Constitution of India 2022 Article 21

ARTICLE 21
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.
Available to all people (not just citizens)
2 Most important questions in this article are
1. What do we include in ‘life and personal liberty’
2. What is ‘procedure established by law’

Let’s start with ‘procedure established by law’

Difference between ‘due process of law’ and ‘procedure established by law’

Due Process of Law
• American constitution follows due process of law.
• Checks whether any law in question is fair and not arbitrary.
• Gives wide scope to the Court to grant protection to the rights of its
citizens.
• Under due process, it is the legal requirement that the state must
respect all of the legal rights that are owed to a person and laws that
states enact must conform to the laws of the land

Procedure established by law

• It means that a law that is duly enacted by the legislature or the body
in question is valid if the procedure to establish it has been correctly
followed.
• A rigid and inflexible following of the procedure established by law
may raise the risk of compromise to life and personal liberty of
individuals due to unjust laws made by the law-making authorities,
which happened in the case of AK Gopalan v. State of Madras (1950)

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Constitution of India 2022 Article 21

AK Gopalan v. State of Madras (1950)

AK Gopalan was a communist leader who was detained under
Preventive Detention Act, 1950, he challenged his detention on the
ground that his civil liberty was being hampered, Supreme court held
that he was detained according to the procedure established by law.

At the time of this case Supreme Court only provided remedy against
arbitrary action of the executive, as long as the law was made by
‘procedure established by law’ it was a valid law. This was a very narrow
view taken by Supreme Court but this was changed by the next case of
Maneka Gandhi

Maneka Gandhi v. Union of India (1978)

Passport of Maneka Gandhi was impounded under Section 10(3)(c) of
Passport Act, 1967, She was not given any reasons for the impounding.
Without passport one cant travel outside of India, So Maneka Gandhi
filled a writ petition under Article 32 for violating of her personal liberty
under Article 21.

The 7 judge bench of Supreme Court invoked not just Article 21 but also
Article 19 and Article 14, Court was of the opinion that Article 19 and
Article 21 go hand-in-hand and the procedure established by law
restricting these rights should stand the scrutiny of other provisions of
the Constitution as well – including Article 14. This is the reason that we
call article 14,19 and 21 as the ‘golden triangle’ of Indian Constitution

Supreme Court over ruled A.K. Gopalan case and ruled that a law should
be ‘Just, fair and reasonable’ and Article 21 can be invoked against
arbitrary executive as well as arbitrary legislative action if the action is
not ‘just, fair and reasonable’. This was a landmark decision which
widened the scope of Article 21 considerably.

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Constitution of India 2022 Article 21

Now we will see the various facets of ‘life and liberty’ Added to
Article 21 by the Judiciary

Right to live with human dignity

In Occupational Health and Safety Association v. Union of India (2014),
the protection of health and strength of workers and their access to just and
humane conditions of work were taken as essential conditions to live with
human dignity.

Navtej Singh Johar v. Union of India (2019) – Section 377 was held
unconstitutional insofar as it criminalizes homosexual acts between
consenting adults, Human dignity is an important consideration of this
judgement because human dignity is not a straightjacket idea. Rather, it
involves all those rights and freedoms which enable a person to live life
without encroachment upon his or her self-respect, pride and safety.

Joseph Shine v. Union of India (2019) – Section 497 of IPC held

unconstitutional on the grounds that it violated women’s right to dignity and
hence it infringed Article 21 (Offence of Adultery Unconstitutional)

National Legal Service Authority v. Union of India (2014) - Right to self-

determination of Gender is fundamental right

Right to livelihood
Olga Tellis v. Bombay Municipal Corporation (1986) - This case was regarding
forcible evictions of slum dwellers. The court concluded that the government
was justified in evicting them as they were making use of the public property
for private purposes.
However, they should not be considered as trespassers as they occupied the
filthy places out of sheer helplessness. It was ordered that any evictions would
take place only after the approaching monsoon season and the persons who
were censused before 1976 would be entitled to resettlement. Though the
case failed to bring successful resettlement to the dwellers and, in fact, is
sometimes cited as justification for eviction of people by the State, it did play
its part in establishing the Right to Livelihood as part of the Fundamental Right
to Life.

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Constitution of India 2022 Article 21

Right to Die - Section 309 of the Indian Penal Code, 1860 criminalises attempt to
suicide, with the convicted person facing up to two years of imprisonment, or a fine,
or both.
P.Rathinam v. Union of India (1994) - Keeping Article 21 as well as the
principles of natural justice in mind, the two-judge bench ruled that Right to
Life also included the right to not live a forced life. Therefore, Section 309 of
the Indian Penal Code was declared void.

Gian Kaur v. State of Punjab (1996) – P. Rathinam over ruled, the court
concluded that suicide being an unnatural termination of life, it was against the
concept of Right to Life.

Aruna Ramchandra Shanbaugh v. Union of India (2011) - Court held that

passive euthanasia can be allowed in certain cases

Common Cause (A Reg. Society) v. Union of India (2015) - A Constitution

Bench decided that the right to life with dignity under Article 21 includes a
right to die with dignity.

Right to Privacy
People’s Union for Civil Liberties v. Union of India (1997) - Telephone tapping
is a violation of fundamental rights, unless reasonable grounds are there.

Mr. X. vs. Hospital Z (1998) - A doctor made a disclosure to the fiance of a

person suffering from HIV about his condition. The court held that when two
fundamental rights, namely the right to privacy and that of life clashes the
right which would advance the public morality or public interest would alone
be enforced through the process of Court.

Surjit Singh Thind v. Kanwaljit Kaur (2003)- Allowing the medical examination
of a woman’s virginity violates her right to privacy under Article 21.

Justice K.S. Puttaswamy (Rtd.) and Anr. V. Union of India (Aadhar Judgement)
(2019) - Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits
and Services) Act, 2016 was held to be constitutional, but some individual
sections violating Fundamental rights were struck down.

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Constitution of India 2022 Article 21

Right to Sleep - Ramlila Maidan v. Home Secretary, Union of India (2012) –

Yoga training camp was to be held in Ramlila Maidan during June, 2011 but on
4th June it turned into a hunger strike against black money and corruption led
by Baba Ramdev. The protests took place all day and at 12:30 at night, when all
the protestors were sleeping, a large number of CRPF, Delhi Police force and
Rapid Action Force personnel reached the venue to bring the sadhu out. A
scuffle ensued between the personnel and the sadhu’s supporters which
ended in throwing teargas shells on the people. Court held that every person is
entitled to sleep as comfortably and freely as he breathes. If any person’s sleep
is disturbed without any reasonable justification, it amounts to torture and is a
violation of his human rights.

Right to Health and Medical Assistance

Parmanand Katara v. Union of India (1989) – Supreme Court held that all
doctors (private or government) are obliged to extend medical assistance to
injured immediately without asking for legal formalities

Right to Education
Mohini Jain v. State of Karnataka(1992) – Right to education at all levels was
held to be a fundamental right
Unni Krishnan v. State of A.P (1993). – Supreme Court held that right to
education is a F.R. flowing from article 21 but right to free education is
available to the children until they complete the age of 14 years, after that the
obligation of State to provide education is subject to economic capacity and
development.

Right to Clean Environment

Rural Litigation and Entitlement Kendra v. State of U.P.(1985)
M.C. Mehta v. Union of India (Shriram Food Fertilizer case) (1986)
Indian Council for Enviro-Legal Action v. Union of India (1996)
Vellore Citizen’s Welfare Forum v. Union of India (1996)

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Constitution of India 2022 Article 21

Non-Payment of minimum wages violation of Article 21

– PUDR v. Union of India (1982)

Hanging by rope not violative of article 21

- Deena v. Union of India(1983)

Public Hanging is violative of article 21

- Attorney General of India v. Lachma Devi(1986)

Right to Compensation for violation of Fundamental Right was given

- Khatri v State of Bihar (Bhagalpur blinding case) (1981)
- Rudul Shah v. State of Bihar (1983)

Bonded Labour is unconstitutional

– Neerja Chaudhary v. State of M.P. (1984)

Right to shelter is under Right to life in Article 21

- Chameli Singh v. State of U.P. (1996)

Reproductive choices (decision to produce child or not) within the ambit

of Article 21
– Suchita Srivastava v. Chandigarh Administration (2010)

Right to free legal aid is fundamental right

- M.H. Hoskot v. State of Maharashtra (1978)

Right to speedy trial is a fundamental right

- Hussainara Khatoon v. State of Bihar (1979)

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 Constitution of India 2022 Article 21

Right against handcuffing, handcuffing should only be resorted to in case

there is clear and present danger of escape.
- Prem Shankar v. Delhi Administration (1980)

Using Third degree violative of article 21

- Kishore Singh v. State of Rajasthan (1981)

Right against Illegal Detention

- D.K. Basu v. State of West Bengal (1996)

Delay in execution of death sentence is violation of Article 21

- T.N Vatheeswaran v. State of Tamil Nadu (1981)

Ban on smoking in public places

- Murli S Deora v. Union of India (2002)

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Constitution of India 2022 Article 21A

ARTICLE 21-A
Right to Education
Article 21A. Right to education. —The State shall provide free and compulsory
education to all children of the age of six to fourteen years in such manner as the
State may, by law, determine.

86th Amendment, 2002

Article 21A added to constitution
Other changes made by 86th Amendment, 2002
Article 51-A(k) was added in the fundamental duties which says:
“(k) who is a parent or guardian to provide opportunities for education
to his child or, as the case may be, ward between the age of six and
fourteen years.”
Article 45 of DPSP was amended.

“State shall endeavour to provide early childhood care and education for
all children until they complete the age of six years”

Before amendment it talked about free and compulsory education to all

children until they complete 14 years of age.

Important cases

Mohini Jain v. State of Karnataka (1992)

The Court in the absence of any Constitutional Provision for the Right to
Education held that ‘right to life and personal liberty’ under Article 21
includes ‘Right to Education’ as education is required for the overall
development of personality without which one would not be able to
enjoy one’s right to life. The purpose of the right to life is baseless
without the Right to Education.

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Constitution of India 2022 Article 21A

Unni Krishnan v. State of A.P (1993).

Narrowed down the approach taken by Mohini Jain case, Supreme Court
held that right to education is a Fundamental right flowing from article
21 but right to free education is available to the children until they
complete the age of 14 years, after that, the obligation of State to
provide education is subject to economic capacity and development.

RTE Act, 2009

Came into force - 1st April 2010
Right of Children to Free and Compulsory Education Act, 2009 also known as Right to
Education Act, 2009 in short, provides for:
• Free and compulsory full-time Elementary Education to a child who is below 14
years of age.
• A child’s admission to an appropriate class depending on his/her age, if a child
has never been admitted to any school. For keeping the child at par with other
students, it also provides for special training.
• Duty and Responsibility of the Government, local authority and Parents for
providing Free and Compulsory Education to a child.
• Norms and Standards for the school consisting capacity of children, pupil-
teacher ratios, teaching hours.
• Prohibition on physical punishment, mental harassment, screening procedure
for qualifying the admission, any kind of fees, private tuition by the teachers
and running unrecognised schools.

National Education Policy (NEP) 2020

Some key highlights:
• New Curricular and Pedagogical Structure.
• Aims for universalization of education from pre-school to secondary level
with 100 % Gross Enrolment Ratio (GER) in school education by 2030.
• A new and comprehensive National Curriculum Framework for Teacher
Education, NCFTE 2021, will be formulated by the NCTE in consultation with
NCERT.

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 Constitution of India 2022 Article 21A

• Higher Education Commission of India (HECI) will be set up as a single

overarching umbrella body for entire higher education, excluding medical
and legal education. HECI to have four independent verticals – National
Higher Education Regulatory Council (NHERC) for regulation, General
Education Council (GEC ) for standard-setting, Higher Education Grants
Council (HEGC) for funding, and National Accreditation Council( NAC) for
accreditation.
• An autonomous body, the National Educational Technology Forum (NETF),
will be created to provide a platform for the free exchange of ideas on the
use of technology to enhance learning, assessment, planning,
administration.

This is all proposed to be done, let’s see how it is implemented

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Constitution of India 2022 Article 22

ARTICLE 22
Article 22. Protection against arrest and detention in certain cases.
(1) No person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest nor shall he
be denied the right to consult, and to be defended by, a legal
practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within n a period of twenty-four
hours of such arrest excluding the time n necessary for the journey from
the place e of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without the
authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply—
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law
providing for preventive detention.
(4) No law providing for preventive detention shall authorise the
detention of a person for a longer period than three months unless an
advisory board consisting of persons qualified for being a judge of high
court has approved it
(5) grounds of such detention are provided to the detained person with
an opportunity of representation against the order
(6) Facts which are against the public interest would not be disclosed
under sub clause (5)
(7) Parliament may prescribe the circumstances under which a person
may be detained for longer than three months without permission of
advisory board, the maximum period of detention under such law, the
procedure to be followed by the advisory board in an inquiry order

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Constitution of India 2022 Article 22

The most commonly asked questions in this topic are :

1. In which Article right to be informed about grounds of arrest and right to a
lawyer have been provided
Ans. Article 22(1)
2. In which Article right to be produced before a magistrate within a period of
twenty-four hours is given.
Ans. Article 22(2)

Article 22 grants protection to persons who are arrested or detained. Detention is of

two types, namely, punitive and preventive.
In Francis Coralie Mullin v. The Administrator, Union (1981) the difference between
Preventive and punitive detention was discussed.
• Punitive detention is to punish a person for an offence committed by
him after trial and conviction in court.
• Preventive detention means detention of a person without trial and
conviction by a court. Its purpose is not to punish a person for a past
offence but to prevent him from committing an offence in the near
future.

So preventive detention is only a precautionary measure and based on suspicion.

Our constitution recognises Preventive detention but also provides safeguards for it
in Articles 21 and 22.

In the A K Gopalan v. State of Madras case of 1950, the Supreme Court, taking a
narrow view of Article 21 and 22, refused to consider if the procedure established by
law suffered from any deficiencies but later In 1978 in Maneka Gandhi v. Union Of
India, the court widened the scope of the expression ‘personal liberty’ considerably
and interpreted it in its widest amplitude.

In D.K. Basu v. State of West Bengal (1996) 11 guidelines were given regarding arrest
and detention.

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 Constitution of India 2022 Article 22

In Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar (1979) the courts
observed that a large number of people were arrested awaiting their trial in a court
of law. The arrests were made irrespective of the charge and its graveness. The
accused were under arrest, deprived of their freedom even before the
commencement of their trial and the charge actually being proved which stands
unreasonable. The Supreme Court showing concern over the matter interpreted that
speedy trial is a constitutional right although it is nowhere explicitly mentioned.

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Constitution of India 2022 Article 23-24

ARTICLE 23-24
Right against Exploitation (Article 23 and Article 24)
Article 23. Prohibition of traffic in human beings and forced labour. —
(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 law.
(2) Nothing in this article shall prevent the State from imposing compulsory
service for public purposes,
and in imposing such service the State shall not make any discrimination on
grounds only of religion, race,
caste or class or any of them.

23(1) prohibits the trafficking of human beings, begar or any similar Begar: compulsory
form of forced labour labour, usually
without payment;
23(2) provides an exception by giving the State power to impose slave labour
compulsory service for public purposes (like joining army in situation
of war) but the only condition is that there shouldn’t be any
discrimination in such compulsory service on grounds of religion, race, caste or class.

PUDR v. Union of India, (Asiad Construction Workers case) (1982)

In the case issues like labourers not given the minimum remuneration as
mentioned in the minimum wages act, 1948 and unequal income
distribution among men and women were highlighted.

The Supreme Court interpreted the scope of article 23 in the case. The
Court held that the word force within this article has a very wide
meaning. It includes physical force, legal force and other economic
factors which force a person to provide labour at a wage less than the
minimum wage.

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Constitution of India 2022 Article 23-24

Deena v. Union of India (1983)

Labour taken from prisoners without proper renumeration is forced

labour under Article 23

Sanjit Roy v. State of Rajasthan (1983)

Rajasthan Famine Relief Works Employees (Exemption from Labour

Laws) Act, 1964 allowed people to be employed for less than the
minimum wage because it was providing relief from drought conditions
prevailing in the area. Court said, drought or no drought, minimum wage
is fundamental right and the concerned act allowing less than minimum
wage is unconstitutional.

Bandhua Mukti Morcha v. Union of India (1984)

A letter containing observations based on a survey conducted of some

stone quarries in the Faridabad district where it was found that these
contained a large number of workers working in “inhuman and
intolerable conditions” was treated as a PIL and court laid down
guidelines for determination of bonded labourers and also imposed duty
on state government to identify, release and rehabilitate the bonded
labourers.

Article 24. Prohibition of employment of children in factories, etc.—

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

PUDR V. Union of India (Asiad Construction Workers case) (1982)

Same case as above, it was observed that children under the age of
fourteen had also been employed. It was however contended that such
employment was not against the Employment of Children Act,
1938 since the act did not list the construction industry as a hazardous
industry. Supreme court ruled that construction work is hazardous work
and children below 14 years must not be employed in such work even
though it has not been mentioned explicitly in Employment of Children
Act, 1938

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 Constitution of India 2022 Article 23-24

M.C. Mehta v. State of Tamil Nadu (1996)

Sivakasi (traditional centre for manufacturing firecrackers and

matchboxes) was considered as a big offender who was employing many
child labourers.

The Court ruled that this industry qualified as a hazardous industry.

Thus, employing children under the age of 14 years in this industry is
prohibited.

A fine of Rs. 20000 for employing children in contravention to Child

Labour (Prohibition and Regulation) Act, 1986 was also charged.

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Constitution of India 2022 Article 25-28

ARTICLE 25-28
Freedom of Religion

S. R. Bommai v. Union of India (1994)

- 9 Judge Bench, held secularism as part of basic structure of the Constitution

All the following rights mentioned are available to Citizens as well as non-citizens.
Article 25: Freedom of conscience and free profession, practice and propagation of religion.
Article 26: Freedom to manage religious affairs.
Article 27: Freedom as to payment of taxes for promotion of any particular religion.
Article 28: Freedom as to attendance at religious instruction or religious worship in certain
educational institutions.

Article 25. Freedom of conscience and free profession, practice and

propagation of religion.
(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise
and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State
from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity
which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
Explanation I.— Wearing and carrying of kirpans is included in the Sikh Religion
Explanation II.—In Article 25 (2)(b), the reference to Hindus shall be construed as including
a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to
Hindu religious institutions shall be construed accordingly

Secular word is used twice in the Constitution, once in the preamble and the 2nd time in 25(2)(a)
Article 25 only protects those practices which are integral parts of a religion.

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Constitution of India 2022 Article 25-28

Bijoe Emmanuel v. State of Kerala (national anthem case) (1986)

Facts: Issue was that three school children belonging to a sect (Jehovah’s
witness) worshipped only Jehovah (the creator) and refused to sing the
national anthem “Jana Gana Mana” because singing Jana Gana Mana was
against the tenets of their religious faith which did not allow them to sing the
national anthem. These children stood up respectfully in silence daily for the
national anthem but refused to sing because of their honest belief. The
headmistress of the school under the instruction of the Dy. Inspector of
Schools expelled the students.

The Supreme Court held that the action of the headmistress as violative of
their freedom of religion. The fundamental rights guaranteed under Article
19(1)(a) and Article 25(1) was held as infringed. Court further held that there is
no provision of law which compels or obligates anyone to sing the national
anthem, it is also not disrespectful if a person respectfully stands but does not
sing the national anthem.

Ramesh v. Union of India, (1988)

Facts: The serial ‘Tamas’ was based upon a book that already screened four
episodes that portray the communal violence between Hindu-Muslim and Sikh-
Muslim and the tension, killing and looting that took place. A writ petition was
filed under Article 32 of the Constitution for the issuance of the writ of
prohibition or other appropriate writ or order restraining the further screening
of the serial ‘Tamas’ and enforcing the fundamental rights of the petitioner
under Article 21 and Article 25 and to declare the screening of Tamas as
violative of Section 5B of the Cinematograph Act, 1952.

Decision: The Court while dismissing the petition held that there is no violation
of Article 21 and 25 and the respondent has not acted improperly. The author
tries to bring attention to the past history of our country and to emphasize the
wish of the people to live in harmony and rise above religious barriers. It
further held that when the serial is viewed in its entirety it creates an
impression of peace and co-existence and that the people are not likely to be
carried away by the violence shown in it.

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Constitution of India 2022 Article 25-28

Article 26. Freedom to manage religious affairs. —Subject to public order,

morality and health, every religious denomination or any section thereof shall have
the right—
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; &
(d) to administer such property in accordance with law

SP Mittal v. Union of India (1982)

The Supreme court laid down three conditions that need to be fulfilled by a
religious denomination:

1. Collection of Individuals having a common faith.

2. A common organization.
3. Designation by a distinctive name.

Examples of Denominations: Shaivism, Shaktism, Vaishnavism in

Hinduism, Shia and Sunni in Islam

Aruna Roy v. Union of India (2002)

The Court made a distinction between religious instruction and religious

education or study of religion. It said the latter was permissible, and
indeed desirable, while the former was banned. In India the meaning of
Secularism is positive i.e. Developing understanding and respect towards
different religions.

Article 27. Freedom as to payment of taxes for promotion of any

particular religion.
No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular
religion or religious denomination.

Article 27 basically says you cannot take taxes from people for promotion or
maintenance of a religion or religious denomination (if someone willingly gives then
it is allowed)
Fee can be charged for administration (ex. Ticket for entering a temple, mosque etc)

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 Constitution of India 2022 Article 25-28

Article 28. Freedom as to attendance at religious instruction or religious

worship in certain educational institutions.
(1) No religious instruction shall be provided in any educational institution wholly
maintained out of State funds.

Clause (1) talks about educational institution wholly maintained by State

funds
In these Institutions no religious instruction allowed

(2) Nothing in clause (1) shall apply to an educational institution which is administered by
the State but has been established under any endowment or trust which requires that
religious instruction shall be imparted in such institution.

Clause (2) talks about educational institution administered by State but

established under any religious endowment or trust
In these Institutions religious instructions are allowed but such religious
instruction should not be against morality, public order, national
security, national Unity, National Integrity or sovereignty of the state

(3) No person attending any educational institution recognised by the State or receiving aid
out of State funds shall be required to take part in any religious instruction that may be
imparted in such institution or to attend any religious worship that may be conducted in
such institution or in any premises attached thereto unless such person or, if such person is
a minor, his guardian has given his consent thereto.

Clause (3) talks about educational institution recognised by state and

secondly an educational institution getting aid by the state (partial aid)
In these institutions you can give religious instruction but such
instructions should not be compulsory.

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Constitution of India 2022 Article 29-30

ARTICLE 29-30
Article 29. Protection of Interests of Minorities.
(1) Any section of the citizens residing in the territory of India or any part thereof having a
distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race, caste, language or
any of them.

Applicable not only for Minorities, Majorities also have the rights under Article 29.
Two Rights provided:
- To conserve your distinct language, script or culture
- To not be denied admission into state run or state aided educational
institution on basis of religion, race, caste or language.

Article 30. Right of Minorities to establish and administer educational

institutions.
(1) All minorities, whether based on religion or language, shall have the right to establish
and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause (1),
the State shall ensure that the amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict or abrogate the right guaranteed
under that clause.
(2) The State shall not, in 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.

Applicable Only to Minorities (Religious and Linguistic)

Two Rights provided:
- To establish and administer educational institutions of their choice.
- To not be discriminated against any educational institution on basis of it
being managed by a ‘religious or linguistic minority’.

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Constitution of India 2022 Article 29-30

In Re Kerala Educational Bill (1958)

Facts: The Education Bill under its clause 3(5), sought to regulate the
management of educational institutions that 'any new school or any higher
class opened in any private school that did not live up to the standards of
government regulation would not be recognized by the Government’.

Issues:
1. Whether giving such power to the government would be violative of Art
30 as minority communities had the right to manage and establish their
own institutions.
2. While, minority communities had the right to administer, do they have
the right to mal-administer?

Held: Minority groups did not have the right to mal-administer. Reasonable
regulations may certainly be imposed by the state as a condition for aid or
even for recognition.

It was held that the State can impose legislation on educational institutions
only if such restrictions are not detrimental to the “character of the
minority institution”.

Sidhajbhai Sabhai and Ors. v State of Gujarat (1963)

Facts: The petitioners (Sidhajbhai) were members of a Christian society that
has established many educational institutions, including a training school for
teachers. They filed this petition against the government order that 80% of
teaching seats in non- government training schools would be reserved for
candidates chosen by the government.

Issue: Is the Government order violative of Article 30 of the Constitution?

Held: The court declared the rules of the Bombay Government for reservation
as violative of Article 30(1). The court said that Article 30 can't be subjected to
Restrictions unless it satisfies a dual test the test of reasonableness,

1. The restriction should be regulatory

2. The regulation should be for making the institution an effective vehicle
of education for the minority community or other people who resort to
it.

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Constitution of India 2022 Article 29-30

Ahmedabad St. Xavier’s College V State of Gujarat (1974)

Facts: St. Xavier's College, Ahmedabad was running with the objective to
provide higher education to Christian students but students of all other classes
and creeds were also admitted there. The college was affiliated under Gujrat
University Act, 1949 which under its sections 33A, 40, 41, 51A & 53A gave
arbitrary powers to the Vice chancellor in the name of regulatory measures
and also gave powers for appointment of the teachers and inter-disciplinary
actions of the institution.

Issue: Whether the minorities under Article 30 have the right to establish and
administer an Educational Institute to impart Secular and general education?

Held: Section 33A, 49, 41, 51A, 53A of the Act cannot apply to the Minority
Institutions as they provide arbitrary powers to the VC and is in derogation to
the Article 30. The Supreme Court has pointed out that the spirit behind article
30, is that minorities, whether religious or linguistic, are not prohibited from
establishing and administering educational institutions of their choice.

The court also said that this freedom is not absolute. Certain check and
balances will always be there in form of regulatory measurers but minority
institutions should have autonomy in their operation.

S.P. Mittal v. Union of India (1982)

Facts: There was a township called Auroville (based on the vision of Sri
Aurobindo). Later after the death of the founder, the government of Tamil
Nadu took management in their own hands and filed a presidential ordinance
which later on became The Auroville (Emergency Provisions) Act, 1980.

Issue: Seeing that the government took control of a ‘religious’ enterprise, the
Constitutional validity of the Act was challenged on 4 grounds. One of the
grounds was that it was violative of Article 29 and 30.

Decision: In order to seek protection under Article 30, one must prove that
they are a linguistic or religious minority. Considering that Auroville was
neither of those, they could not seek protection under these articles.

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Constitution of India 2022 Article 29-30

T.MA. Pai Foundation v State of Karnataka (2003)

Questions and answers about Minorities and their Institutions:

Q. How the minorities whether it is religious or linguistic will be decided- on

the basis of the state or the whole country?
A. It shall be the duty of the State to declare their minorities within
their jurisdiction.
Q. Whether the government’s regulations on the minority aided or unaided
institutions are violative of Article 30 or not?
A. It is not necessary if state aids or doesn't aid a minority institution,
for the betterment and excellence of the institution, it CAN
prescribe regulations and it shall not be violative to Article 30.
Q. To what extent the government can impose restrictions on the
administration of minority aided and unaided institutions?
A. Govt. can't interfere in day-to-day administration of the
institutions and the regulations it is imposing should be Reasonable
and Just.

Islamic Academy of Education v State of Karnataka (2003)

Dealt with the loopholes of TMA Pai Foundation Case specifically in regards to
Autonomy of Minority Educational institutions and Reservation of seats in them.

Unaided institutions are entitled to Autonomous Status

On reservation: Unaided institutions can reserve a certain number of

seats for MERIT-based entrance examination for including
underprivileged students. The percentage of seats should be fixed
according to need. Different percentage can be fixed for minority and
non-minority students BUT keeping in mind the principle of merit.
On Fees structure: Unaided Educational Institutions can decide their
own fee-structure and admission process. But a committee will be established
headed by a retired high court judge which will approve the fee
structure.
Lastly, Bench said that Right to administer non-minority institutions shall
be considered as a part under Article 19 and Rights of Minorities to
establish and administer shall be governed under Article 30 respectively.

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 Constitution of India 2022 Article 29-30

P.A. Inamdar v State of Maharashtra (2005)

For Reservations in Institutions imparting professional education (whether
minority or non-minority) the court said:

“Professional education should be made accessible on the criterion of

merit and on non-exploitative terms to all eligible students on a uniform
basis. Minorities or non-minorities, in exercise of their educational rights
in the field of professional education have an obligation and a duty to
maintain requisite standards of professional education by giving
admissions based on merit and making education equally accessible to
eligible students through a fair and transparent admission procedure
and on a reasonable fee-structure”

For Fee Structure court said:

To set up a reasonable fee structure is also a component of "the right to

establish and administer an institution" within the meaning of Article
30(1) of the Constitution, as per the law declared in Pai Foundation.
Every institution is free to devise its own fee structure subject to the
limitation that there can be no profiteering and no capitation fee can be
charged directly or indirectly, or in any form
The Right of Children to free and Compulsory Education Act, 2009 defines capitation
fee in S. 2(b) as follows:
“Capitation fee means any kind of donation or contribution or payment other than
the fee notified by the school.”

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Constitution of India 2022 Article 32

ARTICLE 32
Right to Constitutional Remedies

"If I was asked to name any particular article in this Constitution as the most
important, an article without which this Constitution would be a nullity, I could not
refer to any other article except this one (Article 32). It is the very soul of the
Constitution and the very heart of it.”
- Dr. B.R. Ambedkar

ARTICLE 32. Remedies for enforcement of rights conferred by this Part. —

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs.
including writs in the nature of habeas corpus, mandamus, prohibition, quo
waranto and certiorari. whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by

clauses (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.

Clause(1) gives the right to move to the Supreme court for enforcement of the rights
conferred by Part III (Fundamental Rights) of the constitution.

Clause (2) gives power to Supreme court to issues directions, orders or writs for the
enforcement of any of the fundamental rights.

YG LAW 1
Constitution of India 2022 Article 32

Difference between writ jurisdiction of Supreme court (32) and High Court (226)

Remedy under Article 32 is in itself a fundamental right so SC cannot refuse to

exercise writ jurisdiction, it has to consider the petition but remedy under
Article 226 is discretionary.

SC can issue writs only for the enforcement of fundamental rights but HC can
issue writs for enforcement of FR’s and also for any other purpose.

Supreme court can issue writs against a person or

government throughout the territory of India. High Supreme Court is
court can only issue writs against a person residing or called the Guaranteer
against a government or authority within its territorial and Defender of
jurisdiction or if the cause of action arises within its Fundamental Rights
territorial jurisdiction.

Writs and what they do:

1) HABEAUS CORPUS
Means "Let us have the body" A person, when arrested, can move the
Court for the issue of Habeas Corpus. Court will then order to produce
the arrested person before it so that it may examine whether the
person has been detained lawfully or not. If the Court is convinced that
the person is illegally detained, it can issue orders for his release. This
writ can be issued against public authority and also against individual.

This writ cannot be issued in the cases where:

(a) Detention is lawful

(b) Detained in contempt of court or legislature

(c) Detention is by a competent court,

(d) Outside the territorial jurisdiction of court

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Constitution of India 2022 Article 32

An individual can get compensation from the state against the arbitrary detention.
Rudul Sah v. State of Bihar (1983)
Petition prayed for compensation for his illegal detention in jail for about 14 years.
Before petition was taken up for hearing, petitioner was released from jail and thus
the petition had become infructuous. SC awarded ₹30,000 compensation.

Sebastian v. Union of India (1984)

SC issued a writ of habeas corpus directing Government of India to produce two
persons who were arrested and kept under army custody. Govt. failed to produce
them expressing its inability to comply with the writ. Court made inference an
unnatural death. Keeping in view the torture, agony and mental oppression through
which the wives of those persons had to pass, SC directed Govt to pay ₹ 1 lakh to
each of the wives as a measure of exemplary costs.

ADM Jabalpur v. Shivkant Shukla (1984) decided that during a National Emergency, the right
to life of a person cannot be enforced by a High Court under Article 226 of the Constitution of India.
Only Justice Khanna had a dissenting opinion in this case who did not agree with the majority.

Justice KS Puttaswamy v. UoI (2017) over ruled ADM Jabalpur and elaborated upon Right to
Life and Liberty as following:
“The judgments rendered by all the four judges constituting the majority in Additional
District Magistrate, Jabalpur are seriously flawed. Life and personal liberty are inalienable to
human existence. These rights are, as recognised in Kesavananda Bharati as primordial
(Ancient) rights. They constitute rights under natural law.
The right to life has existed even before the advent of the Constitution. In recognising the
right, the Constitution does not become the sole repository of the right. It would be
preposterous to suggest that a democratic Constitution without a Bill of Rights would leave
individuals governed by the State without either the existence of the right to live or the
means of enforcement of the right. The right to life being inalienable to each individual, it
existed prior to the Constitution and continued in force under Article of the Constitution.
The human element in the life of the individual is integrally founded on the sanctity of life.
Justice Khanna was clearly right in holding that the recognition of the right to life and
personal liberty under the Constitution does not denude the existence of that right, apart
from it nor can there be a fatuous assumption that in adopting the Constitution the people
of India surrendered the most precious aspect of the human persona, namely, life, liberty
and freedom to the State on whose mercy these rights would depend. Such a construct is
contrary to the basic foundation of the rule of law which imposes restraints upon the
powers vested in the modern state when it deals with the liberties of the individual.”

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Constitution of India 2022 Article 32

2) MANDAMUS
Means "We Command"
Mandamus is an order from a superior court to a lower court, tribunal
or public authority to perform an act, which falls within its duty.
Simply, it is a writ issued to a public official to do a thing which is a part
of his official duty, but, which, he has failed to do, so far.
This writ cannot be claimed as a matter of right. It is the discretionary
power of a court to issue such writs.

3) QUO WARRANTO
Means "by what warrants?” or "by what authority”

It is a writ issued with a view to restraining a person from acting in a

public office to which he is not entitled. The writ of quo warranto is
used to prevent illegal assumption of any public office or usurpation of
any public office by anybody.

For example, a person of 62 years has been appointed to fill a public

office whereas the retirement age is 60 years. Now, the appropriate
High Court has a right to issue a writ of quo-warranto against the
person and declare the office vacant.

4) PROHIBITION
Writ of prohibition means to forbid or to stop and it is popularly
known as 'Stay Order'.

This writ is issued when a lower court or a body tries to transgress the
limits or powers vested in it.

It is a writ issued by a superior court to lower court or a tribunal

forbidding it to perform an act outside its jurisdiction. After the issue
of this writ, proceedings in the lower court etc. come to a stop.

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 Constitution of India 2022 Article 32

5) CERTIORARI
Literally, Certiorari means to be certified.

The writ of certiorari is issued by the Supreme Court to some inferior

court or tribunal to transfer the matter to it or to some other superior
authority for proper consideration.

If rights of individual are affected then Certiorari writ can be filled

against administrative authorities also.

Difference between prohibition and certiorari

The writ of prohibition is available during the pendency of proceedings before
a sub-ordinate court, It is a preventive writ, because it prevents the decision of
lower court by transferring the case to itself.

The writ of certiorari can be issued by the Supreme Court or any High Court for
quashing the order already passed by an inferior court. It is preventive as well
as curative writ because it transfers the case as well as quashes any orders
passed by lower court

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soprotection.com
Constitution of India 2022 Executive

UNION EXECUTIVE
The Union Executive Mainly Includes:
- President
- Vice President
- Prime Minister
- Council of Ministers
- Attorney General of India

THE PRESIDENT AND THE VICE PRESIDENT

Article 52. The President of India - President is the First Citizen of India and Supreme
Commander of Defence Forces

Article 53. Executive power of the Union - Executive Power of Union shall be vested
in President. But Real power vests with Council of Ministers (Article 74)

Article 54. Election of President.

Elected by the members of an electoral college consisting of the elected
members of:
- Both Houses of Parliament (Rajya and Lok Sabha); and
- The Legislative Assemblies of the States. (70th Amendment, 1992 - ‘State’
includes UT of NCT, Delhi and Pondicherry)

Article 55. Manner of election of President - Every MP and MLA have certain number
of Votes; the votes are calculated by the following formulas.
Votes of a Member of Legislative Assembly (MLA)
𝑷𝒐𝒑𝒖𝒍𝒂𝒕𝒊𝒐𝒏 𝒐𝒇 𝑺𝒕𝒂𝒕𝒆
÷ 1000
𝑵𝒐 𝒐𝒇 𝑬𝒍𝒆𝒄𝒕𝒆𝒅 𝑴𝒆𝒎𝒃𝒆𝒓𝒔

Votes of Members of Parliament (MP’S)

𝑻𝒐𝒕𝒂𝒍 𝑵𝒖𝒎𝒃𝒆𝒓 𝒐𝒇 𝑽𝒐𝒕𝒆𝒔 𝒐𝒇 𝒂𝒍𝒍 𝑴𝑳𝑨 𝒊𝒏 𝑪𝒐𝒖𝒏𝒕𝒓𝒚
𝑻𝒐𝒕𝒂𝒍 𝑵𝒐. 𝑶𝒇 𝑴. 𝑷 𝒔 (𝑳𝒐𝒌 𝑺𝒂𝒃𝒉𝒂 + 𝑹𝒂𝒋𝒚𝒂 𝑺𝒂𝒃𝒉𝒂)

Voting is done by Single transferrable vote system (55(3))

YG LAW 1
Constitution of India 2022 Executive

Article 56. Term of office of President.

Term – 5 years
President resigns to Vice President and can be impeached by process given
under Article 61 if he violates the constitution.
President will hold office even after expiration of his term until his successor
enters upon his office.

Article 57. Eligible for re election

Article 58. Qualifications for election as President.

- Citizen of India
- Minimum 35 years old
- Should be qualified to become member of House of People (Lok Sabha)
(Article 84)
- Must not hold any office of Profit (Acting President, vice president, ministers of
Union or state, Governors of State is not deemed to be office of profit)

Article 59. Conditions of President’s office.

- Cant be an MLA or MP simultaneously: President will not be a member of
either House of Parliament or of a House of the Legislature of any State, if a
member of any of these becomes president, then he shall be deemed to
have vacated his seat.
- Can not hold any office of profit.
- Shall be entitled without payment of rent to the use of his official
residences and shall be also entitled to such emoluments, allowances and
privileges as may be determined by Parliament

Article 60. Oath or affirmation by the President.

- Oath will be taken In presence of CJI, in case CJI is not available then in
presence of senior most judge of SC.
- Oath talks about preserving, protecting and defending the constitution and
devoting yourself for service and well-being of the people of India

YG LAW 2
Constitution of India 2022 Executive

Article 61. Procedure for impeachment of the President.

A charging motion for impeachment can be initiated by either house of
Parliament, the other house investigates this charging motion, the procedure is
as follows:
- 14-day notice for moving charge shall be given president.
- resolution signed by 1/4th of members of the house
- 2/3rd majority passes the resolution
- other house investigates
- other house passes resolution by 2/3rd majority
- President Impeached

Article 62. Time of holding election to fill vacancy in the office of President and the
term of office of person elected to fill casual vacancy. – Election should be held
before the end of the term of President or within 6 months if vacancy is due to
death/resignation/removal.

Article 63. The Vice-President of India.

Article 64. The Vice-President to be ex officio Chairman of the Council of States.

Article 65. The Vice-President to act as President or to discharge his functions

during casual vacancies in the office, or during the absence, of President.
Vice President becomes the acting president in case the position of President is
vacant for any reason of death, resignation, removal etc.
Provided that while acting as President, the Vice-President shall not perform
the duties of the office of chairman of council of states.

Article 66. Election of Vice-President.

Elected by the members of an electoral college consisting of the members of
both Houses of Parliament (MP’s), other process same as of President
Eligibilty: Same as president only one change that instead of being qualified to
be a member of House of People (Lok Sabha) he should be qualified to be
member of Council of State (Rajya Sabha)

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Constitution of India 2022 Executive

Article 67. Term of office of Vice-President

5 years - Resigns to President

Article 68. Time of holding election to fill vacancy in the office of Vice President and
the term of office of person elected to fill casual vacancy - At the end of term, or in
case of death/resignation/ removal, as soon as possible.
New person elected shall hold office for full 5 year term.

Article 69. Oath or affirmation by the Vice-President –

Oath taken before President

Article 70. Discharge of President’s functions in other contingencies.

Article 71. Matters relating to, or connected with, the election of a President or
Vice-President.
71(1) - All doubts and disputes regarding election taken by Supreme Court
71(2) - If election is declared void, acts done by the President or Vice President
before the declaration are not invalidated
71(3) - Parliament by law may regulate any matter relating to election
71(4) - Election will never be challenged on question of vacancy in electoral
college

N.B. Khare v. Election Commission of India (1958)

Held that Art. 71(1) merely prescribes the forum in which doubts and
disputes in connection with the election of the President and Vice-
President would be enquired into, but the right to move the Supreme
Court as well as the procedure thereof, are determined by the Act of
Parliament as authorised by Art. 71 (3). Accordingly, the Act and the
Rules in question are valid, and the petitioner has no rights apart from
those given by the statute to file an application for setting aside an
election.

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Constitution of India 2022 Executive

Article 72. Power of President to grant pardons, etc., and to suspend, remit or
commute sentences in certain cases - President may:
Grant pardon: Removes both the sentence and the conviction and completely
absolves the convict from all sentences, punishments and disqualifications.
Reprieve: It implies a stay of the execution of a sentence (especially that of
death) for a temporary period. Its purpose is to enable the convict to have time
to seek pardon or commutation from the President.
Commute: It denotes the substitution of one form of punishment for a lighter
form. For example, a death sentence may be commuted to rigorous
imprisonment, which in turn may be commuted to a simple imprisonment.
Shatrughan Chauhan v. Union Of India (2014)

Delays in rejection of mercy petition of death row convicts

amounts to ‘torture’ and it is a sufficient basis in itself to commute
death sentence to life imprisonment
Respite: It denotes awarding a lesser sentence in place of one originally
awarded due to some special fact, such as the physical disability of a convict or
the pregnancy of a woman offender.
Remit: It implies reducing the period of sentence without changing its
character. For example, a sentence of rigorous imprisonment for two years
may be remitted to rigorous imprisonment for one year.

President is not bound to hear a petitioner for mercy, before he rejects the petition
- Nanavati v State of Bombay (1961)

Pardoning is an act of grace it can’t be claimed as a matter of right

- Kehar Singh V. UoI (1989)

The President cannot exercise his power of pardon independent of the government.
In Maru Ram vs Union of India (1980) and Dhananjoy Chatterjee vs State of
West Bengal (1994) it was held that the President has to act on the advice of
the Council of Ministers while deciding mercy pleas.

YG LAW 5
Constitution of India 2022 Executive

Judicial Review of President’s/Governor’s pardoning power.

Epuru Sudhakar vs Govt. of A.P. (2006)
The exercise or non-exercise of pardon power by the President or Governor” is “not
immune from judicial review” and that “limited judicial review is available in certain
cases”. It was held that “judicial review of the order of the President or the Governor
under Article 72 or Article 161 of the Constitution, will be available on the following
grounds:

(a) that the order has been passed without application of mind; is mala fide;
passed on extraneous or wholly irrelevant considerations;

(b) Order suffers from arbitrariness.

(c) Relevant materials have been kept out of consideration;

(d) Order has been given for considerations of religion, caste or political
loyalty

(e) Order has been obtained by fraud or granted by mistake or granted for
improper reasons

Article 73. Extent of executive power of the Union.

Ram Jawaya Kapur v. State of Punjab (1955)
Executive Power: The residue of governmental functions that remain after legislative
and judicial functions are taken away. Executive power is not confined to the
administration of laws already enacted but it includes the determination of government
policies, maintenance of law and order, foreign policy etc.

President: President is a formal or constitutional head of the executive and the real
executive powers are vested in the Council of Minister.

YG LAW 6
Constitution of India 2022 Executive

COUNCIL OF MINISTERS
Article 74. Council of Ministers to aid and advise President.
- Head of the Council of Ministers – Prime Minister
- Duty of CoM to aid and advise the president
- President can ask the CoM to reconsider their advice, but after the CoM
reconsiders and sends the advice again, President has to act in
accordance with that advice (44th Amendment, 1978)
- The question whether any, and if so what, advice was tendered by
Ministers to the President shall not be inquired into in any court.

Article 75. Other provisions as to Ministers.

o Prime Minister appointed by President
o Other Ministers appointed by President on advice of PM
o Total number of CoM shall not exceed 15% of total number of member
in House of People (Lok Sabha)
o A minister who is not a member of Parliament for 6 months shall cease
to be a minister
o CoM shall be collectively responsible to the House of People (Lok Sabha)

THE ATTORNEY-GENERAL FOR INDIA

Article 76. Attorney-General for India.
o Appointed by President of India
o Duty to Advise the Government of India on Legal Matters
o Attorney-General shall have right of audience in all courts in the territory
of India

Conduct of Government Business

Article 77. Conduct of business of the Government of India.
Article 78. Duties of Prime Minister as respects the furnishing of information to the
President, etc.

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Constitution of India 2022 Executive

STATE EXECUTIVE
The State Executive Mainly Includes
- Governor
- Chief Minister
- Council of Ministers
- Advocate General of India

Article 153. Governors of States - There shall be a Governor for each State, Same
person can be Governor for two or more States.

Article 154. Executive power of State - Executive power of the State shall be vested
in the Governor
Article 155. Appointment of Governor - Appointed by the President
Article 156. Term of office of Governor - Term of five years, Resigns to the President
Even after term ends Governor shall continue to hold office until his successor
enters upon his office.

Article 157. Qualifications for appointment as Governor - Citizen of India, above 35.
Article 158. Conditions of Governor’s office.
 Governor will not be a member of either House of Parliament or of a House of
the Legislature of any State (if a member he shall be deemed to have vacated his seat in
that House on the date on which he enters upon his office as Governor)
 Shall not hold any other office of profit.
 Where the same person is appointed as Governor of two or more States, the
emoluments and allowances shall be allocated among the States as the
President orders
Article 159. Oath or affirmation by the Governor.—
In the presence of the Chief Justice of the High Court exercising jurisdiction in
relation to the State, or, in his absence, the senior most Judge of that Court
available
Oath talks about preserving, protecting and defending the Constitution

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Constitution of India 2022 Executive

Article 160. Discharge of the functions of the Governor in certain contingencies.

Article 161. Power of Governor to grant pardons, etc., and to suspend, remit or
commute sentences in certain cases - Grant pardon, Reprieve, Respite, Remmit,
Commute
Article 162. Extent of executive power of State.
Subject to the provisions of this Constitution, the executive power of a State
shall extend to the matters with respect to which the Legislature of the State
has power to make laws:
Provided that in any matter with respect to which the Legislature of a State
and Parliament have power to make laws, the executive power of the State
shall be subject to, and limited by, the executive power expressly conferred by
this Constitution or by any law made by Parliament upon the Union or
authorities thereof.

COUNCIL OF MINISTERS
Article 163. Council of Ministers to aid and advise Governor.—
 Chief Minister (CM) at the head the CoM at state level.
 CM will aid and advise the Governor in the exercise of his functions, except
functions which are available to Governors discretion.
o Advice tendered by Ministers to the Governor shall not be inquired into
in any court.
Article 164. Other provisions as to Ministers.—
 Chief Minister shall be appointed by the Governor, other Ministers shall be
appointed by the Governor on the advice of the Chief Minister,
 The total number of Ministers, including the Chief Minister, in the Council of
Ministers in a State shall not exceed fifteen per cent. of the total number of
members of the Legislative Assembly of that State (Minimum 12 minister
including CM)
 The Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State.
 Oath of Minister will be taken by Governor
 A Minister who for any period of six consecutive months is not a member of
the Legislature of the State shall at the expiration of that period cease to be a
Minister.

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 Constitution of India 2022 Executive

THE ADVOCATE-GENERAL FOR THE STATE

Article 165. Advocate-General for the State.
 Appointed by Governor
 Should be qualified to be appointed a Judge of a High Court
 Duty to give advice to the Government of the State upon legal matters

Conduct of Government Business

Article 166. Conduct of business of the Government of a State
Article 167. Duties of Chief Minister as respects the furnishing of information to
Governor, etc
 To communicate to the Governor of the State all decisions of the Council of
Ministers relating to the administration of the affairs of the State and
proposals for legislation;
 To furnish such information relating to the administration of the affairs of the
State and proposals for legislation as the Governor may call for; and
 If the Governor so requires, to submit for the consideration of the Council of
Ministers any matter on which a decision has been taken by a Minister but
which has not been considered by the
Council

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Constitution of India 2022 Judiciary

THE UNION JUDICIARY

Article 124. Establishment and constitution of Supreme Court
(1) Supreme Court of India will have a Chief Justice of India and 7 judges (Now
"33" Judges, 33+1(CJI), vide The Supreme Court (Number of judges)
Amendment Act, 2019)
(2) Every Judge of the Supreme Court shall be appointed by the President after
consultation with such of the Judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary for the purpose and
shall hold office until he attains the age of sixty-five years, and resigns to
President of India.
(2A) the age of a Judge of the Supreme Court shall be determined by such
authority and in such manner as Parliament may by law provide].
(3) Qualification to be a Judge of Supreme Court
 Citizen of India
 has been for at least five years a Judge of a High Court or of two
or more such Courts in succession; or
 has been for at least ten years an advocate of a High Court or of
two or more such Courts in succession; or
 in the opinion of the President, a distinguished jurist.
(4) Removal of Judge
Both houses need to approve with Simple majority (total-membership)
and 2/3rd majority of members (present and voting)
Such order shall be presented to the president in same session and
President orders the removal
(5) Parliament may by law regulate the procedure for the presentation of an
address and for the investigation and proof of the misbehaviour or incapacity
of a Judge under clause (4).
(6) Oath taken in front of President or some person appointed by President.
(7) No person who has held office as a Judge of the Supreme Court shall plead
or act in any court or before any authority within the territory of India.

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Constitution of India 2022 Judiciary

WHOLE STORY OF NJAC

Before 99th Amendment: judges of SC were appointed by the president. The chief
justice of supreme court was appointed by the president with the consultation of SC
and HC judges as he deemed necessary for the purpose. But in appointing other
judges the president would always consult the CJI. He might consult such other
judges of the SC and HC as he might deem necessary.

UOI vs Sankalchand Sheth (1977)

The SC held that the word Consultation meant full and effective consultation. It
does not mean concurrence and the president is not bound by it.

SP Gupta vs UOI (1982) (1st Judges case)

The SC unanimously agreed with the meaning of the term ‘Consultation’ as
explained by the majority in the case of UOI vs Sankalchand Seth. This means
that ‘the ultimate power to appoint judges was vested in the executive from
whose dominance and subordination it was sought to be protected’

Supreme Court Advocates on Record Association v. Union of India

(1993) (2nd Judges case)
A nine Judge Bench of the Supreme Court by a 7: 2 majority overruled its
earlier judgment in the Judges Transfer case- and held that in the matter of
appointment of the Judges of the Supreme Court and the High Courts, the
Chief Justice of India should have primacy.

Re presidential reference (1999) (3rd Judges case)

A nine-judge bench of SC held that the recommendation made by the CJI on
the appointment of judges of SC and HC without following the consultation
process are not binding on government.

After 99th Amendment: To remove the collegium system The Constitution (Ninety
ninth Amendment) Act, 2014 was passed which entailed the constitution of national
judicial appointments commission 2014 and amended articles 124 (2), 127 and 128. It
inserted articles 124A, 124B and 124C. Which contended that a special committee
needs to be set up for impartial and uninterred appointing of judges.

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Constitution of India 2022 Judiciary

Case 5: Supreme court advocates on record association vs UOI (2016)

SC held that both, 99th constitutional amendment and as well as NJAC act 2014
is unconstitutional and void. Therefore, the original collegium system was
initiated again.
124(A) (B) (C) declared void by SC on 16th October 2016

Article 125. Salaries, etc. of Judges

Salary, privileges, allowances and rights as are specified in the Second Schedule
Neither the privileges nor the allowances of a Judge nor his rights in respect of
leave of absence or pension shall be varied to his disadvantage after his
appointment.

Article 126. Appointment of acting Chief Justice – By President

Article 127. Appointment of ad hoc Judges
Article 128. Attendance of retired Judges at sittings of the Supreme Court

Article 129. Supreme Court to be a COURT OF RECORD

The Supreme Court shall be a court of record and shall have all the powers of
such a court including the power to punish for contempt of itself.

Delhi Judicial Service Assn. v. State of Gujarat (1991)

Article 129 the Supreme Court has power to punish a person for the
contempt of itself as well as of its subordinate courts. The expression
"including" extends and widens the scope of power. The plain language
of Article 129 clearly indicates that the Supreme Court as a Court of
Record has power to punish for contempt of itself and also something
else which would fall within the inherent jurisdiction of the Court of
Record. This inherent power is necessary to safeguard and protect the
subordinate judiciary. In the instant case the Court had sent five police
officers to jail as they were found guilty of criminal contempt for
harassing and handcuffing the Chief Judicial Magistrate of town Nadiad
in the State of Gujarat.

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Constitution of India 2022 Judiciary

Vitusah Oberoi vs Court of its own Motion (2017)

Article 215 does not give power to HC to punish for the contempt of a
superior court that is why article 215 could never have been intended to
empower the HC to punish for the contempt of the SC

Rajeshwar Singh vs Subrata Roy Sahara (2014)

SC held that the jurisdiction of the SC under Article 129 is independent
of courts act- If there is not proper compliance of the provisions of the
Contempt of Courts Act, it would not deter or take away the
constitutional powers of the SC under Article 129.

Article 130. Seat of Supreme Court

The Supreme Court Shall Sit in Delhi or in such other place or places, as the
Chief Justice of India may, with the approval of the President, from time to
time, appoint.

Article 131. ORIGINAL JURISDICTION of the Supreme Court

The Supreme Court shall, to the exclusion of any other court, have original
jurisdiction in any dispute-
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side
and one or more other States on the other; or
(c) between two or more States,

if and in so far as the dispute involves any question (whether of law or fact) on
which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of
any treaty, agreement, covenant, engagement, Sanad or other similar
instrument which, having been entered into or executed before the
commencement of this Constitution, continues in operation after such
commencement, or which provides that the said jurisdiction shall not extend
to such a dispute. (7th amendment act, 1956)

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Constitution of India 2022 Judiciary

SC is excluded to use its rights of original jurisdiction in the following cases:

 The proviso mentioned in the article 131
 Disputes between states with respect to the use, distribution or control
of water of interstate river or river valley. (Dealt by article 262)
 Matters referred to financial commission. (Dealt by article 280)
 Adjustment of certain expenses as between union and state. (Dealt by
article 257,258)

Article 132. APPELLATE JURISDICTION of Supreme Court in appeals from

High Courts in certain cases
An appeal shall lie to the Supreme Court from any judgment, decree or final
order of a High Court in the territory of India, whether in a civil, criminal or
other proceeding, [if the High Court certifies under Article 134A] that the case
involves a substantial question of law as to the interpretation of this
Constitution.

Article 133. APPELLATE JURISDICTION of Supreme Court in appeals from

High Courts in regard to civil matters - When High Court is of the opinion:
(a) that the case involves a substantial question of law of general importance
(b) that the said question needs to be decided by the Supreme Court
And certifies the appeal under 134-A

Article 134. APPELLATE JURISDICTION of Supreme Court in regard to

criminal matters - If the High Court
(a) has on appeal reversed an order of acquittal of an accused person and
sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court subordinate to
its authority and has in such trial convicted the accused person and sentenced
him to death; or
(c) certifies the appeal under 134-A
(c)

Article 134-A. Certificate for Appeal to Supreme Court-

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Constitution of India 2022 Judiciary

Article 135. Jurisdiction and powers of the Federal Court under existing
law to be exercisable by the Supreme Court

Article 136. SPECIAL LEAVE (SLP) to appeal by the Supreme Court

Supreme Court may, in its discretion, grant special leave to appeal from any
judgment. decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India.
Exception: This shall not apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.

Essar Steel Ltd. Vs UOI (2016)

It was held that The Court not competent to judge economic policy of
the Government. The Supreme Court has no jurisdiction and
competence to judge the validity of the economic policy decision of the
Government unless it is unconstitutional or in violation of the statute
and the rules or it is arbitrary, unreasonable or mala fide.

Delhi Judicial Service Assn. v. State of Gujarat (1991)

The Supreme Court has held that under Article 136 the Supreme Court
has wide power to interfere and correct the judgment and orders passed
by any court or tribunal in the country. In addition to the appellate
power, the court has special residuary power to entertain appeal against
any order of any court. The plenary jurisdiction of the Court to grant
leave and hear appeals against any order of a court or tribunal, confers
power of judicial superintendence over all the courts and tribunals
including subordinate courts of Magistrate and District Judge. The
Supreme Court has therefore supervisory jurisdiction over all courts of
India. Accordingly, the Court punished the five police officials for
committing contempt of the Chief Judicial Magistrate Court of town
Nadiad in the State of Gujarat and also quashed the false criminal
proceedings against the Magistrate filed by the police.

Article 137. Review of judgments or orders by the Supreme Court

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Constitution of India 2022 Judiciary

Article 138. Enlargement of the jurisdiction of the Supreme Court

Article 139. Conferment on the Supreme Court of Powers to issue certain
writs
Parliament may by law confer on the Supreme Court power to issue directions,
orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for any purposes
other than those mentioned in clause (2) of article 32.

Article 139A. Transfer of certain cases.

Where cases involving the same or substantially the same questions of law are
pending before:
the Supreme Court and one or more High Courts; or
before two or more High Courts
and the Supreme Court is satisfied on its own motion or on an application
made by the Attorney- General or by a party to any such case that such
questions are substantial questions of general importance, the Supreme Court
may withdraw the case or cases pending before the High Court or the High
Courts and dispose of all the cases itself or it can transfer any case, appeal or
other proceedings pending before any High Court to any other High Court.
Supreme Court may return any case so withdrawn together with a copy of its
judgment to the High Court from which the case has been withdrawn, and the
High Court will proceed to dispose of the case according to the judgment.

Union of India v. Shiromani Gurdwara Prabandhak Committee

(1986)
A petition for transfer of a suit for damage filed in Punjab against Union
of India for loss of Gurdwara properties by respondents as a result of
operation Blue Star was filed in the Supreme Court by the Union of India
on the ground that fair trial in Punjab would not be possible in view of
extraordinary situation prevailing there. In view of the unusual and
sensitive nature of the suit and the extraordinary situation in Punjab the
Court allowed the petition and transferred the case to the Delhi High
Court for trial.

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Constitution of India 2022 Judiciary

In Swaranjit Kaur v. Swaran Singh Sohi (2009)

The wife of the petitioner sought the transfer of a divorce petition from
Delhi District Judge to District Judge, Indore. Because the petitioner was
dependent on her parents and had two children. It was difficult to
defend the case by travelling to Delhi. The Court allowed her transfer
petition from District Judge, Delhi to District Judge at Indore.

Article 140. Ancillary powers of Supreme Court

Article 141. Law declared by Supreme Court to be binding on all courts
Article 142. Enforcement of decrees and orders of Supreme Court and
orders as to discovery, etc.
Article 143. Power of President to consult Supreme Court
Article 143 of the Constitution authorises the president to seek the opinion of
the Supreme court in the two categories of matters:
1. On any question of law or fact of public importance which has arisen or which
is likely to arise.
2. On any dispute arising out of any pre-constitution treaty, agreement, covenant,
engagement, sanad or other similar instruments.

In the first case, the Supreme court may tender or may refuse to tender its
opinion to the President. But, in the second case, the Supreme court ‘must’
tender its opinion to the president. In both cases, the opinion expressed by the
Supreme Court is only advisory and not a judicial pronouncement. Hence, it is
not binding on the President. He may follow or may not follow the opinion.

In Re Kerala Education Bill (1958)

SC held that the court is not bound to answer a reference made to it by
the president. It also held that in cases of advisory opinion conferred by
article 143(2) is different from regular opinion, it is mandatory on the
court to answer any reference or discussion made to it.

In Re Special Courts Bill (1978)

SC held that even in matters arising out of article 142(2) the court may
be justified in returning the reference unanswered for a valid reason.

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 Constitution of India 2022 Judiciary

Article 144. Civil and judicial authorities to act in aid of the Supreme
Court
Article 145. Rules of Court, etc.
Article 146. Officers and servants and the expenses of the Supreme Court
Article 147. Interpretation

Note: This Study material is not complete on its own, it is meant to be supplementary to the video
provided with it. Do not Blame ‘YG LAW’ for the information provided in these notes if you did not
watch the dedicated video provided with these notes in the respective course you enrolled.

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YG LAW 9
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