Constitutional Law

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Constitutional Law Kesavananda Bharti Vs State of Kerala AIR1973SC1461 1. Validity of the 24th, 25th and 29th amendments to the Constitution.  24th amendment-insertion of Clause 2 and 3 into Article 13 and amendment to Article 368.  Article 13  Article 368  25th amendment-insertion of Clause C into Article 31  Article 31  29th amendment-insertion of the Kerala Land Reform [Amended] Act 1969 and Kerala Land Reform [Amended] Act 1970 2. Certain important factors were raised: Amendment of the constitution under Article 368.  The interpretation of Article 368.  Breach of fundamental rights.  Whether Parliament has the power to amend the Constitution.  The extent of the amending power of the Parliament.  What is a basic structure of the constitution? 3. Petitioner  Swami Kesavananda Bharti  Owner of a religious institution  State government of Kerala intends to compulsorily acquire property under the Kerala Land Reform [Amended] Acts 1969 and 1970.  The Petitioner claimed that the state government has no right to manage the affairs of a religious institution with regard to property.  The act of the government is unconstitutional.  Writ petition was filed seeking Constitutional remedy under Article 32.  Enforcement of Article 25, 26, 14, 19 and 31.  Declaration that the amendments were unconstitutional, void and ultravires. 4. Respondents argued that the Parliament can abrogate fundamental rights 5. Petitioners argued that the power of the Parliament to amend the Constitution is limited. 6. Article 368  Procedures to amend the constitution  Who can amend the constitution  Power of the parliament to amend the constitution

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interpretation Bill passed to amend the constitution Amended bill-cannot be said to be a bill for purposes of Article 368 Rigid interpretation Ordinary laws-made in the exercise of legislative power Constitutional laws-made in the exercise of constituent power Power to amend is a sovereign power. Power is supreme to the legislative power Article 13-the word law refers to rules and regulations and amendment to the constitution cannot be defined as laws under Article 13.  Constitutional amendment is not a law as purported in Article 13  24th and the 29th Amendments to the constitution were basically constitutional amendments under Article 368 and they do not contravene Article 13 and are therefore valid.  These constitutional amendments were made in the exercise of a constituent power instead of a legislative power as defined in Article 13. 7. Fundamental rights  Inherent rights  Acquired and implied rights  Basic features of the parliament  Articles in relation to the fundamental rights cannot be amended as they support the preamble otherwise the structure of the constitution will be damaged. These articles cannot stand on its own without the support of the preamble. They form the basis of the constitution.  Article 31-compulsory acquisition of property  29th amendment to the constitution is valid  Constitutional amendment is valid  Right to property-fundamental in nature but not that fundamental so as to change the basic structure of the constitution and what is a basic structure of the constitution will depend on individual cases.  Parliament cannot destroy the fundamental structure of the constitutionsovereign republic state, federal structure and fundamental rights. It can only modify the structure of the constitution.  Hence the constitutional amendment according to the provisions of article 368 in pursuant to the 29th amendment was not a law as in under article 13 [2].  There was no breach of the fundamental rights of the petitioner.

[Page 3]  The court also held that parliament has the power to amend all the provisions of the constitution and what is fundamental right will depend on each situation. 8. Power of the parliament to amend article 368.  Power to amend article 368 itself  Parliament can amend their amending powers.  Express and Implied Limitations  Parliament is a feature of the constitution  Parliament cannot enlarge its own amending power over the constitution while purporting to act under the constitution  Parliament does not control the constitution it is the other way around the constitution controls the parliament  Power of amendment cannot possibly embrace the power to enlarge the very power of amendment.  The same holds true for the amendment of the constitution parliament cannot change or amend the structure of the constitution. 2241. The conclusions are briefly these: 2242. The decision of the leading majority in the Golak Nath case that the then Article 368 of the Constitution merely prescribed the procedure for amendment of the Constitution and that the power of amendment had to be traced to Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 is not correct. 2243. The decision of the leading majority and of Hidayatullah J. that there is no distinction between an ordinary law and a law amending the Constitution is incorrect. Article 13(2) took in only ordinary laws, not amendments to the Constitution effected under Article 368. 2244. The decision of the leading majority and of Hidayatullah J. that Parliament had no power to amend the Constitution so as to abrogate or take away Fundamental Rights is incorrect. 2245. The power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered. It reached every part and provision of the Constitution. 2246. Preamble is a part of the Constitution and is not outside the reach of the amending power under Article 368. 2247. There are no inherent limitations on the amending power in the sense that the Amending Body lacks the power to make amendments so as to damage or destroy the essential features or the fundamental principles of the Constitution.

[Page 4] 2248. The 24th Amendment only declares the true legal position as it obtained before that Amendment and is valid. 2249. Section 2(a) and Section 2(b) of the 25th Amendment are valid. Though courts have no power to question a law described in Article 31(2) substituted by Section 2(a) of the Amendment Act, on the ground that the amount fixed or determined for compulsory acquisition or requisition is not adequate or that the whole or any part of such amount is to be given otherwise than in cash, courts have the power to question such a law if (i) the amount fixed is illusory; or (ii) if the principles, if any are stated, for determining the amount are wholly irrelevant for fixation of the amount; or (iii) if the power of compulsory acquisition or requisition is exercised for a collateral purpose; or (iv) if the law of compulsory acquisition or requisition offends the principles of Constitution other than the one which is expressly excepted under Article 31(2B) introduced by Section 2(b) of the 25th Amendment Act - namely Article 19(1)(f); or (v) if the law is in the nature of a fraud on the Constitution. 2250. Section 3 of the 25th Amendment which introduced Article 31C into the Constitution is valid. In spite, however, of the purported conclusiveness of the declaration therein mentioned, the Court has the power and the jurisdiction to ascertain whether the law is for giving effect to the policy of the State towards securing the principles specified in Article 39(b) or (c). If there is no direct and reasonable nexus between such a law and the provisions of Article 39(b) or (c), the law will not, as stated in Article 31C, receive immunity from a challenge under Articles 14, 19 or 31. 2251. The 29th Amendment Act is valid. The two Kerala Acts mentioned therein, having been included in the Ninth Schedule, are entitled to the protection of Article 31B of the Constitution. Conclusion I am of the opinion that the overall judgment is a sound one. The judiciary serves as a checking mechanism on the government. The government cannot pass laws that abrogate fundamental rights of the citizens. The judiciary acts as a guardian of fundamental rights. Parliament is a feature of the constitution and it derives its authority from the constitution. It cannot amend its amending power to such an extent as if to override the constitution. Parliament cannot enlarge its own power over the constitution while purporting to act under it. The same holds true for the amendment of the constitution-fundamental rights cannot be abrogated or abridged by the Parliament. There is nothing in the nature of the amending power which enables the Parliament to override all the express or implied limitations imposed on that power.

[Page 5] The case of Golak Nath held that Parliament cannot amend Part III of the constitution in relation to fundamental rights. The case of Kesavananda held that Parliament has the right to amend all the provisions of the articles including Part III of the constitution with regard to fundamental rights like right to property is breached with reference to individual liberty for the common good of mankind or for the greater public interest.

The Constitution is not a mere machinery for the exercise of public power but it establishes an order by which public power is itself to be constrained. The Indian Constitution is not a social document that gives power to the public but rather it is a form of order that lays down certain rules and regulations to regulate the conduct of the society as such the public power is itself constrained with express and implied limitations. 1. Sedition Act  Dr Binayak Sen-charged under Section 124A of the Indian Penal Code  Arundhati Roy  Vara Vara Rao  S.A.R. Geelani  Exercising their constitutional right to freedom of expression  Draconian law enacted to stifle the voices of dissent  Suppressing the liberty of the citizens.  Section 124A-criminalizes those who-bring into hatred or contempt or excite or attempt to excite disaffection towards the state.  Disapprobation/criticism of the government does not lead to exciting hatred, contempt or disaffection.  Kedar Nath Singh Vs State of Bihar  Upheld the constitutional validity of the law  Distinction between disloyalty to the government and commenting upon the measures of the government without inciting public disorder by acts of violence  State used sedition laws against journalists, writers, intellectuals and human rights activists.  Such draconian laws should not have a place in a country that prides itself on the constitution that guarantees to all its citizens the fundamental rights.  Dr Binayak Sen was convicted and sentenced to life imprisonment for sedition against the state..intellectual co-ordination with the Naxalites  Justice Verma 2. Indian Emergency [1975-1977]  Indian National Congress  During the emergency the government passed the 39th amendment which sought to limit judicial review for the election of the Prime Minister.  42nd amendment which prevented the court for reviewing any amendment to the constitution  Preventive detention laws were passed to prevent constitutional rights of imprisoned persons  Additional District Magistrate Vs Shiv Kant Shukla  The Supreme Court ruled in favour of the state’s right for unrestricted powers during the emergency

[Page 2]  Under emergency no person has the locus standi to move any writ petition under article 226 before the High Court for Habeas Corpus  Cannot challenge the legality of the detention orders. 3. Land Redistribution for purposes of nationalization. 4. 1971 Parliament passed an amendment empowering itself to amend any provisions of the constitution including fundamental rights 5. Internal Security Act-ISA the governments of Singapore and Malaysia have the right to arrest any citizens who comments on the measures of the government by causing public disorder.  Detention without trial 6. Liu Xiaobo-Nobel prize winner 7. Tiananmen Square massacre

Why and how the Constitution matters and the Rule of law The Indian Constitution is a body of laws that lays down the basic structure of the political system of India. The Constitution draws its authority from the people of India and serves the people of India by providing justice and equality and by assuring the protection of fundamental rights. Sovereignty lies with the people of India and in a sovereign republic state it is a government of the people, for the people and by the people. The Constitution safeguards the interest of the people of India. Parliament is sovereign in the sense that it legislate laws. Parliament also has the power to amend all the provisions of the constitution under Article 368 including its own amending power but it is bound by the doctrine of basic structure innovated by the Supreme Court in the case of Kesavananda Bharti. The power to amend is a sovereign power and the power to amend is supreme over the legislative power. Constitutional amendments are made in the exercise of a constituent power pursuant to Article 368 of the Constitution. The Constitution therefore protects the fundamental rights of the citizens. Can the Constitution protect these fundamental rights if there is no enforcement? Who can enforce these rights enshrined in the Constitution? It is the Supreme Court that ensures the protection of fundamental rights. It is therefore correct to say that the protection of fundamental rights is guaranteed in the Constitution by the very constitutional interpretation of the constitution by the Supreme Court. The constitution has no standing of its own the judiciary gives effect to it by interpreting it. The Constitution does not protect our fundamental rights but the Supreme Court does when it interprets our constitution. The constitution protects our fundamental rights through the constitutional interpretation by the Supreme Court. It can be construed from the above that the constitution in itself does not guarantees fundamental rights to the people of India but rather it gives structure to our politics. There have been altogether 96 amendments to our constitution. It was the Supreme Court that gave the validity to the amendments by interpreting it. By amending the constitution the politics of the country has been structuring the constitution. It is therefore true to say that the constitution is not a mere machinery that gives power to the public but it simply lays down a form of order by which public power is itself to be constrained. These are elaborated by the doctrine of constitutional amendments which tends to protect overall public interest against the doctrine of individual liberties. Why the constitution matters it’s because without which there will be chaos in the country. India is a country of immense diversity with many religions caste and creed. A constitution is needed to regulate the conduct of the society and to achieve the spirit of unity.

[Page 2] The constitution matters as it gives structure to our politics. Constitution is not static-someday soon the Supreme Court will start protecting rights that you and I may not like and stop protecting the ones that you and I may like.  Franklin Roosevelt used to name justices to the Supreme Court whom he is confident that will uphold his New Deal programs  Ronald Reagan used to name justices to the Supreme Court who would develop and articulate a constitutional vision that would continue to affect his national policies long after he left the presidency. How the constitution matters? It matters if there is a body that can give effect to its existence. A body that is independent of it. It matters because of the judiciary. Landmark case:In India, an external state of emergency was declared two times during wars:  

In 1962 Sino-Indian War In 1971 Indo-Pakistani War of 1971

In 1975, Prime Minister Indira Gandhi declared a state of internal emergency after she was indicted in a corruption scandal and ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree until 1977. It all started after maverick socialist Raj Narain, who had been defeated in parliamentary election by Indira Gandhi, lodged cases of election fraud and use of state machinery for election purposes against Mrs. Indira Gandhi in the Allahabad High Court. On 12 June 1975, Justice Jagmohanlal Sinha of the Allahabad High Court found the Prime Minister guilty on the charge of misuse of government machinery for her election campaign. The court declared her election null and void and unseated her from her seat in the Lok Sabha. The court also banned her from contesting any election for an additional six years. Some serious charges such as bribing voters and election malpractices were dropped and she was held responsible for misusing the government machinery, and found guilty on charges such as using the state police to build a dais, availing the services of a government officer, Yashpal Kapoor (IAS), during the elections before he had resigned from his position, and use of electricity from the state electricity department. Protests led by J.P.Narayan, Raj Narain, Satyendra Narayan Sinha and Morarji Desai flooded the streets of Delhi close to the Parliament building and the Prime Minister's residence. The persistent efforts of Raj Narain, was praised worldwide as it took him over four years of continuous political and legal battle against system and Mrs Indira Gandhi to prove his charges. This instilled the faith in Indian Democracy and Judiciary. Political opposition was heavily suppressed during the emergency. Civil liberties were suspended and a mandatory birth control program

[Page 3] was introduced by the government. The Government used police forces across the country to arrest thousands of protestors and strike leaders. J.P. Narayan, Raj Narain, Morarji Desai, Charan Singh, Jivatram Kripalani, Atal Bihari Vajpayee, L.K. Advani, Satyendra Narayan Sinha and other protest leaders were immediately arrested. Organizations such as the Rashtriya Swayamsevak Sangh, along with some opposition political parties were banned. Nearly two years later, confident about her chances of getting re-elected, Indira Gandhi relaxed the emergency and released dissidents. Mrs. Gandhi called new elections and freed her critics, Mr. Raj and his colleagues rode a popular wave of unrest to defeat her and her Government. Raj Narain won decisively in the Prime Minister's home constituency of Rae Bareli. The victory of Mr Raj Narain over Prime Minister Smt. Indira Gandhi in 1977 parliamentary elections in Rai Bareilly (U.P-India) led to the fall of long era of Congress led central government in India, after independence and brought everlasting change in political equations thereafter in Indian politics, even today. During times of civil unrest or a declaration of war a state of emergency can be declared by the government. It is a rationale for suspending rights and freedom and everything that were guaranteed by the constitution. The parliament inserted the 39th amendment to the constitution and declared that the court has no power to review the election of the Prime Minister and the 42 nd amendment declared that the court cannot review the amendment of the constitution under article 368. Compulsory sterilization case by Sanjay Gandhi-Government family planning policy was passed which attempts to force people to undergo surgical sterilization. Forced sterilization is a crime against humanity. It was an infamous family planning imposed during the state of emergency-a vasectomy of thousands of men and tubal ligation of women were imposed. Acquisition of land by the state and other immediate interest for purposes of preserving national policies which is beyond the scrutiny of fundamental rights and directives principles of state policy were implemented. Right to property was enshrined in Article 19 [1] [f] under part III of the constitution and later it was inserted into article 300 of the constitution and it is therefore not a fundamental right anymore. The Supreme Court in the case of Shankari Prasad and Sajjan Singh enunciated the principle that the laws that seek to deprive a person of his property must be a valid law enacted by a competent legislature and should not be inconsistent with fundamental rights. The case of Kesavananda also laid down the principle that fundamental rights can be amended under Article 368 and its validity cannot be questioned on the ground that it encroaches on fundamental rights. The Supreme Court by a judicial innovation

[Page 4] structured the basic structure doctrine and gave itself the power to review if such an amendment would be ultra vires as it violates the very structure of the constitution. The case inserted clauses 4 and 5 into article 368 and the case of Minerva Mills [1980] armed with the doctrine of basic structure declared clauses 4 and 5 invalid that removed all limitations upon the power of the parliament to amend the constitution and destroy the right of judicial review which is an essential feature of the constitution. The court has to weigh the direct impact of the amendment and not the form and determine the violation of rights if any its impact and if it destroys the basic structure of the constitution. The court also held that the validity of each constitutional amendment has to be judged according to the merits of the case. What is the effect and impact of the law on the rights guaranteed by part III of the constitution in view of the basic structure of the constitution? From the above cases it is apparent and in my view that the constitution is more of a political document as it gives structure to politics: Various constitutional amendments under article 368.  State of emergency in 1975 during the reign of the National Indian Congress.  State imposed rule of law  Classic example of Babri Masjid demolition case.  Fundamental rights like freedom of religion, equality before the law and secularism were breached.  no intervention by the state and the central government to maintain rule of law  kar sevaks demolished the 500 year old mosque  the high court gave a decision which was not based on facts and evidence of the case  the plaintiffs sought ownership of title to the land  the court divided the land into 3 parts and gave equally to the Hindus, Muslims and the Nirmohi Akharas  panchayati judgment  No one can dispute the fact that Ayodhya is the birthplace of Lord Rama but to argue that the spot where the mosque was demolished is the exact spot where Lord Rama is born is evidentially incorrect as there is no archaeological evidence to prove this.  The Hindus were not made to compensate the Muslims and neither the court had instructed the kar sevaks to build a mosque at the exact spot where it was demolished.

[Page 5]  Several commissions were set up by the state government to enquire into the heinous crime against humanity but none has been arrested and punished even though the report showed strong evidence against the several accused. Few cases are still pending in the court.  The demolition of the mosque itself is a crime that is still staring us in the face.  The constitution is a bare piece of document enshrined with all fundamental rights but if there is no enforcement it has no value. The case of Minerva Mills Vs Union of India [1980]3 SCC 625 The Petitioner was a limited company that owned textile undertaking calls Minerva Mills situated in the state of Karnataka. The said undertaking was nationalised and taken over by the Central government under the provisions of Sick Textile Undertakings [Nationalization] Act 1974. Central government appointed a committee under Section 15 of the Industries [Development and Regulation] Act 1951 to make an investigation into the affairs of the Minerva Mills and found that there would be a substantial fall in the volume of production. Central government passed an order and took over the company on the ground that the affairs of the company were managed in a manner highly detrimental to the public interests. The Petitioner challenged the constitutional validity of the provisions. The case of Minerva Mills [1980] armed with the doctrine of basic structure declared clauses 4 and 5 of Article 368 invalid that removed all limitations upon the power of the parliament to amend the constitution and destroy the right of judicial review which is an essential feature of the constitution. The court has to weigh the direct impact of the amendment and not the form and determine the violation of rights if any its impact and if it destroys the basic structure of the constitution. The court also held that the validity of each constitutional amendment has to be judged according to the merits of the case. What is the effect and impact of the law on the rights guaranteed by part III of the constitution in view of the basic structure of the constitution? In the case of Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case, a bench of five senior most judges of Supreme Court ruled in favour of state's right for unrestricted powers of detention during emergency. Justices A.N. Ray, P. N. Bhagwati, Y. V. Chandrachud, and M.H. Beg, stated in the majority decision: (under the declaration of emergency) no person has any locus to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.

[Page 6] Chandra Kumar Vs Union of India [1997]3 SCC 261 The court held that the power of judicial review over the legislative action vested in High Court under Article 226 and the Supreme Court under Article 32 of the constitution is an integral and essential feature of the constitution-a basic structure of the constitution. Post-1980: an assertive Supreme Court Fortunately for Indian jurisprudence, the "brooding spirit of the law" referred to by Justice Khanna was to correct the excesses of the emergency soon enough. After Indira Gandhi lost elections in 1977, the new government of Morarji Desai, and especially law minister Shanti Bhushan (who had earlier argued for the detunes in the Habeas Corpus case), introduced a number of amendments making it more difficult to declare and sustain an emergency, and reinstated much of the power to the Supreme Court. It is said that the Basic Structure doctrine, created in Kesavananda, was strengthened in Indira Gandhi's case and set in stone in Minerva Mills. The Supreme Court's creative and expansive interpretations of Article 21 (Life and Personal Liberty), primarily after the Emergency period, have given rise to a new jurisprudence of public interest litigation that has vigorously promoted many important economic and social rights (constitutionally protected but not enforceable) including, but not restricted to, the rights to free education, livelihood, a clean environment, food and many others. Civil and political rights (traditionally protected in the Fundamental Rights chapter of the Indian Constitution) have also been expanded and more fiercely protected. These new interpretations have opened the avenue for litigation on a number of important issues. It is interesting to note that the pioneer of the expanded interpretation of Article 21, Chief Justice P N Bhagwati, was also one of the judges who heard the ADM Jabalpur case, and held that the Right to Life could not be claimed in Emergency. The case of Coelho Vs State of Tamil Nadu [2007] reaffirms the basic structure doctrine and the authority of the judiciary to review any such laws that damage and destroy the basic structure of the constitution. The case reaffirms the rights of judicial review, supremacy of the judiciary in interpreting the laws and the exclusive rights of the judiciary to interpret the laws. The nine judges' Bench presided by Justice Y.K. Sabharwal, CJI delivered a unanimous verdict on 11.1.2007 in I.R. Coelho (dead) by L.Rs. Vs. State of Tamil Nadu and others, upholding the 'Basic Structure Doctrine', and the authority of the judiciary to review any such laws, which destroy or damage the basic structure as indicated in Art.21 read with Art.14, Art.19 and the principles underlying there under, even if they have been put in 9th Schedule after 14th April, 1973 (the date of the judgment in Kesavananda Bharti's case).

[Page 7] The judgment upholds the right of judicial review and the supremacy of judiciary in interpreting the laws, which have been constantly under threat. The judgment reiterates and defines the exclusive right of the judiciary to interpret laws, in an ongoing struggle of supremacy between legislative and judiciary since 26th Nov. 1949, when the Constitution was dedicated to the people of India. Recent important cases Among the important pronouncements of the Supreme Court post 2000 is the Coelho case (I.R. Coelho v. State of Tamil Nadu (Judgment of 11the January, 2007). A unanimous Bench of 9 judges reaffirmed the basic structure doctrine. An authority on the Indian Constitution, former Attorney-General Soli Sorabjee commented on the judgment, "The judgment in I.R. Coelho vigorously reaffirms the doctrine of basic structure. Indeed it has gone further and held that a constitutional amendment which entails violation of any fundamental rights which the Court regards as forming part of the basic structure of the Constitution then the same can be struck down depending upon its impact and consequences. The judgment clearly imposes further limitations on the constituent power of Parliament with respect to the principles underlying certain fundamental rights. The judgment in Coelho has in effect restored the decision in Golak Nath regarding non-amendability of the Constitution on account of infraction of fundamental rights, contrary to the judgment in Kesavananda Bharti’s case. Another important decision was of the five-judge Bench in Ashoka Kumara Thakur v. Union of India; where the constitutional validity of Central Educational Institutions (Reservations in Admissions) Act, 2006 was upheld, subject to the "creamy layer" criteria. Importantly, the Court refused to follow the 'strict scrutiny' standards of review followed by the United States Supreme Court. At the same time, the Court has applied the strict scrutiny standards in Anuj Garg v. Hotel Association of India (2007). In Aravalli Golf Course and other cases, the Supreme Court (particularly Justice Markandey Katju) has expressed reservations about taking on an increasingly activist role. In extraordinary situations where corruption in allotment of mobile licenses has caused an estimated astronomical loss of Rs 1, 76,000 crores, a Bench comprising Justices G S Singhvi and A K Ganguly told CBI to inform who the beneficiaries and conspirators in parking funds in foreign bank accounts were. The government refused to disclose details of about 18 Indians holding accounts in LGT Bank, Liechtenstein, evoking a sharp response from a Bench comprising Justices B Sudershan Reddy and S. S. Nijjar to ―Make up your mind whether you can make the disclosure.‖ The Solicitor General of India replied that it will be done ―at the appropriate stage.‖

[Page 8] Conclusion A constitution that is static will ultimately become a big hurdle in the path of the progress of a nation. Should the document grow with a growing nation and adapt itself to the changing circumstances of growing people and be flexible for undesirable changes? The constitution vests in the judiciary the power to adjudicate upon the constitutional validity of all laws. There is a limitation in the power of amendment by necessary implication which was apparent from the reading of the preamble to the constitution. The case of Kesavananda is not only a landmark case in the evolution of constitutional law but also a turning point in constitutional history. The constitution is a precious heritage its identity cannot be destroyed. The constitution has conferred a limited amending power on the Parliament, the parliament cannot under the exercise of that limited power enlarge the very power to an absolute power.

Rule of law The rule of law is an expression of an endeavour to give reality to something which is not readily expressible; this difficulty is due primarily to identification of the rule of law with the concept of the rights of man.....all countries of the West recognize that the rule of law has a positive content, though that content is different in different countries; it is real and must be secured principally, but not exclusively, by the ordinary courts. The rule of law is based upon the liberty of the individual and has as its object the harmonizing of the opposing notions of individual liberty and public order. The notion of justice maintains a balance between these notions. Justice has a variable content and cannot be strictly defined, but at a given time and place there is an appropriate standard by which the balance between private interest and the common good can be maintained. There is an important difference between the concept of the rule of law as the supremacy of law over the government and the concept of the rule of law as the supremacy of law in society generally. The first concept is the only feature common to the west, connoting as it does the protection of the individual against arbitrary government...different techniques can be adopted to achieve the same ends and the rule of law must not be conceived of as being linked to any particular technique. But it is fundamental that there must exists some technique for forcing the government to submit to the law; if such a technique does not exists, the government itself becomes the means whereby the law is achieved. This is the antithesis of the rule of law. Although much emphasis is placed upon the supremacy of the legislative in some countries of the West, the rule of law does not depend only upon contemporary positive may be expressed in positive law but essentially it consists of values and not of institutions;; it connotes a climate of legality and of legal order in which the nations of the West live and in which they wish to continue to live. Albert Dicey British jurist A. V. Dicey popularized the phrase "rule of law" in 1885. Dicey emphasized three aspects of the rule of law: 1.

No one can be punished or made to suffer except for a breach of law proved in an ordinary court.


No one is above the law and everyone is equal before the law regardless of social, economic, or political status.


The rule of law includes the results of judicial decisions determining the rights of private persons.

[Page 2] Joseph Raz In 1977, the influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies. Raz's principles encompass the requirements of guiding the individual's behaviour and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz's principles are as follows: • Laws should be prospective rather than retroactive. • Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it. • There should be clear rules and procedures for making laws. • The independence of the judiciary has to be guaranteed. • The principles of natural justice should be observed, particularly those concerning the right to a fair hearing. • The courts should have the power of judicial review over the way in which the other principles are implemented. • The courts should be accessible; no man may be denied justice. • The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law. According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally "is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man". United Nations The Secretary-General of the United Nations defines the rule of law as: A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards! It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. International Bar Associations The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law: An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial

[Page 3] without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities. World Justice Project As used by the World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld: 1. 2. 3. 4.

The government and its officials and agents are accountable under the law; The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property; The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the m akeup of the communities they serve.

In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. According to the Indian journalist Harish Khare, "The rule of law or rather the Constitution is in danger of being supplanted by the rule of judges!" In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law Rule of law requires legislative power to be subject to judicial review.

[Page 4] The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government that suppresses in a legalistic fashion." The legal maxim rule of law connotes that the government [parliament] should make laws that could be applied to known legal principles. Laws should be just and fair. The formal interpretation to the doctrine of rule of law dictates the principle that laws must be prospective, well known and have the characteristics of generality, equality and laws that protect democracy and individual rights. Laws should meet the conditions of validity. Laws should guide the behaviour of the subjects. The substantive interpretation to the doctrine of rule of law dictates the principle that laws must intrinsically protect some or all individual rights. Any power which is conferred upon a government department must be exercised in strict conformity with the terms of the law. The substantive part of the rule of law must recognize certain rights of the individual which he is entitled to enforce against the state...any rights like right to life, right to freedom of thought and expression, right to freedom of religion...etc. or it could be any forms of rights recognized in the social, economic and political sense and these are essential to the moral and intellectual development of the person as a human being. The procedural part of the rule of law imposes on the state certain obligations to provide or create conditions like food, shelter, clothing, education and employment. The procedural part of the rule of law must give effect to the substantive part of the rule of law. Legislative and the rule of law Parliament cannot legislate laws that are discriminatory in nature and laws that interfere with the fundamental rights of a person. Legislature should be bound by certain moral and political principles and some of these should come as strongly that to go against them would be considered highly improper and unconstitutional by the masses themselves. Executive and the rule of law The executive should execute laws to provide adequate safeguard against abuse of power. An effective government should maintain law and order and ensure adequate social and economic conditions. Laws enacted by the parliament should be tactfully executed by the government officials in power. Government should be ruled in accordance to the law and subject to the law and all government actions should have a foundation in law and authorized by law. Government should execute laws which have a legislative authorization of the parliament.

[Page 5] Rule of law does not mean that the government should safeguard civil and political rights of an individual it must also go on to establish social, economic, educational and cultural conditions of the individual so that his legitimate aspirations and dignity maybe realized. Judiciary and the rule of law The judiciary should be independent from the interference of the legislative and the executive. An independent judiciary is an indispensable requisite to a free society under the rule of law. The judiciary should be free to exercise its judicial power. The legal profession should be free to manage its own affairs and there must be equal access to the law and equal access to justice. State of Madhya Pradesh Vs Thakur Bharat Singh [1967] The state government made an order directing the Respondent that he cannot reside in the Raipur District and that he should find a place of residence in another town and that he should report daily to the local police station of his place of residence. The Respondent filed a petition challenging the validity of such an order under Article 226 of the Constitution claiming that his fundamental rights under Article 19 [1] [d] and [f] of the constitution has been breached. The Appellant argued that the restrictions imposed by the order were not unreasonable. He further argued that the petitioner cannot file a petition under article 226 of the constitution challenging the validity of the order on grounds of breach of his fundamental rights as the order was pronounced during the state of emergency and assuming even though article 3 [1] [b] was void article 358 protects the legislative and the executive decision made during the period of emergency. The court was of the view that any acts enacted by the parliament and executed by the state which directly contravenes Article 13 [2] of the Constitution was void including Section 3 [1] [b] of the Madhya Pradesh Public Security Act 25 of 1959 as the constitution prohibits the state from making any laws which takes away or abridges the rights conferred by part III of the constitution. The act was void in itself and was not revived when the proclamation of emergency was made by the President. Keeping in mind the proposition submitted by the counsel for the state that while conceding to the fact that if Article 3 [1] [b] was, because it infringed the fundamental freedom of citizens, void before the proclamation of emergency, and that it was not revived by the proclamation, Article 358 protects both legislative and executive actions taken after the proclamation of emergency and therefore any such actions taken by the officer of the state or the state will not be liable to be challenged on the ground that it infringes the fundamental freedoms under Article 19. The court was of the view that any executive action which operates to the prejudice of any person must have the authority of the law to support it and Article 358 does

[Page 6] not however detract from that principle. The court held that the said act was invalid as it was made prior to the declaration of emergency and it was not revived by the state and it is directly prejudicial to the Respondent and the state cannot claim immunity under Article 358 of the constitution and besides the order was not supported by any valid legislation. Case No: Criminal Appeal No(s). 254-262 of 2012) Imtiyaz Ahmad Appellant(s) versus State of U.P. & Others Respondent(s) Date of Decision (mm/dd/yy): 2/1/2012. Judge(s): Hon'ble Mr. Justice Asok Kumar Ganguly and Hon'ble Mr. Justice T.S. Thakur. Subject Index: Rule of law — violation of — principle of 'Access to justice' —huge pendency of arrears in different High Courts — unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man's access to justice — the Supreme Court issued guidelines and gave directions to the High Courts for better maintenance of the Rule of Law and better administration of justice. The Law Commission is requested to submit its report for further consideration by this Court. The importance of the rule of law lays not so much in the application of it as it is to the administration and the enforcement of it. Advanced reading: Rule of Law and the Calling of Self-Transformation by Ananta Kumar Giri The present Constitution of India has sought to create a more equal and just rule of law between individuals and groups than what existed under traditional authorities such as Manusmriti. Constitution strives to eliminate the humiliation that people suffered under the traditional social system of caste and patriarchy, thus creating new ground for realization of human dignity. The realization of both formal and substantive equality that is happening under the rule of law in contemporary Indian society can facilitate a more creative flourishing of a life of dharma or righteous conduct in self and society. Self-rule is central to realization of order in both self and society. But self-rule is facilitated by existence of a just social, institutional and legal order which grants legal equality to individuals irrespective of class, caste, religion and gender. Modern law thus can create an appropriate sociological condition for the realization of a life of dharma in self and society. But though modern rules of law are necessary, they are not sufficient for the realization of self-rule, self-governance and order in society. It is here that modern rules of law both in contemporary India and the West can learn from aspects of Indian traditions which emphasize self-development and self-transformation. In fact, it is the practice of continued self-transformation which constitutes a beyond in

[Page 7] thinking about rule of law, self and society and spiritual traditions of India continuously challenge us to invite and incorporate this beyond in our routines of law. As J.D.M. Derrett writes: ".....The unbroken tradition of Hindu legal scholarship has emphasized the concept that Hindu law concerns itself with eternity and with morality judged against the greater background, and not with material, temporary considerations." For Sasheej Hegde, "Rules and laws in Indian traditions" point towards a morality of subjectivities, a morality that extends beyond the space of power. There is an imperative / prescriptive dimension of rule of law in Indian tradition but this "may neither be merely foisted on the practices of groups and institutions as extrinsic constraints, nor be made merely instrumental to their exercise or the principle of universalization that this could help realize must however be friends on a clarification of the moral point of view." The epithets "legal and moral are taken to be broadly coeval" and in Indian traditions "looked at as complementary modes of marking power." The transformational supplement of morality in the working of rule of law where morality means much more than obeying societal norms but acting righteously in accordance with one's conscience has an epochal significance now. As Veena Das writes: ""Texts (including the Dharmasastras which lay out rules of conduct) do not prescribe behaviour in the sense of laying out areas of obligation as much as describing codes of conduct considered to be exemplary or desirable by characterizing this as a purely Brahmanic conception, one loses the opportunity of treating it as an important conceptual resource." The rules of law in modern western tradition began with an emancipatory promise but even by mid-nineteenth century in the West, law as emancipation was overridden by law as regulation. The crisis facing rule of law in the contemporary world, both India and the West is "the collapse of emancipation into regulation" and the task here is to rethink and revitalize the emancipatory dimension of rule of law. But this calls for not only incorporating the old models of emancipation where emancipation entailed struggles with the external oppressive other but also imagining, embodying and realizing emancipation in a new way where emancipation from societal oppression and the consequent empowerment is accompanied by emancipation from one's egotistic passion and desire to control other people and an aspiration to contribute to a participatory and transformational creation of society as a space of spiritual freedom and shared inter-subjectivity. Working on this new challenge of emancipation at the core of which lies work on self-development, selftranscendence on self-transformation requires a new view of the subject and also society. Santos who urges us to realize that "the collapse of emancipation into regulation symbolizes the exhaustion of paradigm of modernity" makes this connection clear: "A narrow view of ourselves tends to encourage even a narrower view of the other." For Santos, the new paradigm of law that is emerging in the context of the contemporary crisis of modernist legalism entails a triple transformation where "power becomes shared authority", "despotic law becomes democratic law", and "knowledge as regulation becomes knowledge-asemancipation". But for the realisation of this triple transformation there is the need

[Page 8] for realisation of a new subjectivity: the task is to invent a "subjectivity constituted by the topos of a prudent knowledge for a decent life." And as Paul Ricouer would urge us to realise in his recent provocative interpretation of justice: "....The question with a juridical from who is the subject of rights? Is not to be distinguished in the final analysis from the question with a moral form who is the subject worthy of esteem and respect?" For Santos the "emergent subjectivity" of law lives in the frontier and to "live in the frontier is to live in abeyance, in an empty space, in a time between times." Living in an empty space and empty time calls for realizing the dialectic between time and eternity, tradition and modernity and here openness to emptiness as an integral dimension of space, time, being and society in Indian socio-spiritual traditions can help us in bringing emancipation to the heart of rule of law. "Emergent subjectivity" of law requires an emergent ethics where apriori rules and regulations are not enough for making prudential judgments with regard to dealing with dilemmatic situations in law, ethics and morality and also for living a life of justice and responsibility. The task here is to bring the dimension of responsibility as unconditional obligation to the working of the rules of law where responsibility as obligation "overflows the framework of compensation and punishment." A life of responsibility calls for prudential judgement which in turn calls for continuous guidance of conscience. But in modern Western legal and political tradition, exemplified in the works of Kant, Rawls and Habermas, the voice of conscience has all the features of social legality internalised as pure morality. But in bringing conscience to the heart of law, we have to realize that conscience is not just a product of society. It is the voice of conscience which tells "me that all other life is as important as my own." Here an ontologically responsive interpretation of conscience for a just working of rule of law is crucial and here Indian approach to rules of law through dharma can help us. In his critical reflection on law and society in India, Andre Beteille writes, "Individual rights do not have the same depth and firmness in India, the same anchorage in its social structure, than they do in the United States." But this relativisation of individual right in contemporary Indian legal systems can help us work out a much more balanced relationship between individual rights and group rights. Modern western legal tradition has granted unquestioned primacy to individual rights but with the social and theoretical revolution of postmodernism and multiculturalism, legal systems in the West are slowly opening themselves to recognising and instituting group rights. But the realisation of a proper balance between individual and group rights is still a great challenge and here experiments in the West can learn from Indian experiments with policies of compensatory discrimination which have sought to work out a balance between individual rights and group rights. The Indian experiment on arriving at a creative and transformative relationship between individual and society in both tradition and modernity is still incomplete but it has all along striven to relativize the egoistic primacy of either group right or individual right, society and individual by bringing a dimension of transcendental beyond to the routines of rule and law. The spiritual traditions of

[Page 9] India have all along emphasised that society is not merely a contract. This is an insight of immense help in rethinking and reconstituting law and society in the contemporary order. As Paul Ricouer challenge us: The question is worth asking: what is it that makes society more than a system of distribution? Or better: What is it that makes distribution a means of cooperation? Here is where a more substantial element than pure procedural justice has to be taken into account, namely, something like a common good, consisting in shared values. We are then dealing with a communitarian dimension underlying the purely procedural dimension of the social structure. Perhaps we may even find in the metaphor of sharing the two aspects I am here trying to coordinate in terms of each other. In sharing there are shares, that is, these things that separate us. My share is not yours. But sharing is also what makes us share, that is, in the strong sense of the term, share in. I conclude then that the act of judging has as its horizon a fragile equilibrium of these two elements of sharing: that which separates my share or part from yours and that which, on the other hand, means that each of us shares in, takes part in society.

The Doctrine of Separation of Powers The term is ascribed to French Enlightenment political philosopher Baron de Montesquieu. Montesquieu described division of political power among an executive, a legislature, and a judiciary. He based this model on the British constitutional system, in which he perceived a separation of powers among the monarch, Parliament, and the courts of law. Subsequent writers have noted that this was misleading, because the United Kingdom had a very closely connected legislature and executive, with further links to the judiciary (though combined with judicial independence). The British Constitution is a mirror of political liberty. Montesquieu did specify that "the independence of the judiciary has to be real and not apparent merely". "The judiciary was generally seen as the most important of powers, independent and unchecked", and also considered it dangerous. The fundamental principle of a free constitution would be subverted if the whole power of one department is exercised by the same hands which possess the whole power of another department. When the legislative, executive and the judicial powers are vested in the hands of one body there can be no political liberty. Likewise if the power of judging and legislating is in the same hands the life and the liberty of the subject would be exposed to arbitrary control. The judge will also be the legislator. The functions of the government could be divided among parts in such a way as if each is limited to the exercise of its proper function and balance is completed by allowing each branch a limited right of interference in the functions of the other. The constitutional structure would be harmonized by the doctrine of separation of powers. If the legislative, executive and judicial powers are vested in one hand there would be arbitrariness and abuse of power. The three organs are distinct and different from each other, they have different function and they are mutually independent of one another. All government officials and civil servants must act in accordance to the rule of law and in the public interest and not the individual interest. If all power is vested in one hand, the power of the government is at the expense of the governed. The executive must act with the legislative authorization so as not to deprive the individual of his rights. In democratic systems of governance based on the division of political power, a fundamental parallel and a fundamental difference exists between presidential systems and constitutional monarchic parliamentary system of government. The parallel is that the three branches of government (legislative, executive, judicial) exist largely independent of each other, with their own prerogatives, domains of activity, and exercises of control over each other.

[Page 2] 

The legislative body has control of the executive finances, and has judiciary powers; it also has control of the way the judiciary works. The judiciary often has control of laws not being contradictory to the constitution or other laws and it has the power to correct and control the way the executive body exercises it powers (to execute the law)

The difference between the two systems is: 

In presidential systems, the incumbent of the Head-of-state is elected to office and, after transfer of power, appoints his administration (like in the United States) or a government headed by a prime minister is formed within the parliament, based on the elected majority (like in France). The latter might lead to a "cohabitation," where a president and his government belonging to different parties or coalitions. Also further down the ladder of political power, regional or local legislative bodies and chief executives are elected (e.g. state governor and state senate in the United States). In constitutional monarchic parliamentary systems, only the legislative body is elected and a government formed on the basis of majority or a coalition of parties. Elected members of parliament have to resign from their mandate in order to accept an executive office. This is true in regional and local councils that are elected and the executive nominated. In a parliamentary system, when the term of the legislature ends, so may the tenure of the executive selected by that legislature. Although in a presidential system, the executive's term may or may not coincide with the legislatures, as their selection is technically independent of the legislature.

Two branch power systems may have systems in which certain branches have more than one power. Often a legislative body is elected, while the executive is nominated. The nominated executive branch also has power of presenting legislation, while the legislative body is only has a controlling function. In those systems, the judiciary is subservient to the executive and has no power to control either the executive or the legality of new legislative texts. The separation of powers is a doctrine which provides a separate authority, which makes it possible for the authorities to check each other’s checks and balances. India Constitution of India and Government of India   

Parliament = Legislative Prime Minister, Cabinet, Government Departments & Civil Service = Executive Supreme Court = Judicial

[Page 3] India follows a parliamentary system of government, which offers a clear separation of powers. The judiciary branch is fairly independent of the other two branches. Executive powers are vested with the President, who is assisted by the Cabinet Secretary and other Secretaries. All three branches have "checks and balances" over each other to maintain the balance of power. There is no express provision in the Indian Constitution that recognizes the doctrine of separation of powers but there is a provision for the reasonable separation of functions and powers. The President is the head of the Union and act on the advice of the Council of Ministers. The Executive [President] exercising legislative powers: Exclusive legislative powers to make and promulgate ordinances during the course of the recess of parliament-Article 123  Article 356 of the Constitution allows the executive to make laws for the state after the emergency had been declared.  Legislative functions under Article 372-372A. The Executive [President] exercising judicial powers: To pardon criminals. The Legislative exercising judicial functions: Deciding on questions of breach of parliamentary privileges and punish for contempt.  Impeach the president under Article 61 if charges are sustainable for prosecution. Relevant Case-laws  Ram Janaya Kapur v State of Punjab [1955] 2SCR 225  Smt. Indira Gandhi v Raj Narain [1975]  I.C. Golak Nath v State of Punjab [AIR 1967 SC 1643]  Kesavananda Bharti v State of Kerala [AIR 1973 SC 1461]  Minerva Mills Limited v Union of India [AIR 1980 SC 1789] United Kingdom Separation of powers in the United Kingdom  

Parliament - legislature Prime Minister, Cabinet, Government Departments & Civil Service – executive

[Page 4] 

Courts - judiciary

Although the doctrine of separation of power plays a role in the United Kingdom's constitutional doctrine, the UK constitution is often described as having "a weak separation of powers", A. V. Dicey, despite its constitution being the one to which Montesquieu originally referred. For example, in the United Kingdom, the executive forms a subset of the legislature, as did—to a lesser extent—the judiciary until the establishment of the Supreme Court of the United Kingdom. The Prime Minister, the Chief Executive, sits as a member of the Parliament of the United Kingdom, either as a peer in the House of Lords or as an elected member of the House of Commons (by convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of Commons) and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in the United Kingdom are undoubtedly amongst the most independent in the world, the Law Lords, who were the final arbiters of judicial disputes in the UK sat simultaneously in the House of Lords, the upper house of the legislature, although this arrangement ceased in 2009 when the Supreme Court of the United Kingdom came into existence. Furthermore, because of the existence of Parliamentary sovereignty, while the theory of separation of powers may be studied there, a system such as that of the UK is more accurately described as a "fusion of powers". The development of the British constitution, which is not a codified document, is based on this fusion in the person of the Monarch, who has a formal role to play in the legislature (Parliament, which is where legal and political sovereignty lies, is the Crown-in-Parliament, and is summoned and dissolved by the Sovereign who must give his or her Royal Assent to all Bills so that they become Acts), the executive (the Sovereign appoints all ministers of His/her Majesty's Government, who govern in the name of the Crown) and the judiciary (the Sovereign, as the fount of justice, appoints all senior judges, and all public prosecutions are brought in his or her name). The British legal systems are based on common law traditions, which require: 

Police or regulators cannot initiate complaints under criminal law but can only investigate (prosecution is mostly reserved for the Crown Prosecution Service), which prevents selective enforcement, e.g. the 'fishing expedition' which is often specifically forbidden. Prosecutors cannot withhold evidence from attorneys for the defendant; to do so results in mistrial or dismissal. Accordingly, their relation to police is no advantage.

[Page 5] 

Defendants convicted can appeal, but only fresh and compelling evidence not available at trial can be introduced, restricting the power of the court of appeal to the process of law applied.

The British constitution is not based on the doctrine of separation of powers. It is also not true to say that the doctrine of separation of powers has no relevance to the British Constitution. Burmatic Oil v Lord Advocate [1965] The House of Lords awarded compensation for properties lost during the period of war to the claimants. The Parliament subsequently overruled the decision by legislating the War Damage Act of 1965. M v Home Secretary [1994] M filed an application before the Home Secretary claiming the status of political asylum. The application was rejected and a deportation order was issued by the Home Secretary. M’s counsel filed an application for an appeal and Justice Garland ordered that M should not be deported until the application can be fully heard. The Home Secretary did not oblige the order and deported M. M’s counsel filed contempt proceedings against the Home Secretary for not abiding the said order of the court. In the contempt proceedings Justice Simon Brown found the Home Secretary guilty of contempt of the court and said that it was a black day for the rule of law and for the liberty of the subject if the executive and the judiciary cannot maintain a relationship of trust. The House of Lords subsequently overruled the decision on the basis that the court has no jurisdiction to find the Crown [Executive] itself in contempt of court but a servant of the Crown which was the Minister of the Crown [the Home Secretary] in this case could be held liable only on a mere finding and not in contempt of court. United States Separation of powers under the United States Constitution In the United States Constitution, Article 1 Section I gives Congress only those "legislative powers herein granted" and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for Congress. The vesting clause in Article II places no limits on the Executive branch, simply stating that, "The Executive Power shall be vested in a President of the United States of

[Page 6] America."[6] The Supreme Court holds "The judicial Power" according to Article III, and it established the implication of judicial review in Marbury Vs Madison. This case is the authority for the principle that the structure of the government should be arranged in such a way that its constituent parts may be by their mutual relations be the means of keeping each other in their proper places. The federal government refers to the branches as "branches of government", while some systems use "government" to describe the executive. The Executive branch has attempted to claim power arguing for separation of powers to include being the Commander in Chief of a standing army since the Civil war, executive orders, emergency powers and security classifications since WWII, national security, signing statements, and the scope of the unitary executive. Legislative (Congress)

Passes bills; has broad taxing and

Executive (President)

spending power; controls the federal

Is the commander-in-chief of

Judicial (Supreme Court)

Determines which laws Congress

the armed forces

intended to apply to any given case

budget; has power to borrow money

Executes the instructions of Congress. 

Exercises judicial review, reviewing

on the credit of the United States

May veto bills passed by Congress

the constitutionality of laws

(may be vetoed by President,

(but the veto may be overridden by a

but vetoes may be overridden with a

two-thirds majority of both houses)

two-thirds vote of both houses)

Executes the spending authorized by

Determines how Congress meant the law to apply to disputes

Determines how a law acts to

Has sole power to declare war.


Oversees, investigates, and makes the 

Declares states of emergency and

rules for the government and its

publishes regulations and executive

testimony and the production of




Makes executive agreements (does not 

Determines how laws should be

federal judiciary in cases not specified

require ratification) and signs treaties

interpreted to assure uniform policies

by the Constitution

(ratification requiring by two-thirds of

in a top-down fashion via the appeals

Ratification of treaties signed by the

the Senate)

process, but gives discretion in

Makes appointments to the federal

individual cases to low-level judges.

consent to presidential appointments

judiciary, federal executive

The amount of discretion depends

to the federal judiciary, federal

departments, and other posts with the

upon thestandard of review,

executive department and other posts

advice and consent of the Senate. Has

determined by the type of case in

(Senate only)

power to make temporary


Has sole power

appointment during the recess of the

of impeachment (House of


Defines by law the jurisdiction of the

President and givesadvice and

Representatives) and trial of

Has the power to grant "reprieves and

impeachments (Senate); can remove

pardons for offenses against the

federal executive and judicial officers

United States, except in cases of

from office for high crimes and



determine the disposition of prisoners

Determines how a law acts to compel

Federal judges serve for life

[Page 7] In the early 18th and the 19th centuries we have Presidents of the United States of America like Theodore Roosevelt and Richard Nixon who claimed executive privileges. President Theodore Roosevelt stretched his executive authority on the claim that the President is authorized to do whatever that was not explicitly forbidden by the law. President Richard Nixon used to claim executive privilege to safeguard the security of the nation. Youngstown Sheet & Tube Co. Vs Sawyer [The Steel Seizure case] 343 U.S. 579 [1952] President Truman had issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. The mill owners argued that the President has no right to issue a Constitutional order as it is the sole responsibility of the Congress to legislate laws under Article 1 of the Constitution. The counsel for the government argued that the order was made on the finding that the President’s action was necessary to avert a national catastrophe which would eventually result from the stoppage of steel production. It was further argued by the said counsel that the President’s order does not tantamount to a congressional policy that need be executed in a manner prescribed by the Congress rather it was a presidential policy that will be executed in a manner prescribed by the President. The preamble to the order like many other statutes sets out reasons why the President believes certain policies should be adopted and proclaims that these policies are rules of conduct to be followed and again like a statute authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. Mr. Justice Black delivered the judgement and held that the Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. Mr. Justice Jackson concurring in the judgment and opinion of the court held that-―The actual act of governing under the Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy bit reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat oversimplified grouping of practical situations in which a President may doubt, or others may challenge his powers and by distinguishing roughly the legal consequences of this factor of relativity‖.

[Page 8] ―In view of the case, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them with statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightaway into dictatorship, but it is at least a step in that wrong direction‖. Mr. Chief Justice Vinson, with whom Mr. Justice Reed and Mr. Justice Minton join, dissenting held-―The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert a disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the Executive action was unwarranted because there was in fact no basis for the President’s finding of the existence of an emergency for, under this view, the gravity of the emergency and the immediacy of the threatened disaster are considered irrelevant as a matter of law‖. Dames & Moore Vs Regan 453 U.S. 654 [1981] The American Embassy in Tehran was seized and all diplomatic personnel were captured and held hostage. In response to that crisis, President Carter, acting pursuant to the International Emergency Economic Powers Act, declared a national emergency and blocked the removal or transfer of all property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or become subject to the jurisdiction of the United States. Justice Relinquist delivered the opinion of the court-―Finally, we reemphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President’s action; we are not prepared to say that the President lacks the power to settle such claims‖. INS Vs Chadha [1983] Chadha was an East Indian born in Kenya was a student studying in the USA and he had overstayed his student visa and was thus deportable. The AttorneyGeneral suspended his deportation order based on a specified condition of extreme

[Page 9] hardship under the Act. He has to notify the Congress of such a suspension order which he subsequently did. The Congress had delegated this authority to the Attorney General [Executive] to suspend any deportation order based on the ―extreme hardship‖ cases. The Congress also had the power under the Immigration and Nationalizing Act by way of resolution to invalidate the decision of the Executive. After 1 year and a half the House of Representatives passed a resolution under the said act and declared that the suspension order is invalid as it did not meet the requirements particularly with regard to hardship. Chief Justice Burger-The resolution was not submitted to the Senate and the President for consent as such the Court of Appeal held that the resolution was unconstitutional as it violates the doctrine of separation of powers. Justice White dissenting-The history of separation of powers doctrine is also a history of accommodation and practicality. Apprehensions of an overly powerful branch have not led to undue prophylactic measures that handicap the effective working of the national government as a whole. The Constitution does not contemplate total separation of the three branches of government. Our decisions reflect this judgment. The veto provision does not prevent the Executive branch from accomplishing its constitutionality assigned functions. Moreover, the court believes that this legislative veto is best characterized as an exercise of legislative or quasi-legislative authority. Under this characterization, the practice does not, even on the surface, constitute an infringement of executive or judicial prerogative. Nor does Section 244 infringe on the judicial power, as Justice Powell would hold. I do not suggest that all legislative vetoes are necessarily consistent with separation of powers principles. A legislative clerk on an inherently executive function, for example that of initiating prosecutions, poses an entirely different question!! But the legislative veto device here-and in many other settings-is far from an instance of legislative tyranny over the executive. It is a necessary check on the unavoidably expanding power of the agencies, both executive and independent as they engage in exercising authority delegated by Congress. Checks and balances To prevent one branch from becoming supreme, protect the "opulent minority" from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of "checks and balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts. A system of checks and balances would ensure efficiency and it will prevent tyranny and abuse of power. It is in the interest of the rule of law that the doctrine of

[Page 10] separation of powers ensures that the power to make laws are not in the hands of those who are administering the laws. Most constitutions incorporate the doctrine of the separation of powers. The constitutional plan of any country rest on the doctrine of separation of powers but the actual usage of the doctrine itself is a constitutional myth. The doctrine of separation of powers is not in form that matters it is rather in practise that it is a prerequisite to the effective functioning of a democracy. The law makers cannot administer the law neither can they dispense the law. The doctrines of the rule of law and the separation of powers are antithesis to the concept of arbitration and abuse of power and they are the pillars of any democratic country. 25/2/2012

The absence of judicial review of primary legislation is not fatal to the rule of law. The rule of law or rather the Constitution is in danger of being supplanted by the rule of judges. Can the rule of law be maintained in the absence of judicial review of primary legislation? Understand the concept of judicial review under Articles 32 and 226 [constitutional remedies] of the Constitution-process of supervision of public power of the executive/legislative by the judiciary. Understand the concept of the rule of law-any forms of laws enshrined in the Constitution and the statutes are laws and the state must act in accordance to the laws encompassed in them and the individuals have rights which they are entitled to enforce against the state. Understand the concept of primary legislation contrary to secondary legislationprimary legislation are laws enacted by the Parliament and secondary legislation [subordinate legislation] are laws enacted by the executive and which have to be authorized by the parliament. I am of the opinion that in the absence of judicial review of primary legislation rule of law can still be maintained as the incorporation of too much of a judicial discretion i.e. the power given to the judges to interpret the laws will eventually result in the rule of law or rather the constitution being replaced by the rule of the judges. The danger is imminent. For example Article 368 of the constitution is ambiguous in nature in that it states that the parliament has the power to amend the constitution by way of addition, variation and by way of repeal. Article 368 lays down the procedures to amend the constitution but it does not state the extent of the amending power of the parliament to amend the constitution under the said article. Article 368 is silent on the ambit of the amending power of the parliament. Hence, literally speaking it means that the parliament has the power to amend all the provisions of the constitution including article 13 and the fundamental rights of an individual under part III of the constitution. Literally speaking article 368 contravenes article 13 as article 13 stipulates that parliament cannot enact laws which are inconsistent or that which abrogates the fundamental rights of an individual. Hence looking at the ambiguity of article 368 the Supreme Court in the case of Kesavananda Bharti has given a constitutional interpretation to it. The case is authority for the principle that parliament has the power to amend all the provisions of the constitution including provisions on fundamental rights so long as the amendment do not change the basic structure of the constitution. Golak Nath was overruled by the judges. The case of Golak Nath states quite the contrary that parliament has the power to amend the constitution but it cannot amend the fundamental rights of an individual.

[Page 2] The case of Minerva Mills upheld the doctrine of the basic structure but reaffirmed the case of Golak Nath. The possibility remains that tomorrow the case of Kesavananda Bharti may be overruled by a different set of judges. Hence if too much leeway is given to the judges to exercise judicial discretion in interpreting the laws the danger remains that one day the rule of law [the function of the judiciary is to adjudicate the law] or rather the constitution would be supplanted by the rule of judges. Too much of text in the constitution leads to different interpretations and there remain a loophole for judicial intervention and judicial discretion. Nevertheless the same may not hold true if laws are made simple to understand and the powers of judicial discretion in interpreting laws are limited. Every individual should have legal awareness. Laws should be simplified so that every individual has an understanding of the law. Without simplicity of the law there can be no legal awareness. Hence parliament should enact laws that are made simple to understand and that it should not leave too much of a gap for judicial discretion. When parliament enacts laws that are unfair and unjust, the executive can veto the legislation and the judiciary can declare the law to be invalid. But who will check on the exclusive powers of the judiciary to adjudicate the laws? If there is no check on the powers of the judiciary how will the rule of law be maintained or rather the principles of the constitution be upheld. Therefore it is important for the judiciary when they exercise the powers of judicial discretion in interpreting the laws, that the will of the parliament is maintained. The duty of the parliament is to enact laws and there is an intention secured behind the legislation and these have to be maintained by the judiciary when adjudicating the laws. For example in legislating article 13, the intention of the parliament is to protect fundamental rights of the citizens. The judiciary in interpreting article 368 must give effect to article 13 of the constitution [i.e. to protect fundamental rights] and protect the intention of the parliament, even so article 13 says that nothing in it would apply to article 368. In doing so, they can maintain the rule of law and the basis of the constitution. When judges exercise judicial discretion in interpreting the laws due respect is to be given to the will of the parliament. The powers conferred on the judges have to be exercised by them reasonably in the context of the laws. But what happens when parliament enact laws that are unpopular or unjust and unfair? Should the judiciary uphold the intention of the parliament when interpreting them? The judiciary can declare such laws to be invalid but the judiciary should act reasonably in doing so to strike a balance between the individual interest and the common interest and these interests should not be compromised against the state. The judiciary should be tactful in doing so and in so doing they can uphold the rule of law. The case of Kesavananda Bharti is also authority for the principle that in adjudicating the amendments to the constitution made by parliament the court gave

[Page 3] effect to the intention of the parliament by protecting the fundamental rights as enshrined in article 13 of the constitution. The court was of the opinion that fundamental rights form the basic structure of the constitution and they cannot be amended. Hence by giving effect to the doctrine of basic structure the court has maintained the rule of law. The rule of law is the core of the constitution and the pillar on which the constitution stands or derives its authority. The case of Kesavananda Bharti is also authority for the principle that article 368 does not enable the parliament to alter the basic structure of the constitution or the frame work of the constitution. Neither can the parliament amend its own amending powers under article 368 to such an extent as if to alter the basic structure of the constitution. The court was also of the opinion that the powers of judicial review forms the basic structure of the constitution. If in the event parliament abuse their powers under article 368 to such an extent as if affecting the basic structure of the constitution the judicial is vested with the powers of supervision of such public power. The judges when exercising judicial discretion in interpreting the law must bear in mind that parliament is a feature of the constitution and parliament cannot by amending its own amending powers change the basic structure of the constitution as if to override the constitution from which it derives its authority. Neither should the judiciary exercise its powers of judicial discretion as if to override the constitution because the judiciary is part of the constitution. The judiciary when adjudicating the laws must give effect to the intention of the parliament as in the Kesavananda Bharti case i.e. by protecting the basic structure of the constitution it advertently also protects the fundamental rights of the individual and in so doing they eventually prevents the basic structure of the Constitution from being disturbed and again in so doing they also uphold the principles of the constitution and the rule of law. If judicial discretion is exercised cautiously the danger of the rule of law and the constitution being supplanted by the rule of judges could be minimized if not totally eradicated. Likewise, I am of the opinion that the rule of law or rather the constitution would not be in danger of being supplanted by the rule of judges in the absent of judicial review of primary legislation and neither it is fatal to the rule of law when judicial review is absent in a typical system of parliamentary democracy like in the United Kingdom. Unlike India, in the United Kingdom, Parliament is sovereign and it can make or unmake laws. The judiciary is not expressly vested with the powers of judicial review. In India, the Constitution is the supreme law of the land. The Constitution is sovereign. If parliament makes laws that infringe the rights of a person, the judiciary can intervene to review or supervise the public power given to the legislature.

[Page 4] History is testimonial to the fact that the UK parliament has hardly enacted any laws that infringed the liberty of its people. The concept remains true when one speak of the UK parliament that when enacting laws the parliament are bound by certain moral and political principles and also by principles of good conscience. The UK parliament cannot make laws that are unjust or unfair as it would be highly improper for the parliament to do so. In the year 2004, the government of Britain sought to pass the asylum and immigration [treatment of claimants’ bill] which contained an ouster clause that no one has the right for judicial review on decisions in applications for asylum. The Lord Chief Justice then, Lord Woolf, made it very clear to the parliament if such clause are to become laws they will refuse to apply it. The parliament backed down. The case of R Jackson V Attorney General is the authority for the principle as enunciated by Lord Bingham that the bedrock of the British constitution is the supremacy of the Crown in Parliament. Hence it is true to say that the UK parliament in enacting laws has to consider that laws should have certain characteristics of generality, equality and certainty. Otherwise they would be considered highly improper by the masses themselves. When parliament in itself is bound by such rules they uphold their own integrity and their own sovereignty. And in so doing, they eventually uphold the rule of law and the constitution. In general the people may not have to seek recourse in the courts of law when the parliament acts responsibly. Hence the UK parliament has to keep in mind the fact that laws enacted by them should not be left open for judicial review as each time when such situations arise, the sovereignty of the parliament will be undermined. When judges’ powers in judicial discretion are limited, there is no leeway left for much judicial intervention in interpreting the laws. In such situations it is obvious that the chances to replace the rule of law and the constitution with the rule of judges are minimal. However the absolute may not necessarily be true as there is no guarantee that the UK parliament in the future may not do so. The powers of judicial review remain with the judges but in exceptional cases. The judiciary in interpreting laws has to uphold the sovereignty of the parliament. 28/2/2012

The doctrine of separation of powers as propounded by Baron de Montesquieu is a constitutional myth. Explain what separation of powers is. Explain the doctrine of separation of powers by Montesquieu. There is no express provision in the Indian Constitution that provides for the doctrine of separation of powers but it is true t0 say that the constitution does provide for a reasonable provision for the doctrine of separation of powers. Most constitutions incorporate the doctrine of the separation of powers. The constitutional plan of any country rest on the doctrine of separation of powers but the actual usage of the doctrine itself is a constitutional myth. The doctrine of separation of powers is not in form that matters it is rather in practise that it is a prerequisite to the effective functioning of a democracy. The law makers cannot administer the law neither can they dispense the law. The doctrines of the rule of law and the separation of powers are antithesis to the concept of arbitration and abuse of power and they are the pillars of any democratic country. Explain situations where the executive exercises legislative powers and when the executive exercises judicial powers in relation to articles of the constitution and case law. Explain also other situations where the powers of one organ of the department overlap with that of another with reference to articles in the constitution and case law. Explain the above in relation to the Indian form of government: Explain separation of powers first in regard to the executive, legislative and the judiciary.  Explain with reference to case law:State of Madhya Pradesh Vs Thakur Bharat Singh [1967] Ram Janaya Kapur v State of Punjab [1955] 2SCR 225 Smt. Indira Gandhi v Raj Narain [1975] I.C. Golak Nath v State of Punjab [AIR 1967 SC 1643] Kesavananda Bharti v State of Kerala [AIR 1973 SC 1461] Minerva Mills Limited v Union of India [AIR 1980 SC 1789]  Explain other situations where powers are fused and they overlap. Explain the question in relation to the USA form of government: Article I, II & III of the American constitution  Explain where powers are fused and they overlap with each other.

[Page 2]  Cite case law  Youngstown Sheet & Tube Co. Vs Sawyer [The Steel Seizure case] 343 U.S. 579 [1952]  Dames & Moore Vs Regan 453 U.S. 654 [1981]  INS Vs Chadha [1983] Explain the question in relation to the UK form of government.  Explain the situation before the year 2005 where powers overlap  Explain the situation after 2005 with the formation of the Supreme Court  Constitutional reforms Act and the House of Lords Act.  Cite case law  Burmatic Oil v Lord Advocate [1965]  The House of Lords awarded compensation for properties lost during the period of war to the claimants. The Parliament subsequently overruled the decision by enacting the War Damage Act of 1965.  M v Home Secretary [1994] 28/2/2012

The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties are sections of the Constitution of India that prescribe the fundamental obligations of the State to its citizens and the duties of the citizens to the State. These sections comprise a constitutional bill of rights for government policy-making and the behaviour and conduct of citizens. These sections are considered vital elements of the constitution, which was developed between 1947 and 1949 by the Constituent Assembly of India. The Fundamental Rights are defined as the basic human rights of all citizens. These rights, defined in Part III of the Constitution, apply irrespective of race, place of birth, religion, caste, creed or gender. They are enforceable by the courts, subject to specific restrictions. The Directive Principles of State Policy are guidelines for the framing of laws by the government. These provisions, set out in Part IV of the Constitution, are not enforceable by the courts, but the principles on which they are based are fundamental guidelines for governance that the State is expected to apply in framing and passing laws. The Fundamental Duties are defined as the moral obligations of all citizens to help promote a spirit of patriotism and to uphold the unity of India. These duties, set out in Part IV–A of the Constitution, concern individuals and the nation. Like the Directive Principles, they are not legally enforceable. The Fundamental Rights and Directive Principles had their origins in the Indian independence movement, which strove to achieve the values of liberty and social welfare as the goals of an independent Indian state. The development of constitutional rights in India was inspired by historical documents such as England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The demand for civil liberties formed an important part of the Indian independence movement, with one of the objectives of the Indian National Congress (INC) being to end discrimination between the British rulers and their Indian subjects. This demand was explicitly mentioned in resolutions adopted by the INC between 1917 and 1919. The demands articulated in these resolutions included granting to Indians the rights to equality before law, free speech, trial by juries composed at least half of Indian members, political power, and equal terms for bearing arms as British citizens. The experiences of the First World War, the unsatisfactory Montague-Chelmsford reforms of 1919, and the rise to prominence of M. K. Gandhi in the Indian independence movement marked a change in the attitude of its leaders towards articulating demands for civil rights. The focus shifted from demanding equality of status between Indians and the British to assuring liberty for all Indians. The Commonwealth of India Bill, drafted by Annie Beasant in 1925, specifically included demands for seven fundamental rights – individual liberty, freedom of conscience, free expression of opinion, freedom of assembly, non-discrimination on the ground of sex, free elementary education and free use of public spaces. In 1927, the INC resolved to set up a committee to draft a "Swaraj Constitution" for India based on a declaration of rights that would provide safeguards against oppression. The 11-member committee, led by Motilal Nehru, was constituted in 1928. Its

[Page 2] report made a number of recommendations, including proposing guaranteed fundamental rights to all Indians. These rights resembled those of the American Constitution and those adopted by post-war European countries, and several of them were adopted from the 1925 Bill. Several of these provisions were later replicated in various parts of the Indian Constitution, including the Fundamental Rights and Directive Principles. In 1931, the Indian National Congress, at its Karachi session, adopted a resolution committing itself to the defence of civil rights and economic freedom, with the stated objectives of putting an end to exploitation, providing social security and implementing land reforms. Other new rights proposed by the resolution were the prohibition of State titles, universal adult franchise, abolition of capital punishment and freedom of movement. Drafted by Jawaharlal Nehru, the resolution, which later formed the basis for some of the Directive Principles, placed the primary responsibility of carrying out social reform on the State, and marked the increasing influence of socialism and Gandhian philosophy on the independence movement. The final phase of the Independence movement saw a reiteration of the socialist principles of the 1930s, along with an increased focus on minority rights – which had become an issue of major political concern by then – which were published in the Sapru Report in 1945. The report, apart from stressing on protecting the rights of minorities, also sought to prescribe a "standard of conduct for the legislatures, government and the courts". During the final stages of the British Raj, the 1946 Cabinet Mission to India proposed a Constituent Assembly to draft a Constitution for India as part of the process of transfer of power. The Constituent Assembly of India composed of indirectly elected representatives from the British provinces and Princely states, commenced its proceedings in December 1946, and completed drafting the Constitution of India by November 1949. According to the Cabinet Mission plan, the Assembly was to have an Advisory Committee to advise it on the nature and extent of fundamental rights, protection of minorities and administration of tribal areas. Accordingly, the Advisory Committee was constituted in January 1947 with 64 members, and from among these a twelve-member sub-committee on Fundamental Rights was appointed under the chairmanship of J.B. Kripalani in February 1947. The sub-committee drafted the Fundamental Rights and submitted its report to the Committee by April 1947, and later that month the Committee placed it before the Assembly, which debated and discussed the rights over the course of the following year, adopting the drafts of most of them by December 1948. The drafting of the Fundamental Rights was influenced by the adoption of the Universal Declaration of Human Rights by the U.N. General Assembly and the activities of the United Nations Human Rights Commission, as well as decisions of the U.S. Supreme Court in interpreting the Bill of Rights in the American Constitution. The Directive Principles, which were also drafted by the sub-committee on Fundamental Rights, expounded the socialist precepts of the Indian independence movement, and were inspired by similar principles contained in the Irish Constitution. The Fundamental Duties were later added to the Constitution by the 42nd Amendment in 1976.

[Page 3] Indian independence movement The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights (approved on 17 September 1787, final ratification on 15 December 1791) and France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified on 26 August 1789). Under the educational system of British Raj, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and Britishers political parties. In 1919, the Rowlatt Act gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence in their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in Irish constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population. In 1928, the Nehru Commission composing of representatives of Indian political parties proposed constitutional reforms for India that apart from calling for dominion status for India and elections under universal suffrage, would guarantee rights deemed fundamental, representation for religious and ethnic minorities, and limit the powers of the government. In 1931, the Indian National Congress (the largest Indian political party of the time) adopted resolutions committing itself to the defence of fundamental civil rights, as well as socio-economic rights such as the minimum wage and the abolition of untouchability and serfdom. Committing themselves to socialism in 1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which inspired the fundamental duties of citizens as a means of collective patriotic responsibility for national interests and challenges. When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composing of elected representatives under the presidency of Rajendra Prasad. While members of Congress composed of a large majority, Congress leaders appointed persons from diverse political backgrounds to responsibilities of developing the constitution and national laws. Notably, Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for different subjects. A notable development during that period having significant effect on the Indian constitution took place on 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.

[Page 4] The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee. Fundamental Rights is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, colour or gender. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The seven fundamental rights recognised by the constitution are:1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles. 2) Right to freedom which includes speech and expression, assembly, association or union, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases. 3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings; 4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes. 5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice; and 6) Right to constitutional remedies for enforcement of Fundamental Rights. 7) Right to information act, 2005 Fundamental rights for Indians have also been aimed at overturning the inequalities of preindependence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They

[Page 5] also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions. Right to property was originally a fundamental right, but is now a legal right. Fundamental Rights in India The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens' rights from encroachment by society. Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies. However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978. The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society. They act as limitations on the powers of the legislature and executive, under Article 13, and in case of any violation of these rights the Supreme Court of India and the High Courts of the states have the power to declare such legislative or executive action as unconstitutional and void. These rights are largely enforceable against the State, which as per the wide definition provided in Article 12, includes not only the legislative and executive wings of the federal and state governments, but also local administrative authorities and other agencies and institutions which discharge public functions or are of a governmental character. However, there are certain rights – such as those in Articles 15, 17, 18, 23, 24 – that are also available against private individuals. Further, certain Fundamental Rights – including those under Articles 14, 20, 21, 25 – apply to persons of any nationality upon Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are applicable only to citizens of India. The Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of public interest. In the Kesavananda Bharti v. State of Kerala case in 1973, the Supreme Court, overruling a previous decision of 1967, held that the Fundamental Rights could be amended, subject to judicial review in case such an amendment violated the basic structure of the Constitution. The Fundamental Rights can be enhanced, removed or otherwise altered through a constitutional amendment, passed by a two-thirds majority of each House of Parliament. The imposition of a state of emergency may lead to a temporary suspension of any of the Fundamental Rights, excluding Articles 20 and 21, by order of the President. The President may, by order, suspend the right to constitutional remedies as well, thereby barring citizens from approaching the Supreme Court for the enforcement of any of the Fundamental Rights, except Articles 20 and 21, during the period of the emergency. Parliament may also restrict the application of the Fundamental Rights to members of the Indian Armed Forces and the police, in order to ensure proper discharge of their duties and the maintenance of discipline, by a law made under Article 33.

[Page 6] Significance and characteristics The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State. According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights. All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation". In some cases, High Court judges have acted on their own on the basis of newspaper reports. These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens. The right to equality in matters of public employment cannot be conferred to overseas citizens of India. Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals. For instance, the Constitution abolishes untouchability and also prohibits begar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament cannot alter the basic structure of the constitution and features such as secularism and democracy fall under this category. Since the fundamental rights can only be altered by a constitutional amendment, their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures. A state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws which go against the rights given in Article 19. Also, the President may by order suspend the right to move court for the enforcement of other rights as well.

[Page 7] Right to Equality

Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights and liberties, and guarantees the following: The Right to Equality is one of the chief guarantees of the Constitution. It is embodied in Articles 14–16, which collectively encompass the general principles of equality before law and nondiscrimination, and Articles 17–18 which collectively further the philosophy of social equality. Article 14 guarantees equality before law as well as equal protection of the law to all persons within the territory of India. This includes the equal subjection of all persons to the authority of law, as well as equal treatment of persons in similar circumstances. The latter permits the State to classify persons for legitimate purposes, provided there is a reasonable basis for the same, meaning that the classification is required to be non-arbitrary, based on a method of intelligible differentiation among those sought to be classified, as well as have a rational relation to the object sought to be achieved by the classification. The case of M.G. Badappanavar V State of Karnataka [AIR 2001] SC 260 is authority for the principle that right to equality is the most important right as envisaged in the preamble. Equality is the basic feature of the constitution and any treatment of the equals unequally violates the basic structure of the constitution. 

Equality before law: Article 14 of the constitution guarantees that all citizens shall be equally protected by the laws of the country. It means that the State cannot discriminate any of the Indian citizens on the basis of their caste, creed, colour, sex, gender, religion or place of birth.

There are two concepts of equality which is referred in this article. One is equality before the law which is in line with the doctrine of the rule of law propounded by A. V. Dicey in that everyone is equal before the law and everyone is subject to the rule of law and no one is above the law. This is the negative aspect of the law in that there are no special privileges given to anyone.

The other one is equal protection before the law i.e. equal treatment in equal circumstances. This is the positive aspect of the law in that the same laws may not apply to everyone as there is no universal application of the law.

The case of Ram Krishna Dalmia V Delhi Administration [AIR 1958] SC 538 has laid down certain guidelines with regard to special circumstances that are applicable to some and not others. The guidelines are with respect to the scope of permissible classification. Article 14 prohibits class legislation and allows classification in reasonable grounds.

The case of E.P. Royappa V State of Tamil Nadu [AIR 1974] SC 555 is proposition for the principle that the classification should be real and genuine and not fake.

In Muthu V State of Punjab [AIR 1983] SC 473 the Supreme Court struck down Section 303 of the Indian Penal Code as unconstitutional on the ground that the classification between persons who commit murders whilst under the sentence of the imprisonment and those who commit murders whilst they were not under the sentence of life imprisonment for the purpose

[Page 8] of making the sentence of death mandatory in the case of the former class and not the latter class was not based on any rationale principle. 

In the case of Revathy V Union of India [AIR 1988] SC 835 under Section 497 of the Indian Penal Code it was held that the offence of adultery can only be committed by male and not by female as she cannot be charged as an abettor. The court held that the classification by way of gender was a sound classification.

Social equality and equal access to public areas: Article 15 of the constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes. Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth, or any of them. This right can be enforced against the State as well as private individuals, with regard to free access to places of public entertainment or places of public resort maintained partly or wholly out of State funds. However, the State is not precluded from making special provisions for women and children or any socially and educationally backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. This exception has been provided since the classes of people mentioned therein are considered deprived and in need of special protection. 

The case of M.P. Balaji V State of Mysore [AIR 1963] SC 649 is authority for the principle that the state is under an obligation to look after the weaker section of the society and caste plays a role in its consideration but it may not necessarily be the sole factor to consider.

The case of Indra Sawhney V Union of India [AIR 1993] SC 477 held that the state can make reservations for the socially and educationally backward people. Under Article 340 the state can appoint a commission to investigate as to who are the socially and the educationally backward class and what are the limits as to their reservations.

Equality in matters of public employment: Article 16 of the constitution states that the State cannot discriminate against anyone in the matters of public employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also there a law, may be passed, which requires that the holder of an office of any religious institution shall also be a person professing that particular religion. According to the Citizenship (Amendment) Bill, 2003, this right shall not be conferred to Overseas Citizens of India.

[Page 9] Article 16 guarantees equality of opportunity in matters of public employment and prevents the State from discriminating against anyone in matters of employment on the grounds only of religion, race, caste, sex, descent, place of birth, place of residence or any of them. It creates exceptions for the implementation of measures of affirmative action for the benefit of any backward class of citizens in order to ensure adequate representation in public service, as well as reservation of an office of any religious institution for a person professing that particular religion. 

The case of Union of India V Hemraj Singh Chauhan [AIR 2010] SC 1682 is authority for the principle that it is an accepted legal position that that the rights of an eligible employee to promotion is a fundamental right guaranteed under Article 16 of the constitution.

Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offense and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well. The practice of untouchability has been declared an offence punishable by law under Article 17, and the Protection of Civil Rights Act, 1976 has been enacted by the Parliament to further this objective. 

The case of People’s Union for Democratic Rights V Union of India [AIR 1982] SC 1473 is authority for the principle that fundamental rights under Article 17 of the constitution are available to private individuals.

Abolition of Titles: Article 18 of the constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State. The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India — these titles were also abolished. However, Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition". The Supreme Court, on 15 December 1995, upheld the validity of such awards. Article 18 prohibits the State from conferring any titles other than military or academic distinctions, and the citizens of India cannot accept titles from a foreign state. Thus, Indian aristocratic titles and titles of nobility conferred by the British have been abolished. However, awards such as the Bharat Ratna have been held to be valid by the Supreme Court on the ground that they are merely decorations and cannot be used by the recipient as a title. In the year 1954, the government of India introduced four awards namely Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Shri for exceptional and distinguished service in any field including public service. These awards were abolished in the year 1977 and reinstated in the year 1980.

[Page 10] 

The case of Balaji Raghavan V Union of India [AIR 1996] SC 770 held that national awards awarded by the government does not fall under Article 18 of the Constitution.

Right to Freedom The Right to Freedom is covered in Articles 19–22, with the view of guaranteeing individual rights that were considered vital by the framers of the Constitution, and these Articles also include certain restrictions that may be imposed by the State on individual liberty under specified conditions. Article 19 guarantees six freedoms in the nature of civil rights, which are available only to citizens of India. These include the freedom of speech and expression, freedom of assembly, freedom of association without arms, freedom of movement throughout the territory of India, freedom to reside and settle in any part of the country of India and the freedom to practice any profession. All these freedoms are subject to reasonable restrictions that may be imposed on them by the State, listed under Article 19 itself. The grounds for imposing these restrictions vary according to the freedom sought to be restricted, and include national security, public order, decency and morality, contempt of court, incitement to offences, and defamation. The State is also empowered, in the interests of the general public to nationalise any trade, industry or service to the exclusion of the citizens. The freedoms guaranteed by Article 19 are further sought to be protected by Articles 20–22. The scope of these articles, particularly with respect to the doctrine of due process, was heavily debated by the Constituent Assembly. It was argued, especially by Benegal Narsing Rau, that the incorporation of such a clause would hamper social legislation and cause procedural difficulties in maintaining order, and therefore it ought to be excluded from the Constitution altogether. The Constituent Assembly in 1948 eventually omitted the phrase "due process" in favour of "procedure established by law". Procedures established by law must comply with three requirements in that the interference by the state in the form of the restrictions must be justified, the laws should be valid and the procedures established by the state in the form of the interference or the restrictions must be fulfilled. As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. The American Constitution articulates that no person should be deprived of his liberty without due process of the law. The word personal was deliberately not included with respect to liberty because the intention of the parliament was to give a broader meaning to the word liberty in that any restrictions imposed on the freedom would be subject to the due process of the law. The words due process of the law is more in line with rules of natural justice and the rule of law. The protection of liberty is subject to the rules of natural justice and to the rule of law. Any restrictions exercised by the state have to comply with the rules of natural justice and the rule of law i.e. the executive action must have a legislative authority. In the case of A.K. Gopalan V State of Madras [1951] SC 27, a narrower interpretation of the procedures established by law was given by the Supreme

[Page 11] Court in that the procedures were meant to refer to the executive action. In the case of Maneka Gandhi V Union of India [AIR 1978] SC 124, a more broader interpretation of the procedures established by law was given by the Supreme Court in that the procedures were meant to refer to the legislative action which has to comply with the rules of natural justice and the rule of law. In the same case, the Supreme Court also ruled that "life" under Article 21 meant more than a mere "animal existence"; it would include the right to live with human dignity and all other aspects which made life "meaningful, complete and worth living". Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, clean environment, good health, speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002. Article 20 provides protection from conviction for offences in certain respects, including the rights against ex post facto laws, double jeopardy and freedom from self-incrimination. Article 22 provides specific rights to arrested and detained persons; in particular the rights to be informed of the grounds of arrest, consult a lawyer of one's own choice, and be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate. The Constitution also authorises the State to make laws providing for preventive detention, subject to certain other safeguards present in Article 22. The provisions pertaining to preventive detention were discussed with scepticism and misgivings by the Constituent Assembly, and were reluctantly approved after a few amendments in 1949. Article 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity. The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the following six freedoms:

Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.

Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.

Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.

[Page 12] 

Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics.

Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion. Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.

Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade.

The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced:

Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. "Compulsion" in this article refers to what in law is called "Duress" (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self incrimination. The other principle enshrined in this article is known as the principle of double jeopardy, that is, no person can be convicted twice for the same offence, which has been derived from Anglo Saxon law. This principle was first established in the Magna Carta.

Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law. This means that a person's life and personal liberty can only be disputed if that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year. In 1996 however another Supreme Court ruling nullified the earlier one. "Personal liberty" includes all the freedoms which are not included in

[Page 13] Article 19, (that are the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21. 

In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to primary education part of the right to freedom, stating that the State would provide free and compulsory education to children from six to fourteen years of age. Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008. It is a fundamental right of every child to get free and compulsory education.

Rights of a person arrested under ordinary circumstances are laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the nearest magistrate within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy alien. They are also not available to persons detained under the Preventive Detention Act. Under preventive detention, the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review. The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency. 

In the case Siddharan Satlingappa V State of Maharashtra [2010] sc 247 it was held that right to life is the most basic human condition the protection of which is enshrined in Article 21 of the constitution and it is the basic fundamental right of an individual, the derogation of which is subject to judicial review.

In the case of Suchita Srivastava V Chandigarh Administration [AIR 2010] SC 235 it was held that in the case of pregnant women there is also a compelling state interest in protecting the life of the prospective child.

The woman’s right to make reproductive choices is also a dimension of personal liberty as understood under article 21. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproduction choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore women are also free to choose birth control methods such as undergoing sterilization procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.

[Page 14] 

In the case of Police Commissioner V Registrar of Delhi High Court [AIR 1997] SC 95 it was held that assurance to a fair trial is the first imperative of the dispensation of justice.

In the case of Narendra Kumar V State of Haryana [1994] SC 94 it was held that right to livelihood is an integral facet of the right of life. Articles 19, 20 and 22 are attributes to Article 21. Articles 19, 20 and 22 expressly define the freedom that they envisage but the freedom envisaged in article 21 that of personal liberty, the ambit is wide. The said article does not expressly state the freedom but rather has left the extent of the freedom to be defined by judicial interpretation. As noted in the above mentioned cases, it is obvious that interpretation has been liberal. Article 21 includes right to freedom that is defined in articles 19, 20 and 22. And article 21 includes all the right to freedom that are excluded under articles 19, 20 and 22. The right to freedom that is guaranteed under article 19 is further protected in articles 20, 21 and 22. However this was the main basis for establishing the relationship between articles 14, 19 and 21 in Maneka Gandhi V Union of India case. Justice Bhagwati who delivered the leading opinion in Maneka Gandhi, held that the law must now be taken to be well settled that article 21 does not exclude article 19, and a law prescribing a procedure for depriving a person of personal liberty will have to meet the requirement of article 21 and also of article 19 as well as of article 14. In his exposition of the concept of procedure in article 21 Justice Bhagwati was inspired by the great equalizing principle enunciated in article 14, which was already discussed and extended its application to the nature and requirement of the procedure under article 21. It was explained that the principle of reasonableness which is an essential element equality or non-arbitrariness pervading article 14 must also apply with equal force to the procedure contemplated by article 21, that is, the procedure must be right, just and fair and not arbitrary, fanciful or oppressive. In order that the procedure is right, just and fair it should conform to the principles of natural justice that is fair-play in action. Hence it was held that any procedure which permits impairment of the constitutional right to go abroad without giving a reasonable opportunity to show cause cannot but be condemned as unfair and unjust. Right against Exploitation The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labour), and abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the constitution. Begar, practised in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military conscription is covered by this provision. Child labour and Begar is prohibited under the Right against Exploitation. The Right against Exploitation, contained in Articles 23–24, lays down certain provisions to prevent exploitation of the weaker sections of the society by individuals or the State. Article 23 provides prohibits human trafficking, making it an offence punishable by law, and also prohibits labourer any act of compelling a person to work without wages where he was legally entitled not to work or to receive remuneration for it. However, it permits the State to impose

[Page 15] compulsory service for public purposes, including conscription and community service. The Bonded Labour system (Abolition) Act, 1976, has been enacted by Parliament to give effect to this Article. Article 24 prohibits the employment of children below the age of 14 years in factories, mines and other hazardous jobs. Parliament has enacted the Child Labour (Prohibition and Regulation) Act, 1986, providing regulations for the abolition of, and penalties for employing, child labour, as well as provisions for rehabilitation of former child labourers. Right to Freedom of Religion Right to Freedom of Religion, covered in Articles 25–28, provides religious freedom to all citizens and ensures a secular State in India. According to the Constitution, there is no official State religion, and the State is required to treat all religions impartially and neutrally. Article 25 guarantees all persons the freedom of conscience and the right to preach practice and propagate any religion of their choice. This right is, however, subject to public order, morality and health, and the power of the State to take measures for social welfare and reform. The right to propagate, however, does not include the right to convert another individual, since it would amount to an infringement of the other's right to freedom of conscience. Article 26 guarantees all religious denominations and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law. These provisions do not derogate from the State's power to acquire property belonging to a religious denomination. The State is also empowered to regulate any economic, political or other secular activity associated with religious practice. Article 27 guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution. Article 28 prohibits religious instruction in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian's) consent. Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health. No person shall be compelled to pay taxes for the promotion of a particular religion. A State run institution cannot impart education that is pro-religion. Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.

[Page 16] Cultural and Educational Rights The Cultural and Educational rights, given in Articles 29 and 30, are measures to protect the rights of cultural, linguistic and religious minorities, by enabling them to conserve their heritage and protecting them against discrimination. Article 29 grants any section of citizens having a distinct language, script culture of its own, and the right to conserve and develop the same, and thus safeguards the rights of minorities by preventing the State from imposing any external culture on them. It also prohibits discrimination against any citizen for admission into any educational institutions maintained or aided by the State, on the grounds only of religion, race, caste, language or any of them. However, this is subject to reservation of a reasonable number of seats by the State for socially and educationally backward classes, as well as reservation of up to 50 percent of seats in any educational institution run by a minority community for citizens belonging to that community. Article 30 confers upon all religious and linguistic minorities the right to set up and administer educational institutions of their choice in order to preserve and develop their own culture, and prohibits the State, while granting aid, from discriminating against any institution on the basis of the fact that it is administered by a religious or cultural minority. The term "minority", while not defined in the Constitution, has been interpreted by the Supreme Court to mean any community which numerically forms less than 50% of the population of the state in which it seeks to avail the right under Article 30. In order to claim the right, it is essential that the educational institution must have been established as well as administered by a religious or linguistic minority. Further, the right under Article 30 can be availed of even if the educational institution established does not confine itself to the teaching of the religion or language of the minority concerned, or a majority of students in that institution do not belong to such minority. This right is subject to the power of the State to impose reasonable regulations regarding educational standards, conditions of service of employees, fee structure, and the utilisation of any aid granted by it. As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community which has a language and a script of its own has the right to conserve and develop it. No citizen can be discriminated against for admission in State or State aided institutions. All minorities, religious or linguistic, can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution. But the right to administer does not mean that the State cannot interfere in case of maladministration. In a precedent-setting judgment in 1980, the Supreme Court held that the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards. It can also issue guidelines for ensuring the security of the services of the teachers or other employees of the institution. In another landmark judgement delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university. Even an unaided minority institution ought not to ignore the merit of the students for admission.

[Page 17] Right to property The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes. The provisions relating to the right to property were changed a number of times. The Forty-Forth Amendment of 1978 deleted the right to property from the list of fundamental rights. A new provision, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens. The liberalisation of the economy and the government’s initiative to set up special economic zones has led to many protests by farmers and has led to calls for the reinstatement of the fundamental right to private property. The Supreme Court has sent a notice to the government questioning why the right should not be brought back but in 2010 the court rejected the PIL. As in 2007 the Supreme Court unanimously said that the fundamental rights are a basic structure of the constitution and cannot be removed or diluted. Right to Education Article 21A - On 1 April 2010, India joined a group of few countries in the world, with a historic law making education a fundamental right of every child coming into force. Making elementary education an entitlement for children in the 6-14 age groups and the Right of Children to free and Compulsory Education Act, will directly benefit children who do not go to school at present. Prime Minister Manmohan Singh announced the operationalisation of the Act. Children, who had either dropped out of schools or never been to any educational institution, will get elementary education as it will be binding on the part of the local and State governments to ensure that all children in the 6-14 age group get schooling. As per the Act, private educational institutions should reserve 25 per cent seats for children from the weaker sections of society. The Centre and the States have agreed to share the financial burden in the ratio of 55:45, while the Finance Commission has given Rs. 25,000 crore to the States for implementing the Act. The Centre has approved an outlay of Rs.15, 000 crore for 2010-2011. The school management committee or the local authority will identify the drop-outs or out-ofschool children aged above six and admit them in classes appropriate to their age after giving special training.

[Page 18] Right to Constitutional Remedies The Right to Constitutional Remedies empowers citizens to approach the Supreme Court of India to seek enforcement, or protection against infringement, of their Fundamental Rights. Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue writs, namely habeas corpus, mandamus, prohibition, certiorari and quo warranto, for the enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these prerogative writs even in cases not involving the violation of Fundamental Rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be suo motu or on the basis of a public interest litigation. This right cannot be suspended, except under the provisions of Article 359 when a state of emergency is declared. Right to constitutional remedies empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government. Critical analysis The fundamental rights have been revised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, though these provisions have been enshrined in the Directive Principles of state policy. The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticized for failing to check the sanctioning of powers often deemed "excessive". There is also the provision of preventive detention and suspension of fundamental rights in times of Emergency. The provisions of acts like the Maintenance of Internal Security Act (MISA) and the National Security Act (NSA) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights. The phrases "security of State", "public order" and "morality" are of wide implication. People of alternate sexuality are criminalized in India with prison term up to 10 years. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peaceably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods. "Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate. Employment of

[Page 19] child labour in hazardous job environments has been reduced, but their employment even in nonhazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India. India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide. The right to equality in matters regarding public employment shall not be conferred to Overseas citizens of India, according to the Citizenship (Amendment) Bill'', 2003. Amendments Changes to the fundamental rights require a constitutional amendment which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority of the house — whether the Lok Sabha or Rajya Sabha. The right to education at elementary level has been made one of the fundamental rights under the Eighty-Sixth Amendment of 2002. Directive Principles of State Policy Directive Principles of State Policy, embodied in Part IV of the Constitution, are directions given to the State to guide the establishment of an economic and social democracy, as proposed by the Preamble. They set forth the humanitarian and socialist instructions that were the aim of social revolution envisaged in India by the Constituent Assembly. The State is expected to keep these principles in mind while framing laws and policies, even though they are non-justifiable in nature. The Directive Principles may be classified under the following categories: ideals that the State ought to strive towards achieving; directions for the exercise of legislative and executive power; and rights of the citizens which the State must aim towards securing. Despite being non-justifiable, the Directive Principles act as a check on the State; theorised as a yardstick in the hands of the electorate and the opposition to measure the performance of a government at the time of an election. Article 37 while stating that the Directive Principles are not enforceable in any court of law, declares them to be "fundamental to the governance of the country" and imposes an obligation on the State to apply them in matters of legislation. Thus, they serve to emphasise the welfare state model of the Constitution and emphasise the positive duty of the State to promote the welfare of the people by affirming social, economic and political justice, as well as to fight income inequality and ensure individual dignity, as mandated by Article 38. Article 39 lays down certain principles of policy to be followed by the State, including providing an adequate means of livelihood for all citizens, equal pay for equal work for men and women, proper working conditions, reduction of the concentration of wealth and means of production from the hands of a few, and distribution of community resources to "sub-serve the common good". These clauses highlight the Constitutional objectives of building an egalitarian social order and establishing a welfare state by bringing about a social revolution assisted by the State, and has

[Page 20] been used to support the nationalisation of mineral resources as well as public utilities. Further, several legislations pertaining to agrarian reform and land tenure have been enacted by the federal and state governments, in order to ensure equitable distribution of land resources. Articles 41–43 mandate the State to endeavour to secure to all citizens the right to work, a living wage, social security, maternity relief, and a decent standard of living. These provisions aim at establishing a socialist state as envisaged in the Preamble. Article 43 also places upon the State the responsibility of promoting cottage industries, and the federal government has, in furtherance of this, established several Boards for the promotion of khadi, handlooms etc., in coordination with the state governments. Article 39A requires the State to provide free legal aid to ensure that opportunities for securing justice are available to all citizens irrespective of economic or other disabilities. Article 43A mandates the State to work towards securing the participation of workers in the management of industries. The State, under Article 46, is also mandated to promote the interests of and work for the economic uplift of the scheduled castes and scheduled tribes and protect them from discrimination and exploitation. Several enactments, including two Constitutional amendments, have been passed to give effect to this provision. Article 44 encourages the State to secure a uniform civil code for all citizens, by eliminating discrepancies between various personal laws currently in force in the country. However, this has remained a "dead letter" despite numerous reminders from the Supreme Court to implement the provision. Article 45 originally mandated the State to provide free and compulsory education to children between the ages of six and fourteen years, but after the 86th Amendment in 2002, this has been converted into a Fundamental Right and replaced by an obligation upon the State to secure childhood care to all children below the age of six. Article 47 commits the State to raise the standard of living and improve public health, and prohibit the consumption of intoxicating drinks and drugs injurious to health. As a consequence, partial or total prohibition has been introduced in several states, but financial constraints have prevented its full-fledged application. The State is also mandated by Article 48 to organise agriculture and animal husbandry on modern and scientific lines by improving breeds and prohibiting slaughter of cattle. Article 48A mandates the State to protect the environment and safeguard the forests and wildlife of the country, while Article 49 places an obligation upon the State to ensure the preservation of monuments and objects of national importance. Article 50 requires the State to ensure the separation of judiciary from executive in public services, in order to ensure judicial independence, and federal legislation has been enacted to achieve this objective. The State, according to Article 51, must also strive for the promotion of international peace and security, and Parliament has been empowered under Article 253 to make laws giving effect to international treaties.

[Page 21] Fundamental Duties Any act of disrespect towards the Indian National Flag is illegal. The Fundamental Duties of citizens were added to the Constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee that was constituted by the government earlier that year. Originally ten in number, the Fundamental Duties were increased to eleven by the 86th Amendment in 2002, which added a duty on every parent or guardian to ensure that their child or ward was provided opportunities for education between the ages of six and fourteen years. The other Fundamental Duties obligate all citizens to respect the national symbols of India, including the Constitution, to cherish its heritage, preserve its composite culture and assist in its defence. They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life. Citizens are morally obligated by the Constitution to perform these duties. However, like the Directive Principles, these are non-justifiable, without any legal sanction in case of their violation or non-compliance. There is reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian Constitution into conformity with these treaties. Criticism and analysis Fewer children are now employed in hazardous environments, but their employment in nonhazardous jobs, prevalently as domestic help, violates the spirit of the constitution in the eyes of many critics and human rights advocates. More than 16.5 million children are in employment. India was ranked 88 out of 159 countries in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians. The year 1990–1991 was declared as the "Year of Social Justice" in the memory of B.R. Ambedkar. The government provides free textbooks to students belonging to scheduled castes and tribes pursuing medicine and engineering courses. During 2002–2003, a sum of Rs. 4.77 crore (47.7 million) was released for this purpose. In order to protect scheduled castes and tribes from discrimination, the government enacted the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, prescribing severe punishments for such actions. The Minimum Wages Act of 1948 empowers government to fix minimum wages for people working across the economic spectrum. The Consumer Protection Act of 1986 provides for the better protection of consumers. The Equal Remuneration Act of 1976 provides for equal pay for equal work for both men and women. The Sampoorna Grameen Rozgar Yojana (Universal Rural Employment Programme) was launched in 2001 to attain the objective of providing gainful employment for the rural poor. The programme was implemented through the Panchayati Raj institutions. A system of elected village councils, known as Panchayati Raj covers almost all states and territories of India. One-third of the total number of seats has been reserved for women in

[Page 22] Panchayats at every level; and in the case of Bihar, half the seats have been reserved for women. The judiciary has been separated from the executive "in all the states and territories except Jammu and Kashmir and Nagaland."India's foreign policy has been influenced by the Directive Principles. India supported the United Nations in peace-keeping activities, with the Indian Army having participated in 37 UN peace-keeping operations. The implementation of a uniform civil code for all citizens has not been achieved owing to widespread opposition from various religious groups and political parties. The Shah Bano case (1985–86) provoked a political firestorm in India when the Supreme Court ruled that Shah Bano, a Muslim woman who had been divorced by her husband in 1978 was entitled to receive alimony from her former husband under Indian law applicable for all Indian women. This decision evoked outrage in the Muslim community, which sought the application of the Muslim personal law and in response the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 overturning the Supreme Court's verdict. This act provoked further outrage, as jurists, critics and politicians alleged that the fundamental right of equality for all citizens irrespective of religion or gender was being jettisoned to preserve the interests of distinct religious communities. The verdict and the legislation remain a source of heated debate, with many citing the issue as a prime example of the poor implementation of Fundamental Rights. Relationship between Fundamental Duties







The Directive Principles have been used to uphold the Constitutional validity of legislations in case of a conflict with the Fundamental Rights. Article 31C, added by the 25th Amendment in 1971, provided that any law made to give effect to the Directive Principles in Article 39(b)–(c) would not be invalid on the grounds that they derogated from the Fundamental Rights conferred by Articles 14, 19 and 31. The application of this article was sought to be extended to all the Directive Principles by the 42nd Amendment in 1976, but the Supreme Court struck down the extension as void on the ground that it violated the basic structure of the Constitution. The Fundamental Rights and Directive Principles have also been used together in forming the basis of legislation for social welfare. The Supreme Court, after the judgment in the Kesavananda Bharti case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to each other, each supplementing the other's role in aiming at the same goal of establishing a welfare state by means of social revolution. Similarly, the Supreme Court has used the Fundamental Duties to uphold the Constitutional validity of statutes which seeks to promote the objects laid out in the Fundamental Duties. These Duties have also been held to be obligatory for all citizens, subject to the State enforcing the same by means of a valid law. The Supreme Court has also issued directions to the State in this regard, with a view towards making the provisions effective and enabling citizens to properly perform their duties. 2/3/2012

Constitutional Remedy under Articles 32 and 226 of the Constitution of India Constitutional Remedy under Articles 32 and 226 of the Constitution of India The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation of fundamental rights guaranteed under Part – III of the Constitution. Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such provisions. Since the reality of such rights is tested only through the judiciary, the safeguards assume even more importance. In addition, enforcement also depends upon the degree of independence of the Judiciary and the availability of relevant instruments with the executive authority. Indian Constitution, like most of Western Constitutions, lays down certain provisions to ensure the enforcement of Fundamental Rights. These are as under:(a) The Fundamental Rights provided in the Indian Constitution are guaranteed against any executive and legislative actions. Any executive or legislative action, which infringes upon the Fundamental Rights of any person or any group of persons, can be declared as void by the Courts under article 13 of the constitution. (b) In addition, the Judiciary has the power to issue the prerogative writs. These are the extraordinary remedies provided to the citizens to get their rights enforced against any authority in the State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. Both the High Courts and the Supreme Court can issue the writs. (c) The Fundamental Rights provided to the citizens by the Constitution cannot be suspended by the State, except during the period of emergency, as laid down in Article 359 of the Constitution. A Fundamental Right may also be enforced by way of normal legal procedures including a declaratory suit or by way of defence to legal proceedings. However, Article 32 is referred to as the "Constitutional Remedy" for enforcement of Fundamental Rights. This provision itself has been included in the Fundamental Rights and hence it cannot be denied to any person. Dr. B. R. Ambedkar described Article 32 as the most important one, without which the Constitution would be reduced to nullity. It is also referred to as the heart and soul of the Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector and guarantor of these Rights. An application made under Article 32 of the Constitution before the Supreme Court, cannot be refused on technical grounds. In addition to the prescribed five types of writs, the Supreme Court may pass any other appropriate order. Moreover, only the questions pertaining to the Fundamental Rights can be determined in proceedings against Article 32. Under Article 32, the Supreme Court may issue a Writ against any person or government within the territory of India. Where the infringement of a Fundamental Right has been established, the Supreme Court cannot refuse relief on the ground that the aggrieved person may have remedy before some other court or under the ordinary law. The relief can also not be denied on the ground that the disputed facts have to be investigated or some evidence has to be collected. Even if an aggrieved person has not asked for a particular Writ, the Supreme Court, after considering the facts and circumstances, may grant the appropriate Writ and may even modify it to suit the exigencies of the case. Normally, only the aggrieved person is allowed to move the Court. But it has been held by the Supreme Court that in social or public interest matters, any one may move the Court. A Public Interest Litigation can be filed before the Supreme Court under Article 32 of the Constitution or before the High Court of a State under Article 226 of the Constitution under their respective Writ Jurisdictions. There are mainly five types of writs:-

[Page 2] [a]

Writ of Habeas Corpus;


Writ of Mandamus;


Writ of Quo-Warrant;


Writ of Prohibition; and


Writ of Certiorari.



It is the most valuable writ for personal liberty. Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release. [II)


Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs. (III)


The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quowarranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant. (IV)


Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this writ only where a fundamental right is affected.

[Page 3] (V)


Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced. There are several conditions necessary for the issue of Writ of Certiorari, which are as under:(a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially. (b) Such a court, tribunal or officer must have passed an order, acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case.

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