Constitutional Law –I

CHAPTER - I

Constitution- Meaning and significance

Meaning:

The word ‘Constitution’ is of French origin which is generally used for

regulation and orders. A Constitution means a document having a special legal
sanctity. Constitution is the supreme law of India. The document lays down
the framework that define fundamental political code, structure, procedures,
powers, and duties of government institutions and sets out fundamental rights,
directive principles, and the duties of citizens.
Leacock: – According to him, “Constitution is the form of government”.

Significance:
The Constitution of India which was brought into force on 26 January
1950 announcing the birth of a new republic to the entire world. It is the
Supreme Lex, it reflects upon the struggle and aspirations of the people of a
country. The Constitution of India is also known as the father of all laws i.e.,
grundnorm. It took almost three years (two years, eleven months and eighteen
days to be precise) to complete the historic task of drafting the Constitution for
Independent India. The Constitution of India was adopted on 26 November 1949
and the Hon’ble members appended their signatures on it on 24 January 1950.
The Constitution of India is the longest written constitution in the world
containing 395 articles, 22 Parts, and 12 Schedules. It is a promise to the people
for securing them socio-economic and political justice, liberty and equality;
liberty of thought, expression, belief, faith and worship; equality of status and
opportunity. Object in framing the Constitution is two-fold: 1. to lay down the
form of political democracy, and to lay down that our ideal is economic
democracy and also to prescribe that every Government whatever is in power
shall strive to bring about economic democracy. The Constitution of India lays
down a structure for political, economic and social democracy. The Preamble to
the Constitution of India embodies and reflects the fundamental values,
philosophy and objectives on which the Constitution is based.
The Constitution of India incorporates the best features of each of the
Constitutions of different jurisdictions across the world, by suitably modifying
them in such a way so as to avoid any uncertainty or shortcomings that existed
in the said Constitutions. It can also be labelled as “borrowed” Constitution. In
the Constituent Assembly, Dr B. R. Ambedkar stated that ‘there is nothing to be
ashamed of in borrowing what suits us best’.
Our Constitution embodies the Independence of Judiciary, Fundamental
Rights and Judicial Review, based upon the American Constitution.
The Parliamentary form of Government, Cabinet system and the Rule of
law are adopted from the United Kingdom.
The Provisions relating to the emergency from the German Reich and the
Government of India Act, 1935 along w ith the federal scheme.
The Federal system with a strong Centre was acquired from Canada.
The Directive Principles of State Policy were other remarkable features
imbibed from the Constitution of Eire.

Classification of Constitution:

The constitution is classified in to four types-

Evolved and Enacted constitutions

Legal and Real constitutions
Written and Unwritten constitutions
Flexible and Rigid constitutions

Evolved and Enacted constitutions:

An evolved constitution is the result of the historical development. It is not

framed at a particular time. Enacted constitutions are framed at a particular
time, like the American Constitution which was framed by a Constituent
Assembly after the declaration of Independence.

2. Legal and Real constitutions:

The written elements of the constitution constitute legal constitution and when
the conventions and decisions of the courts are added to it, it becomes the real
constitution. For example, the Constitution of America can be read in a few
hours, but one cannot get real and complete information about the constitution
in this way. Real knowledge can only be acquired when besides the constitution;
we study the decisions of the judges, and also customs and conventions.

3. Written and Unwritten constitution:

An unwritten constitution is one whose major portion is not written. Mostly it

includes customs and the decisions of the courts. Such type of constitutions is
not framed by any Constituent Assembly. Written constitution is one whose basic
principles are written.
4.Flexible and Rigid constitutions:

A flexible constitution refers to which could be amended by ordinary law

exercise. While rigid constitution refers to which could only be amended by a
very difficult special procedure.

Indian Constitution-Historical perspective

There are various layers in the background of the Indian Constitution:

 Regulating Act 1773

 Pitt’s India Act 1784
 Charter Act of 1813
 Charter Act of 1833
 Charter Act of 1853
 Government of India Act 1858
 Indian Councils Act 1861
 India Councils Act 1892
 Morley-Minto Reforms 1909
 Montague-Chelmsford Reforms 1919
 Government of India Act 1935
 Indian Independence Act 1947
These acts were in some way instrumental for the development of the Indian
Constitution.
Government of India Act -1919

The act is also named as Montague-Chelmsford Reforms because

Montague was secretary of state in India and Chelmsford was the Viceroy
of India at that particular time.
The demarcation was drawn between Central subjects and Provincial
subjects.
The concept of dual governance, ‘Diarchy’, was introduced in the
provincial governments where the executive councillors were in charge of
the ‘reserved subjects’ and ministers being in charge of the ‘transferred
subjects ‘and were responsible to the legislative council.
A bicameral legislature was introduced at the centre through this act (later
legislative council became Rajya Sabha and the legislative council became
Lok Sabha).
Public Service Commission was established.
There were 140 members in Legislative Assembly and 60 members

Government of India Act – 1935

 This act was the result of the Simon Commission Report, round table
conferences, and the white paper presented in the British Parliament;
This act was the longest, lengthy, detailed and last document introduced
by the British in India consisting 321 sections and 10 schedules. Most of
its features are adopted by The Constitution of India 1950.
This act provided for the establishment of All India Federation consisting
of Governor Provinces (British India) and Princely states as units.
The power and subjects were divided between the centre and provinces
into items of three lists, namely Federal List controlled by the centre
consisted of 59 items, Provisional List controlled by provinces consisted of
54 items and the Concurrent List which was catered by both the centre
and the provinces consisted of 36 items.
Abolition of Diarchy at the provincial level but it was established at central
level named ‘Provincial Autonomy’.
Governor-General was empowered with residuary power.
Council of India was abolished.
Burma was separated from India through this act which is now Myanmar.
This act enlarged the bicameral legislature in six out of eleven provinces
which are the provinces of Madras, Bombay, Assam, Bengal, Bihar, and
the united province.
This act provided for the establishment of the Federal Court in India and
also RBI.

Drafting of Indian Constitution

Drafting committee

The Constituent Assembly contained many committees for various purposes such
as House committee, Rules of Procedure committee etc. but the most important
of these was the Drafting Committee.

It was set up on August 29, 1947 and was tasked with preparing a draft of the
new Constitution.

The seven members of the Committee were:

B R Ambedkar (Chairman)
N Gopalaswamy Ayyangar
K M Munshi
T Krishnamachari
Syed Mohammmad Sadullah
Madhav Ran
Alladi Krishnaswamy Ayyar

The first draft of the Constitution was published in February, 1948. The
people had eight months to discuss the draft. After discussions, suggestions and
proposed amendments were considered and a second draft was prepared by the
Assembly. The second draft was published in October, 1948. The Draft consisted
of 315 articles – organised around eighteen ‘Parts’, and eight 'Schedules'. It is
important to note that this Draft was the first blueprint of the Indian Constitution
that was publicly available. It was widely circulated to members of the Assembly,
provincial governments, central ministries, the Supreme Court and High Courts,
and the general public along with an invitation to provide feedback and
suggestions. In March and October 1948, the Drafting Committee reviewed and
took decisions on comments it received and prepared amendments.

The Drafting Committee met for a total of 141 days and took less than six
months to prepare its draft.

Role of Drafting committee of the Constituent assembly

The Constituent Assembly refers to a constitution-making body. The body

may comprise of an Assembly of people or an established convention by the
people of a country, particularly, for the purpose of framing its constitution.

In India, the idea of formulating a constituent Assembly dates back to

1906 when the Indian National Congress demanded swaraj. Following that in
1936, the congress upheld that they stand for a genuinely democratic state in
India, where the ultimate power is in the citizens’ hands, and the government is
under their effective control. The objective behind was that such a democratic
state can only come into existence through a constituent Assembly.

The drafting committee was set up by the constituent assembly on 29

August 1947, under Dr B.R. Ambedkar’s chairmanship to prepare the draft of the
constitution. It consisted of a total of seven members. Amongst all the
committee of the assembly, the drafting committee was the most important as it
was entrusted with the final task of preparing a draft of the new constitution,
based on the reports submitted by the other committees.

The first draft was published in February 1948, and the citizens of India
were given an eight months time period to discuss the draft and propose
amendments. In light of the public comments and suggestions, the committee
prepared the second draft, which got published in October, the same year. The
committee scrutinized and revised the reports several times until they got a
satisfactory draft. It is a fact that, while deliberating upon the draft constitut ion,
the constituent Assembly moved, discussed, and disposed of at least 2,473
amendments out of a total of 7,635 tabled.
CHAPTER – II

Nature and salient features of Indian Constitution

The Constitution of India as we all know is a supreme law of the country and
every citizen of our country has to abide by the constitution. The Indian
Constitution has many prominent features that distinguish it from the other
Constitutions.

1. World's Longest Constitution

The Indian Constitution contains 395 articles and 12 schedules, making it the
world's longest written constitution.

2. Taken from various sources

The Indian Constitution was framed from multiple sources including the 1935
Government of India Act and Other Countries Constitutions.

Basic structure (Federal scheme, Judiciary, Governors, Emergency

powers, Public Service Commissions, Administrative details etc.) taken from
Government of India Act 1935, Fundamental Rights taken from American
Constitution, Directive Principles taken from Irish Constitution, Cabinet form of
government taken from British Constitution, In addition to these, the
Constitutions of Canada, Australia, Germany, the U.S.S.R., and France also
adopted various provisions.

3.Federal System with Unitary Features

The Indian Constitution includes all the federal characteristics of governance

such as dual government system (center and state),division of powers between
the three state organs (executive, judiciary and legislature), constitutional
supremacy, independent judiciary and bicameralism (lower and upper house).
the Indian Constitution is unique in that it includes many unitary features such
as a strong centre, all India services common to the center and the states,
emergency provisions that can transform the Constitution into a unitary one if
necessary, appointment of governors by the president on the advice of the
center, etc.

4. Parliamentary Form of Government

the Indian Constitution has opted for the parliamentary form of government. The
key characteristics of the parliamentary form of government are:

o Executive are members of the legislature

o Collective responsibility to the legislature of the Council of Ministers

o Rule of the majority party

 o Prime Minister's or chief minister's leadership in the state

o Lower house dissolution (Lok Sabha and state assemblies)

o Government form of the Cabinet

o Balance between the Sovereignty of Parliament and Judicial

Supremacy:
o A fine balance is there between parliamentary sovereignty and
judicial supremacy by the Indian Constitution.

5. Independent and Integrated Judicial System

In India, unlike the United States where there is a two-tiered judiciary, a

single judicial system prevails with the Supreme Court at the top, the State and
District High Courts and other subordinate courts below and subject to the
supervision of the High Courts.

6. Directive Principles of State Policy

In Part IV of the Constitution, the Directive Principles of State Policies
(DPSPs) aims to make India a welfare state.

7. Combination of rigidity and flexibility

The Indian Constitution strikes a fine balance between rigidity and flexibility
when it comes to ease of modification. Article 368 lays down two types of
modifications:

 Some provisions may be amended by a special parliamentary majority,

i.e. a 2/3rd majority of the members of each House present and vote
and majority (i.e. more than 50 %) of each House's total membership.

 Some other provisions can be amended by a special parliamentary

majority and with half of the total states ratifying them. This ensures
that with the widest possible majority, the Constitution is amended.

8. Balance between the Sovereignty of Parliament and Judicial Supremacy

The Supreme Court, by its power of judicial review, it can strike down any
parliamentary law as unconstitutional. On the other hand, the Parliament, being
the representative of the people's will, has the authority to make laws, and it
can also amend the major part of the Constitution

There are many other features of the Indian Constitution such as

Fundamental Rights, Fundamental Duties, Emergency Provisions, Universal Adult
Franchise, etc.
Preamble to Indian Constitution

The Preamble to the Constitution of India provides the guiding principles to the
purpose and interpretation of the constitution. It is an integral part of the
constitution, as recognized in the distinguished case of Kesavananda Bharti v.
State of Kerala. Although it was already made in 1947, the preamble along
with the constitution was adopted on 26 November 1949 by the constituent
assembly and came into effect on 26 January 1950. Through the words-
sovereign, socialist, secular, democratic, and republic, the preamble declares the
philosophy of the nation and the form of the government. These are the guiding
principles and the source for the government and their actions.

1. Sovereign
It reflects the idea of a government free from the control of any external
foreign power and internally, a free government directly elected by
people. The people of India have the sovereign power to elect the
government and the representatives for the parliament, state legislature
and the local bodies.

2. Socialist
The word socialist refers to social and economic equality in the country. It
was added by the 42nd amendment in the year 1976. The idea aims at
the achievement of the socialist goals by the government through a
democratic function. It also concentrates on the eradication and
elimination of any kind of discrimination within the society. The directive
principles of state policy in part IV of the Constitution of India imbibe the
idea of welfare and socialist state.

3. Secular
The word secular means that there will be no discrimination against
anyone on the grounds of religion. The state will have no religion and
every religion is equal for the state. The word ‘secular’ was added in the
year 1976 by the 42nd amendment. The freedom to practice, conscience,
profess and propagate any religion is guaranteed to every citizen of India
under Article 25 of the Indian Constitution.

4. Democratic
Democracy is by the people and for the people. A democratic government
is a government which is elected by the people. The right to vote (to elect
the representatives in the government) is also guaranteed to every citizen
who is 18 years or older.

5. Republic
The head of the state in India is the President, who is an elected head. A
democratic republic, being opposite to the idea of monarchy, does not
follow the idea of hereditary power. The president in a republic is elected
 for a fixed term. Every citizen of the country is eligible to become the
head of the state, unlike monarchy.

6. Justice
Justice, including social, economic and political justice is aimed to be
secured through the constitution and its preamble. Justice refers to
fairness and goodness in society. Social justice focuses on the elimination
of any kind of discrimination on the grounds of caste, creed, colour,
religion, gender or place of birth and fair society.

7. Liberty
Liberty and freedom are aimed to ensure the freedom of individuals and
their activities without any unreasonable restrictions. Art 19 of the
constitution incorporates the idea by listing liberty and freedom with
reasonable restrictions.

8. Equality
Article 14 of the constitution guarantees equality to all the citizens of
India, which is aimed through the preamble and constitution. It aims at
ensuring that there is an equal opportunity for every citizen.

9. Fraternity
To maintain the integrity, unity and harmony among people, the feeling of
commonness and brotherhood is required. To ensure the dignity of every
citizen of India, people must develop the idea of oneness.

Preamble of the constitution is considered to be the soul of the

constitution. It also conveys the intentions and objectives of the framers
of the constitution. It is an integral part of the constitution and lays out
the basic features of the constitution.

Union and its territories

Articles 1 to 4 under Part I of the Constitution explains the Union and its
Territory. Article 1 of the Constitution defines India, that is, Bharat as a ‘Union of
States’. Ambedkar said the Indian Federation was a “Union” because it was
inseparable, and no State had the right to withdraw from the Indian Union.
Although for the convenience of administration, the country and people can
be divided into different States, the country is an integral whole, its people a
single people living under a single imperium coming from a single source.

Article 2 of the Constitution confers power on the Parliament to admit

or establish new States.
 Article 3: Formation of new States and alteration of areas, boundaries
or names of existing State: Parliament may increase or decrease the area of
any State or may alter the borders or names of any State.

Article 4 allows for consequential changes to the First Schedule (names

of the States in the Union of India) and the Fourth Schedule (number of
seats allocated by each State to the Rajya Sabha). It also notes that it does
not consider a constitutional amendment under Article 368.

Citizenship

Citizenship Defined

 Citizenship signifies the relationship between individual and state.

 Like any other modern state, India has two kinds of people—citizens and
aliens. Citizens are full members of the Indian State and owe allegiance to
it. They enjoy all civil and political rights.
 Citizenship is an idea of exclusion as it excludes non-citizens.

There are two well-known principles for the grant of citizenship:

 While ‘jus soli’ confers citizenship on the basis of place of birth, ‘jus
sanguinis’ gives recognition to blood ties.
 From the time of the Motilal Nehru Committee (1928), the Indian
leadership was in favour of the enlightened concept of jus soli.
 The racial idea of jus sanguinis was also rejected by the Constituent
Assembly as it was against the Indian ethos.

Constitutional Provisions

 Citizenship is listed in the Union List under the Constitution and thus is
under the exclusive jurisdiction of Parliament.
 The Constitution does not define the term ‘citizen’ but details of various
categories of persons who are entitled to citizenship are given in Part 2
(Articles 5 to 11).
 Unlike other provisions of the Constitution, which came into being on
January 26, 1950, these articles were enforced on November 26, 1949
itself, when the Constitution was adopted.
 Article 5: It provided for citizenship on commencement of the
Constitution.
 All those domiciled and born in India were given citizenship.
 Even those who were domiciled but not born in India, but either of whose
parents was born in India, were considered citizens.
 Anyone who had been an ordinary resident for more than five years, too,
was entitled to apply for citizenship.
  Article 6: It provided rights of citizenship of certain persons who have
migrated to India from Pakistan.
 Since Independence was preceded by Partition and migration, Article 6
laid down that anyone who migrated to India before July 19, 1949, would
automatically become an Indian citizen if either of his parents or
grandparents was born in India.
 But those who entered India after this date needed to register
themselves.
 Article 7: Provided Rights of citizenship of certain migrants to Pakistan.
 Those who had migrated to Pakistan after March 1, 1947 but subsequently
returned on resettlement permits were included within the citizenship net.
 The law was more sympathetic to those who migrated from Pakistan and
called them refugees than to those who, in a state of confusion, were
stranded in Pakistan or went there but decided to return soon.
 Article 8: Provided Rights of citizenship of certain persons of Indian origin
residing outside India.
 Any Person of Indian Origin residing outside India who, or either of whose
parents or grandparents, was born in India could register himself or
herself as an Indian citizen with Indian Diplomatic Mission.
 Article 9: Provided that if any person voluntarily acquired the citizenship
of a foreign State will no longer be a citizen of India.
 Article10: It says that every person who is or is deemed to be a citizen of
India under any of the foregoing provisions of this Part shall, subject to
the provisions of any law that may be made by Parliament, continue to be
such citizen.
 Article 11: It empowers Parliament to make any provision with respect to
the acquisition and termination of citizenship and all matters relating to it.

Defnition of State – Article 12

For the purposes of Part III of the constitution, the state comprises of the
following:

1. Government and Parliament of India i.e the Executive and

Legislature of the Union

This means the Executive and Legislature of the country. They

come under the scope of ‘state’ as whenever there is a bill passed in
the Parliament, which after the Parliament gives its assent, becomes
an act.
2. Government and Legislature of each State i.e the Executive and
Legislature of the various States of India

This means if there is an infringement of the right(s) of any

individual due to any law or act passed by the state. Then the same
is safeguarded under Fundamental Rights.

3. All local or other authorities within the territory of India

The expression “local authority” under Article 12 can be referred to

a unit of local self-government -

 Municipality
 Village Panchayat
 Gram Sabha, etc.

4. All local and other authorities who are under the control of the
Government of India

The interpretation of “other authorities” in Article 12 has caused a

good amount of difficulty with constant changes which has
undergone judicial opinions. ‘Other authorities’ could only mean
authorities exercising governmental or sovereign functions. It
cannot include persons, natural or juristic, such as, a University
unless it is ‘maintained by the State’.
CHAPTER – III

Right to Equality (Art 14-18)

he fundamental rights are guaranteed to protect the basic human rights of all
the citizens of India and are put into effect by the courts, subject to some
limitations. One of such fundamental rights is the Right to Equality. Articles 14,
15, 16, 17 and 18 of the Constitution of India highlight the Right to Equality in
detail. This fundamental right is the major foundation of all other rights and
privileges granted to Indian citizens.

The Fundamental Rights in the Indian Constitution have been grouped under six
heads as follows:

 Right to Equality comprising Articles 14 to 18, of which Article 14 is the

most important.
 Right to Freedom comprising Articles 19 to 22 which guarantee several
freedoms, the most important of which is the freedom of speech.
 Right against Exploitation consists of Articles 23 and 24.
 Right to Freedom of Religion is guaranteed by Articles 25 to 28.
 Cultural and Educational Rights are guaranteed by Articles 29 and 30.
 Right to Constitutional Remedies is secured by Articles 32 to 35.

Right to equality:(Art 14 – Art 18)

The Constitution of India guarantees the Right to Equality through Articles 14

to 18, of which article 14 is the most important. Art. 14 is the genus while
Arts. 15 and 16 are the species.

Article 14 outlaws discrimination in a general way and guarantees equality

before the law to all persons. In view of a certain amount of indefiniteness
attached to the general principle of equality enunciated in Article 14, separate
provisions to cover specific discriminatory situations have been made by
subsequent Articles.

Article 15 prohibits discrimination against citizens on such specific grounds

as religion, race, caste, sex or place of birth.

Article 16 guarantees to the citizens of India equality of opportunity in

matters of public employment.

Article 17 abolishes untouchability, and

Article 1 8 abolishes titles, other than a military or academic distinction.

It may be noted that the right to equality has been declared by the
Supreme Court as a basic feature of the Constitution. This means that even a
constitutional amendment offending the right to equality will be declared
invalid.
Freedom and restrictions under Art 19

The Constitution has conferred freedom in Article 19 to promote the ideal of

liberty enshrined in the Preamble. There were primarily “seven freedoms”.
However after the 44th Constitutional Amendment Act, 1978 there are only six
freedoms with the omission of the ‘right to acquire, hold and dispose of
property’.

The six categories of freedoms are as follows:

 Freedom of Speech and Expression

This freedom means the right to express one’s convictions and opinions
freely, by word of mouth, writing, printing, picture, or in any other
manner addressed to eyes or ears. It thus includes the freedom of Press
and the expression of one’s ideas by any visible representation.

 Freedom of Assembly
This Clause guarantees the freedom to have a peaceful and unarmed
assembly to the citizens. This is also not an absolute right and is subject
to reasonable restrictions in the interests of public order.

 Freedom of Association
This right guarantees the freedom to citizens to form associations. The
right to form associations or unions includes associations for any lawful
purpose, e.g. a trade union.

 Freedom of Movement
The freedom guaranteed by this relates to the particular right of shifting
or moving from one part of Indian territory to another without any sort of
discriminatory barriers between one state and another or between
different parts of the same state.

 Freedom of Residence and settlement

The object of this clause is the same as that of clause 1(d) i.e. to remove
internal barriers within India or between any of its parts

 Freedom of Profession, Occupation, Trade or Business

This freedom means that every citizen has the right to choose his own
employment or to take up any trade or calling, subject only to the limits
as may be imposed by the state in the interests of public welfare and the
other grounds mentioned in clause (6).

Nature of Rights guaranteed under Article 19

The rights guaranteed under article 19 are ‘civil rights’ as distinguished

from political rights such as the right to vote or to hold any political office.
Where a right is created by a statute it can be taken away by the Legislature but
when a right is ‘Fundamental’ it cannot be taken away by the Legislature and
can be subjected to such restrictions as are permitted by the Constitution itself,
that is, on the grounds specified in Clauses (2) to (6) of Article 19.

The second part of Article 19 contains limitations each governing one or

more of the clauses of the first part. Thus the Constitution allows certain
restrictions that can be imposed on the exercise and enjoyment of the above
rights.

Protection against Ex-post facto law

Ex post facto literally means “from something done afterward.” An act that
was legal at one time is suddenly no longer legal and instead is illegal and
prohibited by law. These changing circumstances have led to wrongful
punishment of many individuals who did not actually commit any offense that
was punishable by law and according to their knowledge, that act was
actually legal. These laws which criminalize any act or increase the
punishment of any offense are called ex post facto laws and it has been
mentioned in Article 20(1) of the Indian Constitution.

Guarantee against double jeopardy

Fundamental right which is guaranteed under Article 20(2) of Constitution of

India incorporates the principles of “autrefois convict” or Double jeopardy which
means that person must not be punished twice for the offence. It is based on the
principle “no man shall be punished twice, if it appears to the court that it is for
one and the same cause”.

Privilege against self-incrimination

The Indian Constitution provides immunity to an accused against self-

incrimination under Article 20(3) – ‘No person accused of an offence shall be
compelled to be a witness against himself’.

Ingredients of Article 20(3)

 The person accused of an offence

 Compulsion to be a witness
 Compulsion resulting in giving evidence against himself

Right to life and personal liberty

Article 21 is the celebrity provision of the Indian Constitution and occupies a

unique place as a fundamental right. It guarantees the right to life and personal
liberty to citizens and aliens and is enforceable against the State. The new
interpretation of Article 21 in Maneka Gandhi’s case has led to a new era of
expansion of the horizons of right to life and personal liberty.

The Fundamental Rights under Article 19 are conferred only on citizens, but the
rights mentioned in clauses (a) to (f) are available to all persons whether
citizens or not. In a number of cases, the Supreme Court has held that
foreigners are entitled to the protection under Articles 21 and 22.

Article 21 has two types of rights:

 Right to life
 Right to personal liberty

Right to life

Every citizen has the right to life, liberty, and security of person. The
right to life is the fundamental right in the Indian constitution. Human rights
are only attached to living beings. The right to life is the most valuable
rights to citizens. There would have been no Fundamental Rights, worth
mentioning if Article 21 had been interpreted in its original sense. Right to
life is a fundamental aspect of life without which we cannot live as a human
being and it includes all those aspects of life which go to make a human
being’s life meaningful, complete, and worth living. It is only the article in the
constitution that has received the widest possible interpretation. Under
Article 21 of the Indian Constitution, the right to shelter, growth, and
nourishment are mentioned.

Right to personal liberty

“No person shall be deprived of personal liberty according to the procedure

established by law”.

The protection of our liberty is the mere responsibility of our law as our
Constitution of India quoted. As we see the Supreme Court is the guardian of the
Constitution of India. So according to this Supreme Court has the mere
responsibility to protect and guarantee fundamental rights. As a citizen of India,
we have all the fundamental rights which are established by law. So we can
enforce it through the Supreme Court whenever our fundamental rights get
violated.

Case law

Maneka Gandhi vs Union of India

Facts of the case

In this case, Manenka Gandhi issued a passport for the foreign tour from the
passport office. But the Regional Passport officer Delhi has informed the
petitioner about the passport that this decision is taken by the Government
of India for the acceptance of passport. Because of this reason the petitioner
had to surrender her passport within 7 days. After some time the
Government rejected the passport saying it is against the interest of the
general public. Then the petitioner filed a writ petition challenging the
government for impounding the passport and declining from doing so.

The Judgment of the case:

In the case of Maneka Gandhi the Supreme Court gave a new direction to
Article 21 and said that the right to live is not merely a physical right but
includes the ambit of the right to live with human dignity.

Right to Education

86th Constitutional Amendment Act (2002)

The Constitutional Amendment is made with regards for protecting the

citizen’s rights of education, as well as know the challenges in India regarding
education; 86th Amendment act 2002, makes three exact provisions in
Constitution to facilitate understanding of free and compulsory education to
children’s between age 6 to 14 years as a Fundamental Right. These are as
follows:-

· Adding Article 21A in part III initiated that every child has a right to full time
elementary education of satisfactory and equitable quality in a formal school
which satisfies certain essential norms and standards.

· Bring alteration and modification in Article 45 and substituted as the state shall
endeavors to assure early childhood care and free and compulsory education for
all children until they complete the age of 6 years.

· The insertion of new clause in Article 51 A, clearly mandates the parents or

guardians to furnish opportunities for education of their children between the
age group of 6 to 14 years.[Article 51A (k)]

The right to education was initially not included as a fundamental right in

the constitution and was included as a Directive Principle under Article 45 which
required the state to endeavors to provide, with in a period of 10 years from
the commencement of the constitution, for free and compulsory education for
all children until they complete the age of 14 years. The 86th amendment to
the constitution of India in 2002, provided Right to Education as a fundamental
right in part-III of the Constitution. The same amendment inserted Article
21A which made Right to Education a fundamental right for children
between 6-14 years.
Protection against arrest and preventive detention

An ‘arrest’ is done when a person is charged with a crime. An arrested person is

produced before a magistrate within the next 24 hours. In case of preventive
detention, a person is detained as he/she is simply restricted from doing
something that might deteriorate the law and order situation.

The Article 22 of the Indian Constitution provides safeguards against the misuse
of police powers to make arrests and detentions.

The clause(2) of Article 22 reads, “Every person who is arrested and detained in
custody shall be produced before the nearest magistrate within a period of
twenty four hours of such arrest excluding the time necessary for the journey
from the place of arrest to the court of the magistrate and no such person shall
be detained in custody beyond the said period without the authority of a
magistrate.”

The clause (4) of the article states that no individual can be detained for more
than 3 months unless a bench of High court judges or an Advisory board decides
to extend the date.

The clause (4) of Article 22, reads as, “No law providing for preventive detention
shall authorise the detention of a person for a longer period than three months
unless (a) an Advisory Board consisting of persons who are, or have been, or are
qualified to be appointed as, Judges of a High Court has reported before the
expiration of the said period of three months that there is in its opinion sufficient
cause for such detention:

The clause(5) of the Article 22 states that the detained individual should be
made aware of the grounds he/she has been detained (in pursuance of the
order) and should provide him/her with an opportunity of making a
representation against the case.

The clause(5) of Article 22 reads as, “When any person is detained in pursuance
of an order made under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to such person the
grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.”
Exceptions

Clause 3 of the Article 22 clearly states that none of the rights mentioned in
clause 1 and 2 of the Article would be applicable for a person who is deemed to
be an enemy alien and anybody who is arrested or detained under the law
providing for preventive detention.

Rights of arrested persons

The case of DK Basu v. State of West Bengal is one of the landmark authorities
which enumerate guidelines and requirements for arrests and detentions
provided by the Supreme Court.

 Right to be informed of the grounds of arrest

 Right to be defended by a lawyer of his own choice
 Right to be produced before a Magistrate
 No detention beyond 24 hours except by order of the Magistrate
CHAPTER – IV

Rights against Exploitation (Art 23 and 24)

Article 23- Prohibition of ‘Traffic in Human Beings’ and Forced Labour

Features of Article 23

It has certain features which every individual should be aware of –

 Right against exploitation is prescribed as a fundamental right of the

individuals under Article 23 of the Indian Constitution.
 It protects both the citizens and the non-citizens against exploitation.
 It protects individuals against the State as well as private citizens.
 Article 35 authorises Parliament to make laws for punishing the acts which
are prohibited under Article 23.

Article 24- Prohibition of Employment of children in factories, etc.

Features of Article 24

 This Article prohibits the employment of children below 14 years of age in

hazardous work.
 This Article is read with Article 39(e) and (f).
 It ensures safety and healthy life of children.
 It imposes a duty on the State to ensure that children are not abused and
forced to work in harmful places because of financial problems through
Article 39.
 It doesn’t prohibit the employment of children in harmless work.

Legislations for Protection of Child Rights

The Employment of Children Act, 1938

The Child Labour (Prohibition and Regulation) Act, 1986
The Mines Act, 1952
The Factories Act, 1948
The Plantation Labour Act, 1951
The Motor Transport Workers Act, 1961
The Beedi and Cigar Workers (Condition of Employment) Act, 1966

Right to freedom of religion (Art 25-28)

Religion is a matter of belief or faith. The constitution of India recognizes the

fact, how important religion is in the life of people of India and hence, provides
for the right to freedom of religion under Articles 25 to Article 28. Secularism
means developing, understanding and respect for different religions. The
members of the assembly though agreed to the secular nature of the
constitution but it was not incorporated in the Preamble. Later, in 1976 the
Indira Gandhi government enacted the 42nd Amendment Act and the word
‘Secular’ was added to the Preamble. The 42nd Amendment Act also known as
the ‘Mini Constitution’, is the most comprehensive amendment to the
Constitution.

Constitutional Provisions relating to Right of Religion

 Article 25: Freedom of conscience and free profession, practice and

propagation of religion.
 Article 26: Freedom to manage religious affairs.
 Article 27: Freedom as to payment of taxes for promotion of any
particular religion.
 Article 28: Freedom as to attendance at religious instruction or religious
worship in certain educational institutions.

I. Article 25 (Freedom to profess and practice religion)

Article 25 (1) guarantees to every person the freedom of conscience and the
right to profess, practice and propagate religion. Under article 25 (1), a
person has two-fold freedom:

 freedom of conscience
 freedom to profess, practise and propagate religion.

It further provides that this article shall not affect any existing law and shall
not prevent the state from making any law relating to:

 Regulation or restriction of any economic, financial, political, or any

secular activity associated with religious practice.
 Providing social welfare and reform.
 Opening of Hindu religious institutions of public character for all the
classes and sections of the Hindus.

Article 26 (Freedom to manage religious affairs)

Article 26 guarantee to every religious denomination(affairs) the following

rights:

 to establish and maintain institutions for religious and charitable

purposes,
 to manage its own affairs in matters of religion,
  to own and acquire movable and immovable property, and
 to administer such property in accordance with law.

To form a religious denomination three conditions must be fulfilled:

 it is a collection of individuals who have a system of beliefs, which they

regard as conducive to their spiritual well-being,
 they have a common organisation, and
 collection of these individuals has a distinct name.

Article 27(Freedom from payment of taxes for promotion of any particular

religion)

Article 27 of the Constitution prevents a person from being compelled to pay any
taxes which are meant for the payment of the costs incurred for the promotion
or maintenance of any religion or religious denomination.

Prohibition of religious instruction in the State-aided Institutions (Art. 28)

Article 28 prohibits:

 Providing religious instructions in any educational institutions that

are maintained wholly out of the state funds.
 The above shall not apply to those educational institutions
administered by the states but established under endowment or
trust requiring religious instruction to be imparted in such
institution.
 Any person attending state recognized or state-funded educational
institution is not required to take part in religious instruction or
attend any workshop conducted in such an institution or premises of
such educational institution.

Cultural and Educational Rights

The cultural and educational rights are intended to protect the interest of
minorities. The Constitution does not define the term “minority”. Article 29
applies only to citizens while Article 30 applies to both citizens and non-citizens.
The object behind Articles 29 and 30 is the recognition and preservation of the
different type of people, with diverse languages and different beliefs which
constitutes the essence of secularism in India. Articles 29 and 30 do not more
than seek to preserve the differences that exist, and at the same time, unite the
people to form one strong nation. Article 29 mandates that no discrimination
would be done on the ground of religion, race, caste, language or any of them.
Article 30 mandates that all minorities, whether based on religion or language,
shall have the right to establish and administer educational institutions of their
choice.

Fundamental Rights guarantee basic rights to the citizens of India. There are six
fundamental rights enshrined in the Constitution of India, and Articles 29 and 30
deals with the cultural and educational rights of Indian citizens.

 This fundamental right intends to preserve the culture of all minority

groups in India.
 Indian society is a composite heterogeneous one and its diversity is one of
its strengths.
 The Constitution guarantees these rights to minorities so that the diversity
of this country is preserved and provides avenues for all groups including
marginalized ones to protect, preserve, and propagate their culture.

Article 29 – Protection of Interests of Minorities

This article is intended to protect the interests of minority groups.

Article 29(1): This provides all citizen groups that reside in India having a
distinct culture, language, and script, the right to conserve their culture and
language. This right is absolute and there are no ‘reasonable restrictions’ in the
interest of the general public here.

Article 29(2): The State shall not deny admission into educational institutes
maintained by it or those that receive aids from it to any person based on race,
religion, caste, language, etc. This right is given to individuals and not any
community.

Article 30 – Right of Minorities to Establish and Administer Educational

Institutions

This right is given to minorities to form and govern their own educational
institutions. Article 30 is also called the “Charter of Education Rights”.

Article 30(1): All religious and linguistic minorities have the right to establish
and administer educational institutions of their choice. (Read about Minority
Protection in India in the linked article.)

Article 30(2): The State should not, when granting aid to educational
institutions, discriminate against any educational institution on the ground that it
is under the management of a minority, whether based on religion or language.
Right to Constitutional Remedies

There is a right in India which states that a person can move to Supreme court if
he/she wants to get their fundamental rights protected. This right comes under
article 32 for Supreme court an article 226 for the high court. It is known as the
right to constitutional remedies. In this right, the Supreme court, as well as high
court, is given the power to instill the fundamental rights. Furthermore, the
power can be issued by local courts also to extend the rights. Dr. B. R.
Ambedkar said that article 32 is the soul of the constitution and it is at the very
heart of it.

Writs are written orders issued by the Supreme Court of India to provide
constitutional remedies to protect the fundamental rights of citizens from a
violation.

Type of Writs

The Constitution empowers the Supreme Court and High Courts to issue orders
or writs.

The types of writs are:

1. Habeas Corpus
Habeas Corpus is a writ that is enforced to protect the fundamental right
to liberty of an individual against unlawful detention. This writ commands
a public official to deliver a detained person in front of the court and
provide valid reasons for the detention. However, this writ cannot be
issued in case the proceeding is for contempt of a legislature or a court.

2. Certiorari

The writ of certiorari is issued to a lower court directing that the transfer
of a case for review, usually to overrule the judgment of the lower court. The
Supreme Court issues the writ of Certiorari in case the decision passed by the
lower court is challenged by the party. It is issued in case the higher court
finds it a matter of over jurisdiction or lack of jurisdiction. It is one of the
mechanisms by which the fundamental rights of the citizens are upheld.
3. Prohibition
Prohibition is a writ issued by a higher court to a lower court to enforce
inactivity in the jurisdiction. It happens only in case the higher court is of
the discretion that the case falls outside the jurisdiction of the lower court.
Writ of Prohibition can only be issued against judicial and quasi-judicial
authorities.

4. Mandamus

The writ of mandamus is issued to a subordinate court, an officer of

the government, or a corporation or other institution commanding the
 performance of certain acts or duties. Unlike Habeas Corpus, Mandamus
cannot be issued against a private individual. The writ of mandamus can
be used to order the completion of a task or in other cases, it may require
an activity to be ceased.
5. Quo Warranto

Quo warranto is issued against a person who claims or usurps a public

office. Through this writ, the court inquires ‘by what authority’ the person
supports his or her claim. Through this writ, the court enquires into the
legality of a claim of a person to a public office. This writ prevents the illegal
assumption of a public office by an individual.

Suspension of Fundamental Rights

 Fundamental rights can be suspended in the case of National Emergency

as mentioned under article 352.
 The six fundamental rights under Article 19 are automatically suspended
in the case National Emergency is imposed on grounds of war or external
aggression which is stated under article 358.
 Article 359 has the clause for suspension of other rights. In that case, a
separate notification has to be issued by the President.
 The rights mentioned under Article 20 and 21 can never be suspended.
 Constitutional emergency and financial emergency cannot affect the
Fundamental Rights.

Limitations on Fundamental rights (Art 31-A,B and C)

The Fundamental Rights are enshrined in Part III of the Constitution (Articles 12-
35). Part III of the Constitution is described as the Magna Carta of India.

‘Magna Carta’, the Charter of Rights issued by King John of England in 1215 was
the first written document relating to the Fundamental Rights of citizens.

The Fundamental Rights: The Constitution of India provides for six Fundamental
Rights:

 Right to equality (Articles 14–18)

 Right to freedom (Articles 19–22)
 Right against exploitation (Articles 23–24)
 Right to freedom of religion (Articles 25–28)
 Cultural and educational rights (Articles 29–30)
 Right to constitutional remedies (Article 32)

Originally the constitution also included Right to property (Article 31). However,
it was deleted from the list of Fundamental Rights by the 44th Amendment Act,
1978. It is made a legal right under Article 300-A in Part XII of the Constitution.
Article 31, 31A, 31B and 31C

Originally, the right to property was one of the seven fundamental rights and
provided that no person shall be deprived of his property except by authority of
law.

However, being one the most controversial rights, the 44th Amendment Act of
1978 abolished the right to property as a Fundamental Right and made it a legal
right (constitutional right) under Article 300A in Part XII of the Constitution.

Article 31 led to a number of Constitutional amendments; 1st, 4th, 7th, 25th,

39th, 40th and 42nd Amendments.

The First Amendment Act, 1951 inserted Articles 31A and 31B to the
Constitution.

Article 31C was inserted in the Constitution by 25th Amendment Act, 1971.

Article 31A: It saves five categories of laws from being challenged and
invalidated on the ground of contravention of the fundamental rights conferred
by Article 14 and Article 19.

It includes:

 Acquisition of estates and related rights by the State;

 Taking over the management of properties by the State;
 Amalgamation of corporations;
 Extinguishment or modification of rights of directors or shareholders of
corporations
 Extinguishment or modification of mining leases.
 It also provides the guaranteed right to compensation in case of
acquisition or requisition of the private property by the state.

Article 31B: It protects the acts and regulations included in the Ninth Schedule
from being challenged and invalidated on the ground of contravention of any of
the fundamental rights. The scope of Article 31B is wider than Article 31A as it
immunises any law included in the Ninth Schedule from the Fundamental Rights
(unlike article 31A that protects only five categories).

However, the Supreme Court in its judgement in the I.R. Coelho case (2007)
ruled that even laws under the Ninth Schedule would be open to scrutiny if they
violated Fundamental Rights or the basic structure of the Constitution.

The Supreme Court first propounded the doctrine of ‘basic structure’ of the
constitution in the Kesavananda Bharati on April 24, 1973.

Article 31C: It contained two provisions:

 It says that no law that seeks to implement socialistic directive principles

specified in Articles 39 (b) and (c), shall be declared void on the grounds
 of contravention of the fundamental rights conferred by Article 14 or
Article 19.
 Moreover, no law containing a declaration that it is for giving effect to
such policy shall be questioned in any court on the ground that it does not
give effect to such a policy.

Articles 31A, 31B and 31C have been retained as exceptions to the fundamental
rights.

Doctrine of Severability

This is a doctrine that protects the fundamental rights enshrined in the

Constitution. It is also known as the Doctrine of Separability.

It is mentioned in Article 13, according to which all laws that were enforced in
India before the commencement of the Constitution, inconsistent with the
provisions of fundamental rights shall to the extent of that inconsistency be void.

This implies that only the parts of the statute that is inconsistent shall be
deemed void and not the whole statue. Only those provisions which are
inconsistent with fundamental rights shall be void.

Doctrine of Eclipse

This doctrine states that any law that violates fundamental rights is not null or
void ab initio, but is only non-enforceable, i.e., it is not dead but inactive.

This implies that whenever that fundamental right (which was violated by the
law) is struck down, the law becomes active again (is revived).

Another point to note is that the doctrine of eclipse applies only to pre-
constitutional laws (laws that were enacted before the Constitution came into
force) and not to post-constitutional laws.

This means that any post-constitutional law which is violative of a fundamental

right is void ab initio.
CHAPTER – V

Directive Principles of state policy –significance-nature-classification-application

and Judicial Interpretation

Classification of Directive Principles of State Policy (DPSP)

List of Directive Principles of State Policy

Article What it says

36 Defines the “state”.

37 Part IV of the Indian Constitution shall not be enforceable in any court of law.

38 Social, Political and Economic Justice.

39 Principles of Policy.

39A Free Legal aid.

40 Organization of Panchayats.

41 Welfare Government.

42 Securing just and humane work and maternity relief.

43 Fair wages and a decent standard of life.

43-A Workers’ participation in management.

43-B Promotion of Cooperatives.

44 Uniform Civil Code.

45 Infant and Child Care.

46 Protection of SCs, STs and other weaker sections from exploitation.

47 Nutrition, Standard of living and public health.

48 Scientific agriculture and animal husbandry.

48-A Environment and Wildlife Protection.

Protection of monuments and places and objects which have national

49
importance.

50 Judiciary should be separate from the Executive.

51 The state shall promote international peace and security.

The Constitution of India does not formally classify the Directive Principles of
State Policy but for better understanding and on the basis of content and
direction- they can be classified into three categories. These are as follows:

1- Socialistic Principles (Art 38,39,39A,41,42,43,43A,47)

2- Gandhian Principles (Art 40,43,43B,46,47,48)

3- Liberal-Intellectual Principles (44,45,48,48A,49,50,51)

The Directive Principles of State Policy (DPSP) has been taken from the Irish
constitution and enumerated in Part IV of the Indian Constitution. The
concept behind the DPSP is to create a ‘Welfare State’. In other words, the
motive behind the inclusion of DPSP is not establishing political democracy
rather, it’s about establishing social and economic democracy in the state.

Part IV of the Indian Constitution

Part 4 of the Indian Constitution consists of all the DPSP (Directive Principles of
State Policy). It covers the Articles from 36 to 51. Article 36 of Part IV defines
the term “State” as the one, who has to keep in mind all the DPSP before
formulating any policy or law for the country. The definition of “State” in the part
IV will be the same as that of Part III.

Article 38 to 51 contains all the different DPSP’s.

Article 37

Article 37 mentions the two important characteristics of DPSP, and they are:

 It is not enforceable in any court of Law.

 And they are very basic and essential for the governance of the country.

Article 38

 Article 38 talks about Social, Political and Economic Justice.

 It directs that the State should secure a social order which provides
social, political and economic justice to all its citizens.
 Article 38(2) says that state shall reduce the inequalities faced by
the people on the grounds like income, status, facilities,
opportunities, etc.

Article 39

 Article 39 mentions all the Principles of policy which must be

followed by the State.

The State shall make its policies towards securing the following objectives—
  All the men, women and citizens should have the right to an
adequate means of livelihood
 The ownership and control of the people over any material resources
under the community should be distributed as it is for the common
good of the public;
 The functioning of the economic system should be such that the
concentration of wealth and the means of production don’t result in
a loss common to all or which causes detriment to the citizens;
 There shall be no gender discrimination, both men and women
should get equal pay for equal work.
 The health and strength possessed by any worker, men and women,
and the tender age of children should not be abused and the citizens
should not be forced to enter and indulge into any occupation or
profession which is not suitable for their age or strength, not even
out of any financial necessity or economic backwardness
 Children must be given enough opportunities and facilities so that
they develop in a healthy manner and in such conditions where their
freedom and dignity

Article 39A

 Article 39A talks about Free Legal aid.

 It says that the State shall promote justice with the aim of
administering Justice on the basis of equal opportunity, and shall
provide free legal aid through any suitable legislation or schemes
which State may think fit ,or, in any other way, so that it could
ensure that the opportunities for securing justice are not denied to
any citizen because of economic backwardness or any other kind of
disabilities.

Article 41

 Article 41 talks about Welfare Government.

 It says that state shall make some effective provisions for securing
the right to work, etc. and in cases of unemployment, old age,
 disablement or any other cases acting in its economic capacity &
development it shall provide public assistance. This article is
employed as a tenet for numerous social sector schemes like social
assistance program, right to food security, old-age pension scheme,
MGNREGA, etc.

Article 42

 Article 42 talks about Securing just and humane work and

maternity relief.
 It says that state shall create some provisions so that the citizens
get easy, just and humane conditions for working. It shall also
provide maternity relief for the women.

Article 43

 Article 43 talks about Fair wages and a decent standard of life.

 It says that the state can endeavor to secure by appropriate
legislation or economic organization to all the workers employed in
agricultural, industrial or otherwise, work, a living wage, conditions
of work, ensuring a decent standard of life and enjoyment of leisure
and social-cultural opportunities and promote cottage industries on
an individual or cooperative basis in rural and remote areas of the
country.

Article 47

 Article 47 talks about Nutrition, Standard of living and public

health.
 It says that the State shall look into the matter of raising the level
of nutrition and the standard of living of its people and it is the duty
of the State to keep a check on the improvement of public health.
The State shall also endeavor to prohibit the consumption of
intoxicating drinks and drugs which are injurious for health, except
for medicinal purposes. There are many social development
programmes such as National Health Mission, Mid Day Meal
 Scheme, etc. which target the marginalized sections of the society
i.e. women, children, weaker sections etc. are inspired by this DPSP.

Gandhian Principles
 These principles reflect the programme of reconstruction ideology
propagated by Gandhi throughout the national movement. In order
to fulfil his dreams, some of his concepts have been included in the
form of DPSP.
 They direct the State through these articles – Article 40, Article 43,
Article 43 B, Article 46, Article 47 and Article 48.

Article 40

 Article 40 deals with the Organization of Panchayats.

 It says that the state shall organize Panchayat system and should
grant them such powers which would be necessary for the
functioning as units of the self-government system.
 The 73rd and 74th amendments of the constitution which are
related to Panchayati Raj and Municipal Corporations respectively,
later ended up as the constitutionally backed framework for the
principle mentioned in Part IV.

Article 43

 Article 43 talks about Fair wages and a decent standard of life.

 It says that the state can endeavor to secure, by appropriate
legislation or economic organization, to all the workers employed in
agricultural, industrial or otherwise, work, a living wage, conditions
of work, a decent standard of life and enjoyment of leisure & social-
cultural opportunities and promote cottage industries on an
individual or cooperative basis in rural and remote areas of the
country.
Article 43B

 Article 43B deals with the promotion of cooperatives.

 It was inserted by the 97th amendment act in 2011. It says that
state shall endeavor to promote the management of the co-
operative societies to help the people who are engaged in the same.

Article 46

 Article 46 deals with the Protection of SCs, STs, weaker sections

from exploitation.
 The State shall promote with special care including the educational
and economic interests of the weaker sections of the society i.e. the
SCs and the STs and shall make provisions to protect them from all
forms of exploitation which includes social injustice.

Article 47

 Article 47 talks about Nutrition, Standard of living and public

health.

 It says that the State shall look into the matter of raising the level
of nutrition and the standard of living of its people and it is the duty
of the State to keep a check on the improvement of public health.
The State shall endeavor to prohibit the consumption of intoxicating
drinks and drugs which are injurious to health except for medicinal
purposes.

 There are many social development programmes such as National

Health Mission, Mid Day Meal Scheme, etc. which target the
marginalized sections of the society i.e women, children, weaker
sections etc. are inspired by this DPSP.
Article 48

 Article 48 talks about Scientific agriculture and animal

husbandry.
 It says that the State shall endeavor to organize agriculture and
animal husbandry using modern methods and scientific techniques
which make people more advanced and helps in earning their
livelihood easily and State shall take some progressive steps for
preserving and improving the existing breeds and prohibiting the
slaughter of cows and other cattle.

Liberal-intellectual Principles
 These principles follow the ‘Liberalism’ ideology.
 The articles which follow this approach in DPSP are – Article 44,
Article 45, Article 48, Article 48 A, Article 49, Article 50 and Article
51.

Article 44

 Article 44 talks about the Uniform Civil Code.

 There should be a provision for the citizens to secure a Uniform
Civil Code throughout the territory of India in order to simplify
things and reduce ambiguity in the laws which makes it more
complex than it actually is.

Article 45

 Article 45 contains the Provision for free and compulsory

education for the children in the country.
 The State shall make laws to provide free and compulsory education
for the children until they are 14 years old within a period of 10
years from the date of commencement of this provision in the
Constitution.
  This provision was incorporated by the virtue of the 86th
Amendment, 2002 in the Constitution of India.

Article 48

 Article 48 talks about Organisation of agriculture and animal

husbandry.
 The State shall endeavour to organise agriculture and animal
husbandry using modern and scientific technology which is prevalent
in the present times and also take steps for preserving and
improving the existing breeds and prohibiting the slaughter of cows
and other cattle in the country for the development of agricultural
related practices.

Article 48A

 Article 48A talks about the Environment and Wildlife Protection.

 The State shall endeavour to protect and improve the environment
and surroundings. And to safeguard the forests and wildlife of the
country to make the environment sustainable.

Article 49

 Article 49 talks about Protection of monuments and places and

objects of national importance.

 It shall be the duty of the State to protect every monument or place

or any object of historic or artistic interest which has some national
importance, from any form of disfigurement, destruction, etc.

Article 50

 Article 50 talks about Separation of Judiciary from the

Executive.
 There should be a line between the judiciary and the executive body
of the Government in the public services of the State as it makes it
 easier if both do not interfere in each other’s work and function
independently.

Article 51

 Article 51 talks about Promotion of international peace and

security.
 The State shall endeavour to —
o Promote international peace and security;
o maintain friendly and honourable relations between
nations;
o foster respect for international law and treaty obligations in
the dealings of one person with another for maintaining
harmony between the nations and
o encourage settlement of international disputes by the
method of arbitration.

42nd Amendment
Four Directive Principles which were added by the 42nd amendment are as
follows:

 Article 39 – To secure opportunities for healthy development of

children.
 Article 39A – It says that the State shall promote justice with the
aim of administering it on the basis of equal opportunity, and shall
provide free legal aid through any suitable legislation or the
schemes which State may think fit or in any other way so that State
can ensure that opportunities for securing justice are not denied to
any citizen because of any economic or other disabilities.
 Article 43A – The State shall take steps, by suitable legislation or in
any other way, to secure the participation of workers in the
management of undertakings, establishments or other
organisations.
  Article 48A – The State shall endeavour to protect and improve the
environment and surroundings and to safeguard the forests and
wildlife of the country to make its environment liveable.

44th Amendment
 The 44th Amendment Act of 1978 added Article 38(2) in the DPSP.
 Article 38(2) says that the state shall work to minimize the
inequalities in income, and endeavour to eliminate inequalities in
status, opportunities etc. not only amongst individuals but also
amongst all the groups of people residing in different areas or
engaged in different fields.

Directive Principles of State Policy (DPSP)- Concept and Features

Directive Principles of State Policy (DPSP) are mentioned in Part IV of the Indian
constitution from Articles 36 to 51. DPSPs are taken from the Constitution of
Ireland. Dr. B. R. Ambedkar described these principles as 'novel features' of the
Constitution.

The Constitution of India laid down certain Directive Principles of State

Policy which are fundamental in the governance of the nation. It is the
duty of each Indian State to apply these principles while making laws as
these constitute a very comprehensive social, economic and political
programme for a modern welfare state.

These principles emphasise that the State shall try to promote the welfare
of people by providing them basic facilities like shelter, food and clothing.

Unlike Fundamental Rights, the Directive Principles of State Policy (DPSP)

are non-binding in nature which means they are not enforceable by the
courts for their violation. They, however, impose a moral obligation on the
state authorities for their implementation.

Features of Directive Principles of State Policy (DPSP)

1. It denotes the ideals that the State should keep in mind while
formulating policies and enacting laws.
2. It resembles the ‘Instrument of Instructions’ enumerated in the
Government of India Act of 1935. In the words of Dr. B. R. Ambedkar,
'the Directive Principles are like the instrument of instructions, which were
issued to the Governor-General and to the Governors of the colonies of
India by the British Government under the Government of India Act of
1935.' What is called Directive Principles is merely another name for the
instrument of instructions. The only difference is that they are instructions
to the legislature and the executive.
3. It constitutes a very comprehensive economic, social and political
programme for a modern democratic State which aimed at realising the
high ideals of justice, liberty, equality and fraternity as outlined in the
Preamble to the Constitution. They embody the concept of a ‘welfare
state’ that was absent during the colonial era.
4. They are non-justiciable in nature, which means that they are not
legally enforceable by the courts for their violation.
5. Though non-justiciable in nature, the Directive Principles help the
courts in examining and determining the constitutional validity of a law.

Comparison between DPSP and Fundamental rights

BASIS FOR
FUNDAMENTAL RIGHTS DIRECTIVE PRINCIPLES
COMPARISON

The essential or basic rights The guidelines which are

Meaning granted to all the citizens of the considered while formulating
country. policies and laws.

Defined In Part III of the Constitution. In Part IV of the Constitution.

Nature Negative Positive

Enforceability Legally enforceable. Not enforceable.

Social and economic

Democracy Political democracy.
democracy.
Legislation Not required. Required.

Promotes Individual welfare Public welfare

Fundamental Rights and the DPSP are supplementary to each other and are
essential to meet the social and economic dimensions of a democratic
government. The conflict between Fundamental Rights and DPSP often arises
as sometimes it has been seen, by various legislations, that DPSP have wider
scope than the Fundamental Rights. The Fundamental Rights are the rights
which are enforceable by the Courts and any law that is in contravention to
the provisions mentioned in Part III are ultra vires. On the other hand, the
DPSP are not enforceable in any Court of Law and nothing can be declared as
void merely because it is against the provisions given under the DPSP.

The details of the three types of DPSPs are given below:

DPSP – Socialistic Principles

Definition: They are the principles that aim at providing social and economic justice and set the path
towards the welfare state. Under various articles, they direct the state to:

Article Promote the welfare of the people by securing a social order through justice—social, economic
38 and political—and to minimise inequalities in income, status, facilities and opportunities

Article Secure citizens:

39
 Right to adequate means of livelihood for all citizens
 Equitable distribution of material resources of the community for the common good
 Prevention of concentration of wealth and means of production
 Equal pay for equal work for men and women
 Preservation of the health and strength of workers and children against forcible abuse
 Opportunities for the healthy development of children

Article Promote equal justice and free legal aid to the poor
39A
Article In cases of unemployment, old age, sickness and disablement, secure citizens:
41
 Right to work
 Right to education
 Right to public assistance,

Article Make provision for just and humane conditions of work and maternity relief
42

Article Secure a living wage, a decent standard of living and social and cultural opportunities for all
43 workers

Article Take steps to secure the participation of workers in the management of industries
43A

Article Raise the level of nutrition and the standard of living of people and to improve public health
47

DPSP – Gandhian Principles

Definition: These principles are based on Gandhian ideology used to represent the programme of
reconstruction enunciated by Gandhi during the national movement. Under various articles, they direct the
state to:

Article 40 Organise village panchayats and endow them with necessary powers and authority to enable
them to function as units of self-government

Article 43 Promote cottage industries on an individual or co-operation basis in rural areas

Article Promote voluntary formation, autonomous functioning, democratic control and professional
43B management of co-operative societies

Article 46 Promote the educational and economic interests of SCs, STs, and other weaker sections of the
society and to protect them from social injustice and exploitation
Article 47 Prohibit the consumption of intoxicating drinks and drugs which are injurious to health

Article 48 Prohibit the slaughter of cows, calves and other milch and draught cattle and to improve their
breeds

DPSP – Liberal-Intellectual Principles

Definition: These principles reflect the ideology of liberalism. Under various articles, they direct the state to:

Article Secure for all citizens a uniform civil code throughout the country
44

Article Provide early childhood care and education for all children until they complete the age of six
45 years

Article Organise agriculture and animal husbandry on modern and scientific lines
48

Article Protect monuments, places and objects of artistic or historic interest which are declared to be
49 of national importance

Article Separate the judiciary from the executive in the public services of the State
50

Article  Promote international peace and security and maintain just and honourable relations
51 between nations
 Foster respect for international law and treaty obligations
 Encourage settlement of international disputes by arbitration

What are the new DPSPs added by the 42nd Amendment Act, 1976?
42nd Amendment Act, 1976 added four new Directive Principles in the list:
S.No Article New DPSPs

1 Article 39 To secure opportunities for the healthy development of children

2 Article 39A To promote equal justice and to provide free legal aid to the poor

3 Article 43A To take steps to secure the participation of workers in the management of industries

4 Article 48A To protect and improve the environment and to safeguard forests and wildlife

Conflict between Fundamental Rights and DPSPs

With the help of four court cases given below, candidates can understand the
relationship between Fundamental Rights and Directive Principles of State Policy:
Champakam Dorairajan Case (1951)
Supreme Court ruled that in any case of conflict between Fundamental
Rights and DPSPs, the provisions of the former would prevail. DPSPs were
regarded to run as a subsidiary to Fundamental Rights. SC also ruled that
Parliament can amend Fundamental Rights through constitutional amendment
act to implement DPSPs.
Result: Parliament made the First Amendment Act (1951), the Fourth
Amendment Act (1955) and the Seventeenth Amendment Act (1964) to
implement some of the Directives.
Golaknath Case (1967)
Supreme Court ruled that Parliament cannot amend Fundamental Rights to
implement Directive Principles of State Policy.
Result: Parliament enacted the 24th Amendment Act 1971 & 25th Amendment
Act 1971 declaring that it has the power to abridge or take away any of the
Fundamental Rights by enacting Constitutional Amendment Acts. 25th
Amendment Act inserted a new Article 31C containing two provisions:

 No law which seeks to implement the socialistic Directive Principles
specified in Article 39 (b)22 and (c)23 shall be void on the ground
of contravention of the Fundamental Rights conferred by Article 14
(equality before law and equal protection of laws), Article 19
(protection of six rights in respect of speech, assembly, movement,
etc) or Article 31 (right to property).
 No law containing a declaration for giving effect to such policy shall
be questioned in any court on the ground that it does not give
effect to such a policy.
Kesavananda Bharti Case (1973)
Supreme Court ruled out the second provision of Article 31C added by the 25th
Amendment Act during Golaknath Case of 1967. It termed the provision
‘unconstitutional.’ However, it held the first provision of Article 31C constitutional
and valid.
Result: Through the 42nd amendment act, Parliament extended the scope of
the first provision of Article 31C. It accorded the position of legal primacy and
supremacy to the Directive Principles over the Fundamental Rights conferred by
Articles 14, 19 and 31.