Contitutional Law:

1. Preamble :

A preamble is an introductory statement in a document that explains the document’s

philosophy and objectives. In a Constitution, it presents the intention of its framers,
the history behind its creation, and the core values and principles of the nation. The
preamble basically gives idea of the following things/objects: Source of the
Constitution Nature of Indian State Statement of its objectives Date of its adoption

History of the Preamble to Indian Constitution: The ideals behind the Preamble to
India’s Constitution were laid down by Jawaharlal Nehru’s Objectives Resolution,
adopted by the Constituent Assembly on January 22, 1947. Although not enforceable
in court, the Preamble states the objectives of the Constitution, and acts as an aid
during the interpretation of Articles when language is found ambiguous.

Components of Preamble: It is indicated by the Preamble that the source of

authority of the Constitution lies with the people of India. Preamble declares India to
be a sovereign, socialist, secular and democratic republic. The objectives stated by
the Preamble are to secure justice, liberty, equality to all citizens and promote
fraternity to maintain unity and integrity of the nation. The date is mentioned in the
preamble when it was adopted i.e. November 26, 1949.

Key words in the Preamble: We, the people of India: It indicates the ultimate
sovereignty of the people of India. Sovereignty means the independent authority of
the State, not being subject to the control of any other State or external power.

Sovereign: The term means that India has its own independent authority and it is not
a dominion of any other external power. In the country, the legislature has the power
to make laws which are subject to certain limitations.

Socialist: The term means the achievement of socialist ends through democratic
means. It holds faith in a mixed economy where both private and public sectors co-
exist side by side.

Secular: The term means that all the religions in India get equal respect, protection
and support from the state. It was incorporated in the Preamble by 42nd
Constitutional Amendment, 1976.

Democratic: The term implies that the Constitution of India has an established form
of Constitution which gets its authority from the will of the people expressed in an
election.
 Republic: The term indicates that the head of the state is elected by the people. In
India, the President of India is the elected head of the state.

2. Article 21 and Public Interest Litigation: 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 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 judgement. Here, the SC said that Articles 19 and 21 are not watertight
compartments. The idea of personal liberty in Article 21 has 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. Read the Maneka Gandhi case in detail in the linked
article.
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 judgments. 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
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 fulfil the rights of such
persons during delivery of mental healthcare and services.”
 This law decriminalises suicide in India.
 The law states, “Notwithstanding anything contained in section 309 of the Indian
Penal Code, any person who attempts to commit suicide shall be presumed, unless
proved otherwise, to have severe stress and shall not be tried and punished under the
said Code”.
Arguments against decriminalising suicide:

1. No person has a complete autonomy with respect to his/her life. He/she has a duty
with respect to his family. In many cases, a person’s suicide could lead to a family
being destitute.
2. Decriminalising suicide might lead to decriminalising the abetment to suicide. The
counterargument to this point is that suicide alone can be decriminalised by having
the necessary amendments or legal provisions to cover abetment to suicide.
Arguments in favour of decriminalising suicide:

1. This is the only case where an attempt to a crime is punishable and not the crime
itself (because a person becomes beyond the reach of law if suicide is complete).
2. Suicide is committed/attempted by people who are depressed and under severe
stress. People who attempt suicide need counselling and medical help, not a jail
warden’s severe authority.
3. Decriminalising an attempt to suicide is different from conferring the ‘right to die’.

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.

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.

 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
recovery, the doctor will set up a hospital medical board after informing the patient
and/or his guardians.

PIL:
Public Interest Litigation (PIL) implies litigation for the protection of public interests. This is
an important concept in law and polity and is often seen in the news. Hence, it acquires
importance for the IAS exam. In this article, you can read all about PILs in India.

What is Public Interest Litigation (PIL)?

Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of
“Public Interest”. Any matter where the interest of the public at large is affected can be
redressed by filing a Public Interest Litigation in a court of law such as Pollution, Terrorism,
Road safety, Construction hazards, etc.

 The expression ‘Public Interest Litigation’ has been borrowed from American
jurisprudence, where it was designed to provide legal representation to previously
unrepresented groups like the poor, racial minorities, unorganized consumers,
citizens who were passionate about environmental issues, etc.
 PIL is not defined in any statute or in any act. It has been interpreted by judges to
consider the intent of the public at large. It is the power given to the public by courts
through judicial activism. Read in detail on the Judicial Activism on the linked page.
However, the person filing the petition must prove to the court’s satisfaction that
the petition is being filed for public interest and not just as a frivolous litigation by a
busy body.
 Some of the matters which are entertained under Public Interest Litigation are
Neglected Children, Bonded Labour matters, Atrocities on Women, Non-payment of
minimum wages to workers, exploitation of casual workers, food
adulteration, Environmental pollution, and disturbance of ecological balance,
Maintenance of heritage and culture, etc.

Public Interest Litigation (PIL) in India

A Public Interest Litigation (PIL) is introduced in a court of law not by the aggrieved party but
by a private party or by the court itself.

 PILs have become a potent tool for enforcing the legal obligation of the executive and
the legislature.
 The chief objective behind PILs is ensuring justice to all and promoting the welfare of
the people.
 It is generally used to safeguard group interests and not individual interests, for
which Fundamental Rights have been provided.
 The Supreme Court of India and the High Courts have the right to issue PILs.
  The concept of PILs stems from the power of judicial review.
 The concept of PILs has diluted the principle of locus standi, which implies that only
the person/party whose rights have been infringed upon can file petitions.
 It has most ideally and commonly been used to challenge the decisions of public
authorities by judicial review, to review the lawfulness of a decision or action, or a
failure to act, by a public body.
 PILs have played an important role in India’s polity. They have been responsible for
some landmark judgements in India such as the banning of instant triple talaq,
opening up the doors of the Sabarimala and the Haji Ali shrines to women, legalised
consensual homosexual relations, legalised passive euthanasia, and so on.

Procedure to File PIL in India

Any Indian citizen or organisation can move the court for a public interest/cause by filing a
petition:

1. In the SC under Article 32

2. In the High Courts under Article 226
The court can treat a letter as a writ petition and take action on it. The court has to be
satisfied that the writ petition complies with the following: the letter is addressed by the
aggrieved person or a public-spirited individual or a social action group for the enforcement
of legal or constitutional rights to any person who, upon poverty or disability, are not able to
approach the court for redress. The court can also take action based on newspaper reports
if it is satisfied with the case.

History of Public Interest Litigation (PIL) in India

In 1979, Kapila Hingorani filed a petition and secured the release of almost 40000
undertrials from Patna’s jails in the famous ‘Hussainara Khatoon’ case. Hingorani was a
lawyer. This case was filed in the SC before a Bench led by Justice P N Bhagwati. Hingorani is
called the ‘Mother of PILs’ as a result of this successful case. The court permitted Hingorani
to pursue a case in which she had no personal locus standi making PILs a permanent fixture
in Indian jurisprudence.

Justice Bhagwati did a lot to ensure that the concept of PILs was enunciated. He did not
insist on the observance of procedural technicalities and even treated ordinary letters from
public-minded individuals as writ petitions. Justice Bhagwati and Justice V R Krishna
Iyer were among the first judges in the country to admit PILs.

ignificance of Public Interest Litigation (PIL) in India

The original purpose of PILs has been to make justice accessible to the poor and the
marginalized.

 It is an important tool to make human rights reach those who have been denied
rights.
 It democratizes access to justice for all. Any citizen/agency who is capable can file
petitions on behalf of those who cannot or do not have the means to do so.
 It helps in judicially monitoring state institutions like prisons, asylums, protective
homes, etc.
 It is an important tool in judicial review.

Criticism of Public Interest Litigation (PIL) in India

Off late, PILs have become a tool for publicity. People file frivolous petitions which result in
the waste of time of the courts. People have used them with a political agenda as well. They
unnecessarily burden the judiciary. Even if the petition is eventually dismissed, the courts
spend time and effort on them before dismissing them.

At present, only judges have the power to dismiss a petition. The Registry of the SC or HC
only ensures that the technical requirements of filing a petition are fulfilled. As a result of
which petitions are admitted to the court irrespective of the merits of the case.

Way Forward with Public Interest Litigation

1. The court should not allow its process to be abused by politicians and others to delay
legitimate administrative action or to gain political objectives.
2. The PIL activists should be responsible and accountable.
3. The court must be careful to see that the petitioner must be acting bona fide and not
for personal gain.
4. In shaping the relief the court must take into account its impact on those public
interests.
5. Since it is an extraordinary remedy available at a cheaper cost to all citizens of the
country, it should not be used by all litigants as a substitute for ordinary ones or as a
means to file frivolous complaints.

3. Freedom of speech and expression (Article 19(1)(a)) Introduction

 Freedom of speech and expression is contained in Article 19(1)(a) of
the Constitution of India, 1950 (COI).
 The essence of free speech is the ability to think and speak freely and to obtain
information from others through publications and public discourse without fear of
retribution, restrictions or repression by the Government.

Article 19(1)(a), COI

  Article 19(1) (a) of the Constitution of India states that all citizens shall have the
right to freedom of speech and expression.
o The philosophy behind this Article lies in the Preamble of the Constitution,
where a solemn resolve is made to secure to all its citizen, liberty of thought
and expression.
 The following aspects are included in Article 19(1)(a):
o Freedom of Press
o Freedom of Commercial Speech
o Right to Broadcast
o Right to Information
o Right to Criticize
o Right to expression beyond national boundaries
o Right not to speak or right to silence
Essential Elements of Article 19(1)(a), COI
 This right is available only to a citizen of India and not to foreign nationals.
 It includes the right to express one’s views and opinions at any issue through any
medium, e.g. by words of mouth, writing, printing, picture, film, movie etc.
 This right is, however, not absolute and it allows Government to frame laws to
impose reasonable restrictions.

Article 19(2), COI

 The exercise of this right is, however, subject to reasonable restrictions for certain
purposes imposed under Article 19(2).
 The Article 19 (2) states that nothing in sub clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right conferred by
the said sub clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offence.
Significance of Article 19 (1)(a), COI
 Societal good: Liberty to express opinions and ideas without hindrance, and
especially without fear of punishment plays a significant role in the development of a
particular society.
 Self-development: Free speech is an integral aspect of each individual’s right to self-
development and fulfilment. Restrictions inhibit our personality and its growth.
 Democratic value: Freedom of speech is the bulwark of democratic Government.
This freedom is essential for the proper functioning of the democratic process as it
allows people to criticize the government in a democracy, freedom of speech and
expression open up channels of free discussion of issues.
 Ensure pluralism: Freedom of Speech reflects and reinforces pluralism, ensuring that
diversity is validated and promotes the self-esteem of those who follow a particular
lifestyle.

Case Laws
 In Romesh Thappar v. State of Madras (1950): The Supreme Court (SC) observed
that freedom of the press lays at the foundation of all democratic organizations.
  In Abbas v. Union of India (1970): The SC made it clear that censorship of films
including pre-censorship was constitutionally valid in India as it was a reasonable
restriction imposed on Article 19(1)(a) of the COI.
 In Bennett Coleman and Co. v. Union of India (1972): The SC struck down the
validity of the Newsprint Control Order, which fixed the maximum number of pages,
holding it to be violative of provision of Article 19(1)(a) and not to be reasonable
restriction under Article 19(2) of the COI.
 In Maneka Gandhi vs Union of India (1978): The SC held that the freedom of speech
and expression is not confined to National boundaries.
 In Indian Express v. Union of India (1985): The SC held that the Press plays a very
significant role in the democratic machinery. The courts have a duty to uphold the
freedom of press and invalidate all laws and administrative actions that abridge
that freedom.
 In Bijoe Emmanuel v. State of Kerala (1986): The SC held that the right to speak
includes the right to be silent or to utter no words.
 In Union of India v. Assn. for Democratic Reforms (2002): The SC held that one-sided
information, disinformation, misinformation and noninformation, all equally create
an uninformed citizenry which makes democracy a farce. Freedom of speech and
expression includes the right to impart and receive information which includes
freedom to hold opinions.

4. Article 32: Right to Constitutional remedies: 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 conflict with the Fundamental Rights.

Fundamental rights are the rights that grant individuals equality in every aspect irrespective
of race, colour, caste, religion, birthplace, or gender. These rights are mentioned under
Articles 12 to 35 of the Indian Constitution. There are pre-defined punishments in case of
violation of these rights at the discretion of the judiciary.

What is a Writ?

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

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 the High Courts of Judicature of all
Indian states. Parts of the law relating to writs are outlined 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:

 Habeas Corpus
 Certiorari
 Prohibition
 Mandamus
 Quo Warranto

Habeas Corpus

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

Certiorari

The writ of certiorari is issued to a lower court directing the transfer of a case for review,
usually to overrule the judgment of the lower court. The Supreme Court issues the writ of
Certiorari in case the decision passed by the lower court is challenged by the party. It is
issued in case the higher court finds it a matter of overjurisdiction 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.

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.

To know more about the types of writs in India, refer to the linked article.

Suspension of Fundamental Rights

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

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

Status of Writs in Other Countries

1. The writs other than habeas corpus are discretionary remedies and have been known
as prerogative orders in England and Wales since 1938.
The writs of quo warranto and procedendo are now obsolete. The modified names of
certiorari, mandamus, and prohibition are mentioned under the new Civil Procedure Rules
1998 known as quashing orders, mandatory orders, and prohibiting orders respectively.

1. Mandamus has been replaced by injunction in the United States district courts.
2. The Supreme Court of the United States grants certiorari while the Supreme Court of
other states grant review.