CONSTITUTION LAW

UNIT – I
CONSTITUTION : Meaning
The fundamental law of the state, containing the principles upon
which the government is founded and regulating the divisions of
the sovereign powers, directing to what persons each of these
powers is to be confided and the manner it is to be exercised.
E.g., the Constitution of the United States.
The words constitution and government are sometimes employed
to express the same idea; the manner in which sovereignty is
exercised in each state. Constitution is also the name of the
instrument containing the fundamental laws of the state.
By constitution, the common law writers mean some particular
law; such as the constitutions of the emperors contained in the
Code.
Constitutional law is a body of law which defines the role,
powers, and structure of different entities within a state, namely,
the executive, the parliament or legislature, and the judiciary; as
well as the basic rights of citizens and, in federal countries such
as the United States and Canada, the relationship between the
central government and state,
INDIANCONSTITUTION
CONSTITUTION OF INDIA: HISTORICAL BACKGROUND
The Constitution of India holds a unique place in the country’s
history. This is because it created a sovereign republic that is the

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modern state of India. The history of the Constitution offers some
interesting insights into the state of affairs before Independence.
It took persistent efforts for several years to draft and enact our
Constitution.
Constitution of India
The Indian Constitution is one of the most comprehensive
documents of its kind. Apart from being the longest, it is also
famous for containing all minute details governing the Indian
state.
Before Independence, India consisted of two entities: the
British government and the princely states. It is the Constitution
which formally ended these two distinctions and created the Union
of India.
The Constitution of India is its LexLoci, i.e. the parent of
all laws in India. This basically means that all laws of Parliament
and state legislatures derive their authority from the Constitution.
Even the three pillars of the Indian state – legislature, executive
and judiciary- derive authority from the Constitution.
Without the Constitution, we would not have the administrative
machinery which runs India. Even the fundamental rights and
duties of the people would not exist without the Constitution.
History of Indian Constitution
The history of the Constitution of India is very insightful as it
explains exactly how it came into being. It also explains why India
chose the Parliamentary form of democracy in its modern form.

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The British came to India in the 17th century initially for trading
only. Eventually, after slowly gaining more power, they attained
the rights to collect revenue and govern themselves. In order to
do this, they enacted various laws, rules and regulations.
According to the Charter Act of 1833, the Governor General of
Bengal became the Governor General of India. It also created a
Central Legislature, which, in a way, made the British supreme
rulers of India.
The rule of the Company itself finally ended with the Government
of India Act in 1858. As a result, the British Crown became ruler
of India and administered the country through its government.
The Indian Councils Acts of 1861, 1892 and 1909 started giving
representation to Indians in the Viceroy’s councils. They also
restored legislative powers back to some provinces. In other
words, they adopted decentralization of powers between the
Centre and the provinces.
The Government of India Act, 1919
According to this Act, legislative councils came into existence in all
provinces of the government. In other words, the British adopted
a bicameral structure with separate central and provincial
governments. This was also the first time when people could elect
their own representatives through direct elections. The
Constitution later adopted this quasi-federal and bicameral
structure.

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The Government of India Act, 1935
The enactment of this law is one of the most important events in
the history of the Constitution. Firstly, this law divided powers of
governance into a Federal List, a Provincial List and a Concurrent
List. Even the Indian Constitution adopted such division of powers
between the Central and state governments.
Secondly, this Act granted more autonomy of self-governance to
the provinces. It even established the Federal Court, which we
now refer to as the Supreme Court of India.
The Indian Independence Act of 1947
This Act marks the final step in the departure of the British from
India. India became a truly independent and sovereign state after
this Act. The Act established governments at the central and
provincial levels. It also laid down the foundation of the
Constituent Assembly.
Constituent Assembly
Members of the provisional assemblies indirectly elected members
of the Constituent Assembly. This assembly served as the first
‘Parliament’ of independent India and first met on 9 December
1946 in Delhi. After Independence, the Assembly elected
DrRajendra Prasad as its Chairman and began drafting the
Constitution.
DrAmbedkar became the head of the Drafting Committee. This is
why he is called the Father of the Constitution. After more than
two years of deliberations, the Assembly finally approved the

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Constitution on 26 November 1949. This is why we celebrate this
day as Constitution Day today.
The Assembly finally adopted the Constitution on 26 January 1950.
India formally became a sovereign republic that day. This is why
we celebrate 26 January as India’s Republic Day.
CLASSIFICATION OF CONSTITUTION
1. Classification according to the form by which
Constitutions are embodied (how it appears):
Written Constitution
A written/codified/documentary constitution is one contained
within a single document or a series of documents, with or
without amendments, defining the basic rules of the state. The
origins of written constitutions lie in the American War of
Independence (1775–83) and French Revolution (1789). [E.g.
France, USA, Tanzania, and etc.].
Unwritten Constitution
Unwritten/uncodified/non-documentary is one that is not
contained in a single document, consisting of several different
sources, which may be written or unwritten. What Britain has
instead is an accumulation of various statutes, conventions,
political customs, judicial decisions (common laws), treaties, and
exists in some scattered documents which collectively can be
referred to as the British Constitution. E.g. UK, Israel, New
Zealand and etc. In these countries, the constitution is a

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collection of historical documents, statutes, decrees, conventions,
traditions, and royal prerogatives.
2. Classification according to the mode of
amendment/Method of changing the constitution:
Flexible Constitution
The Flexible or Elastic Constitution is the kind of constitution that
can easily be changed (usually, an Unwritten Constitution, i.e. a
constitution that has few or no special amending procedures. The
Parliament can alter constitutional principles and define new
baselines for government action through ordinary legislative
processes, e.g. UK and Canada Constitution.
Rigid Constitution
The Rigid or Inelastic Constitution is the kind of constitution that
cannot be easily amended (usually, a Written Constitution).
Moreover, it is a constitution whose terms cannot be altered by
ordinary forms of legislation, only by special amending
procedures. That is to say, if the constitution itself provides that
particular amendment, then it could be possible to amend the
Constitution, e.g. Article 98 of the Tanzania Constitution, 1977.
3. Classification according to the form of the
government/classification based on the nature and form
of the state and its governance:
Federal constitution
Under a federal constitution exists a division of powers between
central government and the individual states or provinces which

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make up the federation. The powers divided between the federal
government and states or provinces will be clearly set down in
the constituent document. Some powers will be reserved
exclusively to the federal government (most notably, such
matters as defence and state security); some powers will be
allocated exclusively to the regional government (such as
planning and the raising of local taxation); and others will be held
on the basis of partnership, powers being given to each level of
government with overriding power, perhaps, reserved for central
government. The common feature of all federal states is the
sharing of power between centre and region – each having an
area of exclusive power, other powers being shared on some
defined basis. E.g. the USA, Canada, Australia, Nigeria, Malaysia,
Germany, Switzerland and etc.
Unitary Constitution
Constitutions of this nature exist in a state where a government
is formed after a union of two or more sovereign states. A state is
governed as a one single unit in which the central government is
supreme and any administrative divisions exercise only powers
which their government chooses to delegate, e.g. Tanzania
(Zanzibar and Mainland Tanzania), U.K (Scotland, Wales, N.
Ireland and England) and etc.
Republican Constitution
A republic constitution exists in a state which has its figurehead a
(usually) democratically elected President, answerable to the

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electorate and to the constitution. Presidential office is both a
symbol of statehood and the repository of many powers. E.g.
Tanzania, Kenya, Malawi Constitutions.
Presidential Constitution
Under this constitution model, the head of the executive branch is
also head of state, and is not a member of or directly responsible
to the legislature, e.g. Tanzania, Kenya, Uganda, and etc.
Parliamentary Constitution (Westminster model):
Is a form of a Constitution of a state in which the chief executive
is a Prime Minister who is a member of and is responsible to the
legislature, e.g. U.K, and Israel.
Aristocratic (monarchical) Constitution
Such constitution exists where the government is headed by a
monarch and hereditary in nature. Usually, the office of head of
state is held until death or abdication and is often hereditary and
includes a royal house (King or Queen), e.g. U.K. [the Queen or
King is the head of the state (not necessary the government, i.e.
he/she plays a ceremonial role in the administration of the
government)].
Democratic state constitution
It is a Constitution which allows all adult citizens an equal say
(whether directly or indirectly) in the decisions that affect their
lives or state governance, e.g. US, UK, Tanzania, and etc.
Dictatorial (undemocratic/autocratic) constitution Is a type
of a Constitution which vests state powers in one person or group

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of persons or organs, with the exclusion of others, e.g.
Constitution of Libya during Khadafy regime.
GOVERNMENT OF INDIA ACT, 1919
The Government of India Act 1919 was an act of the British
Parliament that sought to increase the participation of Indians in
the administration of their country. The act was based on the
recommendations of a report by Edwin Montagu, the then
Secretary of State for India, and Lord Chelmsford, India’s Viceroy
between 1916 and 1921. Hence the constitutional reforms set
forth by this act are known as Montagu-Chelmsford reforms or
Montfort reforms.
Principle Features of Government of India Act 1919
Provincial Government
Executive:
Dyarchy was introduced, i.e., there were two classes of
administrators – Executive councillors and ministers.
The Governor was the executive head of the province.
The subjects were divided into two lists – reserved and
transferred.
The governor was in charge of the reserved list along with his
executive councillors. The subjects under this list were law and
order, irrigation, finance, land revenue, etc.
The ministers were in charge of subjects under the transferred list.
The subjects included were education, local government, health,
excise, industry, public works, religious endowments, etc.

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The ministers were responsible to the people who elected them
through the legislature.
These ministers were nominated from among the elected
members of the legislative council.
The executive councillors were not responsible to the legislature,
unlike the ministers.
The Secretary of State and the Governor-General could interfere
in matters under the reserved list but this interference was
restricted for the transferred list.
Legislature:
 The size of the provincial legislative assemblies was
increased. Now about 70% of the members were elected.
 There were communal and class electorates.
 Some women could also vote.
 The governor’s assent was required to pass any bill. He also
had veto power and could issue ordinances also.
Central government
Executive:
 The chief executive authority was the Governor-General.
 There were two lists for administration – central and
provincial.
 The provincial list was under the provinces while the centre
took care of the central list.
 Out of the 6 members of the Viceroy’s executive council, 3
were to be Indian members.

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  The governor-general could issue ordinances.
 He could also certify bills that were rejected by the central
legislature.
Legislature:
 A bicameral legislature was set up with two houses –
Legislative Assembly (forerunner of the Lok Sabha) and the
Council of State (forerunner of the Rajya Sabha).
 Legislative Assembly (Lower House)
 The nominated members were nominated by the governor-
general from Anglo-Indians and Indian Christians.
 The members had a tenure of 3 years.
 Council of State (Upper House)
 Only male members with a tenure of 5 years.
 The legislators could ask questions and also vote a part of
the budget.
 Only 25% of the budget was subject to vote.
 Rest was non-votable.
 A bill had to be passed in both houses before it became a
law.
 There were three measures to resolve any deadlock between
both the houses – joint committees, joint conferences and
joint sittings.

Governor-General

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The governor-general’s assent was required for any bill to
become law even if both houses have passed it.
He could also enact a bill without the legislature’s consent.
He could prevent a bill from becoming law if he deems it as
detrimental to the peace of the country.
He could disallow any question, adjournment motion or debate in
the house.
Who could vote?
 The franchise was restricted and there was no universal
adult suffrage.
 Voters should have paid land revenue of Rs.3000 or have a
property with rental value or have taxable income.
 They should possess previous experience in the legislative
council.
 They should be members of a university senate.
 They should hold certain offices in the local bodies.
 They should hold some specific titles.
 All this narrowed the number of people who could vote to an
abysmal number.
Indian Council
 There were to be at least 8 and a maximum of 12 members
in the council.
 Half of the members should have ten years of experience in
public service in India.
 Their tenure was to be 5 years.

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  Their salaries were increased from £1000 to £1200.
 There were to be 3 Indian members in the Council.
Government of India Act, 1919 – Other Salient Features
 This act provided for the first time, the establishment of a
public service commission in India.
 The act also provided that after 10 years, a statutory
commission would be set up to study the working of the
government. This resulted in the Simon Commission of 1927.
 It also created an office of the High Commissioner for India
in London.
Merits of the Government of India Act 1919
 Dyarchy introduced the concept of responsible government.
 It introduced the concept of federal structure with a unitary
bias.
 There was an increased participation of Indians in the
administration. They held some portfolios like labour, health,
etc.
 For the first time, elections were known to the people and it
created political consciousness among the people.
 Some Indian women also had the right to vote for the first
time.
Limitations of the Government of India Act 1919
 This act extended consolidated and communal
representation.

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  The franchise was very limited. It did not extend to the
common man.
 The governor-general and the governors had a lot of power
to undermine the legislatures at the centre and the
provinces respectively.
 Allocation of the seats for the central legislature was not
based on population but the ‘importance’ of the province in
the eyes of the British.
 The Rowlatt Acts were passed in 1919 which severely
restricted press and movement. Despite the unanimous
opposition of Indian members of the legislative council,
those bills were passed. Several Indian members resigned in
protest.
GOVERNMENT OF INDIA ACT, 1935:
The Government of India Act was passed by the British
Parliament in August 1935. It was the longest act enacted by the
British Parliament at that time. So, it was divided into two
separate acts namely, the Government of India Act 1935 and the
Government of Burma Act 1935.
Government of India Act, 1935 – Background
1. There was a growing demand for constitutional reforms in
India by Indian leaders.
2. India’s support to Britain in the First World War also aided in
British acknowledgement of the need for the inclusion of
more Indians in the administration of their own country.

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 3. The Act was based on:
 Simon Commission Report
 The recommendations of the Round Table Conferences
 The White Paper published by the British government in
1933 (based on the Third Round Table Conference)
 Report of the Joint Select Committees.
Creation of an All India Federation
1. This federation was to consist of British India and the
princely states.
2. The provinces in British India would have to join the
federation but this was not compulsory for the princely
states.
3. This federation never materialised because of the lack of
support from the required number of princely states.
How Government of India Act 1935 divided powers?
1. This Act divided powers between the centre and the
provinces.
2. There were three lists which gave the subjects under each
government.
 Federal List (Centre)
 Provincial List (Provinces)
 Concurrent List (Both)
The Viceroy was vested with residual powers.
Certain changes that were brought through the government of
India Act, 1935 are:

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Provincial autonomy
1. The Act gave more autonomy to the provinces.
2. Diarchy was abolished at the provincial levels.
3. The Governor was the head of the executive.
4. There was a Council of Ministers to advise him. The
ministers were responsible to the provincial legislatures who
controlled them. The legislature could also remove the
ministers.
5. However, the governors still retained special reserve powers.
6. The British authorities could still suspend a provincial
government.
Diarchy at the centre
1. The subjects under the Federal List were divided into two:
Reserved and Transferred.
2. The reserved subjects were controlled by the Governor-
General who administered them with the help of three
counsellors appointed by him. They were not responsible to
the legislature. These subjects included defence,
ecclesiastical affairs (church-related), external affairs, press,
police, taxation, justice, power resources and tribal affairs.
3. The transferred subjects were administered by the
Governor-General with his Council of Ministers (not more
than 10). The Council had to act in confidence with the
legislature. The subjects in this list included local
government, forests, education, health, etc.

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 4. However, the Governor-General had ‘special powers’ to
interfere in the transferred subjects also.
Bicameral legislature
1. A bicameral federal legislature would be established.
2. The two houses were the Federal Assembly (lower house)
and the Council of States (upper house).
3. The federal assembly had a term of five years.
4. Both houses had representatives from the princely states
also. The representatives of the princely states were to be
nominated by the rulers and not elected. The
representatives of British India were to be elected. Some
were to be nominated by the Governor-General.
5. There were to be separate electorates for the minority
communities, women and the depressed classes.
6. Bicameral legislatures were introduced in some provinces
also like Bengal, Madras, Bombay, Bihar, Assam and the
United Provinces.
Federal court
1. A federal court was established at Delhi for the resolution of
disputes between provinces and also between the centre and
the provinces.
2. It was to have 1 Chief Justice and not more than 6 judges.
Indian Council
1. The Indian Council was abolished.

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 2. The Secretary of State for India would instead have a team
of advisors.
Franchise
1. This Act introduced direct elections in India for the first time.
Reorganisation
1. Sindh was carved out of Bombay Presidency.
2. Bihar and Orissa were split.
3. Burma was severed off from India.
4. Aden was also separated from India and made into a Crown
colony.
INDIAN INDEPENDENCE ACT, 1947
Lord Mountbatten (India’s last viceroy) proposed a plan in May
1947 according to which provinces were to be declared
independent successor states with the power to choose whether
to join the constituent assembly or not.
Mountbatten Plan Background
 Lord Mountbatten came to India as the last Viceroy and was
assigned the task of a speedy transfer of power by the then
British Prime Minister Clement Atlee.
 In May 1947, Mountbatten came up with a plan under which
he proposed that the provinces be declared independent
successor states and then be allowed to choose whether to
join the constituent assembly or not. This plan was called
the ‘Dickie Bird Plan’.

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  Jawaharlal Nehru, when apprised of the plan, vehemently
opposed it saying it would lead to balkanisation of the
country. Hence, this plan was also called Plan Balkan.
 Then, the viceroy came up with another plan called the June
3 Plan. This plan was the last plan for Indian independence.
It is also called the Mountbatten Plan.
 The June 3 Plan included the principles of partition,
autonomy, sovereignty to both nations, right to make their
own constitution.
 Above all, the Princely States such as Jammu and Kashmir
were given a choice to either join India or Pakistan. The
consequences of these choices would affect the new nations
for decades to come.
 This plan was accepted by both the Congress and the Muslim
League. By then, the Congress had also accepted the
inevitability of the partition.
 This plan was put into action by the Indian Independence
Act 1947 which was passed in the British Parliament and
received the royal assent on 18 July 1947.
Provisions of the Mountbatten Plan
 British India was to be partitioned into two dominions –
India and Pakistan.
 The constitution framed by the Constituent Assembly would
not be applicable to the Muslim-majority areas (as these
would become Pakistan). The question of a separate

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 constituent assembly for the Muslim-majority areas would
be decided by these provinces.
 As per the plan, the legislative assemblies of Bengal and
Punjab met and voted for the partition. Accordingly, it was
decided to partition these two provinces along religious lines.
 The legislative assembly of Sind would decide whether to
join the Indian constituent assembly or not. It decided to go
with Pakistan.
 A referendum was to be held on NWFP (North-Western
Frontier Province) to decide which dominion to join. NWFP
decided to join Pakistan while Khan Abdul Gaffar
Khan boycotted and rejected the referendum.
 The date for the transfer of power was to be August 15,
1947.
 To fix the international boundaries between the two
countries, the Boundary Commission was established chaired
by Sir Cyril Radcliffe. The commission was to demarcate
Bengal and Punjab into the two new countries.
 The princely states were given the choice to either remain
independent or accede to India or Pakistan. The British
suzerainty over these kingdoms was terminated.
 The British monarch would no longer use the title ‘Emperor
of India’.

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  After the dominions were created, the British Parliament
could not enact any law in the territories of the new
dominions.
 Until the time the new constitutions came into existence, the
Governor-General would assent any law passed by the
constituent assemblies of the dominions in His Majesty’s
name. The Governor-General was made a constitutional
head.
On the midnight of 14th and 15th August 1947, the dominions of
Pakistan and India respectively came into existence. Lord
Mountbatten was appointed the first Governor-General of
independent India and M .A. Jinnah became the Governor-
General of Pakistan.
Framing the Constitution (1946-1950)
The Constitution of India was drawn up by a Constituent
Assembly. The Assembly met for the first time on December 9,
1946. The Assembly consisted of 389 members representing
provinces (292), states (93), the Chief Commissioner Provinces
(3) and Baluchistan (1).The Assembly constituted a Drafting
Committee, under the chairmanship of Dr.B.R.Ambedkar, to
frame a constitution for India. Indian Constitution was adopted on
November 26, 1949 and it came into effect on January 26, 1950.
It is the longest written Constitution in the world containing 395
Articles, 22 Parts and 12 Schedules.

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 Rajendra Prasad was elected its Permanent Chairman on
11.12.1946.
 The Draft Constitution was published in January, 1948.
The people of India were given 8 months to discuss the
draft and propose amendments. As many as 7,635
amendments were proposed and 2,473 were actually
discussed.
 The Constituent Assembly held 11 sessions.
 The Draft Constitution was considered for 114 days. In all
the Constitutional Assembly sat for 2 years, 11 months
and 18 days.
 The New Constitution of India was adopted by the
Constituent Assembly on 26th November, 1949 and
signed by the President, Dr. Rajendra Prasad. 15 Articles
(5,6,7,8,9,60,324,366,367,372, 380, 388, 391,392 and
393) came into force at once.
 The remaining provisions of the Constitution came into
force on 26th January, 1950 which is the date of the
commencement of the Constitution.
 On January 26, 1950, the Indian Government also
adopted Sarnath, the Lion Capital of Ashoka with the
wheel, bull, and horse as the national emblem of India.
 The design of the National Flag was adopted by the
Constituent Assembly of India on 22 July 1947.

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  The national calendar based on the Saka Era, with Chaitra
as its first month and a normal year of 365 days was
adopted from 22 March 1957
 National anthem Jana-gana-mana, composed originally in
Bengali by Rabindranath Tagore, was adopted in its Hindi
version by the Constituent Assembly as the National
Anthem of India on 24January 1950. It was first sung on
27 December 1911 at the Calcutta Session of the Indian
National Congress.
The Constitution of India was not an original document. The
framers of the Constitution freely borrowed the good features of
other constitutions. However, while adopting those features, they
made necessary modification for its suitability to the Indian
conditions and avoided their defects. The Constitutions which
exercised profound influence on the Indian Constitution were that
of UK, USA, Ireland, Canada etc.

UNIT –II
Introduction:
Indian federalism was designed on the basis of working of the
federalism in USA, Canada and Australia. Yet it deviates from
those federalism in many respects and establishes its own
distinctive features.

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Quasi federal nature of Indian Constitution: Indian
constitution is a blend of federal feature with unitary bias. Some
of the federal feature are.
 Dual polity: two government one at the Centre and in states
with defined functions and responsibilities.
 Written and Rigid Constitution: Ratification by states for
Constitutional amendment involving federal features. E.g. GST
passage requiring consent of the states.
 Supremacy of the Constitution – Any law or amendment
affecting the federal feature will be struck down by the
Supreme Court.
 Division of powers: 7th schedule with 3 lists. States are
supreme in their own sphere and have responsible government
with law making power to the legislature.
 Bicameral Legislature: Like other Federations, the
Constitution of India also provides for a bicameral Parliament
consisting of the Lok Sabha and the Rajya Sabha.
 Independent judiciary: so that there is no unilateral change
in division of power by the Centre.
Yet, Indian federalism deviates from the federal characteristics as
below and shows unitary features
 Constitutional amendment procedure- the power to initiate
an amendment to the Constitution lies only with the Centre.
 States not indestructible- e.g. Recent Jammu and Kashmir
Reorganisation Act without popular government support.

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 All India Services- Centre has the ultimate control over the
civil servants.
 Emergency provisions: as H V Kamath notes, this single
chapter turns the federal character of Indian political setup to
unitary. 1975 emergency is a best example.
 President rule under article 356: is a loophole to the
federal feature and is misused several times. E.g.
Unconstitutional imposition of president rule in Arunachal
Pradesh and Uttarakhand in 2016.
 Governor’s office- Governors appointment and his/her
actions in crucial times has been criticised for being biased
towards the power at Centre. Eg. Governor of Karnataka and
Manipur inviting the second largest party to form the
government instead of single largest party. This shows the
Centre influence in state government formation.
 No Equality of State Representation- Representation in the
legislature in the federal states in United States is on an equal
basis, which is also not applicable in case of Indian States.
Thus, making the federation in India unequal.
 Deployment of armed forces in states without the consent of
states is seen as violation of federal character.

UNIT – III
Fundamental rights are those rights which are essential for
intellectual, moral and spiritual development of citizens of India.

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As these rights are fundamental or essential for existence and all-
round development of individuals, they are called 'Fundamental
rights'. These are enshrined in Part III (Articles 12 to 35) of
the Constitution of India.
These include individual rights common to most, such as equality
before the law, freedom of speech and freedom of expression,
religious and cultural freedom, Freedom of assembly (peaceful
assembly), freedom of religion (freedom to practice religion),
right to constitutional remedies for the protection of civil rights by
means of writs such as Habeas Corpus, Mandamus, Writ of
Prohibition, Certiorari and Quo Warranto.
Fundamental rights apply universally to all citizens, irrespective
of race, birthplace, religion, caste or gender. The Indian Penal
Code, Code of Criminal Procedure and other laws prescribe
punishments for the violation of these rights, subject to the
discretion of the judiciary. Though the rights conferred by the
constitution other than fundamental rights are also valid rights
protected by the judiciary, in case of fundamental rights
violations, the Supreme Court of India can be approached directly
for ultimate justice as per Article 32.
There are six fundamental rights recognised by the Indian
constitution:
1. Right to equality (Articles. 14-18)
2. Right to Freedom (Articles. 19-22)
3. Right Against exploitation (Articles. 23-24)

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4. Right to Freedom of Religion (Articles. 25- 28)
5. Cultural and Educational Rights (Articles. 29-30), and
6. Right to Constitutional remedies(Articles. 32-35)
Why Right to Property is not a Fundamental Right?
There was one more fundamental right in the Constitution, i.e.,
the right to property.
However, this right was deleted from the list of fundamental
rights by the 44th Constitutional Amendment.
This was because this right proved to be a hindrance towards
attaining the goal of socialism and redistributing wealth (property)
equitably among the people.
Note: The right to property is now a legal right and not a
fundamental right.
Right to Equality
The right to equality provides for the equal treatment of everyone
before the law, prevents discrimination on various grounds, treats
everybody as equals in matters of public employment, and
abolishes untouchability, and titles (such as Sir, Rai Bahadur,
etc.).
Equality before the law (Article 14)
Article 14 treats all people the same in the eyes of the law.
 This provision states that all citizens will be treated equally
before the law.
 The law of the country protects everybody equally.

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  Under the same circumstances, the law will treat people in
the same manner.
Prohibition of discrimination (Article 15)
This article prohibits discrimination in any manner.
 No citizen shall, on grounds only of race, religion, caste,
place of birth, sex or any of them, be subject to any liability,
disability, restriction or condition with respect to:
 Access to public places
 Use of tanks, wells, ghats, etc. that are maintained by
the State or that are meant for the general public
The article also mentions that special provision can be made for
women, children and the backward classes notwithstanding this
article.
Equality of opportunity in matters of public employment
(Article 16)
Article 16 provides equal employment opportunities in State
service for all citizens.
 No citizen shall be discriminated against in matters of public
employment or appointment on the grounds of race, religion,
caste, sex, place of birth, descent or residence.
 Exceptions to this can be made for providing special
provisions for the backward classes.
Abolition of untouchability (Article 17)
Article 17 prohibits the practice of untouchability.
 Untouchability is abolished in all forms.

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  Any disability arising out of untouchability is made an
offence.
Abolition of titles (Article 18)
Article 18 abolishes titles.
 The State shall not confer any titles except those which are
academic or military titles.
 The article also prohibits citizens of India from accepting any
titles from a foreign State.
 The article abolishes the titles that were awarded by the
British such as Rai Bahadur, Khan Bahadur, etc.
 Awards like Padma Shri, Padma Bhushan, Padma Vibhushan,
Bharat Ratna and military honours like Ashok Chakra,
ParamVir Chakra do not belong to this category.
Right to Freedom (Articles 19 – 22)
Freedom is one of the most important ideals cherished by any
democratic society. The Indian Constitution guarantees the
freedom to citizens. The freedom right includes many rights such
as:
 Freedom of speech
 Freedom of expression
 Freedom of assembly without arms
 Freedom of association
 Freedom to practice any profession
 Freedom to reside in any part of the country

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Some of these rights are subject to certain conditions of state
security, public morality and decency and friendly relations with
foreign countries. This means that the State has the right to
impose reasonable restrictions on them.
Article 19
Article 19 guarantees six freedoms. They are:
1. Freedom of speech and expression: The State
guarantees freedom of speech and expression to every
person of India. However, the State can impose restrictions
on the freedom of speech and expression in the interests of
the integrity, security and sovereignty of the country,
friendly relations with foreign nations, for public order, with
respect to defamation, incitement to offence or contempt of
court. Read more about the Freedom of Speech and
Expression here.
2. Freedom to assemble: The State guarantees every person
the freedom to assemble peacefully without arms. However,
as above, reasonable restrictions can be imposed in the
interests of the sovereignty and integrity of the country and
public order.
3. Freedom to form associations/unions/cooperative
societies: Again, the State can impose restrictions in the
interests of the integrity, security and sovereignty of the
country, friendly relations with foreign nations, for public
order, with respect to defamation, incitement to offence or

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 contempt of court. This freedom gives workers the right to
form trade union, which is thus a fundamental right.
1. The Police Forces (Restriction of Rights) Act, 1966
prohibits police personnel from forming trade unions.
2. The Constitution also allows the Parliament to pass a
law restricting the right to form political association to
members of the armed forces, intelligence bureaus,
persons employed with telecommunication system.
4. Freedom to move freely: A citizen of India can move
freely throughout the territory of India. But this right can
also be restricted on the grounds of security, public order or
for protecting the interests of the Scheduled Tribes.
5. Freedom of residence: Citizens of India have the right to
reside in any part of the country. Although restrictions can
be imposed on the grounds of security, public order or for
protecting the interests of the Scheduled Tribes.
6. Freedom of profession: All citizens have the right to carry
on any trade or profession/occupation, provided the trade or
occupation is not illegal or immoral. Also, the law does not
prevent the State from making laws related to technical or
professional qualifications required for practicing the
occupation or trade.

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Article 20
Article 20 deals with the protection of citizens in respect of
conviction for offences. This provides for three types of protection
of the individual against the State.
1. Retrospective criminal legislation: This is also known as
ex-post facto criminal legislation. Under this, a person
cannot be convicted for an act that was committed at a time
when the act had not been declared by law as an offence.
1. This means that criminal legislation cannot be given a
retrospective effect.
2. This immunity cannot be used against the provision of
preventive detention, and also does not cover the trial.
3. The law also provides that a person cannot be subject
to a punishment greater than what is prescribed by law
for the offence committed.
2. Double jeopardy: This indicates that a person cannot be
convicted for the same offence more than once.
3. Prohibition against self-incrimination: This implies that
no person accused of an offence shall be compelled by the
State to bear witness against himself.
Article 21
Article 21 states that no person shall be deprived of his life and
personal liberty by the State except as per the procedure
established by law. This article has a wide scope and its
interpretation has undergone many changes over the decades.

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  The Supreme Court has interpreted the right to life as the
right to a dignified life.
 This is the most important right in one sense, because,
without this right to life, all other fundamental rights would
be meaningless.
 It is this article that differentiates between a police state and
a constitutional state.
Right to Life
According to Article 21:
“Protection of Life and Personal Liberty: No person shall be
deprived of his life or personal liberty except according to
procedure established by law.”
 This fundamental right is available to every person, citizens
and foreigners alike.
 Article 21 provides two rights:
 Right to life
 Right to personal liberty
The fundamental right provided by Article 21 is one of the most
important rights that the Constitution guarantees.
The Supreme Court of India has described this right as the ‘heart
of fundamental rights’.
The right specifically mentions that no person shall be deprived of
life and liberty except as per the procedure established by law.
This implies that this right has been provided against the

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State only. State here includes not just the government, but
also, government departments, local bodies, the Legislatures, etc.
Any private individual encroaching on these rights of another
individual does not amount to a violation of Article 21. The
remedy for the victim, in this case, would be under Article 226 or
under general law.
The right to life is not just about the right to survive. It also
entails being able to live a complete life of dignity and meaning.
The chief goal of Article 21 is that when the right to life or liberty
of a person is taken away by the State, it should only be
according to the prescribed procedure of law.
Interpretation of Article 21
Judicial intervention has ensured that the scope of Article 21 is
not narrow and restricted. It has been widening by several
landmark judgements.
A few important cases concerned with Article 21:
1. AK Gopalan Case (1950): Until the 1950s, Article 21 had a
bit of a narrow scope. In this case, the SC held that the
expression ‘procedure established by law’, the Constitution
has embodied the British concept of personal liberty rather
than the American ‘due process’.
2. Maneka Gandhi vs. Union of India Case (1978): This
case overturned the Gopalan case judgment. Here, the SC
said that Articles 19 and 21 are not watertight
compartments. The idea of personal liberty in Article 21 has

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 a wide scope including many rights, some of which are
embodied under Article 19, thus giving them ‘additional
protection’. The court also held that a law that comes under
Article 21 must satisfy the requirements under Article 19 as
well. That means any procedure under law for the
deprivation of life or liberty of a person must not be unfair,
unreasonable or arbitrary.
3. Francis Coralie Mullin vs. Union Territory of Delhi
(1981): In this case, the court held that any procedure for
the deprivation of life or liberty of a person must be
reasonable, fair and just and not arbitrary, whimsical or
fanciful.
4. Olga Tellis vs. Bombay Municipal Corporation
(1985):This case reiterated the stand taken earlier that any
procedure that would deprive a person’s fundamental rights
should conform to the norms of fair play and justice.
5. Unni Krishnan vs. State of Andhra Pradesh (1993): In
this case, the SC upheld the expanded interpretation of the
right to life. The Court gave a list of rights that Article 21
covers based on earlier judgements. Some of them are:
1. Right to privacy
2. Right to go abroad
3. Right to shelter
4. Right against solitary confinement
5. Right to social justice and economic empowerment

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 6. Right against handcuffing
7. Right against custodial death
8. Right against delayed execution
9. Doctors’ assistance
10. Right against public hanging
11. Protection of cultural heritage
12. Right to pollution-free water and air
13. Right of every child to a full development
14. Right to health and medical aid
15. Right to education
16. Protection of under-trials
Right to Life and Suicide
Section 309 of the Indian Penal Code (IPC) makes attempted
suicide a criminal offence which is punishable with imprisonment
and fine.
 There were many debates on whether this should continue
since mental health experts have argued that people who
attempt suicide need adequate counselling and not
punishment.
 The Mental Healthcare Act, 2017 was passed by the
Parliament and the law came into force in 2018. This Act is
meant to provide “for mental healthcare and services for
persons with mental illness and to protect, promote and
fulfill the rights of such persons during delivery of mental
healthcare and services.”

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  This law decriminalises suicide in India.
Right to Life and Euthanasia
There are many debates on whether the right to life also extends
to the right to die, especially to die with dignity. Euthanasia is a
topic that is frequently seen in the news. Many countries have
legalised euthanasia (the Netherlands, Belgium, Colombia,
Luxembourg).
Euthanasia is the practice of intentionally ending life in order to
relieve suffering and pain. It is also called ‘mercy killing’.
There are various types of euthanasia: Passive and Active.
Passive Euthanasia: This is where treatment for the terminally-
ill person is withdrawn, i.e., conditions necessary for the
continuance of life are withdrawn.
Active Euthanasia: This is where a doctor intentionally
intervenes to end someone’s life with the use of lethal substances.
This is different from physician-assisted suicide where the
patient himself administers the lethal drugs to himself. In active
euthanasia, it is a doctor who administers the drugs.
Voluntary euthanasia: Under this, euthanasia is carried out
with the patient’s consent.
Non-voluntary euthanasia: Under this, patients are unable to
give consent (coma or severely brain-damaged), and another
person takes this decision on behalf of the patient.
Involuntary euthanasia: Euthanasia is done against the will of
the patient, and this is considered murder.

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International Position on Euthanasia:
In the Netherlands and Belgium, both euthanasia and physician-
assisted suicide are legal.
In Germany, euthanasia is illegal while physician-assisted suicide
is legal.
Both euthanasia and physician-assisted suicide are illegal in India,
Australia, Israel, Canada and Italy.
Euthanasia in India
Passive euthanasia has been made legal in India.
 In 2018, the SC legalised passive euthanasia by means of
the withdrawal of life support to patients in a permanent
vegetative state.
 This decision was made as a part of the verdict in the
famous case involving Aruna Shanbaug, who had been living
in a vegetative state for more than 4 decades until her death
in 2015.
 The court rejected active euthanasia by means of lethal
injection. Active euthanasia is illegal in India.
 As there is no law regulating euthanasia in the country, the
court stated that its decision becomes the law of the land
until the Indian parliament enacts a suitable law.
 Passive euthanasia is legal under strict guidelines.
 For this, patients must give consent through a living will,
and should either be in a vegetative state or terminally ill.

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  Living Will: It is a legal document in which a person
specifies what actions should be taken for their health if
they are no longer able to make such decisions for
themselves due to illness or incapacity.
 When the executor (of the living will) becomes terminally
ill with no hope of a recovery, the doctor will set up a
hospital medical board after informing the patient and/or
his guardians.
Article 21(A)
This article was introduced by the 86th Constitutional Amendment
in 2002. It provides that the State shall provide free and
compulsory education to all children between the ages of 6 and
14.
Article 22
Article 22 deals with the protection against arrest and detention
in certain cases.
 This article is applicable to both citizens and non-citizens.
 This provision extends certain procedural safeguards for
individuals in case of an arrest.
 It comes into the picture after a person has been arrested. It
is not a fundamental right against detention and arrest.
 The idea behind this right is to prevent arbitrary arrests and
detention.
 The article provides the following safeguards:

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  Article 22(1) – Any person who is in custody has to be
informed as to why he has been arrested. Further, he
cannot be denied the right to consult an advocate.
 Article 22(2) – The arrested individual should be produced
before a judicial magistrate within 24 hours of his arrest.
 Article 22(3) – No individual who has been arrested can
be kept in custody for more than the period determined
by the judicial magistrate.
These safeguards are, however, not applicable to
 Enemy aliens
 People arrested under preventive detention laws
Right against Exploitation (Articles 23 – 24)
This right implies the prohibition of traffic in human beings, begar,
and other forms of forced labour. It also implies the prohibition of
children in factories, etc. The Constitution prohibits the
employment of children under 14 years in hazardous conditions.

Article 23 – Prohibition of traffic in human beings and

forced labour
Article 23(1): Traffic in human beings and begar and other similar
forms of forced labour are prohibited and any contravention of
this provision shall be an offence punishable in accordance with
the law.
Article 23(2): Nothing in this article shall prevent the State from
imposing compulsory service for public purposes, and in imposing

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such service the State shall not make any discrimination on
grounds only of religion, race, caste or class or any of them.
 Exploitation implies the misuse of others’ services by force
and/or labour without payment.
 There were many marginalised communities in India who
were forced to engage in manual and agricultural labour
without any payment.
 Labour without payment is known as beggar.
 Article 23 forbids any form of exploitation.
 Also, one cannot be forced to engage in labour against
his/her will even if remuneration is given.
 Forced labour is forbidden by the Constitution. It is
considered forced labour if the less-than-minimum wage is
paid.
 This article also makes ‘bonded labour’ unconstitutional.
 Bonded labour is when a person is forced to offer services
out of a loan/debt that cannot be repaid.
 The Constitution makes coercion of any kind unconstitutional.
Thus, forcing landless persons into labour and forcing
helpless women into prostitution is unconstitutional.
 The Article also makes trafficking unconstitutional.
 Trafficking involves the buying and selling of men and
women for illegal and immoral activities.

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  Even though the Constitution does not explicitly ban
‘slavery’, Article 23 has a wide scope because of the
inclusion of the terms ‘forced labour’ and ‘traffic’.
 Article 23 protects citizens not only against the State
but also from private citizens.
 The State is obliged to protect citizens from these evils by
taking punitive action against perpetrators of these acts
(which are considered crimes), and also take positive actions
to abolish these evils from society.
 Under Article 35 of the Constitution, the Parliament is
authorized to enact laws to punish acts prohibited by Article
23.
 Clause 2 implies that compulsory services for public
purposes (such as conscription to the armed forces) are not
unconstitutional.
 Laws passed by the Parliament in pursuance of Article 23:
 Suppression of Immoral Traffic in Women and Girls Act,
1956
 Bonded Labour System (Abolition) Act, 1976
Article 24 – Prohibition of employment of children in
factories, etc.
Article 24 says that “No child below the age of fourteen years
shall be employed to work in any factory or mine or engaged in
any other hazardous employment.”

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 This Article forbids the employment of children below the
age of 14 in any hazardous industry or factories or mines,
without exception.
 However, the employment of children in non-hazardous
work is allowed.
 Laws that were passed in pursuance of Article 24 in
India.
 The Factories Act, 1948
 This was the first act passed after independence to set a
minimum age limit for the employment of children in
factories. The Act set a minimum age of 14 years. In 1954,
this Act was amended to provide that children below the age
of 17 could not be employed at night.
 The Mines Act of 1952
 This Act prohibits the employment of people under the age
of 18 years in mines.
 The Child Labour (Prohibition and Regulation) Act,
1986
 This was a landmark law enacted to curb the menace of
child labour prevalent in India. It described where and how
children could be employed and where and how this was
forbidden. This Act designates a child as a person who has
not completed his/her 14th year of age. The 1986 Act
prohibits the employment of children in 13 occupations and
57 processes.

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  Child Labour (Prohibition & Regulation) Amendment
Act, 2016
 This Act completely forbids the employment of children
below 14 years of age. It also bans the employment of
people between the ages of 14 and 18 in hazardous
occupations and processes. Punishments to violators of this
law were made stricter by this amendment act. This Act
allows children to be employed in certain family occupations
and also as artists.
 Child Labour (Prohibition and Regulation) Amendment
Rules, 2017
 The government notified the above Rules in 2017 in order to
provide a broad and specific framework for prevention,
prohibition, rescue and rehabilitation of child and adolescent
workers. The Rules clarified on issues concerning the
employment of family enterprises and also provides
safeguards for artists in that the working hours and
conditions are specified.
Right to Freedom of Religion (Articles 25 – 28)
Article 25 (Freedom of conscience and free profession,
practice and propagation of religion)
Article 25 guarantees the freedom of conscience, the freedom to
profess, practice and propagate religion to all citizens.
 The above-mentioned freedoms are subject to public order,
health and morality.

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  This article also gives a provision that the State can make
laws:
 That regulates and restricts any financial, economic,
political or other secular activity associated with any
religious practice.
 That provides for the social welfare and reform or
opening up of Hindu religious institutions of a public
character to all sections and classes of Hindus. Under
this provision, Hindus are construed as including the
people professing the Sikh, Jaina or Buddhist religions
and Hindu institutions shall also be construed
accordingly.
People of the Sikh faith wearing & carrying the kirpan shall be
considered as included in the profession of the Sikh religion.
Article 26 (Freedom to manage religious affairs)
This Article provides that every religious denomination has the
following rights, subject to morality, health and public order.
1. The right to form and maintain institutions for religious and
charitable intents.
2. The right to manage its own affairs in the matter of religion.
3. The right to acquire immovable and movable property.
4. The right to administer such property according to the law.

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Article 27 (Freedom as to payment of taxes for promotion
of any particular religion)
According to Article 27 of the Constitution, there can be no taxes,
the proceeds of which are directly used for the promotion and/or
maintenance of any particular religion/religious denomination.
Article 28 (Freedom as to attendance at religious
instruction or religious worship in certain educational
institutions)
This article permits educational institutions that are maintained
by religious groups to disseminate religious instruction.
 This provides that no religious instruction shall be provided
in State-run educational institutions.
 Educational institutions administered by the State but that
were established under any endowment or trust which
requires that religious instruction shall be imparted in such
institutions is exempt from the above clause (that no
religious instruction shall be provided).
 Any person who attends any educational institution
recognised by the State or receiving State aid shall not be
required to participate in any religious instruction that may
be imparted in such institution, or also attend any religious
worship in such institutions unless he/she has given consent
for the same. In the case of minors, the guardians should
have given consent for the same.

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Cultural and Educational Rights (Articles 29 – 30)
Fundamental Rights guarantee basic rights to the citizens of India.
There are six fundamental rights enshrined in the Constitution of
India, and Articles 29 and 30 deals with cultural and educational
rights of Indian citizens.
1. This fundamental right intends to preserve the culture of all
minority groups in India.
2. Indian society is a composite heterogeneous one and its
diversity is one of its strengths.
3. The Constitution guarantees these rights to minorities so
that the diversity of this country is preserved and provides
avenues for all groups including marginalised ones to protect,
preserve and propagate their culture.
Article 29 – Protection of Interests of Minorities
This article is intended to protect the interests of minority groups.
Article 29(1): This provides all citizen groups that reside in India
having a distinct culture, language and script, the right to
conserve their culture and language. This right is an absolute
right and there are no ‘reasonable restrictions’ in the interest of
the general public here.
Article 29(2): The State shall not deny admission into
educational institutes maintained by it or those that receive aids
from it, to any person on the basis of race, religion, caste,
language, etc. This right is given to individuals and not any
community.

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Article 30 – Right of Minorities to Establish and Administer
Educational Institutions
This right is given to minorities to form and govern their own
educational institutions. Article 30 is also called the “Charter of
Education Rights”.
Article 30(1): All religious and linguistic minorities have the
right to establish and administer educational institutions of their
choice.
Article 30(2): The State should not, when granting aid to
educational institutions, discriminate against any educational
institution on the ground that it is under the management of a
minority, whether based on religion or language.
Right to Constitutional Remedies (32 – 35)
The Constitution guarantees remedies if citizens’ fundamental
rights are violated. The government cannot infringe upon or curb
anyone’s rights. When these rights are violated, the aggrieved
party can approach the courts. Citizens can even go directly to
the Supreme Court which can issue writs for enforcing
fundamental rights.
Part III of the Constitution provides for legal remedies for the
protection of these rights against their violation by the State or
other institutions/individuals. It entitles the citizens of India to
move the Supreme Court or High Courts for the enforcement of
these rights. The State is forbidden from making any law that
may be in conflict with the Fundamentals Rights.

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What is a Writ?
Writs are written order issued by the Supreme Court of India to
provide constitutional remedies in order to protect the
fundamental rights of citizens from a violation.
Facts about writs in India
 Article 32 also empowers Parliament to authorize any other
court to issue these writs
 Before 1950, only the High Courts of Calcutta, Bombay and
Madras had the power to issue the writs
 Article 226 empowers all the high courts of India to issue the
writs
 Writs of India are borrowed from English law where they are
known as ‘Prerogative writs’
What is a Writ Petition?
A writ petition is essentially a court petition for extraordinary
review, asking a court to intervene in a lower court’s decision.
Under the Indian legal system, jurisdiction to issue ‘prerogative
writs’ is given to the Supreme Court, and to the High Courts of
Judicature of all Indian states. Parts of the law relating to writs
are set forth in the Constitution of India.
Type of Writs
The Constitution empowers the Supreme Court and High Courts
to issue orders or writs.
The types of writs are:

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Habeas Corpus
Habeas Corpus is a writ that is enforced in order to protect the
fundamental right to liberty of an individual against unlawful
detention. This writ commands a public official to deliver a
detained person in front of the court and provide valid reasons for
the detention. However, this writ cannot be issued in case the
proceeding is for contempt of a legislature or a court.
Certiorari
The writ of certiorari is issued to a lower court directing that the
transfer of a case for review, usually with the intention of
overruling the judgment of the lower court. The Supreme Court
issues the writ of Certiorari in case the decision passed by the
lower court is challenged by the party. It is issued in case the
higher court finds it a matter of over jurisdiction or lack of
jurisdiction.
It is one of the mechanisms by which the fundamental rights of
the citizens are upheld.
Prohibition
Prohibition is a writ issued by a higher court to a lower court to
enforce inactivity in the jurisdiction. It happens only in case the
higher court is of the discretion that the case falls outside the
jurisdiction of the lower court. Writ of Prohibition can only be
issued against judicial and quasi-judicial authorities.

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Mandamus
The writ of mandamus is issued to a subordinate court, an officer
of the government, or a corporation or other institution
commanding the performance of certain acts or duties.
Unlike Habeas Corpus, Mandamus cannot be issued against a
private individual.
The writ of mandamus can be used to order the completion of a
task or in other cases, it may require an activity to be ceased.
Quo-Warranto
Quo warranto is issued against a person who claims or usurps a
public office. Through this writ, the court inquires ‘by what
authority’ the person supports his or her claim.
Through this writ, the court enquires into the legality of a claim of
a person to a public office. This writ prevents the illegal
assumption of a public office by an individual.

UNIT – IV
Doctrine of Eminent Domain and Right to Property
Doctrine of Eminent Domain is a concept in the American
Constitution. It is the acquisition of private property by the state
for a public purpose with paying certain amount of compensation.
Initially when India got Independence, the legislature to abolish
the Zamindari System, enacted various laws through which it
took the property from various land holders and used it for public

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purpose. Many a times mala-fide intention can be seen achieved
through this doctrine.
There are two essentials of the Doctrine of Eminent
Domain:
1. Property is taken for public use
2. Compensation is paid for the property taken.
In Indian Constitution, Entry 42 of List III speaks about
‘acquisitioning and requisitioning of property’. In the case of State
of Bihar v Kameshwar Singh , Supreme Court defined eminent
Domain as “the power of a sovereign to take property for public
use without the owner’s consent upon making just compensation.”
Article 31A, 31B and 31C as well as Art. 300A are the existing
constitutional provisions concerning private property.
Emergence of Article 31 A
This Article was added to the Constitution of India by the First
Amendment, 1951. Later, the Fourth Amendment substituted
various clauses in it.
Article 31 A -Saving of certain laws
Article 31A - (1) Notwithstanding anything contained in Article
13, no law providing for -
(a) The acquisition by the State of any estate or of any rights
therein or the extinguishment or modification of any such rights,
or

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(b) The taking over of the management of any property by the
State for a limited period either in the public interest or in order
to secure the proper management of the property, or
(c) The amalgamation of two or more corporations either in the
public interest or in order to secure the proper management of
any of the corporations, or
(d) The extinguishment or modification of any rights of managing
agents, secretaries and treasurers, managing directors, directors
or managers of corporations, or of any voting rights of
shareholders thereof, or
(e) The extinguishment or modification of any rights accruing by
virtue of any agreement, lease or licence for the purpose of
searching for, or winning, any mineral or mineral oil, or the
premature termination or cancellation of any such agreement,
lease or licence,
shall be deemed to be void on the ground that it is inconsistent
with, or takes away or abridges any of the rights conferred by
Article 14 or Article 19:
Provided that where such law is a law made by the Legislature of
a State, the provisions of this article shall not apply thereto
unless such law, having been reserved for the consideration of
the President, has received his assent:
[Provided further that where any law makes any provision for the
acquisition by the State of any estate and where any land
comprised therein is held by a person under his personal

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cultivation, it shall not be lawful for the State to acquire any
portion of such land as is within the ceiling limit applicable to him
under any law for the time being in force or any building or
structure standing thereon or appurtenant thereto, unless the law
relating to the acquisition of such land, building or structure,
provides for payment of compensation at a rate which shall not
be less than the market value thereof ..
Emergence of Article 31 B: Validation of certain Laws
Art.31A was added to the Constitution by the Constitution (First
Amendment) Act, 1951. It was added as a constitutional device
to protect the specified statutes from any attack on the ground
that they infringe Part III of the Constitution. It has retrospective
effect which is clear from the words “ever to have become void”.
The introduction of this provision has cure the defects in various
acts of the Ninth schedule as regards to the unconstitutionality
alleged on the grounds of infringement of Part III of the
Constitution, these acts even if void or inoperative at the time,
they were inactive by reason of infringement of Article 13(2) of
the constitution assumes full force from the respective dates of
their enactment after their inclusion in the Ninth schedule read
with Article 31B of the Constitution. The Ninth schedule consists
of 284 legislations until the constitution (78th amendment) act,
1995 but article 31B did not empower the legislatures to amend
these acts inconsistently with the provisions of the constitution or
to take away the rights conferred by the Constitution. The

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amendments must be consistent with the provision of the
Constitution or be saved under Article 31A of the Constitution, if
not they must be held void. A question was raised in Prag Ice And
Oil Mills v. Union Of India whether article 31B saved the orders
and notifications issued under Section 3 of the Essential
Commodities Act 1955 which was already included in the Ninth
schedule but as was already decided in Godavari Sugar Mills Ltd.
v. S.B Kamble that the amendments to ac act subsequent to an
inclusion of an act in the Ninth schedule were not entitled to the
protection of Article 31B. The Supreme Court dismissed the
petition as the act did not violate the petitioner’s rights under
Article 14 and 19, it was explained by the court that when a
particular act or regulation is placed in the Ninth schedule, the
parliament may be assumed to have applied its mind to the
provisions of the particular act and the desirability, propriety or
necessity of placing it in the Ninth schedule and such an
assumption cannot in the very nature of things be made in the
case of an order issued under an Act or Regulation placed in the
Ninth schedule.
Emergence of Article 31 C
Insertion of Article 31-C by the Twenty-Fifth Amendment
Article 31-C “Notwithstanding anything contained in Article 13, no
law giving effect to the policy of the state towards securing [all or
any of the principles laid down in Part IV] shall be deemed to be
void on the ground that it is inconsistent with, or takes away or

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abridges any of the rights conferred by [Article 14 or Article 19]
and [no law containing a declaration that it is for giving effect to
such policy shall be called in question in any court on the ground
that it does not give effect to such policy].
Provided that where such law is made by the Legislature of a
State, the provisions of this Article shall not apply thereto unless
such law, having been reserved for the consideration of the
President, has received his assent Right to Constitutional
Remedies. ”
The insertion of this article made A. 14, 19 and 31 inapplicable to
certain laws made by Parliament or any legislature. Along with
this it was also added that a declaration in the law that is to
implement the directive principles enshrined in A. 39(b) and (c)
cannot be questioned in a court of law. Therefore, the insertion of
this article granted complete immunity to a law from judicial
scrutiny if the President certified that it was enacted to promote
the policy laid down in A. 39(a) and (b). The provisions of this
Article would apply only if the law had received the assent of the
President.
Directive Principles of State Policy: Meaning
The Directive Principles of State Policy (DPSP) has been taken
from the Irish constitution and enumerated in Part IV of the
Indian Constitution.
The concept behind the DPSP is to create a ‘Welfare State’. In
other words, the motive behind the inclusion of DPSP is not

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establishing political democracy rather, it’s about establishing
social and economic democracy in the state.
History
The source of the concept of DPSP is the Spanish Constitution
from which it came in the Irish Constitution. The makers of the
Indian Constitution were very much influenced by the Irish
nationalist movement and borrowed this concept of DPSP from
the Irish Constitution in 1937.
The Government of India Act also had some instructions related
to this concept which became an important source of DPSP at
that time.
The Directive Principles of the Constitution of India have been
greatly influenced by the Directive Principles of Social Policy.
The Indians who were fighting for the independence of India from
the British rule were greatly influenced by the movements and
independence struggles of Ireland at that time, to free
themselves from the British rule and move towards the
development of their constitution.
DPSP become an inspiration for independent India’s government
to tackle social, economic and various other challenges across a
diverse nation like India.
DPSP and fundamental rights have a common origin. The Nehru
Report of 1928 contained the Swaraj Constitution of India which
contained some of the fundamental rights and some other rights

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such as the right to education which were not enforceable at that
time.
Sapru Report of 1945 divided fundamental rights into justifiable
and non-justifiable rights.
Justifiable rights, the one which was enforceable in a court of law
and included in Part III of the Constitution. On the other hand,
Non-justifiable rights were listed as directive principles, which are
just there to guide the state to work on the lines for making India
a welfare state. They were included in part IV of the Constitution
of India as Directive Principles of State Policy.
The Constituent Assembly was given the task of making a
constitution for India. The assembly composed of elected
representatives and Dr. Rajendra Prasad was elected as its
President.
Both the Fundamental Rights and the DPSP were enlisted in all
the drafts of the constitution (I, II and III) prepared by the
Drafting Committee whose chairman was Dr. B.R. Ambedkar.
Features
DPSP are not enforceable in a court of law.
They were made non-justifiable considering that the State may
not have enough resources to implement all of them or it may
even come up with some better and progressive laws.
It consists of all the ideals which the State should follow and keep
in mind while formulating policies and enacting laws for the
country.

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The DPSPs are like a collection of instructions and directions,
which were issued under the Government of India Act, 1935, to
the Governors of the colonies of India.
It constitutes a very comprehensive economic, social and political
guidelines or principles and tips for a modern democratic State
that aimed towards inculcating the ideals of justice, liberty,
equality and fraternity as given in the preamble. The Preamble
consists of all the objectives that needs to be achieved through
the Constitution.
Adding DPSP was all about creating a “welfare state” which works
for the individuals of the country which was absent during the
colonial era.
Directive Principles of State Policy:-
Article 36
Article 36 contains the definition of State.
Unless the context otherwise requires, the definition of “the State”
is the same as it is given in Part III which covers Fundamental
Rights.
The definition given in Article 12 shall apply in this part as well
which says that the State includes:
The Government of India
The Parliament of India
The Government of each of the States
The Legislature of each of the States

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All the authorities whether local or any other which are the part
of Indian territory or under the control of the government.
Article 37
Article 37 mentions the two important characteristics of DPSP,
and they are:
It is not enforceable in any court of Law.
And they are very basic and essential for the governance of the
country.
The provisions mentioned in this part shall not be enforceable in
any court and the principles laid down in this part are
fundamental for the governance of the country. The State must
make laws according to it because the ultimate aim of the State
is the welfare of its citizens.
Socialist principles
These principles follow the ideology of “Socialism” and lay down
the framework of India.
Its ultimate aim is to provide social and economic justice to all its
citizens so that the state can fulfil the criteria required for a
welfare state.
The articles in DPSP which follows the socialist principles are –
Article 38, Article 39, Article 39 A, Article 41, Article 42, Article 43,
Article 43 A and Article 47.
Article 38
Article 38 talks about Social, Political and Economic Justice.

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It directs that the State should secure a social order which
provides social, political and economic justice to all its citizens.
Article 38(2) says that state shall reduce the inequalities faced by
the people on the grounds like income, status, facilities,
opportunities, etc.
Article 39
Article 39 mentions all the Principles of policy which must be
followed by the State.
The State shall make its policies towards securing the following
objectives—
All the men, women and citizens should have the right to an
adequate means of livelihood
The ownership and control of the people over any material
resources under the community should be distributed as it is for
the common good of the public;
The functioning of the economic system should be such that the
concentration of wealth and the means of production don’t result
in a loss common to all or which causes detriment to the citizens;
There shall be no gender discrimination, both men and women
should get equal pay for equal work.
The health and strength possessed by any worker, men and
women, and the tender age of children should not be abused and
the citizens should not be forced to enter and indulge into any
occupation or profession which is not suitable for their age or

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strength, not even out of any financial necessity or economic
backwardness
Children must be given enough opportunities and facilities so that
they develop in a healthy manner and in such conditions where
their freedom and dignity, including the fact that their childhood
and youth remain protected, against any form of exploitation and
against any sort of moral and material abandonment.
Article 39A
Article 39A talks about Free Legal aid.
It says that the State shall promote justice with the aim of
administering Justice on the basis of equal opportunity, and shall
provide free legal aid through any suitable legislation or schemes
which State may think fit ,or, in any other way, so that it could
ensure that the opportunities for securing justice are not denied
to any citizen because of economic backwardness or any other
kind of disabilities.
Article 41
Article 41 talks about Welfare Government.
It says that state shall make some effective provisions for
securing the right to work, etc. and in cases of unemployment,
old age, disablement or any other cases acting in its economic
capacity & development it shall provide public assistance. This
article is employed as a tenet for numerous social sector schemes
like social assistance program, right to food security, old-age
pension scheme, MGNREGA, etc.

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Article 42
Article 42 talks about Securing just and humane work and
maternity relief.
It says that state shall create some provisions so that the citizens
get easy, just and humane conditions for working. It shall also
provide maternity relief for the women.
Article 43
Article 43 talks about Fair wages and a decent standard of life.
It says that the state can endeavor to secure by appropriate
legislation or economic organization to all the workers employed
in agricultural, industrial or otherwise, work, a living wage,
conditions of work, ensuring a decent standard of life and
enjoyment of leisure and social-cultural opportunities and
promote cottage industries on an individual or cooperative basis
in rural and remote areas of the country.
Article 47
Article 47 talks about Nutrition, Standard of living and public
health.
It says that the State shall look into the matter of raising the
level of nutrition and the standard of living of its people and it is
the duty of the State to keep a check on the improvement of
public health. The State shall also endeavor to prohibit the
consumption of intoxicating drinks and drugs which are injurious
for health, except for medicinal purposes. There are many social
development programmes such as National Health Mission, Mid

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Day Meal Scheme, etc. which target the marginalized sections of
the society i.e. women, children, weaker sections etc. are inspired
by this DPSP.
Gandhian Principles
These principles reflect the programme of reconstruction ideology
propagated by Gandhi throughout the national movement. In
order to fulfil his dreams, some of his concepts have been
included in the form of DPSP.
They direct the State through these articles – Article 40, Article
43, Article 43 B, Article 46, Article 47 and Article 48.
Article 40
Article 40 deals with the Organization of Panchayats.
It says that the state shall organize Panchayat system and should
grant them such powers which would be necessary for the
functioning as units of the self-government system.
The 73rd and 74th amendments of the constitution which are
related to Panchayati Raj and Municipal Corporations respectively,
later ended up as the constitutionally backed framework for the
principle mentioned in Part IV.
Article 43
Article 43 talks about Fair wages and a decent standard of life.
It says that the state can endeavor to secure, by appropriate
legislation or economic organization, to all the workers employed
in agricultural, industrial or otherwise, work, a living wage,
conditions of work, a decent standard of life and enjoyment of

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leisure & social-cultural opportunities and promote cottage
industries on an individual or cooperative basis in rural and
remote areas of the country.
Article 43B
Article 43B deals with the promotion of cooperatives.
It was inserted by the 97th amendment act in 2011. It says that
state shall endeavor to promote the management of the co-
operative societies to help the people who are engaged in the
same.
Article 46
Article 46 deals with the Protection of SCs, STs, weaker sections
from exploitation.
The State shall promote with special care including the
educational and economic interests of the weaker sections of the
society i.e. the SCs and the STs and shall make provisions to
protect them from all forms of exploitation which includes social
injustice.
Article 47
Article 47 talks about Nutrition, Standard of living and public
health.
It says that the State shall look into the matter of raising the
level of nutrition and the standard of living of its people and it is
the duty of the State to keep a check on the improvement of
public health. The State shall endeavor to prohibit the

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consumption of intoxicating drinks and drugs which are injurious
to health except for medicinal purposes.

There are many social development programmes such as National

Health Mission, Mid Day Meal Scheme, etc. which target the
marginalized sections of the society i.e women, children, weaker
sections etc. are inspired by this DPSP.
Article 48
Article 48 talks about Scientific agriculture and animal husbandry.
It says that the State shall endeavor to organize agriculture and
animal husbandry using modern methods and scientific
techniques which make people more advanced and helps in
earning their livelihood easily and State shall take some
progressive steps for preserving and improving the existing
breeds and prohibiting the slaughter of cows and other cattle.
Liberal-intellectual Principles
These principles follow the ‘Liberalism’ ideology.
The articles which follow this approach in DPSP are – Article 44,
Article 45, Article 48, Article 48 A, Article 49, Article 50 and
Article 51.
Article 44
Article 44 talks about the Uniform Civil Code.
There should be a provision for the citizens to secure a Uniform
Civil Code throughout the territory of India in order to simplify

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things and reduce ambiguity in the laws which makes it more
complex than it actually is.
Article 45
Article 45 contains the Provision for free and compulsory
education for the children in the country.
The State shall make laws to provide free and compulsory
education for the children until they are 14 years old within a
period of 10 years from the date of commencement of this
provision in the Constitution.
This provision was incorporated by the virtue of the 86th
Amendment, 2002 in the Constitution of India.
Article 48
Article 48 talks about Organisation of agriculture and animal
husbandry.
The State shall endeavour to organise agriculture and animal
husbandry using modern and scientific technology which is
prevalent in the present times and also take steps for preserving
and improving the existing breeds and prohibiting the slaughter
of cows and other cattle in the country for the development of
agricultural related practices.
Article 48A
Article 48A talks about the Environment and Wildlife Protection.
The State shall endeavour to protect and improve the
environment and surroundings. And to safeguard the forests and
wildlife of the country to make the environment sustainable.

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Article 49
Article 49 talks about Protection of monuments and places and
objects of national importance.
It shall be the duty of the State to protect every monument or
place or any object of historic or artistic interest which has some
national importance, from any form of disfigurement, destruction,
etc.
Article 50
Article 50 talks about Separation of Judiciary from the Executive.
There should be a line between the judiciary and the executive
body of the Government in the public services of the State as it
makes it easier if both do not interfere in each other’s work and
function independently.
Article 51
Article 51 talks about Promotion of international peace and
security.
The State shall endeavour to —
Promote international peace and security;
maintain friendly and honorable relations between nations;
foster respect for international law and treaty obligations in the
dealings of one person with another for maintaining harmony
between the nations and
encourage settlement of international disputes by the method of
arbitration.

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Enforceability of DPSP
DPSP were not made enforceable by the Constituent Assembly
which was formed to draft the Indian Constitution. But the non-
enforceability of the Principles does not mean that they are of no
importance.
There are some arguments which are in favor of its enforceability
and some are against the making of DPSP enforceable. Those
who favor the enforcement of the Principles argue that
enforceability of DPSPs will keep a check on the Government and
would unite India. For instance, Article 44 of the Indian
Constitution talks about the Uniform Civil Code which aims for
uniform provisions of civil law for all the citizens of the country
irrespective of their caste, creed, religion or beliefs.
People who are against the enforcement of the DPSPs are of the
view that these principles need not be separately enforced as
there are already many laws which indirectly implements the
provisions mentioned in DPSP. For instance, Article 40 of the
Constitution which deals with Panchayati Raj system was
introduced through a constitutional amendment, and it is very
evident that there are numerous panchayats exist in the country
today.
Another argument against DPSP is that it imposes morals and
values on the citizens of the country. It should not be clubbed
with the law as it is really important to grasp that law and morals
area unit various things. If we impose one on the opposite that

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will generally impede the expansion and development of the
society.
What are Fundamental Rights and DPSP?
Fundamental rights and DPSP as cherished in the Constitution of
India together comprises the human rights of an individual. The
Constitution expresses fundamental rights as an idea which
appeared in India in 1928 itself. The Motilal Committee Report of
1928 clearly shows inalienable rights derived from the Bill of
Rights enshrined in the American Constitution to be given to the
individual. These rights were preserved in Part III of the Indian
Constitution. of India.
Fundamental rights are also known as Inherent rights because
they are inherent to every person by birth. These are the rights
which provide an individual with some basic rights for the
purpose of survival. No discrimination is made on the basis of
religion, caste, race etc. and if any person feels so that his
fundamental rights are being infringed then he can surely
approach to court for the violation of his rights.
There are six fundamental right mentioned under the Constitution
of India
 Right to equality
 Right to freedom
 Right to freedom of religion
 Right against exploitation
 Cultural and educational rights

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 Rights to constitutional remedies
The concept of DPSP emerged from Article 45 of the Irish
Constitution. DPSP imposes a duty upon the state not only to
protect and acknowledge the Fundamental right of the individual
but also to achieve Social-economic goals. DPSP was
summarizing in Part IV of the Indian Constitution of India.
Certain guidelines are present for the state authority to work
upon them for the protection of society. It mostly focuses on
welfare and improvement of society altogether. As fundamental
rights are enforceable in a court of law, DPSP cannot be enforced
for making any rules, policy or guidelines.
Some of the examples of DPSP are:
 Right to education
 Maternity benefit
 Uniform Civil code
 Providing proper nutrition food
 Providing adequate means of livelihood
However, it is already a controversial topic in the Constitution
about the relationship of Fundamental rights and DPSP, as there
would be conflict in the interest of individual at a micro level and
benefit of the community at a macro level.
The central part of this controversy is the question person should
have primacy in the case of conflict between Chapter III and IV of
the Constitution of India.

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Relationship between Fundamental Rights and DPSP
Constitution of India is a Grundnorm (Grundnorm meaning: Basic
norm (German: Grundnorm) is a concept in the Pure Theory of Law created
by Hans Kelsen)all the law which are made must conform to the
constitution of India.
The difference between DPSP and FR are:
Fundamental Rights
DPSP
Limited scope.
Scope of DPSP is limitless.
Protect the rights of the individual and work at a micro level.
Protect the rights of a citizen and work at a macro level.
If anybody feels that his rights are being violated can approach
the court of law.
DPSP are not enforceable by law.

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