1 Preamble to the Indian Constitution

Introduction: 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 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.
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. It was added in the Preamble by 42nd Amendment, 1976.
 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.
Objectives of the Indian Constitution

 The Constitution is the supreme law and it helps to maintain integrity in the society and
to promote unity among the citizens to build a great nation.
 The main objective of the Indian Constitution is to promote harmony throughout the
nation.
The factors which help in achieving this objective are:
1 Justice: It is necessary to maintain order in society that is promised through various
provisions of Fundamental Rights and Directive Principles of State Policy provided by the
Constitution of India. It comprises three elements, which is social, economic, and political.

2 Social Justice – Social justice means that the Constitution wants to create a society without
discrimination on any grounds like caste, creed, gender, religion, etc.
3 Economic Justice – Economic Justice means no discrimination can be caused by people
on the basis of their wealth, income, and economic status. Every person must be paid
equally for an equal position and all people must get opportunities to earn for their living.
4 Political Justice – Political Justice means all the people have an equal, free and fair right
without any discrimination to participate in political opportunities.
5 Equality: The term ‘Equality’ means no section of society has any special privileges and all
the people have given equal opportunities for everything without any discrimination.
Everyone is equal before the law.
6 Liberty: The term ‘Liberty’ means freedom for the people to choose their way of life, have
political views and behavior in society. Liberty does not mean freedom to do anything; a
person can do anything but in the limit set by the law.
7 Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional
attachment with the country and all the people. Fraternity helps to promote dignity and unity
in the nation.
Case Laws
1 Berubari Case: It was used as a reference under Article 143(1) of the Constitution which
was on the implementation of the Indo-Pakistan Agreement related to the Berubari Union and
in exchanging the enclaves which were decided for consideration by the bench consisting of
eight judges. Through the Berubari case, the Court stated that ‘Preamble is the key to open
the mind of the makers’ but it can not be considered as part of the Constitution. Therefore it is
not enforceable in a court of law.
2 Kesavananda Bharati Case: In this case, for the first time, a bench of 13 judges was
assembled to hear a writ petition. The Court held that: The Preamble of the Constitution will
now be considered as part of the Constitution. The Preamble is not the supreme power or
source of any restriction or prohibition but it plays an important role in the interpretation of
statutes and provisions of the Constitution.
2 Salient features/Characteristics of the Indian Constitution are listed and brief below:

1. Lengthiest Written Constitution

 Constitutions are classified into written, like the American Constitution, or unwritten, like
the British Constitution.
 The Constitution of India has the distinction of being the lengthiest and detailed
Constitutional document the world has so far produced. In other words, the Constitution
of India is the lengthiest of all the written constitutions of the world.
 It is a very comprehensive, elaborate and detailed document.
 Both justiciable and non-justiciable rights are included in the Constitution.

2. Drawn from Various Sources

 The Constitution of India has borrowed most of its provisions from the constitutions of
various other countries as well as from the Government of India Act of 1935
 Dr B R Ambedkar proudly acclaimed that the Constitution of India has been framed after
‘ransacking all the known Constitutions of the world’.
 The structural part of the Constitution is, to a large extent, derived from the
Government of India Act of 1935.
 The philosophical part of the Constitution (Fundamental Rights and the Directive
Principles of State Policy) derive their inspiration from the American and Irish
Constitutions respectively.
 The political part of the Constitution (the principle of Cabinet government and the
relations between the executive and the legislature) have been largely drawn from the
British Constitution.

3. Blend of Rigidity and Flexibility

 Constitutions are classified into rigid and flexible.

 A rigid constitution is one that requires a special procedure for its amendment, as for
example, the American Constitution.
 A flexible constitution is one that can be amended in the same manner as the ordinary
laws are made, as for example, the British Constitution.
 The Indian Constitution is a unique example of the combination of rigidity and flexibility
on the basis of its amending procedure.

4. Federal System with Unitary Bias

 The Constitution of India establishes a federal system of government.

 It contains all the usual features of a federation, such as two governments, division of
powers, written constitution, the supremacy of the constitution, the rigidity of the
Constitution, independent judiciary and bicameralism.
5. Parliamentary Form of Government

 The Constitution of India has opted for the British Parliamentary System of Government
rather than the American Presidential system of government.
 The parliamentary system is based on the principle of cooperation and coordination
between the legislative and executive organs while the presidential system is based on the
doctrine of separation of powers between the two organs.
 The parliamentary system is also known as the ‘Westminster’ model of government,
responsible government and cabinet government.

 The Constitution establishes the parliamentary system not only at the Centre but also in
the States.
 In a parliamentary system, the role of the Prime Minister has become so significant, and
therefore it is called a ‘Prime Ministerial Government’.

6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy

 The doctrine of the sovereignty of Parliament is associated with the British Parliament
while the principle of judicial supremacy with that of the American Supreme Court.
 Just as the Indian parliamentary system differs from the British system, the scope of
judicial review power of the Supreme court in India is narrower than that of what exists
in the US.
 This is because the American Constitution provides for ‘due process of law’ against that
of ‘procedure established by law’ contained in the Indian Constitution (Article 21).

7. Rule of Law

 According to this axiom, people are ruled by law but not by men, that is, the basic truism
that no man is infallible. The axiom is vital to a democracy.
 In the final analysis, rule of law means the sovereignty of the common man’s collective
wisdom.
 Apart from this crucial meaning, rule of law means a few more things like
 There is no room for arbitrariness
 Each individual enjoys some fundamental rights, and
 The highest judiciary is the final authority in maintaining the sanctity of the law
of the land.

8. Integrated and Independent Judiciary

 India has a single integrated judicial system.

 Also, the Indian Constitution establishes Independent Judiciary by enabling the Indian
judiciary to be free from the influence of the executive and the legislature.
  The Supreme Court stands as the apex court of the judicial system. Below the Supreme
Court are the High Courts at the state level.

9. Fundamental Rights

 Part III of the Indian Constitution guarantees six fundamental rights to all Citizens.
 Fundamental Rights are one of the important features of the Indian Constitution.
 They are justiciable in nature, that is, enforceable by the courts for their violation.

10. Directive Principles of State Policy

 According to Dr B R Ambedkar, the Directive Principles of State Policy is a ‘novel

feature’ of the Indian Constitution.They are enumerated in Part IV of the Constitution.
 The Directive Principles were included in our Constitution in order to provide social and
economic justice to our people.
 In the Minerva Mills case (1980), the Supreme Court held that ‘the Indian Constitution is
founded on the bedrock of the balance between the Fundamental Rights and the Directive
Principles’.

11. Fundamental Duties

 The original constitution did not provide for the fundamental duties of the citizens.
 Fundamental Duties were added to our Constitution by the 42nd Amendment Act of 1976
on the recommendation of the Swaran Singh Committee.
 There is a total of 11 Fundamental duties altogether.

12. Indian Secularism

 The Constitution of India stands for a secular state.

 Hence, it does not uphold any particular religion as the official religion of the Indian
State.

13. Universal Adult Franchise

 Indian democracy functions on the basis of ‘one person one vote’.

 Every citizen of India who is 18 years of age or above is entitled to vote in the elections
irrespective of caste, sex, race, religion or status..

14. Single Citizenship

 In a federal state usually, the citizens enjoy double citizenship as is the case in the USA.
 In India, there is only single citizenship.
 3 Citizenship

Introduction

Citizenship is the status of a person recognized under law as being a legal member of a
sovereign state or belonging to a nation. In India, Articles 5 – 11 of the Constitution deals with
the concept of citizenship. The term citizenship entails the enjoyment of full membership of any
State in which a citizen has civil and political rights.

Article 5: Citizenship at the commencement of the Constitution

This article talks about citizenship for people at the commencement of the Constitution, i.e. 26th
January 1950. Under this, citizenship is conferred upon those persons who have their domicile
in Indian Territory and –

1. Who was born in Indian territory; or

2. Whose either parent was born in Indian territory; or
3. Who has ordinarily been a resident of India for not less than 5 years immediately
preceding the commencement of the Constitution.

Article 6: Citizenship of certain persons who have migrated from Pakistan

Any person who has migrated from Pakistan shall be a citizen of India at the time of the
commencement of the Constitution if –

1. He or either of his parents or any of his grandparents was born in India as given in
the Government of India Act of 1935; and
2. (a) in case such a person has migrated before July 19th, 1948 and has been
ordinarily resident in India since his migration, or

Article 7: Citizenship of certain migrants to Pakistan

This article deals with the rights of people who had migrated to Pakistan after March 1, 1947, but
subsequently returned to India.

Article 8: Citizenship of certain persons of Indian origin residing outside India

This article deals with the rights of people of Indian origin residing outside India for purposes of
employment, marriage, and education.

Article 9
People voluntarily acquiring citizenship of a foreign country will not be citizens of India.

Article 10
Any person who is considered a citizen of India under any of the provisions of this Part shall
continue to be citizens and will also be subject to any law made by the Parliament.
Article 11: Parliament to regulate the right of citizenship by law
The Parliament has the right to make any provision concerning the acquisition and termination of
citizenship and any other matter relating to citizenship.

Citizenship of India constitutional provisions

 Citizenship in India is governed by Articles 5 – 11 (Part II) of the Constitution.

 The Citizenship Act, 1955 is the legislation dealing with citizenship. This has been
amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act
1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act,
2005.
 Nationality in India mostly follows the jus sanguinis (citizenship by right of blood) and
not jus soli (citizenship by right of birth within the territory).

Citizenship Act, 1955

Citizenship of India can be acquired in the following ways:

1. Citizenship at the commencement of the Constitution

2. Citizenship by birth
3. Citizenship by descent
4. Citizenship by registration
5. Citizenship by naturalization
6. By incorporation of territory (by the Government of India)

Termination of Indian Citizenship

Termination of citizenship is possible in three ways according to the Act:

1. Renunciation: If any citizen of India who is also a national of another country renounces his
Indian citizenship through a declaration in the prescribed manner, he ceases to be an Indian
citizen. When a male person ceases to be a citizen of India, every minor child of his also
ceases to be a citizen of India. However, such a child may within one year after attaining full
age become an Indian citizen by making a declaration of his intention to resume Indian
citizenship.
2. Termination: Indian citizenship can be terminated if a citizen knowingly or voluntarily
adopts the citizenship of any foreign country.
3. Deprivation: The government of India can deprive a person of his citizenship in some cases.
But this is not applicable for all citizens. It is applicable only in the case of citizens who have
acquired the citizenship by registration, naturalization, or only by Article 5 Clause (c) (which
is citizenship at commencement for a domicile in India and who has ordinarily been a
resident of India for not less than 5 years immediately preceding the commencement of the
Constitution).
4. ‘State’ under Article 12 of the Constitution of India

Introduction

Most of the Fundamental rights provided to the citizens are claimed against the State and
its instrumentalities and not against the private bodies. Article 12 gives an extended significance
to the term ‘state’. It is very important to determine what bodies fall under the definition of a
state so as to determine on whom the responsibility has to be placed.

Article 12 of the Indian Constitution states that,

In other words, for the purposes of Part III of the constitution, the state comprises of the
following:

1. Government and Parliament of India i.e the Executive and Legislature of the Union
2. Government and Legislature of each State i.e the Executive and Legislature of the
various States of India
3. All local or other authorities within the territory of India
4. All local and other authorities who are under the control of the Government of India

Key terms discussed under the article

1 Government (Union and state) 2 Parliament and state legislature 3 Local authorities 4
Other authorities 5 Territory of India 6 Control of the government of India

Government (Union and state), Parliament and State Legislature

 Parliament: The parliament comprises of the President of India, the lower house of
the parliament that is the Lok Sabha as well as the upper house of the Parliament that
is the Rajya Sabha.
 Executive: It is that organ which implements the laws passed by the legislature and
the policies of the government. The rise of the welfare state has tremendously
increased the functions of the state, and in reality, of the executive. In common usage,
people tend to identify the executive with the government. In contemporary times,
there has taken place A big increase in the power and role of the executive in every state.
The executive includes the President, Governor, Cabinet Ministers, Police, bureaucrats, etc.

 Legislature: The legislature is that organ of the government which enacts the laws of
the government. It is the agency which has the responsibility to formulate the will of
 the state and vest it with legal authority and force. In simple words, the legislature is
that organ of the government which formulates laws. Legislature enjoys a very special
and important in every democratic state. It is the assembly of the elected
representatives of the people and represents national public opinion and power of the
people.

 Government: The law-making or legislative branch and administrative or executive

branch and law enforcement or judicial branch and organizations of society. Lok
Sabha (the lower house) and Rajya Sabha (the upper house) form the legislative
branch. Indian President is the head of the state and exercises his or her power directly
or through officers subordinate to him. The Supreme Court, High Courts, and many
civil, criminal and family courts at the district level form the Judiciary.

 State Legislature: The legislative body at the state level is the State Legislature. It
comprises of the state legislative assembly and the state legislative council.

Local Authorities
Local Authority: As per Section 3(31) of the General Clauses Act, 1897, The term Local
authority includes the following:

1. Local government: According to Entry 5 of the List II of VII Schedule ‘local

government’ includes a municipal corporation, improvement trust, district boards,
mining settlement authorities and other local authorities for the purpose of local self-
government or village administration.
2. Village Panchayat: In the case of Ajit Singh v. State of Punjab, it was held that within
the meaning of the term local authority, village panchayat is also included.

Other Authorities
The term ‘other authorities’ in Article 12 has nowhere been defined. Neither in the
Constitution nor in the general clauses Act, 1897 nor in any other statute of India. Therefore, its
interpretation has caused a good deal of difficulty, and judicial opinion has undergone changes
over time. For example- State includes Delhi Transport Corporation, ONGC and Electricity
Boards, but does not include NCERT as neither is it substantially financed by the government
nor is the government’s control pervasive.

The test laid down in the case of Ajay Hasia is not rigid and therefore if a body falls
within them, then it must be considered to be a State within the meaning of Article 12. It was
discussed in the case that– “whether in the light of the cumulative facts as established the body is
financially, functionally and administratively dominated by or under the control of Government.
Such control must be particular to the body in question and must be pervasive.
Whether State includes Judiciary?
Article 12 of the Constitution does not specifically define ‘judiciary’. This gives the
judicial authorities the power to pronounce decisions which may be contravening to the
Fundamental Rights of an individual. If it was taken into the head of ‘State’, then as per the
article, it would be by the obligation that the fundamental rights of the citizens should not be
violated. Accordingly, the judgments pronounced by the courts cannot be challenged on the
ground that they violate fundamental rights of a person. On the other hand, it has been observed
that orders passed by the courts in their administrative capacity (including by the Supreme Court)
have regularly been challenged as being violative of fundamental rights.

Conclusion
The Constitution of India not only gives fundamental right to the citizens but also imposes the
duty on the state to ensure that the fundamental rights are protected. The court through its
interpretations has widened the scope of the term State to include a variety of statutory and non-
statutory bodies under its umbrella.

The need to determine what falls within the meaning of state is, to assign the party on
whom the duty to implement such right is placed upon. Not only that, the definition of state
under Article 12 has several words which may not have definite meanings, words such as local
authorities, control of government, other authorities, etc. and as seen in the above sections, the
courts have, through the course of their judgments, described the extent of the article by laying
down a test and discussing the meaning of the terms.
 5 Define Law –Judicial Review-Amendment in the Constitution

Art 13 and Art 368

Introduction
Without an amending provision, the Constitution is not complete.

Indispensability of amending provision in the Constitution

In the very nature of a Constitution, an appropriate provision for its modification is

deemed inherent. Because a government built on the idea of popular sovereignty must be
particularly sensitive to changing situations, a democratic Constitution must be particularly
flexible to the evolving conditions; As the public will change, it is necessary to make new
assertions possible.

The Indian Constitution blends the United States written Constitution’s “theory of basic law”
with the United Kingdom’s “idea of parliamentary sovereignty” to grant the Parliament
constituent authority subject to checks and balances.

How does the country benefit from the same Constitution?

One of the responses to such queries is that the Indian Constitution recognises the need
for changes in response to changing societal requirements. Second, there has been sufficient
flexibility in the application of the Constitution in practice. In implementing the Constitution,
both political practice and judicial decisions have demonstrated maturity and flexibility. Because
of these elements, the Indian Constitution is a living document rather than fixed rules.

Procedure for constitutional amendments in India

Types of Amendment:

1. Amendment with a simple majority of the Parliament.

2. Amendment with a special majority of the Parliament.
3. Amendment with a special majority of the Parliament and ratification of half of the
state legislatures.

Informal methods of Amendment:

1. Judicial Interpretation
 2. Constitutional usages and conventions
Many provisions in the Constitution state that they can be changed by a simple bit of legislation
passed by Parliament. In such circumstances, no specific procedure for modification is
necessary. Thus, the line between an amendment and ordinary law is obfuscated; the Parliament
can change both in this easy manner.

The majority of members voting in favour of a proposal is defined as a simple majority. Present
and voting in each House (similar to the normal legislative process). It is not covered by Article
368.

The following are some provisions that can be amended by a simple majority:

1. Formation of new states and changes to existing State’s regions, borders, or names
(Art.3).
2. Legislative Councils in states are abolished or created (Art.169).
3. Second Schedule: the President, Governor’s, Speaker’s, and Judge’s emoluments,
allowances, and privileges.

Article 368 of the Constitution contains a provision for amending the other provisions of
the Constitution.
The following are some provisions that can be amended by a special majority:

1. Fundamental Rights
2. Directive Principles of State Policy
By a special majority of Parliament and ratification by the States, those sections relating to the
federal government’s structure can be changed.

A great majority of Parliament and a simple majority of state legislatures must concur. The states
are not required to approve the law within a specific time frame (Art. 368 is silent on the time
frame to ratify the Amendment by State legislatures).

The following are some provisions that can be amended by a special majority with
ratification by half of the states:

1. Election of the President and its manner.

2. The extent of the Union and State’s executive powers.
3. The power of Parliament to revise the Constitution and its method (Art.368 itself).
The bill is brought to the President for assent once officially approved by both Houses of
Parliament and ratified by state legislatures if required.
The President must approve the Constitutional Amendment bill. He is unable to withhold his
assent to the bill or return it to Parliament for reconsideration.

The bill becomes an Act once the President signs it, and the Constitution is amended as per the
contents of the Act.

Limitations on amending power:

1. The Amendment must not alter the basic structure of the Constitution.
2. An Amendment relating to the federal structure of the government can be made only
with a special majority and consent by half of the State legislatures.

Amenability of Fundamental Rights in India

The Supreme Court gave Parliament unlimited power to amend the Constitution in the early
years of independence, as demonstrated by the decisions in Shankari Prasad (1951) and Sajjan
Singh’s (1965) cases.

Years following the Constitution being revised at will to suit the interests of the existing regime,
the Supreme Court ruled in Golaknath case (1967) that Parliament’s amending authority could
not touch Fundamental Rights and that this power would be reserved for a Constituent
Assembly.

Whether the Constitution’s Fundamental Rights can be altered under Art.368 has been a source
of contention in Indian Courts. Art.13(2) of the Constitution forbids enacting any law that
deprives or restricts Part III of the Constitution containing Fundamental Rights.

In Shankari Prasad Singh v. Union of India and State of Bihar

The Constitutional legitimacy of the First Amendment Act was challenged because it sought to
abridge the Fundamental Rights assured by Part III of the Indian Constitution. According to the
Supreme Court, Art.368 of the Constitution grants the right to alter the Constitution, including
Fundamental Rights.

The Supreme Court of India considered whether an amendment to the Constitution could be
viewed as a “law” within the meaning of Art. 13(2) in this case, it was held that an amendment
was made under Art. 368 of the Constitution is not a ‘law’ within the meaning of Art. 13(2) and
thus cannot be challenged on this basis.

Thereby the Court held that even though it abridges a Fundamental Right, an amendment is
valid.
In Sajjan Singh v. State Of Rajasthan

The Constitutional Amendment Act of 1964, generally referred to as the 17th

Amendment Act, was challenged. Because it curtailed the jurisdictional power of High Courts
under Art. 226 but had not been accepted by legislatures of half of India’s States, as stipulated by
Art. 368(2).

The Supreme Court ruled that the challenged Amendment was constitutional because it
did not intend to reform Art. 226 of the Constitution and so did not trigger ratification by Indian
states under the proviso Art. 368(2).

The Supreme Court upheld the decision in the Shankari Prasad’s case, ruling that the
issue was appropriately adjudicated under Article 13 (2) and held that the term “amendment”
refers to any change to the Constitution’s provisions.

In I.C. Golak Nath v. State of Punjab

The Supreme Court overturned its previous rulings in Shankari Prasad and Sajjan Singh, holding
that an amendment was made under Art. 368 of the Constitution would be considered as a law
under Art. 13(2), and no such amendment could be allowed to abrogate the Fundamental Rights
enshrined in part III of the Constitution.

The Court’s concern was that, while the Acts in question may have curtailed
Fundamental Rights, prior rulings had found them to be legitimate. They invoked the theory of
prospective overruling to say that the Amendment would still be considered for those laws. They
did, however, expressly say that, as of the date of the ruling, Parliament would not have the
power to amend any provisions of Part III of the Constitution.

The 24th Constitutional Amendment Act aimed to incorporate Art. 13(4) into the Constitution to
invalidate the impact of Golak Nath’s decision, stating that “Nothing in this article shall pertain
to any amendment of this Constitution enacted under Art. 368”.

In Kesavananda Bharati v. State of Kerala

The case is commonly referred to as the Fundamental Rights case. Golak Nath’s case and
the 24th, 25th, 26th, and 29th Constitutional Amendment Acts were challenged. It explained the
Amendment’s scope. The 24th Constitutional Amendment Act, which declared that Parliament
had the power to abridge any Fundamental Rights, was held valid.

While overruling its earlier judgment in the Golak Nath’s case, the Supreme Court ruled
that
 Justice Sikri gave a superficial list, and the following components were proclaimed as
basic structure: Sovereignty of the Constitution, Segregation of power, Republic and democratic
form of government, Secular trait of the Constitution, Federal trait of the Constitution,
Sovereignty and unification, Freedom and nobility of the individual, Welfare state, Parliamentary
system.

According to the Court, the power to amend the Constitution is also implied, and the 24th
Constitutional Amendment Act just made it plain and declaratory. The basic structure, however,
cannot be altered.

In S.R. Bommai v. Union Of India

In this case the Supreme Court supported the President’s dismissal of the administrations
following the demolition of the Babri Masjid. It is an example of its application (Separation of
power between State and Central government).

The 42nd Amendment included provisions stating that the power to amend is unrestricted and
that amendments are not subject to judicial scrutiny.

In Minerva Mills Ltd. v. Union of India

The legality of the Constitution’s 42nd Amendment Act of 1976 was challenged in the Supreme
Court because it obliterated the Constitution’s basic structure.

The Supreme Court ruled that the Amendment was unconstitutional because it granted
Parliament public authority to amend the Constitution’s provisions and stripped courts of their
ability to judge any modification to the Constitution, including those affecting Fundamental
Rights.

The Court further held that the power of judicial review was acknowledged as part of the
Constitution’s basic structure.

In Waman Rao v. Union of India

The Supreme Court elucidated the prospective essence of the doctrine. The doctrine of basic
structure would bear on to all Constitutional Amendments sanctioned after 24th April 1973 (the
judgement date of the Kesavananda Bharati case).
Art.13(2) expresses, ‘The State shall not pass any legislation that deprives or restricts the rights
granted by Part-III of the Constitution, and any law passed in violation of this clause shall be null
and void to the degree of the breach.’

The bench had decided that the term ‘law in Art. 13 must be interpreted to refer to rules or
regulations enacted under regular legislative authority, rather than amendments to the
Constitution enacted with Constituent authority under Art. 368.

According to the fundamental structure doctrine, Parliament might alter any portion of the
Constitution, including Fundamental Rights.

Doctrine of Severability
In Kihoto Hollohan v. Zachillhu, the Supreme Court held that the Doctrine of Severability
applies to the Constitutional Amendments.

Analysis of amendment procedure in India

1. There is no stipulation for a unique body to amend the Constitution, such as a

Constitutional Convention (as in the United States) or a Constitutional Assembly.
2. The constituent power is vested in Parliament, with state legislatures only having it in
a few instances.
3. The Parliament has the power to propose a constitutional amendment. State
legislatures cannot introduce any bill or proposal to change the Constitution (unlike in
the United States) except in one case: adopting a resolution urging the Parliament to
create or abolish legislative councils in the states. The Parliament can either accept or
condemn such a resolution or take no action on it.
4. There is no set time limit for state legislatures to approve or reject a proposed
amendment. It is also unclear if states may revoke their approval once it has been
granted.
5. If both Houses of Parliament are stuck over the approval of a Constitutional
Amendment Bill, there is no provision for a joint session (Art.108).
6. The amendment procedure’s provisions are just too ambiguous. As a result, they give
rise to court action.

Conclusion
Overall, it may be said that Amenability is an absolute necessity to make the Constitution
a more relevant document in light of changing circumstances, reality and match society’s
evolving needs and ambitions. It guarantees that the constitutional framework and the current
government’s policies and programmes are in harmony.

On a final note, it is resolved to adopt a Joint Parliamentary Committee that might be

formed for in-depth debate and consensus-building. It also discusses forming a special
committee or body (as in the United States) to consider constitutional amendments.

Amendments should be confined to parts of the Constitution that do not comprise the core
philosophy.

6 An Overview of Right to Equality under Article 14 of the Constitution

Introduction

Article 14 basically states that “The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India”. To treat all citizens equally
is the basic concept of liberalism and Article 14 ensures the same to our citizens. The liberty of
any person is directly connected to the equality he/she is getting in society.

Equality before Law

Equality before Law basically means that all persons should be treated equally no matter
whether they are poor or rich, male or female, upper caste or lower caste. This state cannot
provide any special privileges to anyone in the country. It is also known as legal equality.

Equality before the law and absolute equality

On one hand, Equality before Law prohibits providing any special privilege to any
community or people. It does not talk about equal treatment in equal circumstances. According
to it, there must be a very ideal condition and the state does not need to interfere in society by
providing additional privileges in society.
Equality before the law and Rule of Law

In Fact, the Rule of Law which is given by Prof. Dicey says that no one here is beyond or
above the law and is equal in front of the law. Rule of Law guarantees every person the Equality
before Law.

Equal protection of the Laws

According to this principle, everybody who resides in India should be treated equally and
will get equal protection of the law. It guarantees all people inside the territory of India should be
treated equally and the state cannot deny it (for equal protection of the law).

Equality – A positive concept: Basawaraj v. the Spl. Land Acquisition Officer

In the famous case of Basawaraj v. The Spl. Land Acquisition Officer It was held that
here the appellant was negligent on their part as the appellant was not able to show the sufficient
cause for the delay and thus here their appeal was rejected.

Access to Justice By equality before the law, it means everyone has access to justice. No one
can be barred from access to justice. Here all should be treated equally in front of the judicial
system. The word “Access to Justice” includes some basic rights of a person. By term access to
justice, we mean that every person should have the right to appear in court.

Protection against arbitrariness

There is a thin line of difference between being arbitrary and non-arbitrary actions. The
right to equality prevents the arbitrary action of the state.

The doctrine of legitimate expectation

The doctrine of legitimate expectation is basically not a legal right but rather it is a moral
obligation on the part of the administration to look and make laws that provide equality to all
people in a territory. It gives the right of judicial review in administrative law to protect the
interest of people when public authority fails to do so (or when Public authority rescinds from
the representation made to a person).

Constitutional Validity of Special Courts

It was discussed earlier that Equality before Law is not absolute and has several
exceptions to it Article 246(2), is one of such exceptions. Article 246(2) states that:
 “Notwithstanding anything in clause (3), Parliament and subject to clause (1), the
Legislature of any State also, have power to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule”(here List III is Concurrent List).

Administrative discretion
The main purpose of administrative discretion is to maintain equality in all sections of
society. However, this administrative discretion should not go beyond the line and should be
used with proper care. The discretion may amount to arbitrariness.

Reasonable Classification Test

Here, in the case of Ram Krishna Dalmia v. Justice Tendolkar, the Supreme Court
describes the jurisprudence of equality before the law. The test to determine whether conducts of
state are constitutionally valid or not. The very famous “classification test” has been given in this
case only. Here the High Court held that a Government can make a commission to enquire a case
when it is necessary to do so. Here the main purpose of the government is to make any
commitment to help matters of public importance.

Conclusion
At last, I would like to conclude that as our country is democratic we have been provided
certain fundamental rights to every citizen and ensure that these rights should not be infringed by
anyone even by the state. Right to Equality which is provided by our constitution is not actually
being properly enforced even after so much legal obligation related to it has been put forward by
our judicial system.

Our judiciary along with the other two organs of state are working very hard to maintain
equality among all the citizens of our country then also until the citizens are not aware of their
rights it becomes very difficult to eradicate inequality. The role of the citizens became very vital
for the protection of their own rights.
 7 Article 19 of the Indian Constitution

Freedom of Speech and Expression

Introduction
Article 19(1) of the Constitution of India guarantees six fundamental freedoms to every citizen of
India, namely-

1. Freedom of speech and expression;

2. Freedom to assemble peacefully and without arms;
3. Freedom to form associations, unions or co-operative societies;
4. Freedom to move freely throughout the territory of India;
5. Freedom to reside and settle in any part of the territory of India, and
6. Freedom to practice any profession, or to carry on any occupation, trade or business.

These six fundamental freedoms are the natural and basic freedoms inherent in the status
of a citizen. However, these freedoms are not absolute or uncontrolled but are subject to certain
reasonable restrictions. In this article, the author will take you through the six fundamental
freedoms provided under Article 19 along with the relevant case laws.

Freedom of speech and expression [Article 19(1)(a) and 19(2)]

Article 19(1)(a) guarantees the freedom of speech and expression to all citizens. Freedom of
speech and expression is the foundation of a democratic society and is one of the most cherished
rights of a citizen. It is the first condition of liberty and plays an important role in forming public
opinion.

Meaning of freedom of speech and expression

Freedom of speech and expression means the right to speak, and the right to express
oneself through any medium-by words of mouth, writing, pictures, signs, internet etc. Every
citizen has a right to hold an opinion and to be able to express it, including the right to receive
and impart information. The expression ‘freedom of speech and expression’ has a wide
connotation. It includes the freedom of the propagation of ideas, their publication and circulation.

Scope of freedom of speech and expression There are various facets of the freedom of speech
and expression which have been recognised by the courts. Freedom of the press: Freedom of
the press is perhaps the most important freedom under the right to free speech and expression.
In Bennett Coleman & Co v. Union of India(1972), the Hon’ble Supreme Court held that the
freedom of the press embodies the right of the people to free speech and expression. It was held
that “Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation
and in content.”

In the landmark case of Romesh Thappar v. The State Of Madras(1950), the Supreme Court
observed that, “freedom of speech and of the press lay at the foundation of all democratic
organisations, for without free political discussion no public education, so essential for the
proper functioning of the processes of popular government, is possible”. The Court in this case
held that the freedom of circulation is as important as the freedom of publication.

2 Right to know and to obtain information: In the State of U.P. v. Raj Narain (1975),

The Supreme Court observed that the right to know is derived from the concept of
freedom of speech. The Court further held that the people of this country have a right to know
every public act, everything that is done in a public way, by their public functionaries.

Thus, the right to obtain information and disseminate it is an important fundamental right. In
India, we have the Right to Information Act, 2005 which provides for the right of a citizen to
secure access to information under the control of public authorities.

2. Right to know the antecedents of the candidates at election: In Union of India v.

Association For Democratic Reforms (2002), the Hon’ble Supreme Court held that the
voters have a fundamental right to know the antecedents of the candidate contesting
election including his/her criminal past.
3. Right to reply: In LIC v. Prof. Manubhai D. Shah(1992), the Supreme Court ruled
that the right to reply, including the right to get that reply published in the same news
media in which something was published against or in relation to a citizen, is
protected under Article 19(1)(a).
4. Right to silence: Right to speak includes the right to not speak or the right to remain
silent. In Bijoe Emmanuel v. State of Kerala (1986), the Supreme Court upheld the
right to silence of three children who were expelled from school because they refused
to sing the National Anthem. The Court held that no person can be compelled to sing
the National Anthem if he has genuine conscientious objections based on his religious
belief. Hence, the right to speak and the right to express includes the right not to
express and to be silent.
5. Right to fly the national flag: In the case of Union of India v. Naveen Jindal
(2004), the Supreme Court held that flying the National Flag with respect and dignity
is an expression and manifestation of one’s allegiance and feelings and sentiments of
pride for the nation and therefore, is a fundamental right protected under Article
19(1)(a). However, the flying of the National Flag cannot be for commercial purposes
or otherwise and can be subject to reasonable restrictions.
Reasonable restrictions on the right to free speech and expression

The right to free speech and expression is not an absolute right and is subject to reasonable
restrictions. As per Article 19(2), restrictions can be imposed upon the freedom of speech and
expression in the interests of: 1 sovereignty and integrity of India, 2 the security of the state, 3
public order, decency or morality,

Freedom of assembly [Article 19(1)(b) and 19(3)]

The object of holding an assembly or a meeting is the propagation of ideas and to educate
the public. Hence, the right to assemble is a necessary corollary of the right to free speech and
expression. Article 19(1)(b) provides for the right to assemble peaceably and without arms. This
includes the right to hold public meetings, hunger strikes, and the right to take out processions.
However, the assembly must be peaceful and without arms.

Reasonable restrictions on right to freedom of assembly

According to Clause 3 of Article 19, the right to freedom of assembly could be restricted on the
following grounds: 1 In the interests of the sovereignty and integrity of India, 2 In the interests
of public order.

Freedom to form associations, unions or co-operative societies [Article 19(1)(c) and 19(4)]

Article 19(1)(c) provides for the right to form associations, unions or cooperative
societies. An association refers to a group of persons who have come together to achieve a
certain objective which may be for the benefit of the members of the welfare of the general
public or a scientific, charitable or any other purpose.

Freedom of movement and residence [Article 19(1)(d), 19(1)(e) and 19(5)]

Article 19(1)(d) and (e) are complementary to each other and confer a right upon the
citizens to move freely or/and to reside and settle in any part of the country.

Freedom of movement

Article 19(1)(d) provides for the right to move freely throughout the territory of India.
This means the right to locomotion, i.e., the right to move as per one’s own choice. This right
includes the right to use roads and highways.
Freedom of profession, occupation, trade or business [Article 19(1)(g) and 19(6)]

Article 19(1)(g) provides for the fundamental right of the citizens to practice any
profession or to carry on any occupation, trade or business.

The Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997) has observed that the sexual
harassment of working women in workplaces violates the fundamental right under Article
19(1)(g). In this case, comprehensive guidelines and binding directions were issued by the court
to prevent the incidents of sexual harassment of women at workplaces in both public and private
sectors.

Conclusion
In the landmark case of Maneka Gandhi v. Union of India (1978), the Supreme Court
said that it is possible that a right does not find express mention in any clause of Article 19(1)
and yet it may be covered by some clause of that Article. This is true for freedom of the press is
one such important fundamental right which, though not expressly mentioned, is implicit in
Article 19(1)(a).

Lastly, it is noteworthy that earlier Article 19(1) provided for seven fundamental
freedoms i.e. Clause(f) provided for the freedom to hold and acquire property which was deleted
by the Constitution (Forty-Fourth Amendment) Act, 1978.
8 Protection in respect of Conviction for Offences: Blend of Constitutional & Procedural
Laws Art 20

Article 20 of the Indian Constitution makes up of 3 clauses. i.e. Ex-post facto law, Doctrine
of Double Jeopardy and Prohibition against self-incrimination.

Provision against Ex post facto law: Clause (1) of Article 20

The provision in question, i.e. Article 20 (1) says that one must not be prosecuted and convicted
in accordance with those laws which didn’t exist at the time of the commission of the offence by
the accused and also must not be inflicted with punishments greater than those existing at the
time of commission. This provision negates the chance of retrospective implementation of laws
regarding criminal offences. In simpler speak, this provision brings a clampdown to the
legislative prerogative of the legislation by prohibiting retrospective implementation of a law
having criminal nature.

The Landmark judgement governing this doctrine came in the year 1953, in case of Kedar Nath
v. State of West Bengal. In this case, the Hon’ble Supreme Court of India observed that,
whenever an act is declared as a criminal offence and/or provides penalty for same by the
legislature, it is always prospective in nature and can’t be implemented retrospectively to uphold
what is being said under Article 20 (1).

Double jeopardy: Clause (2) of Article 20

“Nemo debet bis vexari pro una et eadem causa”

The Doctrine of Double Jeopardy, which traces back its origin to American jurisprudence
of punishment, means that ‘no person can be prosecuted and punished twice for the same offence
in subsequent proceedings’. And, Article 20 (2), which reads that no one could be convicted and
punished more than once for the same offence involving the same set of facts guarantees against
the multiple convictions and Double jeopardy.

In the case of Venkataraman v. Union of India, the Supreme Court of India established
that this provision deals exclusively with Judicial punishments and provides that no person is
prosecuted twice by the judicial authorities. The most crucial landmark judgement came in case
of Maqbool Hussain v. State of Bombay, where the person accused was possessing some
amount of gold, which was against lex loci at the time and gold was confiscated by the customs
authority. And, later when the person was prosecuted before a criminal court, the court was
confronted with the question whether this amounts to Double Jeopardy.

But, the Supreme Court observed that departmental proceedings, i.e. by Customs
Authority, in this case, doesn’t amount to trial by a judicial tribunal, thus the proceedings before
the criminal court is not barred in this case and the proceedings can go on. In a nutshell
Departmental Proceedings are independent of trial by a judicial court or tribunal.

Prohibition against self-incrimination: Clause (3) of Article 20

Another foremost rule which provides for protection from a conviction for offences is
‘Prohibition against Self-incrimination.’ The same is provided by the Constitution of India in
Part III under Article 20 (3). It describes that no one could be forced to utter and provide such
information or evidence orally or by documentary means which could be used against himself
during the further trial procedure.

Also, the term ‘Witness’ includes both, Oral and documentary evidence as held in M.P.
Sharma v. Satish Chandra. As held in the same case, however, there is no restriction where a
search for document or seizures is being done by the authorities. However, the information and
evidence produced voluntarily by the accused is permissible.

Conclusion
If we would bother to analyse all the clauses of the Article 20 of the Indian Constitution, we
would come across this interesting inference that these clauses i.e. Article 20(1), Article 20(2)
and Article 20(3) reflects protection of convicted persons from excess of Legislation, Judiciary
and Executive actions respectively.

9 The Right to Life and Personal Liberty is assured by the Indian Constitution under
Article 21 :

According to Article 21: Right to Life “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.

Interpretation of 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

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.”
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.

10 Article 22 of the Indian constitution talks about the protection of life and personal
liberty.
Article 22:

 It deals with the protection against arrest and detention in certain cases.
 This article is applicable to both citizens and non-citizens.
 This provision extends certain procedural safeguards for individuals in case of an arrest.
 The idea behind this right is to prevent arbitrary arrests and detention.
 The article provides the following safeguards:
 Article 22(1) – Any person who is in custody has to be informed as to why he has
been arrested. Further, he cannot be denied the right to consult an advocate.
 Article 22(2) – The arrested individual should be produced before a judicial
magistrate within 24 hours of his arrest.
 Article 22(3) – 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
These safeguards are, however, not applicable to
 Enemy aliens
 People arrested under preventive detention law.

Right against
11 Right against Exploitation
Article 23 – Prohibition of traffic in human beings and forced labour
Article 23(1): Traffic in human beings and the beggar and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence punishable in
accordance with the law.
Article 23(2): Nothing in this article shall prevent the State from imposing compulsory service
for public purposes, and in imposing such service the State shall not make any discrimination on
grounds only of religion, race, caste or class or any of them.

 Exploitation implies the misuse of others’ services by force and/or labour without
payment.
 There were many marginalized communities in India who were forced to engage in
manual and agricultural labour without any payment.
 The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless
persons into labour and forcing helpless women into prostitution is unconstitutional.
 The Article also makes trafficking unconstitutional.
 Trafficking involves the buying and selling of men and women for illegal and immoral
activities.
 Even though the Constitution does not explicitly ban ‘slavery’, Article 23 has a wide
scope because of the inclusion of the terms ‘forced labour’ and ‘traffic’.

Article 23 protects citizens not only against the State but also from private citizens.

 The State is obliged to protect citizens from these evils by taking punitive action against
perpetrators of these acts (which are considered crimes), and also take positive actions to
abolish these evils from society.
 Under Article 35 of the Constitution, the Parliament is authorized to enact laws to punish
acts prohibited by Article 23.
 Clause 2 implies that compulsory services for public purposes (such as conscription to
the armed forces) are not unconstitutional.
 Laws passed by the Parliament in pursuance of Article 23:
 Suppression of Immoral Traffic in Women and Girls Act, 1956
 Bonded Labour System (Abolition) Act, 1976

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

Article 24 says that “No child below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment.”

 This Article forbids the employment of children below the age of 14 in any hazardous
industry or factories or mines, without exception.
  However, the employment of children in non-hazardous work is allowed.

Laws that were passed in pursuance of Article 24 in India.

The Factories Act, 1948
This was the first act passed after independence to set a minimum age limit for the
employment of children in factories. The Act set a minimum age of 14 years. In 1954, this Act
was amended to provide that children below the age of 17 could not be employed at night.
The Mines Act of 1952
This Act prohibits the employment of people under the age of 18 years in mines.
The Child Labour (Prohibition and Regulation) Act, 1986
This was a landmark law enacted to curb the menace of child labour prevalent in India. It
described where and how children could be employed and where and how this was forbidden.
This Act designates a child as a person who has not completed his/her 14th year of age. The
1986 Act prohibits the employment of children in 13 occupations and 57 processes.
Child Labour (Prohibition & Regulation) Amendment Act, 2016
This Act completely forbids the employment of children below 14 years of age. It also
bans the employment of people between the ages of 14 and 18 in hazardous occupations and
processes. Punishments to violators of this law were made stricter by this amendment act. This
Act allows children to be employed in certain family occupations and also as artists.
Child Labour (Prohibition and Regulation) Amendment Rules, 2017
The government notified the above Rules in 2017 to provide a broad and specific
framework for prevention, prohibition, rescue, and rehabilitation of child and adolescent
workers. The Rules clarified on issues concerning the employment of family enterprises and also
provides safeguards for artists in that the working hours and conditions are specified.

12 Right to Freedom of Religion

The Constitution of India guarantees the right to freedom of religion to not only
individuals but also religious groups in India. This is enshrined in Articles 25 to 28.

Article 25 (Freedom of conscience and free profession, practice, and propagation of religion)
Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate
religion to all citizens.

 The above-mentioned freedoms are subject to public order, health, and morality.

That regulates and restricts any financial, economic, political, or other secular activity associated
with any religious practice.
  That provides for the social welfare and reform or opening up of Hindu religious
institutions of a public character to all sections and classes of Hindus. Under this
provision, Hindus are construed as including the people professing the Sikh, Jain,
or Buddhist religions, and Hindu institutions shall also be construed accordingly.
People of the Sikh faith wearing & carrying the kirpan shall be considered as included in
the profession of the Sikh religion.

Article 26 (Freedom to manage religious affairs)

This Article provides that every religious denomination has the following rights, subject to
morality, health, and public order.

1. The right to form and maintain institutions for religious and charitable intents.
2. The right to manage its own affairs in the matter of religion.
3. The right to acquire the immovable and movable property.
4. The right to administer such property according to the law.

Article 27 (Freedom as to payment of taxes for promotion of any particular religion)

According to Article 27 of the Constitution, there can be no taxes, the proceeds of which are
directly used for the promotion and/or maintenance of any particular religion/religious
denomination.

Article 28 (Freedom as to attendance at religious instruction or religious worship in certain

educational institutions)

 This provides that no religious instruction shall be provided in State-run educational

institutions.

What is Secularism?
The word ‘secularism’ means separate from religion.

 It entails the separation of religion from the government, social, economic, and cultural
aspects of life.
 Here religion is an entirely personal matter.
 India is a secular country with no state religion.
 However, this in India, also means that there is equal respect for all religions and faiths.
 The word is also a part of the Basic Structure of the Constitution. It was added by
the 42nd Amendment to the Constitution.
 This concept enjoys high regard in Indian democracy.
 Secularism has also been an inalienable part of Indian culture as seen by the multitude of
faiths that have co-existed in this country for centuries.
 All religious groups in India have the same powers without any discrimination.
Indian and Western Models of Secularism
The term secularism, as explained above, indicates the separation of the State from religion. This
concept, however, has slightly differing connotations in the Indian and the western polity. This is
discussed below.

 In the Western model, secularism connotates complete separation of the State from the
Church. This owes its origin to the French Revolution where the revolution sought to
establish a ‘secular’ government, one which did not influence the church or the clergy.

13 Article 30 of the Indian Constitution

Right of minorities to establish and administer educational institutions.

Introduction
Article 29 and Article 30 of the Indian Constitution grant special rights to minorities in
India. It guarantees fundamental rights to minorities in India in terms of cultural and educational
rights. These rights are absolute in nature and are made with the intent to protect and guarantee
freedom and the Right to Life to these minorities. Article 30 guarantees the Right to Education
to Indian minority communities by giving them a right to establish educational institutions for
their communities and run them with the internal administration of choice.

Article 30 of the Indian Constitution and its purpose

Article 30 discusses the right of minorities to establish and administer educational institutions.
This right is given to minorities to form and govern their own educational institutions. It is also
called the ‘Charter of Education Rights’.

Article 30(1): All religious and linguistic minorities have the right to establish and administer
educational institutions of their choice.

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

Article 30, as it is read, makes provisions for minority communities in India to establish and
administer educational institutions in India. It guarantees them the right to avail themselves of
aid from the government like other educational institutions. Article 30 guarantees them equality
and non-discrimination in education.
Minorities’ educational institutions in India are of the following kinds:

1. Educational institutions that seek approval, recognition, and aid from the state
government where they have established their institution,
2. Educational institutions that seek only approval and recognition from the state
government, and
3. Educational institutions that seek neither recognition nor aid from the state
government.
The administration of these institutions is also in varied manner. The educational
institutions that seek recognition, aid, or both from the state government are subject to minimal
state interference. These institutions have to follow the directions the state government gives in
this regard on matters like manner and standard of academics, syllabus, employment of teachers
in these institutions, sanitation standards to be maintained, and other rules and regulations.

Cases on Article 30 of the Indian Constitution

Secretary of Malankara Syrian Catholic College v. T. Jose and Ors. (2006)

The Ahmedabad St. Xaviers College v. State of Gujarat and Anr. (1974)

In this case, the Supreme Court reflected on the purpose and spirit behind Article 30. The
Court stated that the spirit behind Article 30 is the moral obligation of the nation towards
minority communities. It is to ensure that the religious minorities and linguistic minorities of the
country are not restricted from establishing, administering, and imparting education in their
choice.

They are given utmost respect and freedom to instil the values and beliefs of their
community in their children and shape them as responsible citizens of the country and pioneers
of their community.

This classification of minorities and the classification of minorities’ educational institutions was
clarified by the Supreme Court in

T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002), where the Supreme
Court recited guidelines on Article 29 and Article 30 of the Constitution.

The Court clarified that the determination of religious minorities and linguistic minorities
is to be done state-wise, not nationally. These minority communities and their educational
institutions, therefore, must follow the standard rules and regulations, and policies of their
respective state governments. These rules, regulations and policies are state-made with the
supervision and guidance of the centre. These regulations are made in adherence with the public
order, morality, security and sovereignty of the nation.
Importance of protection of minorities
As the largest democracy in the world and making a home for diverse people, it is a
primary duty of the Indian government to uphold the values of the Constitution. This includes the
protection of the country’s minority communities. It is a general tendency for minorities’
interests to be sidelined due to the importance and privilege enjoyed by the majority community.

Thus, to protect the interests of the minorities, laws must be made in a manner that their
rights are protected at par with the majority privilege and rights. This is why special provisions
are made for minorities. The Indian laws provide privilege to the majority community. Certain
policies have been criticized to be discriminatory to the minorities of the country. They lead to
protests. Mentioned below are some instances of protests in the country due to the majority-
minority conflicts:

 During the Delhi communal violence, several people were killed, most of whom were
Muslims. This incited further protests about the lack of protection for the minorities.
The capital city has been known to have seen the highest number of religious protests.
 The 2020 Farm Bill protests by the Sikhs which was due to the community’s rights
being hampered by the structure of the Bill.
 The 2019 Citizenship Amendment Act was violative of the minorities’ rights as it had
different procedural provisions for the majority and the minorities.
 The Anti-Conversion laws by states that prosecute Muslim men who marry Hindu
women are criticized to be discriminatory in nature.
Therefore, policies, regulations and special laws to protect the minorities’ rights are essential in
India.

National Commission for Minorities

As of 2020, the Commission has been renamed the National Commission for Minorities and
functions under the jurisdiction of the Ministry of Minorities. The Commission’s ambit covers
only religious minorities (Muslims, Christians, Sikhs, Parsis and Jains) and excludes the
linguistic minorities. Formed with a Chairperson, Vice-Chairperson and five members, the
Commission performs the following functions:

 Evaluates the condition of minorities of India and the governments’ (Central and
States) effort to improve it,
 Checks the functioning of laws made for the benefit of minorities,
 Makes recommendations for enacting laws that would improve the minorities
conditions in India,
In P.A. Inamdar and Ors. v. State of Maharashtra and Ors. (2005), the Supreme Court gave a
landmark judgement where it held that the reservation policy during admissions would not be
applicable to minority educational institutions. Rather, it shall be on the basis of merit and shall
be equally open to children of all religious and linguistic groups of India.

Conclusion
Indian minorities have suffered several hardships in the form of violence, discrimination,
hate and lack of representation. To curb these atrocities, the Union Government, legislators and
policymakers have come up with laws, legislation, regulations and special rights for the minority
communities. One such right is guaranteed to them under Article 30.

The minority communities to establish and administer educational institutions of their

choice. They are given administrative autonomy with minimum interference from the
government. This is done with a view to ensuring equality and equal opportunities for the
religious and linguistic minorities of the nation when it comes to education. Even with various
governmental efforts over the years, the violence, discrimination and hate are believed to have
continued till today. Time will tell what becomes of Indian minorities and the extent to which
their atrocities are reduced by the government.

14 Article 32 and Art 226 of the Indian Constitution

Nature of Writ Jurisdiction

Concept and Purpose

Article 32 of the Indian Constitution gives the right to individuals to move to the
Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’.The
main purpose of Writ Jurisdiction under Article 32 is the enforcement of Fundamental Rights.

Dr Ambedkar stated that: “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. It is the very soul of the Constitution and the very heart
of it and I am glad that the House has realized its importance.”

Nature of Writ Jurisdiction

The nature of Writ Jurisdiction provided under this Article is discretionary. There are five
important factors for guiding this discretion.
Factors Guiding the
Meaning
Discretion

1. Locus Standi Right to bring an action or to be heard before a court.

2. Alternative Relief Remedies sought in a lawsuit in various or alternative forms.

3. Res Judicata A case that has been decided.

4. Questions of the Fact An issue that involves resolution of a factual dispute or controversy.

A defence to an equitable action, that bars recovery by the plaintiff because of

5. Laches
the plaintiff’s undue delay in seeking relief.

Types of Writs

There are five types of Writs as provided under Article 32 of the Constitution:

1. Habeas Corpus

 Meaning
It is one of the important writs for personal liberty which says “You have the Body”. The main
purpose of this writ is to seek relief from the unlawful detention of an individual. It is for the
protection of the individual from being harmed by the administrative system and it is for
safeguarding the freedom of the individual against arbitrary state action which violates
Fundamental Rights under Articles 19, 21 & 22 of the Constitution. This writ provides
immediate relief in case of unlawful detention.

 When Issued?
Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without any
authority of law.

Important judgments on Habeas Corpus In the case of ADM Jabalpur v. Shivakant Shukla
which is also known as the Habeas Corpus case, it was held that the writ of Habeas Corpus
cannot be suspended even during an emergency (Article 359).
Circumstances when the writ of Habeas Corpus cannot be issued:

1. The detention is lawful.

2. The case is being prosecuted for failure to comply with a legislative or judicial
mandate.
3. A competent court authorized the detention.
4. The jurisdiction of the court on detention is ultra vires.

Quo Warranto

 What does the writ of Quo Warranto mean?

Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of public
offices and it is issued to restrain persons from acting in public office to which he is not entitled
to.

The court issues the Writ of Quo Warranto in the following cases:

1. When the public office is in question and it is of a substantive nature. A petition

against a private corporation cannot be filed.
2. The office is created by the State or the Constitution.
3. The claim should be asserted on the office by the public servant i.e. respondent.

 Important Case Laws

In the case of Ashok Pandey v. Mayawati , the writ of Quo Warranto was refused against Ms
Mayawati (CM) and other ministers of her cabinet even though they were Rajya Sabha members.

 Circumstances when the writ of Quo Warranto cannot be issued

1. The writ of Quo Warranto cannot be issued for any private organization or person.
2. The writ of Quo Warranto cannot be issued for any body or an organisation that does
not fall under the definition of “State” as defined under Article 12.
3. Absence of alternative remedy cannot be a ground for issuing a writ of Quo
Warranto.
In the case of Bharati Reddy v. The State Of Karnataka (2018), the Hon’ble Supreme Court held
that a writ of quo warranto cannot be issued based on assumptions, inferences, or speculations
concerning the fact of accomplishment of qualifying conditions. There must be an establishment
of the fact that a public officer is abusing lawful powers not vested to him within the public
authority.
3. Mandamus

 Writ of Mandamus
Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct
performance of mandatory and purely ministerial duties and is issued by a superior court to a
lower court or government officer. However, this writ cannot be issued against the President and
the Governor. Its main purpose is to ensure that the powers or duties are not misused by the
administration or the executive and are fulfilled duly. Also, it safeguards the public from the
misuse of authority by administrative bodies.

Conditions for issue of Mandamus

1. There must rest a legal right of the applicant for the performance of the legal duty.
2. The nature of the duty must be public.
3. On the date of the petition, the right which is sought to be enforced must be
subsisting.
4. The writ of Mandamus is not issued for anticipatory injury.

Limitations
The courts are unwilling to issue the writ of mandamus against high dignitaries like the President
and the Governors. In the case of S.P. Gupta v. Union of India , judges were of the view that a
writ cannot be issued against the President of India for fixing the number of judges in High
Courts and filling vacancies.

But in Advocates on Records Association v. Gujarat , the Supreme Court ruled that the judges’
issue is a justiciable issue and appropriate measures can be taken for that purpose including the
issuance of mandamus.

4. Certiorari

 What does Writ of Certiorari mean?

Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of the
jurisdiction and the decision of the case is based on it. The writ can be moved to higher courts
like the High Court or the Supreme Court by the affected parties.

There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued against
purely administrative or ministerial orders and that it can only be issued against judicial or quasi-
judicial orders.

 When is a writ of Certiorari issued?

It is issued to quasi-judicial or subordinate courts if they act in the following ways:
 1. Either without any jurisdiction or in excess.
2. In violation of the principles of Natural Justice.
3. In opposition to the procedure established by law.
4. If there is an error in judgement on the face of it.

 Important Judgements on writ of Certiorari

Then in the case of T.C. Basappa v. T. Nagappa & Anr. [13], it was held by the constitution
bench that certiorari maybe and is generally granted when a court has acted (i) without
jurisdiction or (ii) in excess of its jurisdiction.

Circumstances when the writ of Certiorari cannot be issued:

The writ of certiorari cannot be issued against: 1 An individual 2 A company 3 Any private
authority 4 An association 5 An aggrieved party who has an alternative remedy

5. Prohibition

 What does Writ of Prohibition mean?

It is a writ directing a lower court to stop doing something which the law prohibits it from doing.
Its main purpose is to prevent an inferior court from exceeding its jurisdiction or from acting
contrary to the rules of Natural Justice.

 When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts in order to refrain it from
doing something which it is not supposed to do as per law. It is usually issued when the lower
courts act in excess of their jurisdiction. Prohibition is a writ of preventive nature. The principle
of this is ‘Prevention is better than cure’.

 Important Case Laws

Then in the case of Bengal Immunity Co. Ltd , the Supreme Court pointed out that where an
inferior tribunal is shown to have seized jurisdiction which does not belong to it then that
consideration is irrelevant and the writ of Prohibition has to be issued as a right.

 Circumstances when the writ of Prohibition cannot be issued:

1. A writ of prohibition cannot be issued when a subordinate or a tribunal court is acting

within the ambit of its jurisdiction.
2. A writ of prohibition cannot be issued in the situation of a mistake of a fact or law.
3. A writ of prohibition is not allowed for administrative authorities discharging
administrative, executive or ministerial functions.
Principle of res judicata
Res Judicata is defined under Section 11 of the Civil Procedure Code, 1908. It is the Latin
phrase for “a matter decided.” It means that a subsequent suit cannot be filed on the same cause
of action and the same dispute by the parties to the suit. The principle of Res Judicata is based on
three maxims:

1. Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same
cause)
2. Interest republicae ut sit finis litium (it is in the interest of the state that there should
be an end to litigation)
3. Res judicata pro veritate occipitur (a judicial decision must be accepted as correct)

In the case of Ajay Hasia v. Khalid Mujib (1981), under Article 12, the term “local authority”
refers to a unit of local self-government such as a municipal committee or a village panchayat.

Suspension of fundamental rights

The fundamental rights are merely suspended in their enforcement under Article 359, not their
totality. During the emergency, the rights outlined in Articles 20 and 21 cannot be suspended.

Key differences between Article 32 and Article 226 : a tabular representation

Article 32 Article 226

1. Article 32 is a fundamental right in itself. The 1. Article 226 has discretionary powers to
Supreme Court cannot refuse to consider any petition High Court within judicial principles to
under Article 32. consider any petition.

2. Under Article 32, writ petitions are issued to

2. Under Article 226, writ petitions can be
enforce fundamental rights.
issued to enforce fundamental rights or for
any other purpose.

3. During the time of emergency, Article 32 is 3. During the time of emergency, Article 226
suspended. cannot be suspended.

4. Orders passed under Article 32 will supplant orders 4. The orders passed under Article 226 cannot
passed under Article 226. supplant orders under Article 32.

5. Article 32 has territorial jurisdiction over the entire 5. Article 226 has limited territorial
country of India. jurisdiction.

Conclusion

The constitutional remedies provided to the citizens are the powerful orders with
immediate effect. And the writs are mostly invoked against the state and are issued when PILs
are filed. The Writ Jurisdictions which are conferred by the Constitution though have prerogative
powers and are discretionary in nature and yet they are unbounded in its limits.

The discretion, however, is exercised on legal principles. Therefore, the first essential on
which the constitutional system is based in the absence of arbitrary power. Hence, the decision
must be taken on the basis of sound principles and rules and should not be based on whims,
fancies or humour. And if a decision is not backed by any principles or rules, then such a
decision is considered arbitrary and is taken not in accordance with the rule of law.

ARTICLE 38: STATE TO SECURE A SOCIAL ORDER FOR THE PROMOTION OF

THE WELFARE OF THE PEOPLE
(1) The State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall inform
all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to
eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also
amongst groups of people residing in different areas or engaged in different vocations.

15 Article 39 of the Indian Constitution

Introduction
The Directive Principles of the State Policy (DPSP) has been enumerated under Part IV of
the Indian Constitution from Articles 36 to 51. The drafters/ framers of the Indian Constitution
have taken this concept of the Directive Principle of the State Policy (DPSP) from the Irish
Constitution, 1937 which has further borrowed the said concept from the Spanish Constitution.

As rightly said by Dr. B.R Ambedkar, these Directive Principles of the State Policy (DPSP) form
the novel feature of the Indian Constitution. The Fundamental Rights along with the Directive
Principles are the heart and soul of the Indian Constitution.

Classification of the Directive Principles of the State Policy (DPSP)

The Indian Constitution does not explicitly mention any classification of the Directive Principles
of the State Policy (DPSP). However, on the basis of the content of the various Articles, they can
be classified under three major categories, that are:

1. Socialistic Principles, (Article 38, 39, 39A, 41, 42, 43, 43A and 47)
2. Gandhian Principles and (Article 40, 43, 43B, 46, 47, 48)
3. Liberal-intellectual Principles. (Article 44, 45, 48, 48A, 49, 50, 51)

Article 39 of the Indian Constitution

Article 39 of the Indian Constitution, specifically deals with the provisions or principles of
policy that shall be undertaken by the state. Article 39 contains six sub-clauses, that are:

1. That all the citizens irrespective of their sex whether men or women shall equally
have the right to adequate means of livelihood. [Article 39(a) of the Indian
Constitution]
2. That the resources and the ownership of those resources and materials shall be
distributed in such a way that it fulfils the common goal. [Article 39(b) of the Indian
Constitution]
3. That the economic system shall be executed in such a way that the concentration of
wealth and means of production shall not result in a common detriment. [Article 39(c)
of the Indian Constitution]
4. That equal pay for equal work shall be promoted. [Article 39(d) of the Indian
Constitution]
5. That the health and strength of workers irrespective of whether men, women or
children shall not be abused or manipulated. Further, economic necessity/condition
shall not be the reason for entering such avocation that is unsuitable for specific age or
strength. [Article 39(e) of the Indian Constitution]
6. That appropriate opportunities shall be given to children that would help them in
building in a healthy manner, and in the condition of freedom and dignity.
1 Garib Kalyan Rozgar Yojana
This scheme was an outcome of the COVID-19 pandemic under which the government aims at
promoting employment opportunities to all those migrant workers who have got displaced and
further providing them the funds to re-establish their ventures.

2 Deen Dayal Upadhyaya Antodaya Yojana

The purpose of Deen Dayal Upadhyaya Antodaya Yojana (DAY) is to skill and train people
residing in rural as well as urban areas. The chief purpose of the scheme is to expand and
generate more and more employment and further provide funds to people so that they can set up
their ventures.

Conclusion
Article 39 of the Indian Constitution make sure that the state while or before framing the
policies, regulations, etc. shall put due consideration on ensuring adequate means of livelihood to
every person irrespective of the fact that such person is a male or female, equal pay for equal
work shall be promoted that aims at curbing the stereotype behaviour of the society towards the
women, the employees shall be protected or safeguarded from any kind of exploitation, due
consideration shall be made on the health of children and further ensuring enough opportunity to
the youths for their development.

The only loophole that can be mentioned here is the non-inclusivity of other genders
within the scope of Article 39 of the Indian Constitution as it includes only males and females.

16 ARTICLE 39A: EQUAL JUSTICE AND FREE LEGAL AID

The State shall secure that the operation of the legal system promotes justice, on a basis
of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities.

ARTICLE 40: ORGANISATION OF VILLAGE PANCHAYATS

The State shall take steps to organise village panchayats and endow them with such powers and
authority as may be necessary to enable them to function as units of self-government.

ARTICLE 41: RIGHT TO WORK, TO EDUCATION AND TO PUBLIC ASSISTANCE

IN CERTAIN CASES
The State shall, within the limits of its economic capacity and development, make effective
provision for securing the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in other cases of undeserved want.
ARTICLE 42: PROVISION FOR JUST AND HUMANE CONDITIONS OF WORK AND
MATERNITY RELIEF
The State shall make provision for securing just and humane conditions of work and for
maternity relief.

ARTICLE 43: LIVING WAGE, ETC., FOR WORKERS

The State shall endeavor to secure, by suitable legislation or economic organisation or in any
other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of
work ensuring a decent standard of life and full enjoyment of leisure and social and cultural
opportunities and, in particular, the State shall endeavour to promote cottage industries on an
individual or co-operative basis in rural areas.

ARTICLE 43A: PARTICIPATION OF WORKERS IN MANAGEMENT OF

INDUSTRIES
The State shall take steps, by suitable legislation or in any other way, to secure the participation
of workers in the management of undertakings, establishments or other organisation engaged in
any industry

17 ARTICLE 44: UNIFORM CIVIL CODE FOR THE CITIZEN

INTRODUCTION :

The State shall endeavour to secure for the citizens a uniform civil code throughout the territory
of India.

Uniform Civil Code resonates with one country one rule, to be applied to all religious
communities. The term, ‘Uniform Civil Code’ is explicitly mentioned in Part 4, Article 44 of the
Indian Constitution. Article 44 says, “The State shall endeavor to secure for the citizens a
uniform civil code throughout the territory of India.”

Context: Uniform Civil Code in India is a widely debated topic lately since the first petition was
filed in 2019 to seek for framing of a UCC to promote national integration and gender justice,
equality, and dignity of women.
A Uniform Civil Code means that all sections of the society irrespective of their religion shall be
treated equally according to a national civil code, which shall be applicable to all uniformly.
They cover areas like- Marriage, divorce, maintenance, inheritance, adoption and succession of
the property. It is based on the premise that there is no connection between religion and law in
modern civilization.
What is Article 44?
Article 44 corresponds with Directive Principles of State Policy stating that State shall endeavour
to provide for its citizens a uniform civil code (UCC) throughout the territory of India.
The Hindu code bill -The bill was drafted by Dr.B R Ambedkar to reform Hindu laws, which
legalized divorce, opposed polygamy, gave rights of inheritance to daughters. Amidst intense
opposition of the code, a diluted version was passed via four different laws.
Succession Act-The Hindu Succession Act, 1956, originally did not give daughters inheritance
rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu
family. But this disparity was removed by an amendment to the Act on September 9, 2005
The Hindu Marriage Act
Minority and Guardianship Act
Adoptions and Maintenance Act
Special Marriage Act:

 It was enacted in 1954 which provided for civil marriages outside of any religious
personal law.
 Judicial interventions:
Shah Bano case (1985):-
A 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying
“I divorce thee” three times) and was denied maintenance. She approached the courts and the
District Court and the High Court ruled in her favour. This led to her husband appealing to the
Supreme Court saying that he had fulfilled all his obligations under Islamic law.
The Supreme Court ruled in her favour in 1985 under the “maintenance of wives, children and
parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens
irrespective of religion. Further, It recommended that a uniform civil code be set up.
Daniel Latifi Case:-
Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to
equality under Articles 14& 15 as well as the right to life under Article 21.
The Supreme Court while holding the law as constitutional, harmonised it with section 125 of
CrPC and held that the amount received by a wife during iddat period should be large enough to
maintain her during iddat as well as provide for her future. Thus under the law of the land, a
divorced Muslim woman is entitled to the provision of maintenance for a lifetime or until she is
remarried.
Sarla Mudgal Case:-
In this case, the question was whether a Hindu husband married under the Hindu law, by
embracing Islam, can solemnise a second marriage. The court held that the Hindu marriage
solemnized under Hindu law can only be dissolved on any of the grounds specified under the
Hindu Marriage Act 1955. Conversion to Islam and marrying again, would not by itself dissolve
the Hindu marriage under the act and thus, a second marriage solemnized after converting to
Islam would be an offence under section 494 of the Indian Penal Code(IPC).
John Vallamattom Case:-
In this case, a priest from Kerala, John Vallamattom challenged the Constitutional validity of
Section 118 of the Indian Succession Act, which is applicable for non-Hindus in India. Mr
Vallamatton contended that Section 118 of the act was discriminatory against Christians as it
imposes unreasonable restrictions on their donation of property for religious or charitable
purposes by will. The bench struck down the section as unconstitutional.

The Constitution of India on the Uniform Civil Code

Part IV, Article 44 of the Constitution states that “The State shall endeavour to secure the citizen
a Uniform Civil Code throughout the territory of India”.
However, Article 37 of the Constitution itself makes it clear the DPSP “shall not be enforceable
by any court”. Nevertheless, they are “fundamental in the governance of the country”. This
indicates that although our constitution itself believes that a Uniform Civil Code should be
implemented in some manner, it does not make this implementation mandatory.

Goa Civil Code

Goa is the only Indian state to have a UCC in the form of common family law. The Portuguese
Civil Code that remains in force even today was introduced in the 19th century in Goa and
wasn’t replaced after its liberation.
Features-

 The Uniform Civil Code in Goa is a progressive law that allows equal division of income
and property between husband and wife and also between children (regardless of gender).
 Every birth, marriage and death have to be compulsorily registered. For divorce, there are
several provisions.
 Muslims who have their marriages registered in Goa cannot practice polygamy or divorce
through triple talaq.
 During the course of a marriage, all the property and wealth owned or acquired by each
spouse is commonly held by the couple.
 Each spouse in case of divorce is entitled to half of the property and in case of death, the
ownership of the property is halved for the surviving member.
 The parents cannot disinherit their children entirely. At least half of their property has to
be passed on to the children. This inherited property must be shared equally among the
children.
The task of actually devising a set of rules that will govern all communities is a very formidable
and tedious one considering the vast range of interests and sentiments to be accounted for.

 Misinformation about UCC – Content of UCC has not been spelt out leading minorities
to believe that it is a way of imposing majority views on them.
 Lack of political will due to the complexity and sensitivity of the issue.
Suggestions for Implementing a Uniform Civil Code:
To realize the goals of the DPSP and to maintain the uniformity of laws, the following
suggestions need immediate consideration:

 A progressive and broadminded outlook should be encouraged among the people to

understand the spirit of the UCC. For this, education, awareness and sensitisation
programmes must be taken up.
 The Uniform Civil Code should be drafted keeping in mind the best interest of all the
religions.
 A committee of eminent jurists should be constituted to maintain uniformity and care
must be taken not to hurt the sentiments of any particular community.
 The matter being sensitive in nature, it is always better if the initiative comes from the
religious groups concerned.

The Way Forward for UCC: Gradual Change

India has a unique blend of codified personal laws of Hindus, Muslims, Christians, Parsis. There
exists no uniform family-related law in a single statute book for all Indians which is acceptable
to all religious communities who co-exist in India. However, a majority of them believe that
UCC is definitely desirable and would go a long way in strengthening and consolidating the
Indian nationhood. The differences of opinion are on its timing and the manner in which it
should be realized.
Instead of using it as an emotive issue to gain political advantage, political and intellectual
leaders should try to evolve a consensus. The question is not of minority protection, or even of
national unity, it is simply one of treating each human person with dignity, something which
personal laws have so far failed to do.

ARTICLE 45: PROVISION FOR FREE AND COMPULSORY EDUCATION FOR

CHILDREN
The State shall endeavour to provide, within a period of ten years from the commencement of
this Constitution, for free and compulsory education for all children until they complete the age
of fourteen years.

ARTICLE 46: PROMOTION OF EDUCATIONAL AND ECONOMIC INTERESTS OF

SCHEDULED CASTES, SCHEDULED TRIBES AND OTHER WEAKER SECTIONS
The State shall promote with special care the educational and economic interests of the weaker
sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and
shall protect them from social injustice and all forms of exploitation.

ARTICLE 47: DUTY OF THE STATE TO RAISE THE LEVEL OF NUTRITION AND
THE STANDARD OF LIVING AND TO IMPROVE PUBLIC HEALTH
The State shall regard the raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except for medicinal purpose of
intoxicating drinks and of drugs which are injurious to health.

ARTICLE 48: ORGANIZATION OF AGRICULTURE AND ANIMAL HUSBANDRY

The State shall endeavour to organize agriculture and animal husbandry on modern and scientific
lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting
the slaughter, of cows and calves and other milch and draught cattle.

ARTICLE 48A: PROTECTION AND IMPROVEMENT OF ENVIRONMENT AND

SAFEGUARDING OF FORESTS AND WILDLIFE
The State shall endeavour to protect and improve the environment and to safeguard the forests
and wildlife of the country.

ARTICLE 49: PROTECTION OF MONUMENTS AND PLACES AND OBJECTS OF

NATIONAL IMPORTANCE
It shall be the obligation of the State to protect every monument or place or object of artistic or
historic interest, declared by or under law made by Parliament to be of national importance, from
spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

18 ARTICLE 50: SEPARATION OF JUDICIARY FROM THE EXECUTIVE

The State shall take steps to separate the judiciary from the executive in the public services of the
State.

Elements of separation of power

One organ cannot hold all the authorities and functions necessary for the nation’s functions to be
carried out effectively. As a result, each organ must carry out its duty in a systematic manner.
Legislative, executive, and judicial organs each have their own set of duties and responsibilities.
Below is a detailed explanation of each organ.

Legislation

Every country needs laws and regulations to govern itself efficiently. The legislation is the organ
of the government which enacts or makes the laws and frames policies for the nation or state. It
is also called the rule-making body. Under the Indian Constitution, the legislation includes the
Parliament and the State Assembly.
The Indian Parliament has two houses: Lok Sabha (the lower house) and Rajya Sabha (the upper
house); whereas, the state assembly has Vidhan Parishad (the upper house) and Vidhan Sabha
(the lower house).

Executive

Another important organ of the government is the executive body. The executive is responsible
for implementing and enforcing the laws of the state and country after they have been passed by
the legislative branch of the government. The President, the Prime Minister, and the state
governors are part of the executive. In the parliamentary form of government, there are nominal
executives and real executives. The President is the nominal executive and has executive power
granted by the Constitution. But the President is bound to take the advice from the Council of
Ministers, and these powers are exercised by the Ministers. Hence, the real executive is the
Prime Minister and the Council of Ministers.

Judiciary

The judiciary is the branch that reviews the laws enacted by the legislature. It protects the rights
of every citizen of the country, administers justice, and settles disputes. The judiciary comprises
the Supreme Court, high courts, district courts, and all other lower and subordinate courts. The
decisions made by the Supreme Court or High Courts are binding on all the subordinate courts.
The judiciary only interprets and applies current laws, it does not make new laws.

The judiciary is the only body that has the power to intervene and provide a decision in cases of
conflict between the Centre and the state, between the state and its citizens, or between the states.
All governmental and private bodies are bound to comply with the decisions passed by the
judiciary. The Indian judiciary defends the Constitution, protects human rights, and promotes
unity and peace. It acts as a check and balance on the government’s legislative and executive
organs.

The main functions of the judiciary are to review and administer the laws, protect against the
infringement of fundamental rights and violations of the Constitution, and the higher court
supervises the decisions passed by its subordinate courts.

Relationship between the organs of the government

The organs of the government have their own functions and powers to run the government, and
no organ is allowed to interfere in the functions of others. But the organs have relationships
among themselves, which are discussed below:
Relationship between the legislature and the judiciary

In the parliamentary form of government, the legislation makes and enacts the law for the
nations, and the judiciary interprets the law and safeguards the rights of the citizens of the
nations. The judiciary has the power to declare any law unconstitutional. The legislation can
oppose judicial activism and frame the law to overrule certain decisions.

Relationship between the legislature and the executive

Under the parliamentary system, the legislation monitors the functions of the executive, and the
executive is the branch of the state that is collectively responsible for the legislation. If the
executive loses the confidence of the legislature, it will be dismissed before its tenure is up. The
legislature makes the laws and the executive implements those laws in the nations. In the
presidential form of the government, the executive is not answerable to the legislature.

Relationship between the executive and the judiciary

The judiciary is an independent body in a democratic government. The executive appoints the
judges, and there is an indirect link between the executive and the judiciary. The President and
Governor have the power to pardon and reprieve the punishment. The judiciary can review the
actions of the executive and can also declare them unconstitutional if they are void.

Indira Nehru Gandhi v. Shri Raj Narain & Anr. (1975)

In this case, it was said that the Constitution’s basic structure or core element is the separation of
powers and that the judiciary must decide any dispute concerning the adjudication of legal rights.

Conclusion
The doctrine of separation of powers gives freedom to each organ of the government. It
protects a person’s right to be free from arbitrary rule and bans organs from taking over the
essential functions of other organs. The three organs of the government are the legislative,
executive, and judicial organs and cooperation or coordination between the three organs is
crucial for the efficient operation of the government.

DPSP (Directive Principles of State Policy) includes Article 50 of the Indian

Constitution. It imposes requirements on the state that the judiciary and executive organs have
independent authority over the state’s public services. The separation of powers restricts the
centralization of power.
19 ARTICLE 51: PROMOTION OF INTERNATIONAL PEACE AND SECURITY
The State shall endeavour to –
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised people
with one another; and
(d) encourage settlement of international disputes by arbitration.

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