchability (f) practise any profession, or to carry on any occupation, trade or business.
Article 17 says that “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of These freedoms are those great and basic rights which are recognized as the natural rights inherent in the
any disability arising out of “Untouchability” shall be an offence punishable in accordance with law. status of a citizen. At the same time, none of these freedoms is absolute but subject to reasonable restrictions
specified under clauses (2) to (6) of the Article 19. The Constitution under Articles 19(2) to 19(6) permits the
Untouchability does not include an instigation to social boycott (Davarajiah v. Padamanna, AIR 1961 Mad. 35,
imposition of restrictions on these freedoms subject to the following conditions:
39). Punishment for violation of Article 17 is to be provided by Parliament under Article 35(a)(ii).
(a) The restriction can be imposed by law and not by a purely executive order issued under a statute;
In 1955 Parliament enacted the Untouchability (Offences) Act 1955. In 1976, the Act was amended and renamed
as the “Protection of Civil Rights Act, 1955” making changes in the existing law namely, all offences to be treated (b) The restriction must be reasonable;
as non-compoundable and offences punishable upto three months to be tried summarily; punishment of offences
(c) The restriction must be imposed for achieving one or more of the objects specified in the respective
enhanced; preaching of untouchability or its justification made an offence; a machinery envisaged for better
clauses of Article 19.
administration and enforcement of its provisions.
Reasonableness
Article 18: Abolition of titles
It is very important to note that the restrictions should be reasonable. If this word ‘reasonable’ is not there, the
Article 18 is more a prohibition rather than a fundamental right. British Government used to confer titles upon
Government can impose any restrictions and they cannot be challenged. This word alone gives the right to an
persons who showed special allegiance to them. Many persons were made Sir, Raj Bahadur, Rai Saheb,
aggrieved person to challenge any restriction of the freedoms granted under this Article.
Knight, etc. These titles had the effect of creating a class of certain persons which was regarded superior to
others and thus had the effect of perpetuating inequality. To do away with that practice, now Article 18 provides Reasonableness of the restriction is an ingredient common to all the clauses of Article 19. Reasonableness is
as under: an objective test to be applied by the judiciary. Legislative judgment may be taken into account by the Court, but
it is not conclusive. It is subject to the supervision of Courts. The following factors are usually considered to
(i) No title, not being a military or academic distinction, shall be conferred by the State.
assess the reasonableness of a law:
(ii) No citizen of India shall accept any title from any foreign State.
(i) The objective of the restriction;
(iii) No person, who is not a citizen of India shall, while he holds any office or trust under the State, accept
(ii) The nature, extent and urgency of the evil sought to be dealt with by the law in question;
without the consent of the President, any title from any foreign State.
(iii) How far the restriction is proportion to the evil in question
(iv) No person, holding any office of profit or trust under State shall without the consent of the President,
accept any present, emolument or office of any kind from or under a foreign State. (iv) Duration of the restriction
It has been pointed out by the Supreme Court that the framers of the Constitution prohibited titles of nobility and (v) The conditions prevailing at the time when the law was framed.
all other titles that carry suffixes or prefixes, as they result in the distinct class of citizens. However, framers of
The onus of proving to the satisfaction of the Court that the restriction is reasonable is upon the State.
the Constitution did not intend that the State should not officially recognise merit or work of an extra ordinary
nature. The National awards are not violative of the principles of equality as guaranteed by the provisions of the Procedural and Substantiveness
Constitution. The theory of equality does not mandate that merit should not be recognised. The Court has held In determining the reasonableness of a law, the Court will not only see the surrounding circumstances, but all
contemporaneous legislation passed as part of a single scheme. It is the reasonableness of the restriction and speech is a part of freedom of speech and expression guaranteed under Article 19(1)(a) and such speech can
not of the law that has to be found out, and if the legislature imposes a restriction by one law but creates also be subjected to reasonable restrictions only under Article 19(2) and not otherwise (Tata Press Ltd. v. MTNL,
countervailing advantages by another law passed as part of the same legislative plan, the court can take judicial AIR 1995 SC 2438).
notice of such Acts forming part of the same legislative plan (Krishna Sagar Mills v. Union of India, AIR 1959 SC
The right to know, ‘receive and impart information’ has been recognized within the right to freedom of speech
316).
and expression (S.P. Gupta v. President of India, AIR 1982 SC 149. A citizen has a fundamental right to use the
The phrase ‘reasonable restrictions’ connotes that the limitation imposed upon a person in the enjoyment of a best means of imparting and receiving information and as such to have an access to telecasting for the purpose.
right should not be arbitrary or of an excessive nature. In determining the reasonableness of a statute, the Court (Secretary, Ministry of I&B, Govt. of India v. Cricket Association of Bengal, (1995) 2 SCC 161)
would see both the nature of the restriction and procedure prescribed by the statute for enforcing the restriction
The right to reply, i.e. the right to get published one’s reply in the same news media in which something is
on the individual freedom. The reasonableness of a restriction has to be determined in an objective manner and
published against or in relation to a person has also been recognised under Article 19(1)(a), particularly when
from the point of view of the interests of the general public and not from the point of view of the persons upon
the news media is owned by the State within the meaning of Article 12. It has also been held that a Government
whom the restrictions are imposed or upon abstract considerations. The Court is called upon to ascertain the
circular having no legal sanction violates Article 19(1)(a), if it compels each and every pupil to join in the singing
reasonableness of the restrictions and not of the law which permits the restriction. The word ‘restriction’ also
of the National Anthem despite his genuine, conscientious religious objection (Bijoe Emmanuel v. State of Kerala,
includes cases of prohibition and the State can establish that a law, though purporting to deprive a person of his
(1986) 3 SCC 615). Impliedly the Court has recognised in Article 19(1)(a) the right to remain silent.
fundamental right, under certain circumstances amounts to a reasonable restriction only. Though the test of
reasonableness laid down in clauses (2) to (6) of Article 19 might in great part coincide with that for judging ‘due The Supreme Court in Union of India v. Naveen Jindal, (2004) 2 SCC 476, has held
process’ under the American Constitution, it must not be assumed that these are identical. It has been held that that right to fly the National Flag freely with respect and dignity is a fundamental right
the restrictions are imposed in carrying out the Directive Principles of State Policy is a point in favour of the of a citizen within the meaning of Article 19(1)(a) of the Constitution being an
reasonableness of the restrictions. expression and manifestation of his allegiance and feelings and sentiments of pride
for the nation.
Scope and Limitations on the Freedoms
(a) Right to freedom of speech and expression
Dramatic performance is also a form of speech and expression. In K.A. Abbas v. Union of India, AIR 1971 S.C.
It need not to be mentioned as to how important the freedom of speech and expression in a democracy is. A 481, the Court held that censorship of films including (pre-censorship) is justified under Article 19(1)(a) and (2)
democratic Government attaches a great importance to this freedom because without freedom of speech and of the Constitution but the restrictions must be reasonable. The right of a citizen to exhibit films on the Doordarshan
expression the appeal to reason which is the basis of democracy cannot be made. The right to speech and subject to the terms and conditions to be imposed by the latter has also been recognized. (Odyssey
expression includes right to make a good or bad speech and even the right of not to speak. One may express Communications (P) Ltd. v. Lokvidayan Sangathan, AIR 1988 SC 1642.
oneself even by signs. The Courts have held that this right includes the freedom of press and right to publish
Clause (2) of Article 19 specifies the limits upto which the freedom of speech and expression may be restricted.
one’s opinion, right to circulation and propagation of one’s ideas, freedom of peaceful demonstration, dramatic
It enables the Legislature to impose by law reasonable restrictions on the freedom of speech and expression
performance and cinematography. It may also include any other mode of expression of one’s ideas. The Supreme
under the following heads:
Court in Cricket Association of Bengal v. Ministry of Information & Broadcasting (Govt. of India), AIR 1995 SC
1236, has held that this freedom includes the right to communicate through any media - print, electronic and Permissible Restrictions
audio visual.
(1) Sovereignty and integrity of India.
The freedom of speech and expression under Article 19(1)(a) means the right to express one’s convictions and
(2) Security of the State.
opinions freely by word of mouth, writing, printing, pictures or any other mode. This freedom includes the freedom
of press as it partakes of the same basic nature and characteristic (Maneka Gandhi v. Union of India, AIR 1978 (3) Friendly relations with foreign States.
S.C. 597). However no special privilege is attached to the press as such, distinct from ordinary citizens. In
(4) Public Order.
Romesh Thapar v. State of Punjab, AIR 1950 S.C. 124, it was observed that “freedom of speech and of the press
lay at the foundation of all democratic organisations, for without free political discussion no public education, so (5) Decency or morality or
essential for the proper functioning of the process of popular Government is possible”. Imposition of pre-censorship
(6) Contempt of court.
on publication under clause (2), is violative of freedom of speech and expression.
(7) Defamation or
The right to freedom of speech is infringed not only by a direct ban on the circulation of a publication but also by
an action of the Government which would adversely affect the circulation of the paper. The only restrictions (8) Incitement to an offence.
which may be imposed on the press are those which clause (2) of Article 19 permits and no other (Sakal Papers Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by the executive
(P) Ltd. v. Union of India, AIR 1962 SC 305). action (Express News Papers Pvt. Ltd. v. Union of India, (1986) 1 SCC 133).
Regarding Commercial advertisements it was held in Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 Corporations
that they do not fall within the protection of freedom of speech and expression because such advertisements
have an element of trade and commerce. A commercial advertisement does not aim at the furtherance of the The Supreme Court, initially expressed the view that a Corporation is not a citizen within the meaning of Article
freedom of speech. Later the perception about advertisement changed and it has been held that commercial 19 and, therefore, cannot invoke this Article. Subsequently the Supreme Court held that a company is a distinct
and separate entity from its shareholders and refused to tear the corporate veil for determing the constitutionality (i) in the interests of the general public, or
of the legislation by judging its impact on the fundamental rights of the shareholders of the company (TELCO v.
(ii) for the protection of the interests of any scheduled tribe.
State of Bihar, AIR 1965 S.C. 40). But a significant modification is made by the Supreme Court in R.C. Cooper
v. Union of India, AIR 1970 S.C. 564 (also called the Bank Nationalisation case). The Supreme Court ruled that A law authorising externment or interment to be valid must fall within the limits of permissible legislation in clause
the test in determining whether the shareholder’s right is impaired is not formal but is essentially qualitative. If (5), namely restrictions must be reasonable and in the interests of the general public or for the protection of the
the State action impaired the rights of the shareholders as well as of the company, the Court will not deny itself interests of the Scheduled Tribes.
jurisdiction to grant relief. The shareholders’ rights are equally affected, if the rights of the company are affected (e) Freedom of residence
(Bennett Coleman & Co., AIR (1973) S.C. 106).
Article 19(1)(e) guarantees to a citizen the right to reside and settle in any part of the territory of India. This right
(b) Freedom of assembly overlaps the right guaranteed by clause (d). This freedom is said to be intended to remove internal barriers
The next right is the right of citizens to assemble peacefully and without arms [Art. 19(1)(b)]. Calling an assembly within the territory of India to enable every citizen to travel freely and settle down in any part of a State or Union
and putting one’s views before it is also intermixed with the right to speech and expression discussed above, territory. This freedom is also subject to reasonable restrictions in the interests of general public or for the
and in a democracy it is of no less importance than speech. However, apart from the fact that the assembly must protection of the interests of any Scheduled Tribe under Article 19(5). That apart, citizens can be subjected to
be peaceful and without arms, the State is also authorised to impose reasonable restrictions on this right in the reasonable restrictions (Ebrahim v. State of Bom., (1954) SCR 923, 950). Besides this, certain areas may be
interests of: banned for certain kinds of persons such as prostitutes (State of U.P. v. Kaushaliya, AIR 1964 SC 416, 423).
(i) the sovereignty and integrity of India, or [(f) Right to acquire, hold and dispose of property – deleted by 44th Amendment in 1978.]
(ii) public order. (g) Freedom to trade and occupations
Freedom of assembly is an essential element in a democratic Government. In the words of Chief Justice Waite Article 19(1)(g) provides that all citizens shall have the right to practise any profession, or to carry on any
of the Supreme Court of America, “the very idea of Government, republican in form, implies a right on the part of occupation, trade or business.
citizens to meet peaceably for consultation in respect of public affairs”. The purpose of public meetings being the An analysis of the case law reveals that the emphasis of the Courts has been on social control and social policy.
education of the public and the formation of opinion on religious, social, economic and political matters, the right However, no hard and fast rules have been laid down by the Court for interpreting this Article. The words ‘trade’,
of assembly has a close affinity to that of free speech under Article 19(1)(a). ‘business’, ‘profession’ used in this Article have received a variety of interpretations. The word ‘trade’ has been
(c) Freedom of association held to include the occupation of men in buying and selling, barter or commerce, work, especially skilled, thus of
the widest scope (Safdarjung Hospital v. K.S. Sethi, AIR 1970 S.C. 1407).
The freedom of association includes freedom to hold meeting and to takeout processions without arms. Right to
form associations for unions is also guaranteed so that people are free to have the members entertaining similar The word ‘business’ is more comprehensive than the word ‘trade’. Each case must be decided according to its
views [Art. 19(1)(c)]. This right is also, however, subject to reasonable restrictions which the State may impose own circumstances, applying the common sense principle as to what business is. A profession on the other
in the interests of: hand, has been held ordinarily as an occupation requiring intellectual skill, often coupled with manual skill. Like
other freedoms discussed above, this freedom is also subject to reasonable restrictions. Article 19(6) provides
(i) the sovereignty and integrity of India, or
as under :
(ii) public order, or
Nothing in sub-clause (g) shall affect the operation of any existing law in so far as it imposes, or prevent the State
(iii) morality. from making any law imposing, in the interests of the general public, reasonable restrictions in the exercise of
the right conferred by the said sub-clause, and in particular, nothing in the said sub-clause shall affect the
A question not yet free from doubt is whether the fundamental right to form association also conveys the freedom
operation of any existing law in so far as it relates to, or prevent the State from making any law relating to—
to deny to form an association. In Tikaramji v. Uttar Pradesh, AIR 1956 SC 676, the Supreme Court observed
that assuming the right to form an association “implies a right not to form an association, it does not follow that (i) the professional or technical qualifications necessary for practising any profession or carrying on any
the negative right must also be regarded as a fundamental right”. However, the High Court of Andhra Pradesh occupation, trade or business, or
has held, that this right necessarily implies a right not to be a member of an association. Hence, the rules which
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, industry
made it compulsory for all teachers of elementary schools to become members of an association were held to
or service whether to the exclusion, complete or partial, of citizens or otherwise.
be void as being violative of Article 19(1)(c) (Sitharamachary v. Sr. Dy. Inspector of Schools, AIR 1958 A.P. 78).
This view gets support from O.K. Ghosh v. Joseph, AIR 1963 SC 812. It has been held that a right to form Article 19(1)(g) of the Constitution guarantees that all citizens have the right to practice any profession or to
associations or unions does not include within its ken as a fundamental right a right to form associations or carry on any occupation or trade or business. The freedom is not uncontrolled, for, clause (6) of the Article
unions for achieving a particular object or running a particular institution (2004) 1 SCC 712. authorises legislation which (i) imposes reasonable restrctions on this freedom in the interests of the general
public; (ii) prescribes professional or technical qualifications necessary for carrying on any profession, trade or
(d) Freedom of movement
business; and (iii) enables the State to carry on any trade or business to the exclusion of private citizens, wholly
Right to move freely throughout the territory of India is another right guaranteed under Article 19(1)(d). This right, or partially.
however, does not extend to travel abroad, and like other rights stated above, it is also subject to the reasonable
In order to determine the reasonableness of the restriction, regard must be had to the nature of the business and
restrictions which the State may impose:
conditions prevailing in that trade. It is obvious that these factors differ from trade to trade, and no hard and fast
rules concerning all trades can be laid down. The word ‘restriction’ used in clause (6) is wide enough to include (ii) Protection against double jeopardy
cases of total prohibition also. Accordingly, even if the effect of a law is the elimination of the dealers from the
According to Article 20(2), no person shall be prosecuted and punished for the same offence more than once. It
trade, the law may be valid, provided it satisfies the test of reasonableness or otherwise.
is, however, to be noted that the conjunction “and” is used between the words prosecuted and punished, and
The vital principle which has to kept in mind is that the restrictive law should strike a proper balance between the therefore, if a person has been let off after prosecution without being punished, he can be prosecuted again.
freedom guaranteed under Article 19(1)(g) and the social control permitted by clause (6) of Article 19. The
(iii) Protection against self-incrimination
restriction must not be of an exessive nature beyond what is required in the interests of the public.
According to Article 20(3), no person accused of any offence shall be compelled to be a witness against himself.
MONOPOLY In other words, an accused cannot be compelled to state anything which goes against him. But it is to be noted
that a person is entitled to this protection, only when all the three conditions are fulfilled:
The Supreme Court’s decision in Chintamana Rao v. State of M.P., AIR 1951 S.C.
118 is a leading case on the point where the constitutionality of Madhya Pradesh Act 1. that he must be accused of an offence;
was challenged. The State law prohibited the manufacture of bidis in the villages 2. that there must be a compulsion to be a witness; and
during the agricultural season. No person residing in the village could employ any
3. such compulsion should result in his giving evidence against himself.
other person nor engage himself, in the manufacture of bidis during the agricultural
season. The object of the provision was to ensure adequate supply of labour for So, if the person was not an accused when he made a statement or the statement was not made as a witness
agricultural purposes. The bidi manufacturer could not even import labour from or it was made by him without compulsion and does not result as a statement against himself, then the protection
outside, and so, had to suspend manufacture of bidis during the agricultural season. Even villagers incapable available under this provision does not extend to such person or to such statement.
of engaging in agriculture, like old people, women and children, etc., who supplemented their income by
The ‘right against self-incrimination’ protects persons who have been formally accused as well as those who are
engaging themselves manufacturing bidis were prohibited without any reason. The prohibition was held to
examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers
be unreasonable.
could expose them to criminal charges in the ongoing investigation or even in cases other than the one being
However, after the Constitutional (Amendment) Act, 1951, the State can create a monopoly in favour of itself and investigated. [Selvi v. State of Karnataka, AIR 2010 SC 1974].
can compete with private traders. It has been held in Assn. of Registration Plates v. Union of India, (2004) SCC
476 that the State is free to create monopoly in favour of itself. However the entire benefit arising therefrom must (b) Protection of life and personal liberty
ensure to the benefit of the State and should not be used as a clock for conferring private benefit upon a limited Article 21 confers on every person the fundamental right to life and personal liberty. It says that,
class of persons.
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
(a) Protection in respect of conviction for offences The right to life includes those things which make life meaningful. For example, the right of a couple to adopt a
Articles 20, 21 and 22 provide a system of protection, relevant to the criminal law. Article 20 guarantees to all son is a constitutional right guaranteed under Article 21 of the Constitution (see, Philips Alfred Malvin v. Y.J.
persons — whether citizens or non-citizens-three rights namely : – Gonsalvis and others, AIR 1999 Ker. 187). The right to life enshrined in Article 21 guarantees right to live with
human dignity. Right to live in freedom from noise pollution is a fundamental right protected by Article 21 and
(i) Protection against ex-post facto laws
noise pollution beyond permissible limits is an inroad into that right. (Noise Pollution (v), in re, (2005) 5 SCC 733.
According to Article 20(1), no person shall be convicted of any offence except for violation of a law in force at the
The majority in the case of A.K. Gopalan v. State of Madras, AIR 1950 SC 27, gave a narrow meaning to the
time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which
expression ‘personal liberty’ within the subject matter of Articles 20 to 22 by confining it to the liberty of the
might have been inflicted under the law in force at the time of the commission of the offence.
person (that is, of the body of a person). The majority of the judges also took a narrow view of the expression
Ex-post facto laws are laws which punished what had been lawful when done. If a particular act was not an ‘procedure established by law’ in this case. In the State of Maharashtra v. Prabhakar Pandurang Sanzigri, AIR
offence according to the law of the land at the time when the person did that act, then he cannot be convicted 1966, SC 424, Subba Rao J. considered the inter-relation between Articles 19 and 21 as was discussed by the
under a law which with retrospective declares that act as an offence. For example, what was not an offence in majority Judges in the A.K. Gopalan’s case and came to the conclusion that “that view was not the last word on
1972 cannot be declared as an offence under a law made in 1974 giving operation to such law from a back date, the subject”.
say from 1972.
The expression ‘liberty’ in the 5th and 14th Amendments of the U.S. Constitution has been given a very wide
Even the penalty for the commission of an offence cannot be increased with retrospective effect. For example, meaning. The restricted interpretation of the expression ‘personal liberty’ preferred by the majority judgement in
suppose for committing dacoity the penalty in 1970 was 10 years imprisonment and a person commits dacoity A.K. Gopalan’s case namely, that the expression ‘personal liberty’ means only liberty relating to or concerning
in that year. By a law passed after his committing the dacoity the penalty, for his act cannot be increased from 10 the person or body of the individual, has not been accepted by the Supreme Court in subsequent cases.
to 11 years or to life imprisonment.
That the expression ‘personal liberty’ is not limited to bodily restraint or to confinement
In Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 S.C. 394, it was clarified that Article 20(1) prohibited to prison, only is well illustrated in Kharak Singh v. State of U.P, AIR 1963 SC 1295. In
the conviction under an ex post facto law, and that too the substantive law. This protection is not available with that case the question raised was of the validity of the police regulations authorising
respect to procedural law. Thus, no one has a vested right in procedure. A law which nullifies the rigour of criminal the police to conduct what are called as domiciliary visits against bad characters and
law is not affected by the rule against ex post facto law (Rattan Lal v. State of Punjab, (1964) 7 S.C.R. 676). to have surveillance over them. The court held that such visits were an invasion, on the
part of the police, of the sanctity of a man’s home and an intrusion into his personal security and his right to Article 21A: Right to Education
sleep, and therefore violative of the personal liberty of the individual, unless authorised by a valid law. As This was introduced by the Constitution (Eighty sixth Amendment) Act, 2002. According to this, the State shall
regards the regulations authorising surveillance over the movements of an individual the court was of the provide free and compulsory education to all children of the age of six to fourteen years in such manner as the
view that they were not bad, as no right to privacy has been guaranteed in the Constitution. State may, by law, determine.
However, in Gobind v. State of M.P., AIR 1975 S.C. 1378, Mathew, J. asserted that the right to privacy deserves Protection against arrest and detention
to be examined with care and to be denied only when an important countervailing interest is shown to be
superior, and observed that this right will have to go through a process of case-by-case development. Mathew, Although Article 21 does not impose a limitation on the legislature in so far as the deprivation of life or personaly
J. explained that even assuming that the right to personal liberty, the right to move freely throughout the territory liberty is concerned, yet a legislative Act providing for such deprivation is subject to the procedureal safeguards
of India and the freedom of speech create an independent right to privacy as emanating from them, the right is provided in Article 22 and if it does not provide for any of these safeguards it shall be declared unconstitutional.
not absolute and it must be read subject to restrictions on the basis of compelling public interest. However, Article 22 does not apply uniformly to all persons and makes a distinction between:
Refusal of an application to enter a medical college cannot be said to affect person’s personal liberty under (a) alien enemies,
Article 21 (State of A.P. v. L. Narendranathan, (1971) 1 S.C.C. 607). (b) person arrested or detained under preventive detention law, and
In Satwant Singh Sawhney v. A.P.O., New Delhi, AIR 1967 S.C. 1836, it was held that right to travel is included (c) other persons.
within the expression ‘personal liberty’ and, therefore, no person can be deprived of his right to travel, except
according to the procedure established by law. Since a passport is essential for the enjoyment of that right, the So far as alien enemies are concerned the article provides no protection to them. So far as persons in category
denial of a passport amounts to deprivation of personal liberty. In the absence of any procedure pescribed by (c) are concerned, it provides the following rights (These rights are not given to persons detained under preventive
the law of land sustaining the refusal of a passport to a person, it’s refusal amounts to an unauthorised deprivation detention law).
of personal liberty guaranteed by Article 21. This decision was accepted by the Parliament and the infirmity was (i) A person who is arrested cannot be detained in custody unless he has been informed, as soon as he
set right by the enactment of the Passports Act, 1967. may be, of the grounds for such arrest.
It was stated in Maneka Gandhi v. Union of India, AIR 1978 S.C. 597, that ‘personal (ii) Such person shall have the right to consult and to be defended by a legal practitioner of his choice.
liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad,
(iii) A person who is arrested and detained must be produced before the nearest magistrate within a period
and no person can be deprived of this right except according to procedure prescribed
of twenty-four hours of such arrest, excluding the time of journey. And such a person shall not be
by law. In this case, it was clearly laid down that the fundamental rights conferred by
detained in custody beyond twenty-four hours without the authority of magistrate.
Part III of the Constitution are not distinct and mutually exclusive. Thus, a law depriving
a person of personal liberty and prescribing a procedure for that purpose within the Preventive Detention
meaning of Article 21 has still to stand the test of one or more of fundamental rights
Preventive detention means detention of a person without trial. The object of preventive detention is not to
conferred by Article 19 which may be applicable to a given situation.
punish a person for having done something but to prevent him from doing it. No offence is proved nor any
Procedure established by law: The expression ‘procedure established by law’ means procedure laid down by charge formulated and yet a person is detained because he is likely to commit an act prohibited by law. Parliament
statute or procedure prescribed by the law of the State. Accordingly, first, there must be a law justifying interference has the power to make a law for preventive detention for reasons connected with defence, foreign affairs or the
with the person’s life or personal liberty, and secondly, the law should be a valid law, and thirdly, the procedure security of India. Parliament and State Legislatures are both entitled to pass a law of preventive detention for
laid down by the law should have been strictly followed. reasons connected with the security of State, the maintenance of public order, or the maintenance of supplies
and services essential to the community.
The law laid down in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, that the expression ‘procedure established
by law’ means only the procedure enacted by a law made by the State was held to be incorrect in the Bank Safeguards against Preventive Detention
Nationalisation Case (1970) 1 S.C.C. 248. Subsequently, in Maneka Gandhi’s case (AIR 1978 SC 49), it was Article 22 (amended by the 44th Constitution Amendment Act, 1978)1 contains following safeguards against
laid down, that the law must now be taken to be well settled that Article 21 does not exclude Article 19 and a law preventive detention:
prescribing a procedure for depriving a person of ‘personal liberty’ will have to meet the requirements of Article
(a) such a person cannot be detained for a longer period than three months unless:
21 and also of Article 19, as well as of Article 14.
(i) An Advisory Board constituted of persons who are or have been or are qualified to be High Court
The procedure must be fair, just and reasonable. It must not be arbitrary fanciful or oppressive. An interesting, judges has reported, before the expiration of the said period of three months that there is, in its
follow-up of the Maneka Gandhi’s case came in a series of cases. opinion sufficient cause for such detention.
In Bachan Singh v. State of Punjab, AIR 1980 S.C. 898, it was reiterated that in Article 21 the founding fathers (ii) Parliament may by law prescribe the maximum period for which any person may in any class or
recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and classes of cases be detained under any law providing for preventive detention and the procedure to
reasonable procedure established by valid law. be followed by an Advisory Board.
Presently, this term personal liberty extends to variety of matters like right to bail, right not to be handcuffed (b) The authority ordering the detention of a person under the preventive detention law shall:
except under very few cases, right to speedy trial, right to free legal aid etc.
1. The Change proposed by the Constitution (Forty-fourth Amendment) Act, 1978 have not been notified as yet.
(i) communicate to him, as soon as may be, the grounds on which the order for his detention has been Freedom of conscience and free profession, practice and propagation of religion.
made, and
Article 25 gives to every person the:
(ii) afford him the earliest opportunity of making the representation against the order.
(i) freedom of conscience, and
It may, however, be noted that while the grounds for making the order are to be supplied, the authority making
(ii) the right freely to profess, practice and propagate religion.
such order is not bound to disclose those facts which it considers to be against the public interest.
But this freedom is subject to restrictions imposed by the State on the following grounds:
Test your knowledge
(i) public order, morality and health,
Choose the correct answer
(ii) other provisions in Part III of the Constitution,
Which of the following articles prohibit the State from discriminating against any
(iii) any law regulating or restricting any economic, financial political or other secular activity which may be
citizen on grounds of religion, race, caste, sex, or place of birth?
associated with religious practice, and
(a) Article 15(1)
(iv) any law providing for social welfare and reform or the throwing open of Hindu religious institutions of a
(b) Article 15(2) public character to all classes and sections of Hindus.
(c) Article 15(3) The Supreme Court in State of Karnataka v. Dr. Praveen Bhai Thogadia, (2004) 9 SCC 684, held that secularism
means that State should have no religion of its own and each person, whatever his religion, must get an assurance
(d) Article 15(4)
from the State that he has the protection of law to freely profess, practise and propagate his religion and freedom
Correct answer: (a) of conscience.
The freedom of religion conferred by the present Article is not confined to the citizens of India but extends to all
Right against Exploitation persons including aliens and individuals exercising their rights individually or through institutions (Ratilal v. State
This group of fundamental rights consists of Articles 23 and 24. They provide for rights against exploitation of all of Bombay, (1954) SCR 105, Stanslaus v. State, AIR 1975 M. 163).
citizens and non-citizens. Taking them one by one they guarantee certain rights by imposing certain prohibitions
The term ‘Hindu’ here includes person professing the Sikh, Jain, or Buddhist religion also and accordingly the
not only against the State but also against private persons.
term ‘Hindu religious institutions’ also includes the institutions belonging to these religions. Special right has
(a) Prohibition of traffic in human beings and forced labour been accorded to the Sikhs to wear kirpan as part of professing their religion.
Article 23 imposes a complete ban on traffic in human beings, federal and other similar forms of forced labour. (a) The Concept of Religion
The contravention of these provisions is declared punishable by law. Thus the traditional system of beggary
Our Constitution does not define the word religion. Religion is certainly a matter of faith with individuals or
particularly in villages, becomes unconstitutional and a person who is asked to do any labour without payment
communities and it is not necessarily theistic — There are well-known religions in India like Buddhism and
or even a labourer with payment against his desire can complain against the violation of his fundamental right
Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in any
under Article 23.
system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their
‘Traffic’ in human beings means to deal in men and women like goods, such as to sell or let or otherwise dispose spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion
them of. ‘Begar’ means involuntary work without payment. may not only lay down a code of ethical rules for its follower to accept, it might prescribe rituals and observances,
ceremonies and modes or worship which are regarded as integral parts of religion and those forms and
The State can impose compulsory service for public purposes such as conscription for defence for social service
observances might extend even to matters of food and dress (Justice Mukherjee in Commr. of H.R.E., Madras
etc. While imposing such compulsory service the State cannot make any discrimination on grounds only of
v. Sirur Mutt, A.I.R. 1954 S.C. 282).
religion, race, caste or class or any of them. (Clause 2 of Article 23).
(b) Freedom to manage religious affairs
(b) Prohibition of employment of children
Although no clear cut distinction is possible, yet it may be said that while Article 25 discussed above protects the
Article 24 prohibits the employment of children below the age of fourteen in any factory or mine. The Employment
religious freedom of individuals. Article 26, deals with the collective rights of religious denominations. Here the
of Children Act, 1938; The Factories Act, 1948; The Mines Act, 1952; The Apprentices’ Act, 1961; and the Child
question may be raised as to what is a religious denomination? In the words of our Supreme Court:
Labour (Prohibition and Regulation) Act, 1986 are some of the important enactments in the statute book to
protect the children from exploitation by unscrupulous employers. “The word ‘denomination’ has been defined in the Oxford Dictionary to mean a
collection of individuals classed together under the same name: a religious sect or
The Supreme Court has issued detailed guidelines as to child labour in M.C. Mehta v. State of T.N., AIR 1993
body having a common faith and organisation and designated by a distinctive name.
S.C. 699.
It is well known that the practice of setting up Maths as centres of theological teaching
Right to Freedom of Religion was started by Shri Sankaracharya and was followed by various teachers since
then. After Sankaracharya, came a galaxy of religious teachers and philosophers
With Article 25 begins a group of provisions ensuring equality of all religions thereby promoting secularism. who founded the different sects and sub-sects of the Hindu religion that we find in
India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, Test your knowledge
as it is designated by a distinctive name, in many cases it is the name of the founder and has a common faith
State whether the following statement is “True” or “False”
and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnavas,
undoubtedly constitute a religious denomination, and so do the followers of Madhavacharya and other religious The right to speech and expression includes right to make a good or bad speech.
teachers” (Mukherjee J. in Commr. of H.R.E., Madras v. Sirur Mutt., A.I.R. 1954 S.C. 282).
• True
However, a religious denomination is not a ‘citizen’. Now coming to the provisions of Article 26, it grants to every
• False
religious denomination or any sect thereof the right—
Correct answer: True
(i) to establish and maintain institutions of religious and charitable purposes;
(ii) to manage its own affairs in matters of religion;
(iii) to own and acquire movable and immovable property; and
Cultural and Educational Rights [Rights of Minorities]
(iv) to administer such property in accordance with law.
Minority
All these rights are subject to public order, morality and health, and, therefore, if they conflict then the right will
The word ‘minority’ has not been defined in the Constitution. The Supreme Court in D.A.V. College, Jullundur v.
give way to these exceptions. One more exception may be noted. A denomination’s right to manage its own
State of Punjab, A.I.R. 1971, S.C. 1737, seems to have stated the law on the point. It said that minority should be
affairs in matters of religion is subject to the State’s power to throw open Hindu religious institutions of a public
determined in relation to a particular impugned legislation. The determination of minority should be based on the
nature to all classes or sections of Hindus covered in Article 25.
area of operation of a particular piece of legislation. If it is a State law, the population of the State should be kept
(c) Freedom as to payment of tax for the promotion of any particular religion in mind and if it is a Central Law the population of the whole of India should be taken into account.
According to Article 27, no person can be compelled to pay any taxes, the proceeds of which are specially The two Articles guarantee the following rights:
appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious
(a) Protection of interests of Minorities
denomination. It is notable that freedom not to pay taxes is only with respect to those taxes the proceeds of
which are specially appropriated in payment of expenses for the promotion or maintenance of any particular Article 29 guarantees two rights:
religion or denomination.
(i) Any section of the citizens residing in the territory of India or any part thereof having a distinct language,
(d) Freedom as to attendance at religious instruction or religious worship in educational institutions script or culture of its own has the right to conserve the same. Thus, citizens from Tamil Nadu or Bengal
has the right to conserve their language or culture if they are living in Delhi, a Hindi speaking area and
Article 28 prohibits religious instruction in certain educational institutions and gives freedom to a person to
vice versa.
participate in such religious instructions. The Article states that—
(ii) No citizen can be denied admission into any educational institution maintained by the State or receiving
(i) No religious instruction can be provided in any educational instituion wholly maintained out of State
aid out of State funds on grounds only of religion, race, caste, language, or any of them. This provision
funds. However, this prohibiton does not extend to an educational institution which is administered by
is general and applies to each citizen individually and is not confined to a group of citizens. An exception
the State but has been established under any endowment or trust which requires that religious instruction
is made to this right to the effect that if a special provision is made for the admission of persons belonging
shall be imparted in such institution.
to educationally or/and socially backward classes or scheduled castes or scheduled tribes it shall be
(ii) No person attending an educational institution recognised by the State or receiving aid out of State valid.
funds cannot be required:
(b) Right of Minorities to establish and administer educational institutions
(a) to take part in any religious instruction that may be imparted in such institution; or
The rights guaranteed to the minorities in Article 30 are even more important than those covered by Article 29.
(b) to attend any religious worship that may be conducted in such institution or any premises attached Following rights are declared in Article 30 :
thereto,
(i) All minorities, whether based on religion or on language, shall have the right to establish and administer
unless such person or if such person is a minor, his guardian has given his consent thereto. It may, however, be educational institutions of their choice. It may be noted here that this right is not limited only to linguistic
noted that although person can be compelled to take religious instructions or attend worship, without his consent, minorities but it extends to religious minorities also. Both of them have been given the freedom to establish
yet at the same time such person is not entitled to perform any religious ceremony or worship which is contrary and administer educational institutions of their own choice. So they can establish educational institution of
to the tenets of that educational institution (Sanjib v. St. Paul’s College, 61 C.W.N. 71). any type and cannot be restrained from its administration. The maladministration may be checked by the
State but administration cannot be entrusted to outside hands. Mal-administration defeats the very object
of Article 30, which is to promote excellence of minority institutions in the field of education (All Saints High
School v. Government of A.P., AIR 1980 SC 1042). And in that educational institution they may teach
religion, or may give secular education, but no bar can be imposed on their choice. In the matter of
medium of instruction also, the minorities are completely free to adopt any medium of their choice.
(ii) The State cannot, in granting aid to educational institutions, discriminate against any educational institution (i) the acquisition by the State of any estate or any rights therein or the extinguishment or modification of
on the ground that it is under the management of a minority, whether based on religion or language. It any such rights. ‘Estate’ here means the property included within that expression according to the land
has been held that the State cannot impose conditions in granting aid to such institutions. Further, the tenurers applicable in the area where it is situated. And ‘rights’ in relation to an estate means proprietory
minority institutions are also entitled to recognition and the State cannot deny them that right, merely and other intermediary rights. In short, such laws are those which related to agrarian reforms, or
because they do not follow the directions of the State which impair rights under Article 30 (In re. Kerala
(ii) the taking over of the management of any property by the State for a limited period in the public interest
Education Bill 1957, A.I.R. 1958 S.C. 956; Sidhrajbhai v. State of Gujarat, A.I.R. 1963 S.C. 540).
or in order to secure the proper management of the property, or
In DAV College v. State of Punjab, AIR 1971 SC 1737, it was held that any community—religious or linguistic,
(iii) the amalgamation of two or more corporations either in the public interest or in order to secure the
which is numerically less than 50 percent of the population of that State, is a minority within the meaning of
proper management of any of the corporations, or
Article 30. The expression minority in Article 30(1) is used as distinct from ‘Any sections of citizens’ in Article
29(1) which lends support to the view that Article 30(1) deals with national minorities or minorities recognised in (iv) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing
the context of the entire nation (St. Xaviers College v. State of Gujarat, AIR 1974 SC 1389). directors or managers of corporations, or of any voting rights of shareholders thereof, or
The right conferred on religious and linguistic minorities to adminster educational institutions of their choice, (v) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence
though couched in absolute terms, is not free from regulation. Delhi High Court in Delhi Abibhavak Mahasangh for the purpose of searching for, or winning any mineral or mineral oil or the premature termination or
v. U.O.I. and others AIR 1999 Delhi 124 held that Article 30(1) of the Constitution does not permit, minorities to cancellation of any such agreement, lease or licence.
indulge in commercialisation of education in the garb of constitutional protection. For the application of this right However, limitations, have been imposed with respect to the laws relating to the acquisition of the estates. They
minority institutions are divided into three classes: (i) institution which neither seek aid nor recognition from the are:
State; (ii) institution that seek aid from the State; and (iii) institutions which seek recognition but not aid. While the
institutions of class (i) cannot be subjected to any regulations except those emanating from the general law of (a) If such a law is made by a State Legislature then it cannot be protected by the provisions of Article 31A
the land such as labour, contract or tax laws, the institutions in classes (ii) and (iii) can be subjected to regulations unless such law having been reserved for the consideration of the President has received his assent,
pertaining to the academic standards and to the better administration of the institution, in the interest of that and
institution itself. (b) If the law provides for the acquisition of (i) any land within the ceiling limit applicable in that area, (ii) any
In T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, is an eleven building or structure standing thereon or apartment thereto, it (law) shall not be valid unless it provides
Bench decision dealing with right of minorities to establish and administer educational for payment of compensation at a rate which shall not be less than the market value thereof. This
institutions and correctness of the decision in St. Stephen’s College case. While provision, however, has been amended by the Constitution (29th Amendment) Act.
interpreting Article 30, the Supreme Court held that minority includes both linguistic Validation of certain Acts and Regulations
and religious minorities and for determination of minority status, the unit would be
the State and not whole of India. Further, the right of minorities to establish and Article 31B certain laws against attack on the ground of violation of any fundamental rights. The laws so protected
administer educational institutions (including professional education) was not absolute are specified in the Nineth Schedule to the Constitution. These laws also relate mainly to land reforms.
and regulatory measures could be imposed for ensuring educational standards and maintaining excellence Saving of Laws giving effect to certain Directive Principles
thereof. Right of minorities included right to determine the procedure and method of admission and selection
Article 31C added by 25th Amendment of the Constitution lifted to the constitutional limitations on the powers of
of students, which should be fair and transparent and based on merit.
State, imposed by Article 14 (equality before law) and Article 19 (freedoms) as regards law giving effect to the
The Constitution (44th Amendment Act) has introduced new sub-clause (1A) which provides that wherever policy of the State towards securing the principles — specified in clause (b) or clause (c) of Article 39. These
compulsory acquisition of any property of an educational institution established and administered by a minority principles are –
is provided under any law, the State shall ensure that the amout fixed by or determined under any such law is
(i) that the ownership and control of the matenal resources of the community are so distributed as best to
such as would not restrict or abrogate the right guaranteed under this Article.
subserve the common good, and
Articles 31A, 31B and 31C relating to Property (ii) that the operation of the economic system does not result in the concentration of wealth and means of
Right to property is no more a fundamental right which was previously guaranteed under Part III of the Constitution production to the common detriment.
by Article 31. The issue whether the 24th, 25th and 29th Amendments made by Parliament were valid or not was raised in the
But the right to property has been inserted by Article 300A under Part XII of the Constitution. Article 300A reads Supreme Court. In [Kesavananda Bharti v. State of Kerala, (1973) S.C.C. 225], the majority judgement (of a full
– “No person shall be deprived of his property save by authority of law”. bench of 13 judges) upheld the power of Parliament to amend the Constitution provided it did not alter its basic
framework.
Saving of Laws Providing for Acquisition of Estates etc.
By the 42nd Amendment in Article 31-C for the words the principles specified in clause (a) or clause (c) of Article
Then follows Article 31A which is an exception to the right of equality as guaranteed in Article 14 and to the six
34 the words in all or any of the principles laid down in Part IV were substituted. But this substitution was held to
freedoms as guaranteed in Article 19, if they come into conflict with any law mentioned in Article 31A. be void by the Supreme Court in Minerva Mills v. Union of India, (1980) 2 SCC 591.
Such laws are those which provide for—
Right to Constitutional Remedies Article 35 provide that wherever parliament has by an express provision been empowered to make a law restricting
a fundamental right Parliament alone can do so, (and not the state legislature).
Article 32 guarantees the enforcement of Fundamental Rights. It is remedial and not substantive in nature. The
rest of the Articles 33 to 35 relate to supplementary matters and do not create or guarantee any right. Therefore, Amendability of the Fundamental Rights
we shall discuss Art. 32 first and then rest of the Articles i.e. 33-35 briefly.
(A) Since 1951, questions have been raised about the scope of amending process contained in Article 368
Remedies for enforcement of Fundamental Rights of the Constitution. The basic question raised was whether the Fundamental Rights are amendable.
It is a cardinal principle of jurisprudence that where there is a right there is a remedy (ubi jus ibi remedium) and The question whether the word ‘Law’ in Clause (2) of Article 13 includes amendments or not or whether
if rights are given without there being a remedy for their enforcement, they are of no use. While remedies are amendment in Fundamental Rights guaranteed by Part III of the Constitution is permissible under the
available in the Constitution and under the ordinary laws, Article 32 makes it a fundamental right that a person procedure laid down in Article 368 had come before the Supreme Court in Shankari Prasad v. Union of
whose fundamental right is violated has the right to move the Supreme Court by appropriate proceedings for the India, A.I.R. 1951 S.C. 458, in 1951 where the First Amendment was challenged. The Court held that
enforcement of this fundamental right. It is really a far reaching provision in the sense that a person need not first the power to amend the Constitution including the Fundamental Rights, was contained in Article 368
exhaust the other remedies and then go to the Supreme Court. On the other hand, he can directly raise the and that the word ‘Law’ in Article 13(2) did not include an amendment to the Constitution which was
matter before highest Court of the land and the Supreme Court is empowered to issue directions or orders or made in exercise of constituent and not legislative power. This decision was approved by the majority
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be judgement in Sajjan Singh v. State of Rajasthan, A.I.R. 1965 S.C. 845.
appropriate for the enforcement of the right, the violation of which has been alleged. This power of the Supreme
Thus, until the case of I.C. Golak Nath v. State of Punjab, A.I.R. 1967, S.C. 1643, the Supreme Court
Court to issue directions, etc., may also be assigned to other Courts by Parliament without affecting the powers
had been holding that no part of our Constitution was unamenable and that parliament might, by passing
of the Supreme Court.
a Constitution Amendment Act, in compliance with the requirements of Article 368, amend any provision
The right to move the Supreme Court is itself a guarantee right and the significance of this has been assessed of the Constitution, including the Fundamental Rights and Article 368 itself.
by Gajendragadkar, J. in the following words:
(B) But, in Golak Nath’s case, a majority overruled the previous decisions and held that the Fundamental
The fundamental right to move this Court can therefore be appropriately described as the cornerstone of the Rights are outside the amendatory process if the amendment takes away or abridges any of the rights.
democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the words of The majority, in Golak Nath’s case, rested its conclusion on the view that the power to amend the
Patanjali Sastri, J., regard itself ‘as the protector and guarantor of fundamental rights’, and should declare that “it Constitution was also a legislative power conferred by Article 245 by the Constitution, so that a Constitution
cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against Amendment Act was also a ‘law’ within the purview of Article 13(2).
infringements of such rights. In discharging the duties assigned to it, this Court has to play the role of ‘sentinel on
the qui vive’ (State of Madras v. V.G. Row, AIR 1952 SC 196) and it must always regard it as its solemn duty to (C) To nullify the effect of Golak Nath’s case, Parliament passed the Constitution (Twenty-Fourth
protect the said fundamental rights ‘zealously and vigilantly’ Daryao v. State of U.P., AIR 1961 SC 1457). Amendment) Act in 1971 introducing certain changes in Article 13 and Article 368, so as to assert the
power of Parliament (denied to it in Golak Nath’s case) to amend the Fundamental Rights. The
Where a fundamental right is also available against the private persons such as the right under Articles 17, 23 Constitutional validity of the 24th Amendment was challenged in the case of Kesavanand Bharti v.
and 24, the Supreme Court can always be approached for appropriate remedy against the violation of such State of Kerala, A.I.R. 1973 S.C. 1461. The Supreme Court upheld the validity of 24th Constitutional
rights by private individuals. (Peoples’ Union for Democratic Rights v. Union of India, AIR 1982 SC 1473). A
Amendment holding that Parliament can amend any Part of the Constitution including the Fundamental
petitioners challenge under Article 32 extends not only to the validity of a law but also to an executive order
Rights. But the Court made it clear that Parliament cannot alter the basic structure or framework of
issued under the authority of the law.
the Constitution. In Indira Gandhi v. Raj Narain, AIR 1975 S.C. 2299, the appellant challenged the
The right guaranteed by Article 32 shall not be suspended except as provided in the Constitution. Constitution decision of the Allahabad High Court who declared her election as invalid on ground of corrupt practices.
does not contemplate such suspension except by way of President’s order under Article 359 when a proclamation In the mean time Parliament enacted the 39th Amendment withdrawing the control of the S.C. over
of Emergency is in force. election disputes involving among others, the Prime Minister. The S.C. upheld the challenge of 39 th
Again in Article 31C the words appearing at the end of the main paragraph, namely and no law containing a amendment and held that democracy was an essential feature forming part of the basic structure of
declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it the Constitution. The exclusion of Judicial review in Election disputes in this manner damaged the
does not give effect to such policy were declared to be void in Kesavananda’s case. basic structure. The doctrine of ‘basic structure’ placed a limitation on the powers of the Parliament to
introduce substantial alterations or to make a new Constitution.
Supplementary provisions
To neutralise the effect of this limitation, the Constitution (Forty-Second Amendment) Act, 1976 added to Article
Articles 33-35 – contain certain supplementary provisions.
368 two new clauses. By new clause (4), it has been provided that no amendment of the Constitution made
Article 33 authorises Parliament to restrict or abrogate the application of fundamental rights in relation to members before or after the Forty-Second Amendment Act shall be questioned in any Court on any ground. New clause
of armed forces, para-military forces, police forces and analogous forces. (5) declares that there shall be no limitation whatever on the Constitutional power of parliament to amend by way
Article 34 is primarily concerned with granting indemnity by law in respect of acts done during operation of of addition, variation or repeal the provisions of this Constitution made under Article 368.
martial law. The Constitution does not have a provision authorizing proclamation of martial law. Article 34 says The scope and extent of the application of the doctrine of basic structure again came up for discussion before
that Parliament may by law indemnify any person in the service of the Union or of State or any other person, for the S.C. in Minerva Mill Ltd. v. Union of India, (1980) 3 SCC, 625. The Supreme Court unanimously held clauses
an act done during martial law.
(4) and (5) of Article 368 and Section 55 of the 42nd Amendment Act as unconstitutional transgressing the limits In the present case, not even an ordinary principle of equality under Article 14, leave aside the egalitarian
of the amending power and damaging or destroying the basic structure of the Constitution. equality as an overarching principle, is violated. Even assuming for the same of argument that Article 14 stood
violated, even then the 1969 Act in any event stood validated by its insertion in the Ninth Schedule vide the
In Woman Rao v. Union of India, (1981) 2 SCC 362 the Supreme Court held that the amendments to the
Constitution (Thirty-fourth Amendment) Act, 1974.There is no merit in the submission that the Constitution (Thirty-
Constitution made on or after 24.4.1973 by which Ninth Schedule was amended from time to time by inclusion
fourth Amendment) Act, 1974 by which the 1969 Act was inserted in the Ninth Schedule as item 80 seeks to
of various Acts, regulations therein were open to challenge on the ground that they , or any one or more of them
confer naked power on Parliament and destroys basic features of the Constitution, namely, judicial review and
are beyond the constitutional power of Parliament since they damage the basic or essential features of the
separation of powers as well as rule of law.
Constitution or its basic structure. [See also Bhim Singh Ji v. Union of India (1981)1 SCC 166.]
The doctrine of basic structure provides a touchstone on which validity of the constitutional amendment Act
In L. Chandra Kumar v. Union of India (1997) 3 SCC 261 the Supreme Court held that power of judicial review
could be judged. Core constitutional values/ overarching principles like secularism; egalitarian equality etc. fall
is an integral and essential feature of the Constitution constituting the basic part , the jurisdiction so conferred on
out side the amendatory power under Article 368 of the Constitution and Parliament cannot amend the constitution
the High Courts and the Supreme Court is a part of in- violable basic structure of the Constitution.
to abrogate these principles so as to rewrite the constitution. [In Glanrock Estate (P) Ltd. v. State of T N (2010)
In I.R. Coelho v. State of T.N., (2007) 2 SCC 1, Article 31-B as introduced by the Constitution (First amendment) 10 SCC 96.]
Act 1951 was held to be valid by the Supreme Court. The fundamental question before the nine Judge Constitution
Bench was whether on or after 24.4.1973 (i.e. when the basic structure of the Constitution was propounded) it DIRECTIVE PRINCIPLES OF STATE POLICY
is permissible for the Parliament under Article 31-B to immunize legislations from fundamental rights by inserting
The Sub-committee on Fundamental Rights constituted by the Constituent Assembly has suggested two types
them into the Ninth Schedule and if so what is the effect on the power of judicial review of the court. The
of Fundamental Rights — one which can be enforced in the Courts of law and the other which because of their
challenge was made to the validity of the urban land (Ceiling and Regulation) Act, 1976 which was inserted in
different nature cannot be enforced in the law Courts. Later on however, the former were put under the head
the Ninth Schedule.
‘Fundamental Rights’ as Part III which we have already discussed and the latter were put separately in Part IV
The Supreme Court held that all amendments to the Constitution made on or after 24.4.1973 by which Ninth of the Constitution under the heading ‘Directive Principles of State Policy’ which are discussed in the following
Schedule is amended by inclusion of various laws therein shall have to be tested on the touch stone of the pages.
basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19 and the
The Articles included in Part IV of the Constitution (Articles 36 to 51) contain certain Directives which are the
principles under lying them. So also any law included in Schedule IX do not become part of the Constitution.
guidelines for the future Government to lead the country. Article 37 provides that the ‘provisions contained in this
They derive their validity on account of being included in Schedule IX and this exercise is to be tested
part (i) shall not be enforceable by any Court, but the principles therein laid down are neverthless (ii) fundamental
every time it is undertaken. If the validity of any Ninth Schedule law has already been upheld by this Court, it
in the governance of the country and it shall be the duty of the state to apply these principles in making laws. The
would not be open to challenge such law on the principles declared in this judgement. However, if a law held
Directives, however, differ from the fundamental rights contained in Part-III of the Constitution or the ordinary
to be violative of any rights of Part III is subsequently incorporated in the Ninth Schedule after 24.4.1973
laws of the land in the following respects :
such a violation shall be open to challenge on the ground that it destroys or damages the basic structure
doctrine. (i) The Directives are not enforceable in the courts and do not create any justiciable rights in favour of
individuals.
In Glanrock Estate (P) Ltd. v. State of Tamil Nadu (2010) 10 SCC 96, the Supreme Court upheld constitutional
validity of Constitution (Thirty-fourth) Amendment Act, 1974. By Constitution (Thirty-fourth) Amendment Act, (ii) The Directives require to be implemented by legislation and so long as there is no law carrying out the
1974 Gudalur Janman Estates (Abolition & Conversion into Ryotwari) Act, 1969 was inserted in the Ninth Schedule policy laid down in a Directive neither the state nor an individual can violate any existing law.
as item 80. (iii) The Directives per-se do not confer upon or take away any legislative power from the appropriate
It was alleged that the 1969 Act violated the principle of equality because by the T N Land Reforms (Fixation of legislature.
Ceiling on Land) Act, 1961 only ceiling surplus forest lands vested in the State but by the 1969 Act all forests (iv) The courts cannot declare any law as void on the ground that it contravenes any of the Directive Principles.
vested in the State. The constitutional amendment was further challenged on the ground that it validated the
1969 Act by inserting it in the Ninth Schedule in spite of Section 3 of the 1969 Act having been declared as (v) The courts are not competent to compel the Government to carry out any Directives or to make any law
unconstitutional in Balmadies case, (1972) 2 SCC 133, thereby violating the principles of judicial review, rule of for that purpose.
law and separation of powers. (Section 3 had been declared unconstitutional in Balmadies case because it (vi) Though it is the duty of the state to implement the Directives, it can do so only subject to the limitations
could not be shown how vesting of forest lands was an agrarian reform.) imposed by the different provisions of the Constitution upon the exercise of the legislative and executive
Upholding the constitutional validity of the amendment, the Supreme Court held: power by the state.
None of the facets of Article 14 have been abrogated by the Constitution (Thirty-fourth Amendment) Act, 1974, Conflict between a Fundamental Right and a Directive Principle
which included the 1969 Act in the Ninth Schedule. When the 1969 Act was put in the Ninth Schedule in1 974, The declarations made in Part IV of the Constitution under the head ‘Directive Principles of State Policy’ are
the Act received immunity from Article 31(2) with retrospective effect. in many cases of a wider import than the declarations made in Part III as ‘Fundamental Rights’. Hence, the
It is only that breach of the principle of equality which is of the character of destroying the basic framework of the question of priority in case of conflict between the two classes of the provisions may easily arise. What will be
Constitution which will not be protected by Article 31-B. If every breach of Articl3 14, however egregious, is held the legal position if a law enacted to enforce a Directive Principle violates a Fundamental Right? Initialy, the
to be unprotected by Article 31-B, there would be no purpose in protection by Article 31-B. Courts, adopted a strict view in this respect and ruled that a Directive Principle could not override a Fundamental
Right, and in case of conflict between the two, a Fundamental Right would prevail over the Directive Principle. (d) Within the limits of economic capacity and development the State must make effective provision for
When the matter came before the Supreme Court in State of Madras v. Champakram Dorairajan, AIR 1951 securing the right to work, to education and to public assistance in case of unemployment, old age, etc.
S.C. 226, where the validity of a Government order alleged to be made to give effect to a Directive (Article 41).
Principle was challenged as being violative of a Fundamental Right, the Supreme Court made the observation
(e) Provision must be made for just and humane conditions of work and for maternity relief (Article 42).
that :
(f) The State must endeavour to secure living wage and good standard of life to all types of workers and
“The Directive Principles of State Policy have to conform to and run as subsidiary to the chapter of Fundamental
must endeavour to promote cottage industries on an individual of co-operative basis in rural areas
Rights.”
(Article 43).
The Court ruled that while the Fundamental Rights were enforceable, the Directive Principles were not, and so
(ff) The State take steps, by suitable legislation or in any other way, to secure the participation of workers in
the laws made to implement Directive Principles could not take away Fundamental Rights.
the management of undertakings, establishments or other organisations engaged in any industry (Article
The Supreme Court also pointed out that looking at Directive Principles, we find as was envisaged by the 43A).
Constitution makers, that they lay down the ideals to be observed by every Government to bring about an
(g) The State must endeavour to provide a uniform civil code for all Indian citizens (Article 44).
economic democracy in this country. Such a democracy actually is our need and unless we achieve it as soon
as possible, there is a danger to our political and constitutional democracy of being overthrown by undemocratic (h) Provision for free and compulsory education for all children upto the age of fourteen years (Article 45).
and unconstitutional means. (i) The State must promote the educational and economic interests of Scheduled Castes, Scheduled Tribes
Important Directive Principles and other weaker sections (Article 46).
To be specific, the important Directive Principles are enumerated below: (j) The State must regard it one of its primary duties to raise the level of nutritional and the standard of living
and to improve public health and in particular it must endeavour to bring about prohibition of the
(a) State to secure a social order for the promotion of welfare of the people:
consumption, except for medicinal purposes, in intoxicating drinks and of drugs which are injurious to
(1) The State must strive to promote the welfare of the people by securing and protecting as effectively health (Article 47).
as it may a social order in which justice, social, economic and political should inform all the institutions
(k) The State must organise agriculture and animal husbandry on modern and scientific lines and improve
of the national life (Article 38).
the breeds and prohibit the slaughter of cows and calves and other milch and draught cattle (Article 48).
(2) The State shall, in particular, strive to minimise the inequalities in income and endeavour to eliminate
(kk) The State shall endeavour to protect and improve the environment and to safeguard the forests and wild
inequalities in status, facilities, and opportunities, not only amongst individuals but also among
life of the country (Article 48A).
groups of people residing in different areas or engaged in different vocations. (introduced by
Constitution 44th Amendment Act). (l) Protection of monuments and places and objects of national importance is obligatory upon the State
(Article 49).
(b) Certain principles of policy to be followed by the State. The State, particularly, must direct its policy
towards securing: (m) The State must separate executive from judiciary in the public services of the State (Article 50).
(i) that the citizens, men and women equally, have the right to an adequate means of livelihood; (n) In international matters the State must endeavour to promote peace and security, maintain just and
honourable relations in respect of international law between nations, treaty obligations and encourage
(ii) that the ownership and control of the material resources of the community are so distributed as best
settlement of international disputes by arbitration (Article 51).
to subserve the common goods;
(iii) that the operation of the economic systems does not result in the concentration of wealth and FUNDAMENTAL DUTIES
means of production to the common detriment;
Article 51A imposing the fundamental duties on every citizen of India was inserted by the Constitution Forty-
(iv) equal pay for equal work for both men and women; second Amendment) Act, 1976.
(v) that the health and strength of workers and children is not abused and citizens are not forced by the The objective in introducing these duties is not laid down in the Bill except that since the duties of the citizens are
economic necessity to enter avocation unsuited to their age or strength; not specified in the Constitution, so it was thought necessary to introduce them.
(vi) that childhood, and youth are protected against exploitation and against moral and material These Fundamental Duties are:
abandonment (Article 39).
(a) to abide by the constitution and respect its ideals and institutions, the National Flag and the National
(bb) The State shall secure that the operation of legal system promotes justice on a basis of equal opportunity, Anthem;
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 (b) To cherish and follow the noble ideals which inspired our national struggle for freedom;
other disabilities (Article 39A). (c) to uphold and protect the sovereignty, unity and integrity of India;
(c) The State must take steps to organise the Village Panchayats and enable them to function as units of (d) to defend the country and render national service when called upon to do so;
self-government (Article 40).
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending (iii) Legislative power, i.e., the summoning prorogation, etc. of the legislature.
religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity
(iv) Judicial power, i.e., granting of pardons, reprieves etc. to persons convicted of crime.
of women;
These powers vest in the President under each of these heads, subject to the limitations made under the
(f) to value and preserve the rich heritage of our composite culture;
Constitution.
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have
Ordinance-making power
compassion for living creatures;
The most important legislative power conferred on the President is to promulgate Ordinances. Article 123 of the
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
Constitution provides that the President shall have the power to legislate by Ordinances at any time when it is
(i) to safeguard public property and to abjure violence; not possible to have a parliamentary enactment on the subject, immediately. This is a special feature of the
Constitution of India.
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly
rises to higher levels of endeavour and achievement. The ambit of this Ordinance-making power of the President is co-extensive with the legislative powers of
Parliament, that is to say it may relate to any subject in respect of which parliament has the right to legislate and
(k) To provide opportunities for education to one’s child or, as the case may be, ward between the age of six
is subject to the same constitutional limitations as legislation by Parliament.
and fourteen years.
On the other hand, according to Article 13(3)(a) “Law” includes an “Ordinance”. But an Ordinance shall be of
Since the duties are imposed upon the citizens and not upon the States, legislation is necessary for their
temporary duration. It may be of any nature, i.e., it may be retrospective or may amend or repeal any law or Act
implementation. Fundamental duties can’t be enforced by writs (Surya Narain v. Union of India, AIR 1982 Raj 1).
of Parliament itself.
The Supreme Court in AIIMS Students’ Union v. AIIMS (2002) SCC 428 has reiterated that though the fundamental
duties are not enforceable by the courts, they provide a valuable guide and aid to the interpretation of Constitutional This independent power of the executive to legislate by Ordinance has the following peculiarities:
and legal issues.
(i) the Ordinance-making power will be available to the President only when both the Houses of Parliament
Further, in Om Prakash v. State of U.P. (2004) 3 SCC 402, the Supreme Court held that fundamental duties have been prorogued or is otherwise not in session, so that it is not possible to have a law enacted by
enjoined on citizens under Article 51-A should also guide the legislative and executive actions of elected or non- Parliament. However, Ordinance can be made even if only one House is in Session because law cannot
elected institutions and organizations of citizens including municipal bodies. be made by that House in session alone. Both the Houses must be in session when Parliament makes
the law. The President’s Ordinance making power under the Constitution is not a co-ordinate or parallel
Test your knowledge power of legislation along with Legislature.
State whether the following statement is “True” or “False” (ii) this power is to be exercised by the President on the advice of his Council of Ministers.
The fundamental duties are imposed upon the States and not upon the citizens. (iii) the President must be satisfied about the need for the Ordinance and he cannot be compelled
• True (iv) the Ordinance must be laid before Parliament when it re-assembles, and shall automatically cease to
• False have effect at the expiration of 6 weeks from the date of re-assembly or before resolutions have been
passed disapproving the Ordinance.
Correct answer: False
(v) the period of six weeks will be counted from the latter date if the Houses reassemble on different
dates.
2. Of the Governor
ORDINANCE MAKING POWERS
The executive power of the State is vested in the Governor and all executive action of the State has to be taken
in the name of the Governor. Normally there shall be a Governor for each State but the same person can be
1. Of the President
appointed as Governor for two or more states. The Governor of a State is not elected but is appointed by the
In its Article 53 the Constitution lays down that the “executive power of the union shall be vested in the president”. President and holds his office at the pleasure of the President. The head of the executive power to a State is the
The President of India shall, thus, be the head of the ‘executive power’ of the union. The executive power may Governor just as the President for the Union.
be defined as the power of “carrying on the business of Government” or “the administration of the affairs of the
Powers: The Governor possesses executive, legislation and judicial powers as the Presidents except that he
state” excepting functions which are vested in any other authority by the Constitution. The various powers that
has no diplomate or military powers like the President.
are included within the comprehensive expression ‘executive power’ in a modern state have been classified
under various heads as follows: Ordinance making power
(i) Administrative power, i.e., the execution of the laws and the administration of the departments of This power is exercised under the head of ‘legislative powers’. The Governor’s power to make Ordinances as
Government. given under Article 213 is similar to the Ordinance making power of the President and have the force of an Act
of the State Legislature. He can make Ordinance only when the state Legislature or either of the two Houses
(ii) Military power, i.e., the command of the armed forces and the conduct of war.
(where it is bicameral) is not in session. He must be satisfied that circumstances exist which render it necessary the States in many matters, the States are autonomous within their own spheres as allotted to them by the
to take immediate action. While exercising this power Governor must act with the aid and advise of the Council Constitution. Both the Union and States are equally subject to the limitations imposed by the Constitution, say,
of Ministers. But in following cases the Governor cannot promulgate any Ordinance without instructions from the for example, the exercise of legislative powers being limited by Fundamental Rights. However, there are
President: some parts of Indian territory which are not covered by these States and such territories are called Union
Territories.
(a) if a Bill containing the same provisions would under this constitution have required the previous section
of the President. The two levels of Government divide and share the totality of governmental functions and powers between
themselves. A federal constitution thus envisages a division of governmental functions and powers between the
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration
centre and the regions by the sanction of the Constitution.
of the President.
Chapter I of Part XI (Articles 245 to 255) of the Indian Constitution read with Seventh Schedule thereto covers
(c) an Act of the state legislature containing the same provisions would under this constitution have been
the legislative relationship between the Union and the States. In analysis of these provisions reveals that the
invalid under having been reserved for the consideration of the President, it had received the assent of
entire legislative sphere has been divided on the basis of:
the President.
(a) territory with respect to which the laws are to be made, and
The Ordinance must be laid before the state legislature (when it re-assembles) and shall automatically cease to
have effect at the expiration of six weeks from the date of the re-assembly unless disapproved earlier by that (b) subject matter on which laws are to be made.
legislature.
2. Territorial Distribution
Test your knowledge
The Union Legislature, i.e., Parliament has the power to make laws for the whole of the territory of India or any
part thereof, and the State Legislatures have the power to make laws for the whole or any part of the territory of
Which of the following powers are held by the Governor?
the respective States. Thus, while the laws of the Union can be enforced throughout the territory of India, the
– Executive power laws of a State cannot be operative beyond the territorial limits of that States. For example, a law passed by the
– Military power legislature of the Punjab State cannot be made applicable to the State of Uttar Pradesh or any other state.
However, this simple generalisation of territorial division of legislative jurisdiction is subject to the following
– Legislative power clarification.
– Judicial power (A) Parliament
Correct answer: a, c, and d From the territorial point of view, Parliament, being supreme legislative body, may make laws for the whole of
India; or any part thereof; and it can also make laws which may have their application even beyond the territory
of India. A law made by Parliament is not invalid merely because it has an extra-territorial operation. As explained
LEGISLATIVE POWERS OF THE UNION AND THE STATES by Kania C.J. in A.H. Wadia v. Income-tax Commissioner, A.I.R. 1949 F.C. 18, 25 “In the case of sovereign
Legislature, questions of extra-territoriality of any enactment can never be raised in the municipal courts as a
1. Two Sets of Government ground for challenging its validity. The legislation may offend the rules of International law, may not be recognised
by foreign courts, or there may be practical difficulties in enforcing them but these are questions of policy with
The Indian Constitution is essentially federal.
which the domestic tribunals are not concerned”.
Dicey, in the “Law of Constitution’ has said “Federation means the distribution of the force of the state among a
A Union Territory is administered directly by the Central Executive. Article 239(1) provides save as otherwise
number of co-ordinate bodies, each originating in and controlled by the Constitution”. The field of Government is
provided, by Parliament by law, every Union Territory shall be administered by the President acting, to such
divided between the Federal and State Governments which are not subordinate to one another but are co-
extent as he thinks fit, through an Administrator to be appointed by him with such designation as he may specify.
ordinate and independent within the sphere allotted to them. The existence of co-ordinate authorities independent
Article 239A empowers Parliament to create local Legislatures or Council of Ministers or both for certain Union
of each other is the gist of the federal principle.
Territories with such constitutional powers and functions, in each case, as may be specified in the law. Article
A federal constitution establishes a dual polity as it comprises two levels of Government. At one level, there 246(4) provides that Parliament can make a law for a Union Territory with respect to any matter, even if it is one
exists a Central Government having jurisdiction over the whole country and reaching down to the person and which is enumerated in the State List. With regard to Union Territories, there is no distribution of legislative
property of every individual therein. At the other level, there exists the State Government each of powers. Parliament has thus plenary powers to legislate for the Union Territories with regard to any subject.
which exercises jurisdiction in one of the States into which the country is divided under the Constitution. A These powers are, however, subject to some special provisions of the Constitution.
citizen of the federal country thus becomes subject to the decrees of two Government — the central and the
(B) State Legislature
regional.
A State Legislature may make laws only for the state concerned. It can also make laws which may extend
The Union of India is now composed of 28 States and both the Union and the States derive their authority from
beyond the territory of that State. But such law can be valid only on the basis of “territorial nexus”. That is, if there
the Constitution which divides all powers-legislative, executive and financial, between them. The result is that
is sufficient nexus or connection between the State and the subject matter of the law which falls beyond the
the States are not delegates of the Union and though there are agencies and devices for Union control over
territory of the State, the law will be valid. The sufficiency of the nexus is to be seen on the basis of the test laid
down by our Supreme Court in State of Bombay v. R.M.D.C., A.I.R. 1957 S.C. 699, according to which two foreign countries; import and export across customs frontiers; inter-State trade and commerce, banking; industrial
conditions, must be fulfilled: disputes concerning Union employees; coordination and determination of Standards in institutions for higher
education are some of the subjects in the Union List. Public Order; police; prisons; local Government; public
(i) the connection must be real and not illusory; and
health and sanitation; trade and commerce within the State; markets and fairs; betting and gambling etc., are
(ii) the liability sought to be imposed by that law must be pertinent to that connection. some of the subjects included in the State List. And coming to the Concurrent List, Criminal law; marriage and
If both the conditions are fulfilled by a law simultaneously then only it is valid otherwise not. To illustrate, in the divorce; transfer of property; contracts; economic and social planning; commercial and industrial insurance;
case cited above a newspaper in the name of “Sporting Star” was published and printed at Bangalore in monopolies; social security and social insurance; legal, medical and other professions; price control, electricity;
Mysore (now Karnataka) State. It contained crossword puzzles and engaged in prize competitions. It had acquisition and requisition of property are some of the illustrative matters included in the Concurrent List.
wide circulation in the State of Bombay (now Maharashtra) and most of its activities such as the standing Apart from this enumeration of subjects, there are a few notable points with respect to these lists, e.g.:
invitations, the filling up of the forms and the payment of money took place within that State. The State of
(i) The entries relating to tax have been separated from other subjects and thus if a subject is included in
Bombay imposed a tax on the newspaper. The publishers challenged the validity of the law on the ground that
any particular List it does not mean the power to impose tax with respect to that also follows. Apart from
it was invalid in so far it covered a subject matter falling beyond the territory of that State because the paper
that, while other subjects are in the first part of the List in one group, the subjects relating to tax are given
was published in another State. The Supreme Court, applying the doctrine of territorial nexus, held that the
towards the end of the List.
nexus was sufficient between the law and its subject-matter to justify the imposition of the tax. So in this way,
the state laws may also have a limited extra-territorial operation and it is not necessary that such law should (ii) Subject-matter of tax is enumerated only in the Union List and the State List. There is no tax subject
be only one relating to tax-matters. included in the Concurrent List.
3. Distribution of Subject Matter of Legislation (iii) In each List there is an entry of “fees” with respect to any matter included in that List excluding court fee.
This entry is the last in all the Lists except List I where it is last but one.
In distributing the subjects on which legislation can be made, different constitutions have adopted different
pattern. For example, in the U.S.A. there is only one short list on the subject. Either by their express terms or by (iv) There is an entry each in Lists I and II relating to “offences against laws with respect to any of the
necessary implication some of them are exclusively assigned to the Central Government and the others concurrent matters” included in the respective List while criminal law is a general subject in the Concurrent List.
on which Centre and the States both can make laws. The subjects not enumerated in this list, i.e., residuary So far we have discussed the general aspect of the subject matters of legislation or of the items on which
subjects, have been left for the States. Similar pattern has been followed in Australia but there is one short list in Legislation could be passed. The next question that arises is, who will legislate on which subject? Whether, it is
which a few subjects have been exclusively assigned to the Centre and there is a a longer list in which those both Centre and the States that can make laws on all subjects included in the three Lists or there is some
subjects are enumerated on which Centre and States both can make laws. By necessary implication a few of division of power between the two to make laws on these subjects? The answer is that the Constitution makes
these concurrent subject have also become exclusively Central subjects. The unenumerated subjects fall clear arrangements as to how the powers shall be exercised by the Parliament or the State Legislatures on
exclusively within the State jurisdiction. A different pattern has been adopted in Canada where there are three these subjects. That arrangement is mainly contained in Article 246, but in addition to that, provisions have also
lists of subjects, one consists of subjects exclusively belonging to the Centre, the other consists of those exclusively been made in Articles 247 to 254 of the Constitution. A wholesome picture of this arrangement is briefly given
belonging to the States and the third where both can make law. Thus residuary subjects fall within the central below.
jurisdiction. The Government of India Act, 1935 followed the Canadian pattern subject to the modification that
here the lists of subjects were much more detailed as compared to those in the Canadian Constitution and Test your knowledge
secondly, the residuary subjects had been left to the discretion of the Governor-General which he could assign
either to Centre or to the States.
Which pattern was followed by The Government of India Act, 1935?
The Constitution of India, substantially follows the pattern of the Government of India Act, 1935 subject to the
modification that the residuary subjects have been left for the Union as in Canada. To understand the whole – Australian
scheme, the Constitution draws three long lists of all the conceivable legislative subjects. These lists are
– Canadian
contained in the VIIth Schedule to the Constitution. List I is named as the Union List. List II as the State List
and III as the Concurrent List. Each list contains a number of entries in which the subjects of legislation have – British
been separately and distinctly mentioned. The number of entries in the respective lists is 97, 66 and 47. The – African
subjects included in each of the lists have been drawn on certain basic considerations and not arbitrarily or in
any haphazard manner. Correct answer: b
Thus, those subjects which are of national interest or importance, or which need national control and uniformity
of policy throughout the country have been included in the Union List; the subjects which are of local or regional 4. Legislative Powers of the Union and the States with respect to Legislative Subjects
interest and on which local control is more expedient, have been assigned to the State List and those subjects
The arrangement for the operation of legislative powers of the Centre and the States with respect to different
which ordinarily are of local interest yet need uniformity on national level or at least with respect to some parts of
subjects of legislation is as follows:
the country, i.e., with respect, to more than one State have been allotted to the Concurrent List. To illustrate,
defence of India, naval, military and air forces; atomic energy, foreign affairs, war and peace, railways, posts and (a) With respect to the subject enumerated in the Union i.e., List I, the Union Parliament has the exclusive
telegraphs, currency, coinage and legal tender; foreign loans; Reserve Bank of India; trade and commerce with power to make laws. The State Legislature has no power to make laws on any of these subjects and it
is immaterial whether Parliament has exercised its power by making a law or not. Moreover, this power (a) In the National Interest (Article 249)
of parliament to make laws on subjects included in the Union List is notwithstanding the power of the
Parliament can make a law with respect to a matter enumerated in the State List if the Council of States declares
States to make laws either on the subjects included in the State List or the Concurrent List. If by any
by a resolution supporetd by two-thirds of its members present and voting, that it is necessary or expedient in
stretch of imagination or because of some mistake — which is not expected — the same subject which
the national interest that Parliament should make a law on that matter. By such declaration Parliament gets the
is included in the Union List is also covered in the State List, in such a situation that subject shall be read
authority to legislate on that matter for the whole or part of the country so long as the resolution of the Council of
only in List I and not in List II or List III. By this principle the superiority of the Union List over the other two
States remains in force. But such resolution shall remain in force for a period not exceeding one year. However,
has been recognised.
a fresh resolution can be passed a the end of one year to give extended lease to the law of Parliament and that
(b) With respect to the subjects enumerated in the State List, i.e., List II, the legislature of a State has way the law of Parliament can be continued to remain in force for any number of years.
exclusive power to make laws. Therefore Parliament cannot make any law on any of these subjects,
The laws passed by Parliament under the provision cease to have effect automatically after six months of the
whether the State makes or does not make any law.
expiry of the resolution period. Beyond that date, such Parliamentary law becomes inoperative except as regards
(c) With respect to the subjects enumerated in the Concurrent List, i.e., List III, Parliament and the State the thing done or omitted to be done before the expiry of that law.
Legislatures both have powers to make laws. Thus, both of them can make a law even with respect to
(b) During a proclamation of emergency (Article 250)
the same subject and both the laws shall be valid in so far as they are not repugnant to each other.
However, in case of repugnancy, i.e., when there is a conflict between such laws then the law made by While a Proclamation of Emergency is in operation, Article 250 of the Constitution of India removes restrictions
Parliament shall prevail over the law made by the State Legislature and the latter will be valid only to the on the legislative authority of the Union Legislature in relation to the subjects enumerated in the State List. Thus,
extent to which it is not repugnant to the former. It is almost a universal rule in all the Constitutions where during emergency, Parliament shall have power to make laws for the whole or any part of the territory of India
distribution of legislative powers is provided that in the concurrent field the Central law prevails if it with respect to all matters in the State List. These laws will cease to have effect on the expiration of six months
conflicts with a State law. However, our Constitution recognises an exception to this general or universal after the proclamation ceases to operate. After that date, such union laws shall become inoperative, except in
rule. The exception is that if there is already a law of Parliament on any subject enumerated in the respect of things done or omitted to be done before the expiry of the said period. Under Article 352, if the
Concurrent List and a state also wants to make a law on the same subject then a State can do so President is satisfied that a grave emergency exists where-by the security of India or any part of the territory
provided that law has been reserved for the consideration of the President of India and has received his thereof is threatened whether by war, or external aggression or armed rebellion, he may by proclamation make
assent. Such law shall prevail in that State over the law of Parliament if there is any conflict between the a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be
two. However, Parliament can get rid of such law at any time by passing a new law and can modify by specified in the proclamation. It is not necessary that there is an actual war or armed rebellion. It is enough that
amending or repealing the law of the State. the President is satisfied that there is an imminent danger of such war or armed rebellion as the case may be.
The proclamation of emergency shall not be issued except when the decision of the union cabinet that such
(d) With respect to all those matters which are not included in any of the three lists, Parliament has the
proclamation may be issued, has been communicated to the President in writing. Every such proclamation shall
exclusive power to make laws. It is called the residuary legislative power of Parliament. The Supreme
be laid before each House of Parliament and unless it is approved by both the Houses by a majority of not less
Court has held that the power to impose wealth-tax on the total wealth of a person including his agricultural
than two-thirds of the members present and voting within a period of 30 days thereof, such proclamation shall
land belongs to Parliament in its residuary jurisdiction (Union of India v. H.S. Dhillon, A.I.R. 1972 S.C.
cease to operate. If any such proclamatioin is issued at a time when the House of People (Lok Sabha) has been
1061).
dissolved, or the dissolution of the House of People takes place during the period of one month referred to
Test your knowledge above but before passing the resolution, and if a resolution approving the proclamation has been passed by the
Council of State (Rajya Sabha), the proclamation shall cease to operate at the expiry of thirty days from the date
State whether the following statement is “True” or “False” on which the House of the People (Lok Sabha) first sits after it’s reconstitution, unless before the expiration of
With respect to the subjects enumerated in the Concurrent List, only the Parliament the said period of thirty days a resolution approving the proclamation has also passed by the House of the
and not the State Legislature has powers to make laws. People.
• True A proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months
from the date of passing of the second resolution approving the proclamation. But this period of six months may
• False be extended by a further period of six months, if, within the first six months, both the Houses of Parliament pass
Correct answer: False a resolution approving the continuance in force of such proclamation. Prior to the Constitution 44th Amendment
Act, the position was that the proclamation when approved by both the Houses of Parliament would remain in
the force for an indefinite period unless and until the President chose to revoke the proclamation in exercise of
the power conferred by the then Article 352(2)(a).
5. Power of Parliament to make Laws on State List Article 353 provides that while a proclamation of emergency is in operation, the Parliament shall have the power
We have just discussed that the State legislatures have the exclusive powers to make laws with respect to the to make laws conferring powers and imposing duties or authorising the conferring of powers and the imposition
subjects included in the State List and Parliament has no power to encroach upon them. However, our Constitution of duties upon the Union or officers and authorities of the Union as respects that matter, notwithstanding, that it
makes a few exceptions to this general rule by authorising Parliament to make law even on the subjects is one which is not enumerated in the Union List.
enumerated in the State List. Following are the exceptions which the Constitution so recognises:
(c) Breakdown of Constitutional Machinery in a State (Article 356 and 357) on a specified subject. This article provides that, if two or more States are desirous that on any particular item
included in the State List there should be a common legislation applicable to all such States then they can make
In case the Governor of a State reports to the President, or he is otherwise satisfied that the Government of a
a request to Parliament to make such law on that particular subject. Such request shall be made by passing a
State cannot be carried on according to the provisions of the Constitution, then he (President) can make a
resolution in the legislatures of the State concerned. If request is made in that form then parliament can make
proclamation to that effect. By that proclamation, he can assume to himself all or any of the functions of the
law on that subject as regards those States. The law so made may be adopted by other States also, by passing
Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or
resolutions in their legislatures. Once, however, such law has been made, the power of those State legislatures
authority in the State, and declare that the powers of Legislature of that State shall vest in Parliament. Parliament
which originally requested or which later on adopted such law is curtailed as regards that matter; and only
can make laws with respect to all state matters as regards the particular state in which there is a breakdown of
Parliament can amend, modify or repeal such a law on similar request being made by any State or States. If any
constitutional machinery and is under the President’s rule. Further it is not necessary that the legislature of the
of the consenting States makes a law on that subject then its law will be invalid to the extent to which it is
concerned state should be suspended or dissolved before it is brought under the President’s rule, but practically
inconsistent with a law of Parliament.
it so happens. It is important to note that the President cannot, however, assume to himself any of the powers
vested in or exercisable by a High Court or to suspend, either in whole or in part, the operation of any provision To take an example, Parliament passed the Prize Competitions Act, 1955 under the provisions of the Constitution.
of the Constitution relating to the High Courts.
(e) Legislation for enforcing international agreements (Article 253)
Under the Constitution of India, the power is really that of the Union Council of Ministers with the Prime Minister
Parliament has exclusive power with respect to foreign affairs and entering into treaties and agreements with
as its head. The satisfaction of the President contemplated by this Article is subjective in nature. The power
foreign countries and implementing of treaties and agreements and conventions with foreign countries. But a
conferred by Article 356 upon the President is a conditional power. It is not an absolute power. The existence of
treaty or agreement concluded with another country may require national implementation and for that purpose
material-which may comprise of, or include, the report(s) of the Governor — is a pre-condition. The satisfaction
a law may be needed. To meet such difficulties, the Constitution authorises Parliament to make law on any
must be formed on relevant materials. Though the power of dissolving the Legislative Assembly can be said to
subject included in any list to implement:
be implicit in Clause (1) of Article 356, it must be held, having regard to the overall Constitutional scheme that
the President shall exercise it only after the proclamation is approved by both the Houses of Parliament under (i) any treaty, agreement or convention with any other country or countries, or
Clause (3) and not before. Until such approval, the President can only suspend the Legislative Assembly by (ii) any decision made at any international conference, association or other body.
suspending the provisions of the Constitution relating to the Legislative Assembly under Sub-clause (c) of Clause
(1). The proclamation under Clause (1) can be issued only where the situation contemplated by the clause These five exceptions to the general scheme of distribution of legislative powers on the basis of exclusive Union
arises. Clause (3) of Article 356, is conceived as a control on the power of the President and also as a safeguard and State Lists go to show that in our Constitution there is nothing which makes the States totally immune from
against its abuse (S.R. Bommai v. Union of India, AIR 1994 SC 1918). legislative interference by the Centre in any matter. There remains no subject in the exclusive State jurisdiction
which cannot be approached by the Centre in certain situations. But by this, one must not conclude that the
Clause 2 of Article 356 provides that any such proclamation may be revoked or varied by a subsequent distribution of legislative power in our Constitution is just illusory and all the powers vest in the Centre. On the
proclamation. It may, however, be noted that the presidential proclamation is valid only for six months at a time other hand, the distribution of legislative powers is real and that is the general rule but to face the practical
and that also if approved by both the Houses of Parliament within a period of two months from the date of difficulties the Constitution had made a few exceptions which are to operate within the circumscribed sphere
proclamation. A fresh proclamation can be issued to extend the life of the existing one for a further period of six and conditions.
months but in no case such proclamation can remain in force beyond a consecutive period of three years. The
Constitution (Fourty-Second) Amendment Act, 1976 inserted a new clause (2) in Article 357. It provides that any 6. Interpretation of the Legislative Lists
law made in exercise of the Power of the Legislature of the State by Parliament or the President or other
For giving effect to the various items in the different lists the Courts have applied mainly the following principles :
Authority referred to in Sub-clause (a) of Clause (1) which Parliament or the President or such other Authority
would not, but for the issue of a proclamation under Article 356 have been competent to make shall, after the (a) Plenary Powers: The first and foremost rule is that if legislative power is granted with respect to a
proclamation has ceased to operate, continue in force until altered, or repealed or amended by a competent subject and there are no limitations imposed on the power, then it is to be given the widest scope that
Legislature or other authority. This means that the laws made during the subsistence of the proclamation shall its words are capable of, without, rendering another item nugatory. In the words of Gajenderagadkar,
continue to be in force unless and until they are altered or repealed by the State Legislature. So an express C.J.
negative act is required in order to put an end to the operation of the laws made in respect of that State by the
“It is an elementary cardinal rule of interpretation that the words used in the Constitution which confer
Union.
legislative power must receive the most liberal construction and if they are words of wide amplitude,
The action of the President under Article 356 is a constitutional function and the same is subject to judicial they must be interpreted so as to give effect to that amplitude. A general word used in an entry ... must
review. The Supreme Court or High Court can strike down the proclamation if it is found to be mala fide or based be construed to extend to all ancillary or subsidiary matters which can fairly and reasonably be held to
on wholly irrelevant or extraneous grounds. If the Court strikes down the proclamation, it has the power to be included in it (Jagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563).
restore the dismissed government to office and revive and reactivate the Legislative Assembly wherever it may
Thus, a legislature to which a power is granted over a particular subject may make law on any aspect or
have been dissolved or kept under suspension. (see S.R. Bommai’s case).
on all aspects of it; it can make a retrospective law or a prospective law and it can also make law on all
(d) On the request of two or more States (Article 252) matters ancillary to that matter. For example, if power to collect taxes is granted to a legislature, the
power not to collect taxes or the power to remit taxes shall be presumed to be included within the power
Article 252 of the Constitution enumerates the power of Parliament to legislate for state. The exercise of such
to collect taxes.
power is conditional upon an agreement between two or more States requesting Parliament to legislate for them
(b) Harmonious Construction: Different entries in the different lists are to be interpreted in such a way Test your knowledge
that a conflict between them is avoided and each of them is given effect. It must be accepted that the
Constitution does not want to create conflict and make any entry nugatory. Therefore, when there appears State whether the following statement is “True” or “False”
a conflict between two entries in the two different lists the two entries should be so interpreted, that each
During emergency, the Parliament shall have power to make laws for the whole or
of them is given effect and, for that purpose the scope and meaning of one may be restricted so as to
any part of the territory of India with respect to all matters in the State List.
give meaning to the other also.
• True
(c) Pith and Substance Rule: The rule of pith and substance means that where a law in reality and
substance falls within an item on which the legislature which enacted that law is competent to legislate, • False
then such law shall not become invalid merely because it incidentally touches a matter outside the Correct answer: True
competence of legislature. In a federal Constitution, as was observed by Gwyer C.J. “it must inevitably
happen from time to time that legislation though purporting to deal with a subject in one list touches also
upon a subject in another list, and the different provisions of the enactment may be so closely intertwined
that blind adherence to a strictly verbal interpretation would result in a large number of statutes being
declared invalid because the legislature enacting them may appear to have legislated in a forbidden FREEDOM OF TRADE, COMMERCE AND INTERCOURSE
sphere” (Prafulla Kumar v. Bank of Khulna, AIR 1947 PC 60). Therefore, where such overlapping occurs, This heading has been given to Part XIII of the Constitution. This part originally consisted of seven articles –
the question must be asked, what is, “pith and substance” of the enactment in question and in which list Articles 301 to 307 – of which one (Art. 306) has been repealed. Out of these articles it is the first, i.e., 301 which,
its true nature and character is to be found. For this purpose the enactment as a whole with its object in real sense, creates an overall comprehensive limitation on all legislative powers of the Union and the State
and effect must be considered. By way of illustration, acting on entry 6 of List II which reads “Public which affect the matters covered by that Article. This Article guarantees the freedom of trade, commerce and
Health and Sanitation”. Rajasthan Legislature passed a law restricting the use of sound amplifiers. The intercourse and runs in the following words:
law was challenged on the ground that it dealt with a matter which fell in entry 81 of List I which reads:
“Post and telegraphs, telephones, wireless broadcasting and other like forms of communication”, and, “Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India
therefore, the State Legislature was not competent to pass it. The Supreme Court rejected this argument shall be free”.
on the ground that the object of the law was to prohibit unnecessary noise affecting the health of public The opening words of this Article clearly show, and it has been so held by the Supreme Court, that except the
and not to make a law on broadcasting, etc. Therefore, the pith and substance of the law was “public provisions contained under this Part, i.e., Articles 302 to 307 under no other provision of the Constitution the free
health” and not “broadcasting” (G. Chawla v. State of Rajasthan, AIR 1959 SC 544). flow of trade and commerce can be interfered with. The object of the freedom declared by this Article is to ensure
(d) Colourable Legislation: It is, in a way, a rule of interpretation almost opposite to the one discussed that the economic unity of India may not be broken by internal barriers.
above. The Constitution does not allow any transgression of power by any legislature, either directly or The concept of trade, commerce and intercourse today is so wide that from ordinary sale and purchase it
indirectly. However, a legislature may pass a law in such a way that it gives it a colour of constitutionality includes broadcasting on radios, communication on telephone and even to non-commercial movement from
while, in reality, that law aims at achieving something which the legislature could not do. Such legislation one place to another place. If such is the scope of trade and commerce then any law relating to any matter
is called colourable piece of legislation and is invalid. To take an example in Kameshwar Singh v. State may affect the freedom of trade, commerce and intercourse, e.g., it may be said that the law which imposes
of Bihar, A.I.R. 1952 S.C. 252, the Bihar Land Reforms Act, 1950 provided that the unpaid rents by the the condition of licence for having a radio violates the freedom of trade and commerce, or a law which regulates
tenants shall vest in the state and one half of them shall be paid back by the State to the landlord or the hours during which the electricity in a particular locality shall be available may be called as affecting the
zamindar as compensation for acquisition of unpaid rents. According to the provision in the State List freedom of trade and commerce because during those hours one cannot use the radio or television or one
under which the above law was passed, no property should be acquired without payment of compensation. cannot run this factory. If that view is taken then every law shall become contrary to Articles 301 and unless
The question was whether the taking of the whole unpaid rents and then returning half of them back to saved by Articles 302 to 307 shall be unconstitutional. To avoid such situations the Supreme Court in the very
them who were entitled to claim, (i.e., the landlords) is a law which provides for compensatioin. The first case on the matter (Atiabari Tea Co. v. State of Assam, A.I.R. 1951 S.C. 232) declared that only those
Supreme Court found that this was a colourable exercise of power of acquisition by the State legislature, laws which “directly and immediately” restrict or impede the freedom of trade and commerce are covered by
because “the taking of the whole and returning a half means nothing more or less than taking of without Article 301 and such laws which directly and incidentally affect the freedom guaranteed in that article are not
any return and this is naked confiscation, no matter in whatever specious form it may be clothed or within the reach of Article 301. The word ‘intercourse’ in this article is of wide import. It will cover all such
disguised”. intercourse as might not be included in the words ‘trade and commerce’. Thus, it would cover movement and
The motive of the legislature is, however, irrelevant for the application of this doctrine. Therefore, if a dealings even of a non-commercial nature (Chobe v. Palnitkar, A.I.R. 1954 Hyd. 207). The word, free in Article
legislature is authorised to do a particular thing directly or indirectly, then it is totally irrelevant as to with 301 cannot mean an absolute freedom. Such measures as traffic regulations licensing of vehicles etc. are not
what motives – good or bad – it did that. open to challenge.
These are just few guiding principles which the Courts have evolved, to resolve the disputes which may It was further held in the next case (Automobile Transport Ltd. v. State of Raj., A.I.R. 1962 S.C. 1906) that
arise about the competence of law passed by Parliament or by any State Legislature. regulations that facilitate the freedom of trade and commerce and compensatory taxes are also saved from the
reach of Article 301. About compensatory taxes the Supreme Court has doubted the correctness of its own
views in a later case Khyerbari Tea Co. v. State of Assam, A.I.R. 1964 S.C. 925.
With respect to regulatory laws also, we may say that if they are the laws which facilitate the freedom of trade authorises Parliament to appoint by law such authority as it considers appropriate for carrying out purposes of
and commerce then they are not at all laws which impede the free flow of trade and commerce directly or Articles 301 to 304 and to confer on the authority so appointed such powers and duties as it thinks necessary.
indirectly. The freedom of trade and commerce guaranteed under Article 301 applies throughout the territory of
India; it is not only to inter-state but also to intra-state trade commerce and intercourse. But in no way it covers CONSTITUTIONAL PROVISIONS RELATING TO STATE MONOPOLY
the foreign trade or the trade beyond the territory of India. Therefore, the foreign trade is free from the restriction Creation of monopoly rights in favour of a person or body of persons to carry on any business prima facie affects
of Article 301. the freedom of trade. But in certain circumstances it can be justified.
Trade and commerce which are protected by Article 301 are only those activities which are regarded as lawful After the Constitution (Amendment) Act, 1951, the States create a monopoly in favour of itself, without being
trading activities and are not against policy. The Supreme Court held that gambling is not “trade”. Similarly, prize called upon to justify its action in the Court as being reasonable.
competitions being of gambling in nature, cannot be regarded as trade or commerce and as such are not
Sub-clause (ii) of clause (6) of Article 19 makes it clear that the freedom of profession, trade or business will not be
protected under Article 301 (State of Bombay v. RMDC, AIR 1957 SC 699).
understood to mean to prevent the state from undertaking either directly or through a corporation owned or controlled
The freedom guaranteed by Article 301 is not made absolute and is to be read subject to the following exceptions by it, any trade, business, industry or service, whether to the exclusion, complete or partial, citizens or otherwise.
as provided in Articles 302-305. If a law is passed creating a State monopoly the Court should enquire what are the provisions of the said law
(a) Parliament to Impose Restriction in the Public Interest which are basically and essentially necessary for creating the state monopoly. Sub-clause (ii) of clause (6)
protects only the essential and basic provisions. If there are other provisions which are subsidiary or incidential
According to Article 302 Parliament may, by law, impose such restrictions on the freedom of trade, commerce to the operation of the monopoly they do not fall under Article 19(6)(ii). It was held by Shah, J. in R.C. Cooper v.
and intercourse as may be required in the public interest. Union of India, (1970) 1 SCC 248 (known as Bank Nationalisation case), that the impugned law which prohibited
(b) Parliament to make Preference or Discrimination the named banks from carrying the banking business was a necessary incident of the business assumed by the
Union and hence was not liable to be challenged under Article 19(6)(ii) in so far as it affected the right of a citizen
Parliament cannot by making any law give preference to one State over the other or make discrimination between to carry on business.
the States except when it is declared by that law that it is necessary to do so for the purpose of dealing with a
situation arising from scarcity of goods in any part of the territory of India [Article 303 (1) and (2)]. THE JUDICIARY
(c) Power of the State Legislature The Supreme Court
The Legislature of a State may by law: The Courts in the Indian legal system, broadly speaking, consist of (i) the Supreme Court, (ii) the High Courts, and
(iii) the subordinate courts. The Supreme Court, which is the highest Court in the country (both for matters of
(a) impose on goods imported from other States or the Union territories any tax to which similar goods
ordinary law and for interpreting the Constitution) is an institution created by the Constitution. Immediately before
manufactured or produced in that State are subject, so, however, as not to discriminate between goods
independence, the Privy Council was the highest appellate authority for British India, for matters arising under
so imported and goods so manufactured or produced; and
ordinary law. But appeals from High Courts in constitutional matters lay to the Federal Court (created under the
(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse within the State Government of India Act, 1935) and then to the Privy Council. The Supreme Court of India, in this sense, has
as may be required in the public interest. inherited the jurisdiction of both the Privy Council and the Federal Court. However, the jurisdiction of the Supreme
Court under the present Constitution is much more extensive than that of its two predecessors mentioned above.
However, no bill or amendment for making a law falling in this provision can be introduced or moved in the
Legislature of a State without the previous sanction of the President. [Article 304] The Supreme Court, entertains appeals (in civil and criminal and other cases) from High Courts and certain
Tribunals. It has also writ jurisdiction for enforcing Fundamental Rights. It can advise the President on a reference
In Kalyani Stores v. State of Orissa, Supreme Court held that Article 304 enables State legislature to impose made by the President on questions of fact and law. It has a variety of other special jurisdictions.
taxes on goods from other States, if goods produced within the state are subjected to such taxes. A subsequent
assent of President is also sufficient, as held in Karnataka v. Hansa Corpn., (1981) SC 463. High Courts
(d) Saving of Existing Laws The High Courts that function under the Constitution were not created for the first time by the Constitution. Some
High Courts existed before the Constitution, although some new High Courts have been created after 1950. The
The law which was already in force at the commencement of the Constitution shall not be affected by the High Courts in (British) India were established first under the Indian High Courts Act, 1861 (an Act of the U.K.
provisions of Article 301 except in so far as the President may, by order, otherwise direct (Art 305). Parliament). The remaining High Courts were established or continued under the Constitution or under special
(e) Saving of Laws providing for State Monopoly Acts. High Courts for each State (or Group of States) have appellate, civil and criminal jurisdiction over lower
Courts. High Courts have writ jurisdiction to enforce fundamental rights and for certain other purposes.
The laws which create State monopoly in any trade, etc. are saved from attack under Article 301, i.e., they are
Some High Courts (notably) Bombay, Calcutta and Delhi, have ordinary original civil jurisdiction (i.e. jurisdiction
valid irrespective of the fact that they directly impede or restrict the freedom of trade and commerce. So, if the
to try regular civil suits) for their respective cities. High Courts can also hear references made by the Income Tax
State creates a monopoly in road, transporters cannot complain that their freedom of trade and commerce has
Appellate Tribunal under the Income Tax Act and other tribunals.
been affected or if the State created monopoly in banking then other bankers cannot complain that their freedom
of trade and commerce has been restricted. It should be added, that the “writ” jurisdiction vested at present in all High Courts by the Constitution was (before
the Constitution came into force) vested only in the High Courts of Bombay, Calcutta and Madras (i.e. the three
The last provision (Article 307) in Part XIII which need not even be mentioned except by way of information
Presidency towns).
Subordinate Courts WRIT JURISDICTION OF HIGH COURTS AND SUPREME COURT

Finally, there are various subordinate civil and criminal courts (original and appellate), functioning under ordinary In the words of Dicey, prerogative writs are ‘the bulwark of English Liberty’. The expression ‘prerogative writ’ is
law. Although their nomenclature and powers have undergone change from time to time, the basic pattern one of Engish common law which refers to the extraordinary writs granted by the sovereign, as fountain of
remains the same. These have been created, not under the Constitution, but under laws of the competent justice on the ground of inadequacy of ordinary legal remedies. In course of time these writs were issued by the
legislature. Civil Courts are created mostly under the Civil Courts Act of each State. Criminal courts are created High Court as extraordinary remedies in cases where there was either no remedy available under the ordinary
mainly under the Code of Criminal Procedure. law or the remedy available was inadequate. Under the Constitution by virtue of Article 226, every High Court
Civil Courts has the power to issue directions or orders or writs including writs in the nature of Habeas corpus, Mandamus,
Prohibition, Quo warranto and Certiorari or any of them for the enforcement of fundamental rights stipulated in
In each district, there is a District Court presided over by the District Judge, with a number of Additional District Part III of the Constitution or for any other purpose.This power is exercisable by each High Court throughout the
Judges attached to the court. Below that Court are Courts of Judges (sometimes called subordinate Judges) territory in relation to which it exercises jurisdiction. Where an effective remedy is available, the High Court
and in, some States, Munsiffs. These Courts are created under State Laws. should not readily entertain a petition under Article 226 of the constitution of India e.g. under the Companies Act,
Criminal Courts a share holder has very effective remedies for prevention of oppression and mismanagement. Consequently
High Court should not entertain a petition under the said Article (Ramdas Motors Transport Company Limited v.
Criminal courts in India primarily consist of the Magistrate and the Courts of Session. Magistrates themselves
T.A. Reddy, AIR 1997 SC 2189).
have been divided by the Code of Criminal Procedure into ‘Judicial’ and ‘Executive’ Magistrates. The latter do
not try criminal prosecutions, and their jurisdiction is confined to certain miscellaneous cases, which are of The Supreme Court could be moved by appropriate proceedings for the issue of directions or orders or writs, as
importance for public tranquillity and the like. Their proceedings do not end in conviction or acquittal, but in referred to under Article 226 for the enforcement of the rights guaranteed by Part III of the Constitution. Article 32
certain other types of restrictive orders. In some States, by local amendments, Executive Magistrates have been itself being a fundamental right, the Constitutional remedy of writ is available to anyone whose fundamental
vested with powers to try certain offences. rights are infringed by state action. Thus we see the power of the High Courts to issue these writs is wider than
that of the Supreme Court, Whereas:
As regards Judicial Magistrates, they are of two classes : Second Class and First Class. Judicial Magistrates are
subject to the control of the Court of Session, which also is itself a Court of original jurisdiction. The powers of (a) an application to a High Court under Article 226 will lie not only where some other limitation imposed by
Magistrates of the two classes vary, according to their grade. The Court of Session can try all offences, and has the Constitution, outside Part III, has been violated, but, an application under Article 32 shall not lie in
power to award any sentence, prescribed by law for the offence, but a sentence of death requires confirmation any case unless the right infringed is ‘Fundamental Right’ enumerated in Part III of the Constitution;
by the High Court. (b) while the Supreme Court can issue a writ against any person or Government within the territory of India,
In some big cities (including the three Presidency towns and Ahmedabad and Delhi), the Magistrates are called a High Court can, under Article 226, issue a writ against any person, Government or other authority only
Metropolitan Magistrates. There is no gradation inter se. Further, in some big cities (including the three Presidency if such person or authority is physically resident or located within the territorial jurisdiction of the particular
towns and Ahmedabad and Hyderabad), the Sessions Court is called the “City Sessions Court”, its powers High Court or if the cause of action arises within such jurisdiction.
being the same as those of the Courts of Session in the districts. As stated earlier, the Supreme Court has been assigned by the Constitution a special role as “the protector and
Special Tribunals guarantor of fundamental rights” by Article 32 (1). Although the Constitution has provided for concurrent writ
jurisdiction of the High Courts it is not necessary, that an aggrieved petitioner should first apply to the High Court
Besides these Courts, which form part of the general judicial set up, there are hosts of specialised tribunals
and then to the Supreme Court (Romesh Thappar v. Madras).
dealing with direct taxes, labour, excise and customs, claims for accidents caused by motor vehicles, copyright
and monopolies and restrictive trade practices. The jurisdiction of the High Court also extends to the enforcement of rights other than fundamental rights provided
there is a public duty. The Supreme Courts jurisdiction to issue writs extends to all fundamental rights (Common
For the trial of cases of corruption, there are Special Judges, appointed under the Criminal Law Amendment Act,
Cause v Union of India, A.I.R. 1999 SC 2979).
1952.
Types of Writs
Test your knowledge
A brief discription of the various types of writs is given below:
1. Habeas Corpus
Which of the following courts can advise the President on a reference made by the
President on questions of fact and law? The writ of Habeas corpus - an effective bulwark of personal liberty – is a remedy available to a person who is
confined without legal justification. The words ‘Habeas Corpus’ literally mean “to have the body”. When a prima
(a) Supreme court
facie case for the issue of writ has been made then the Court issues a rule nisi upon the relevant authority to
(b) High court show cause why the writ should not be issued. This is in national order to let the Court know on what grounds he
(c) Criminal court has been confined and to set him free if there is no justification for his detention. This writ has to be obeyed by
the detaining authority by producing the person before the Court. Under Articles 32 and 226 any person can
(d) Civil court
move for this writ to the Supreme Court and High Court respectively. The applicant may be the prisoner or any
Correct answer: (a) person acting on his behalf to safeguard his liberty for the issuance of the writ of Habeas Corpus as no man can
be punished or deprived of his personal liberty except for violation of law and in the ordinary legal manner. An (i) the office is of public and of a substantive nature,
appeal to the Supreme Court of India may lie against an order granting or rejecting the application (Articles 132,
(ii) created by statute or by the Constitution itself, and
134 or 136). The disobedience to this writ is met with by punishment for contempt of Court under the Contempt
of Courts Act. (iii) the respondent has asserted his claim to the office. It can be issued even though he has not assumed
the charge of the office.
2. Mandamus
The fundamental basis of the proceeding of Quo warranto is that the public has an interest to see that a lawful
The word ‘Mandamus’ literally means we command. The writ of mandamus is, a command issued to direct any
claimant does not usurp a public office. It is a discretionary remedy which the court may grant or refuse.
person, corporation, inferior court, or Government requiring him or it do a particular thing specified therein which
pertains to his or its office and is further in the nature of a public duty. This writ is used when the inferior tribunal Test your knowledge
has declined to exercise jurisdiction while resort to certiorari and prohibition arises when the tribunal has wrongly
exercised jurisdiction or exceeded its jurisdiction and are available only against judicial and quasi-judicial bodies. Choose the correct answer
Mandamus can be issued against any public authority. It commands activity. The writ is used for securing judicial Which of the following writs enables enquiry into the legality of the claim which a
enforcement of public duties. In a fit case, Court can direct executives to carry out Directive Principles of the person asserts, to an office or franchise and to oust him from such position if he is
Constitution through this writ (State of Maharashtra v. MP Vashi, 1995 (4) SCALE). The applicant must have a a usurper?
legal right to the performance of a legal duty by the person against whom the writ is prayed for. It is not issued if
the authority has a discretion. (a) Habeas Corpus
The Constitution of India by Articles 226 and 32 enables mandamus to be issued by the High Courts and the (b) Mandamus
Supreme Court to all authorities. (c) Certiorari
Mandamus does not lie against the President or the Governor of a State for the exercise of their duties and (d) Quo Warranto
power (Article 361). It does not lie also against a private individual or body except where the state is in collusion
Correct answer: d
with such private party in the matter of contravention of any provision of the Constitution of a statute. It is a
discretionary remedy and the High Court may refuse if alternative remedy exists except in case of infringement
of fundamental rights. DELEGATED LEGISLATION
3. Prohibition The increasing complexity of modern administration and the need for flexibility capable of rapid readjustment to
A writ of prohibition is issued to an Inferior Court preventing the latter from usurping jurisdiction which is not meet changing circumstances which cannot always be foreseen, in implementing our socio-economic policies
legally vested in it. When a tribunal acts without or in excess of jurisdiction, or in violation of rules or law, a writ pursuant to the establishment of a welfare state as contemplated by our Constitution, have made it necessary
of prohibition can be asked for. It is generally issued before the trial of the case. for the legislatures to delegate its powers. Further, the Parliamentary procedure and discussions in getting
through a legislative measure in the Legislatures is usually time consuming.
While mandamus commands activity, prohibition commands inactivity, it is available only against judicial or
quasi judicial authorities and is not available against a public officer who is not vested with judicial functions. If The three relevant justifications for delegated legislation are:
abuse of power is apparent this writ may be of right and not a matter of discretion. (i) the limits of the time of the legislature;
4. Certiorari (ii) the limits of the amplitude of the legislature, not merely its lack of competence but also its sheer inability
It is available to any person, wherever any body of persons having legal authority to determine questions affecting to act in many situations, where direction is wanted; and
the rights of subjects and having the duty to act judicially in excess of their legal authority” (See The King v. (iii) the need of some weapon for coping with situations created by emergency.
Electricity Commissioners, (1924) I.K.B. 171, P. 204-5).
The delegation of the legislative power is what Hughus, Chief Justice called, flexibility and practicability (Currin
The writ removes the proceedings from such body to the High Court, to quash a decision that goes beyond its v. Wallace 83 L. ed. 441).
jurisdiction. Under the Constitution of India, all High Courts can issue the writ of certiorari throughout their
territorial jurisdiction when the subordinate judicial authority acts (i) without or in excess of jurisdiction or in (ii) Classification of delegated legislation
contravention of the rules of natural justice or (iii) commits an error apparent on the face of the record. The
The American writers classify delegated legislation as contingent and subordinate. Further, legislation is
jurisdiction of the Supreme Court to issue such writs arises under Article 32. Although the object of both the writs
either supreme or subordinate. The Supreme Law or Legislation is that which proceeds from supreme or
of prohibition and of certiorari is the same, prohibition is available at an earlier stage whereas certiorari is
sovereign power in the state and is therefore incapable of being repealed, annulled or controlled by any other
available at a later stage but in similar grounds i.e. Certiorari is issued after authority has exercised its powers.
legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign
5. Quo Warranto power, and is, therefore, dependent for its continued existence and validity on some sovereign or supreme
The writ of quo warranto enables enquiry into the legality of the claim which a person asserts, to an office or authority.
franchise and to oust him from such position if he is an usurper. The holder of the office has to show to the court
under what authority he holds the office. It is issued when:
Classification of Subordinate Legislation In England, however, the position is different. Parliament in England may delegate to any extent and even all its
power of law-making to an outside authority. In U.S.A., the Constitution embodies the doctrine of separation of
1. Executive Legislation powers, which prohibits the executive being given law making powers. On the question whether there is any
The tendency of modern legislation has been in the direction of placing in the body of an Act only few general limit beyond which delegation may not go in India, it was held in In re-Delhi Laws Act, 1912 AIR 1951 SC 332,
rules or statements and relegating details to statutory rules. This system empowers the executive to make rules that there is a limit that essential powers of legislation or essential legislative functions cannot be delegated.
and orders which do not require express confirmation by the legislature. Thus, the rules framed by the Government However, there is no specific provision in the Constitution prohibiting the delegation. On the question whether
under the various Municipal Acts fall under the category. such doctrine is recognised in our Constitution, a number of principles in various judicial decisions have been
laid down which are as follows:
2. Judicial Legislation
(a) The primary duty of law-making has to be discharged by the Legislature itself. The Legislature cannot
Under various statues, the High Courts are authorised to frame rules for regulating the procedure to be followed delegate its primary or essential legislative function to an outside authority in any case.
in courts. Such rules have been framed by the High Courts under the Guardians of Wards Act, Insolvency Act,
Succession Act and Companies Act, etc. (b) The essential legislative function consists in laying down the ‘the policy of the law’ and ‘making it a
binding rule of conduct’. The legislature, in other words must itself lay down the legislative policy and
3. Municipal Legislation principles and must afford sufficient guidance to the rule-making authority for carrying out the declared
Municipal authorities are entrusted with limited and sub-ordinate powers of establishing special laws applicable policy.
to the whole or any part of the area under their administration known as bye-laws. (c) If the legislature has performed its essential function of laying down the policy of the law and providing
4. Autonomous Legislation guidance for carrying out the policy, there is no constitutional bar against delegation of subsidiary or
ancillary powers in that behalf to an outside authority.
Under this head fall the regulations which autonomus bodies such as Universities make in respect of matters
which concern themselves. (d) It follows from the above that an Act delegating law-making powers to a person or body shall be invalid,
if it lays down no principles and provides no standard for the guidance of the rule-making body.
5. Colonial Legislation
(e) In applying this test the court could take into account the statement in the preamble to the act and if said
The laws made by colonies under the control of some other nation, which are subject to supreme legislation of
statements afford a satisfactory basis for holding that the legislative policy or principle has been enunciated
the country under whose control they are.
with sufficient accuracy and clarity, the preamble itself would satisfy the requirements of the relevant
Principles applicable tests.
A body, to which powers of subordinate legislation are delegated, must directly act within the powers which are (f) In every case, it would be necessary to consider the relevant provisions of the Act in relation to the
conferred on it and it cannot act beyond its powers except to the extent justified by the doctrine of implied delegation made and the question as to whether the delegation made is intra vires or not will have to be
powers. The doctrine of implied powers means where the legislature has conferred any power, it must be decided by the application of the relevant tests.
deemed to have also granted any other power without which that power cannot be effectively exercised.
(g) Delegated legislation may take different forms, viz. conditional legislation, supplementary legislation
Subordinate legislation can not take effect unless published. Therefore, there must be promulgation and publication subordinate legislation etc., but each form is subject to the one and same rule that delegation made
in such cases. Although there is no rule as to any particular kind of publication. without indicating intelligible limits of authority is constitutionally incompetent.
Conditional legislation is defined as a statute that provides controls but specifies that they are to come into effect
only when a given administrative authority finds the existence of conditions defined in the statue. In other words LESSON ROUND UP
in sub-ordinate legislation the delegate completes the legislation by supplying details within the limits prescribed
by the statute and in the case of conditional legislation, the power of legislation is exercised by the legislature – The Constitution of India came into force on January 26, 1950. The preamble to the Constitution sets
conditionally, leaving to the discretion of an external authority, the time and manner of carrying its legislation into out the aims and aspirations of the people of India. Constitution of India is basically federal but with
effect (Hamdard Dawa Khana v. Union of India, AIR, 1960 SC 554). certain unitary features. The essential features of a Federal Polity or System are – dual Government,
distribution of powers, supremacy of the Constitution, independence of Judiciary, written Constitution,
While delegating the powers to an outside authority the legislature must act within the ambit of the powers and a rigid procedure for the amendment of the Constitution.
defined by the Constitution and subject to the limitations prescribed thereby. If an Act is contrary to the provisions
of the Constitution, it is void. Our Constitution embodies a doctrine of judicial review of legislation as to its – The fundamental rights are envisaged in Part III of the Constitution. These are:
conformity with the Constitution. (i) Right to Equality; (ii) Right to Freedom; (iii) Right against Exploitation;
(iv) Right to Freedom of Religion; (v) Cultural and Educational Rights; (vi) Right to Constitutional
Remedies.
– The Directive Principles as envisaged by the Constitution makers lay down the ideals to be observed
by every Government to bring about an economic democracy in this country.
Lesson 20 Constitution of India 329
– Article 51A imposing the fundamental duties on every citizen of India was inserted by the Constitution
(Forty-second Amendment) Act, 1976.
– The most important legislative power conferred on the President is to promulgate Ordinances. The
ambit of this Ordinance-making power of the President is co-extensive with the legislative powers of
the Parliament. The Governor’s power to make Ordinances is similar to the Ordinance making power
of the President and has the force of an Act of the State Legislature.
– The Union of India is composed of 28 States and both the Union and the States derive their authority
from the Constitution which divides all powers-legislative, executive and financial, between them.
Both the Union and States are equally subject to the limitations imposed by the Constitution. However,
there are some parts of Indian territory which are not covered by these States and such territories are
called Union Territories.
– The courts in the Indian legal system, broadly speaking, consist of (i) the Supreme Court, (ii) the High
Courts, and (iii) the subordinate courts. The Supreme Court, which is the highest Court in the country
is an institution created by the Constitution. The jurisdiction of the Supreme Court is vast including the
writ jurisdiction for enforcing Fundamental Rights.
·– The increasing complexity of modern administration and the need for flexibility capable of rapid
readjustment to meet changing circumstances, have made it necessary for the legislatures to delegate
its powers.
– While delegating the powers to an outside authority, the legislature must act within the ambit of the
powers defined by the Constitution and subject to the limitations prescribed thereby.
SELF TEST QUESTIONS
1. The Constitution of India is “federal in character but with unitary features”. Comment.
2. Discuss the Ordinance making powers of the President and of the Governor.
3. Does a law made by a State to create monopoly rights in favour of a person to carry on any business
affect the freedom of trade?
4. Write short notes on:
(i) Delegated Legislation.
(ii) Writ of Habeas Corpus.
(iii) Writ of Mandamus.
(iv) Writ of Certiorari.
(v) Right to Constitutional Remedies.
5. Discuss the relationship between Fundamental Rights and Directive Principles of State Policy.

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Lesson 20 Constitution of India 275 276 EP-IL&GL

Justifiability of Fundamental Rights Doctrine of Eclipse

(ii) public order. (g) Freedom to trade and occupations

Subordinate Courts WRIT JURISDICTION OF HIGH COURTS AND SUPREME COURT

SELF TEST QUESTIONS

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