Constitutional Law – Unit I

Introduction to Indian Constitution

The framing of the Constitution was completed on November 26, 1949 when the
Constituent Assembly formally adopted the new Constitution. The Constitution came into force
with effect from January 26, 1950.

The Constitution contains the fundamental law of the land. It is the source of all powers of, and
limitations on, the three organs of State, viz. the executive, legislature and judiciary. No action of the
state would be valid unless it is permissible under the Constitution. Therefore, it is imperative to
have a clear understanding of the nature and working of the Constitution.

Objectives of The Constitution

The Constitution of Independent India was framed in the background of about 200 years of colonial
rule, mass-based freedom struggle, the national movement, partition of the country and spread of
communal violence. Therefore, the framers of the Constitution were concerned about the
aspirations of the people, integrity and unity of the country and establishment of a democratic
society. Their main was to give India a ‘Constitution’ which will fulfill the cherished ideas and ideals
of the people of this country.

The Constitution begins with a Preamble which declares India to be a Sovereign, Socialist, Secular,
Democratic, Republic. The Preamble also mentions the goals of securing justice, liberty and
equality for all its citizens and promotion of national unity and integrity on the basis of fraternity
among the people assuring dignity of the individual.

Salient Features of the Indian Constitution

The main features of Indian Constitution are the following:

1. A written Constitution: The Indian Constitution is mainly a written constitution. A written

constitution is framed at a given time and comes into force or is adopted on a fixed date as a
document. As you have already read that our constitution was framed over a period of 2 years,
11 months and 18 days, it was adopted on 26th November, 1949 and enforced on January 26,
1950. Certain conventions have gradually evolved over a period of time which have
proved useful in the working of the constitution.
2. Federal Policy:  The Constitution of India does not use the term ‘federal state’. It says that
India is a ‘Union of States’. There is a distribution of powers between the Union/Central
Government and the State Governments. Since India is a federation, such distribution of
functions becomes necessary. There are three lists of powers such as Union List, State List and
the Concurrent List.
3. Parliamentary Democracy: India has a parliamentary form of democracy. This has been
adopted from the British system. In a parliamentary democracy there is a close relationship
between the legislature and the executive. The Cabinet is selected from among the members of
legislature. The cabinet is responsible to the latter. In fact the Cabinet holds office so long as it
enjoys the confidence of the legislature. In this form of democracy, the Head of the State is
nominal. In India, the President is the Head of the State. Constitutionally the President enjoys
numerous powers but in practice the Council of Ministers headed by the Prime Minister, which
really exercises these powers. The President acts on the advice of the Prime Minister and the
Council of Ministers.
4. Fundamental Rights and Duties: Fundamental Rights are one of the important features of
the Indian Constitution. The Constitution provides for six Fundamental Rights about which you
will read in the following lesson. Fundamental Rights are justiciable and are protected by the
judiciary. In case of violation of any of these rights one can move to the court of law for their
protection.Fundamental Duties were added to our Constitution by the 42nd Amendment. It lays
down a list of ten Fundamental Duties for all citizens of India. While the rights are given as
guarantees to the people, the duties are obligations which every citizen is expected to perform.
5. Directive Principles of State Policy: The Directive Principles of State Policy which have
been adopted from the Irish Constitution, is another unique feature of the Constitution of India.
The Directive Principles were included in our Constitution in order to provide social and
economic justice to our people. Directive Principles aim at establishing a welfare state in India
where there will be no concentration of wealth in the hands of a few.
6. Partly rigid and Partly flexible: A constitution may be called rigid or flexible on the basis of
its amending procedure. The Constitution of India provides for three categories of amendments.
In the first category, amendment can be done by the two houses of Parliament simple majority
of the members present and voting of before sending it for the President’s assent. In the second
category amendments require a special majority. Such an amendment can be passed by each
House of Parliament by a majority of the total members of that House as well as by the 2/3rd
majority of the members present and voting in each house of Parliament and send to the
President for his assent which cannot be denied. In the third category besides the special
majority mentioned in the second category, the same has to be approved also by at least 50% of
the State legislatures.
7. Language Policy:  India is a country where different languages are spoken in various parts
of the country. Hindi and English have been made official languages of the central government.
A state can adopt the language spoken by its people in that state also as its official language.
8. Special Provisions for Scheduled Castes and Scheduled Tribes: The Constitution
provides for giving certain special concessions and privileges to the members of these castes.
Seats have been reserved for them in Parliament, State legislature and local bodies, all
government services and in all professional colleges.
9. A Constitution Derived from Many Sources: The framers of our constitution borrowed
many things from the constitutions of various other countries and included them in our
constitution. That is why; some writers call Indian Constitution a ‘bag of borrowings’.
10. Independent Judiciary: Indian judiciary is independent an impartial. The Indian judiciary is
free from the influence of the executive and the legislature. The judges are appointed on the
basis of their qualifications and cannot be removed easily.
11. Single Citizenship: In India there is only single citizenship. It means that every Indian is a
citizen of India, irrespective of the place of his/her residence or place of birth. He/she is not a
citizen of the Constituent State like Jharkhand, Uttaranchal or Chattisgarh to which he/she may
belong to but remains a citizen of India. All the citizens of India can secure employment
anywhere in the country and enjoy all the rights equally in all the parts of India.
12. 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. The Indian Constitution establishes political
equality in India through the method of universal adult franchise.
13. Emergency Provisions: The Constitution makers also foresaw that there could be situations
when the government could not be run as in ordinary times. To cope with such situations, the
Constitution elaborates on emergency provisions. There are three types of emergency; a)
emergency caused by war, external aggression or armed rebellion; b) emergency arising out of
the failure of constitutional machinery in states; and c) financial emergency.

Theory of Basic Structure

1. Supremacy of Constitution
2. Republican and Democratic form of Government
3. Secular Character of Constitution
4. Separation of Powers between the Legislature, the Executive and the Judiciary
5. Federal Character of Constitution

Nature of the Indian Constitution – Federal,

Unitary, Quasi-federal
In a Democratic government, Constitution plays a primary role in efficient governance. Constitution
is a  set of fundamental principles or established precedents according to which a State can be
governed.  Constitutions may be classified into two categories. Such as: Federal or Unitary.

What is Federal and Unitary Constitution?

In a Unitary Constitution, all the powers of a Government are concentrated in a central authority.
The States or the different constituents of the Country are subordinate to such central authority.
However, in Federal Constitution, powers are distributed among the center and the States. States
are not subordinates of the central government. Constitution of USA, Australia are considered to be
federal in nature.

Is Indian Constitution a federal or unitary in nature?

Indian Constitution is an hybrid of both federal and unitary nature of a Constitution and hence rightly
termed as ‘Quasi-federal‘ Constitution. It means a federal set up where despite having two clear
sets of government – central and the states, more powers are given to the Central Government.

Prof. Wheare put-forth his view that to say a Constitution is federal in nature, it should displays
federal character predominantly.

Following are the defining features of federalism:

 Distribution of Powers between center and states
 Supremacy of the Constitution
 Written Constitution
 Rigidity of the Constitution
 Independent Judiciary

Factors that affect the federal character of the Constitution of India are:

 Appointment of the Governor of a State

 Power of the parliament to make laws on subjects in the State list.
 Power to form new states and to change existing boundaries
 Emergency Provisions

The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’ has been
grappling the Apex court in India because of the theoretical label given to the Constitution of India,
namely, federal, quasi-federal, unitary. The first significant case where this issue was discussed at
length by the apex Court was State of West Bengal V. Union of India. The main issue involved in
this case was the exercise of sovereign powers by the Indian states. The legislative competence of
the Parliament to enact a law for compulsory acquisition by the Union of land and other properties
vested in or owned by the state and the sovereign authority of states as distinct entities was also
examined. The apex court held that the Indian Constitution did not propound a principle of absolute
federalism. Though the authority was decentralized this was mainly due to the arduous task of
governing the large territory. The court outlined the characteristics, which highlight the fact that the
Indian Constitution is not a “traditional federal Constitution”.

Thus, it can be said that Indian Constitution is primarily federal in nature even though it has unique
features that enable it to assume unitary features upon the time of need.

Principles of Federalism
The Indian Constitution is basically federal in form and is marked by the traditional characteristics of
a federal system, namely, supremacy of the Constitution, division of power between the Union and
State Governments, existence of an independent judiciary and a rigid procedure for the amendment
of the Constitution.

There is an  independent judiciary to determine issues between the Union and the States, to be
exercised in fields assigned to them respectively. However, there are marked differences between
the American federation and the Indian federation. They are:

1. America has a dual citizenship, while in India, there is single citizenship

2. States in America have a right to make their own Constitutions, whereas no such power is
given to States in India
3. Indian Constitution exhibits a centralizing tendency in several of its provisions
4. In certain circumstances, the Union is empowered to supersede the authority of the State or
to exercise powers otherwise vested in the States
 CASE LAWS
1. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 1
2. S. R. Bommai v. Union of India, AIR 1994 SC 1918 8
3. State of West Bengal v. Union of India, AIR 1963 SC 1241 24
4. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 39
5. Kuldip Nayar v. Union of India, AIR 2006 SC 3127
6. State of Haryana v. State of Punjab, AIR 2002 SC 685

Preamble
WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a [SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC] and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation];

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of

November, 1949, do HEREBY ADOPT, ENACTAND GIVE TO
OURSELVES THIS CONSTITUTION.

Part I – The Union and Its Territory

Article 1: Name and territory of the Union

Article 2: Admission or establishment of new states

Article 3: Formation of new States and alteration of areas, boundaries or names of existing States

Article 4: Laws made under articles 2 and 3 to provide for the amendment of the First and the
Fourth Schedules and supplemental, incidental and consequential matters

CASE LAWS
1. In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 47
2. Ram Kishore Sen v. Union of India, AIR 1966 SC 644
3. Union of India v. Sukumar Sengupa, AIR 1990 SC 1692
4. N. Masthan Sahib v. Chief Commissioner Pondicherry, AIR 1962 SC 797
5. R. C. Poudyal v. Union of India, AIR 1993 SC 1804
6. Babulal Parate v. State of Bombay, AIR 1960 SC 51

Part II – Citizenship
Article 5: Citizenship at the commencement of the Constitution

Article 6: Rights of citizenship of certain persons who have migrated to India from Pakistan

Citizenship by Birth
Article 7: Rights of citizenship of certain migrants to Pakistan

Rights of Overseas Citizens

Article 8: Rights of citizenship of certain persons of Indian origin residing outside India

Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens

Article 10: Continuance of the rights of citizenship

Article 11: Parliament to regulate the right of citizenship by law

Commonwealth Citizenship
Every person who is a citizen of a Commonwealth country specified in the First Schedule shall, by
virtue of that citizenship, have the status of a Commonwealth citizen in India.

Whether a Corporation a citizenship or not

The freedom under article 19 are limited to citizens and if literally constructed these freedoms would
not be available to corporations, because corporations cannot be talked of as having or possessing
citizenship. But it has been held that shareholders can challenge the validity of a law on the grounds
of violation of their fundamental rights and the company may be joined in such proceeding with
proper pleading. The decisions relevant to the point are following:-

A company is not a citizen and cannot invoke article 19(1)(g).

Case Laws: 

1. Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, AIR 1965 SC 40 (48)
2. Bennet Coleman and Co. Ltd. v. Union of India, AIR 1973 SC 106: (1972) 2 SCC 788: 1973
(1) SCJ 177
3. D.C & G.M. v. Union of India AIR 1983 SC 937
Domicile – Meaning
The country that a person treats as their permanent home, or lives in and has a substantial
connection with. The state in which a person has his/her permanent residence or intends to make
his/her residence, as compared to where the person is living temporarily.

Kinds of Domicile
1. Domicile  of  origin
2. Domicile of  choice
3. Domicile by operating of law

Elements constituting Domicile

Domicile depends on intent, location of a home where a person regularly sleeps, and some
conduct.

One Domicile
Under the Indian Constitution, there is only one domicile viz. the domicile of the country and there is
no separate domicile for a State.

Case Law:

Pradeep Jain (Dr.) v. Union of India, AIR 1984 SC 1420 :    (1984) 3 SCC 654: 1984 Ed Case 237,
para 8-9

Citizenship by Migration
Migration must be with intention to reside permanently in India. Such intention may be formed even
later.

Part III – Fundamental Rights

Kinds of Rights
 Natural or Human Rights
 Moral Rights
 Legal Rights – Civil and Political Rights
 Fundamental Rights in India

Natural Rights
Natural Rights are those rights that are available to each and every being, including human beings.
Rights that are specific to Human beings are also called as Human Rights. Natural rights deals with
right to life, right to movement, etc.

Article 21 deals with right to protection of life and personal liberty.

At the same time, when a person lives alone in an island, he does not have right but freedom. Only
when a man lives as a group or in a community, rights evolve. Because, when a man lives in a
group, there is always conflict and absolute freedom cannot be assured. Hence, the concept of right
is correlated with duties.

Every right has an obligation to duty. Recognition of freedom of others forms the basis of rights. Our
rights is based on other’s duties and other’s rights based on our duties. State does not create rights,
but only recognizes, maintains and co-ordinates the rights of its people.

Origin of Fundamental Rights

The rights that are basic to the advancement of the human race are called Fundamental Rights. All
other rights are derived from these rights as direct implications or application of their principles. It is
an accepted belief among the philosophers that these rights are nothing but “natural human rights”,
which distinguish between humans and animals and which have been so instrumental in bringing
humans from the stone age to the present age. Among all, the right to life and liberty is considered
to be the most basic.

The history of legally enforceable fundamental rights probably starts from Magna Carta, which was
a list of rights extracted from Kind John by the people of England in 1214 AD. This was followed by
the “Bill of Rights” in 1689 in which Englishmen were given certain civil and political rights that could
not be taken away. Later on the French compiled the “Declaration of the rights of Man and of the
Citizen” after the French Revolution in 1789.

The most important advancement in history of fundamental rights occurred when the USA
incorporated certain fundamental rights in the form on “Bill of Rights” in their constitution by the way
of first 10 amendments. These rights were deemed to be beyond the vagaries of politics. The
protection by the constitution meant that these rights could not be put to vote and were not
dependent on the whims of politicians or of the majority.

After this, nearly all democracies of the world have given a constitutional sanctity to certain
inalienable rights available to their citizens. (Source: Hanumant.com)

The need for Fundamental Rights

1. Rule of Law
These rights are a protection to the citizens against the govt and are necessary for having the rule
of law and not of a a govt or a person. Since explicitly given by the constitution to the people, these
rights dare not be transgressed by the authority. The govt. is fully answerable to the courts and is
fully required to uphold these rights.
2. First fruits of the freedom struggle
After living in subjugation for such a long time, people had forgotten what is meant by freedom.
These rights give people hope and belief that there is no stopping to their growth. They are free
from the whims of the rulers. In that sense, they are first fruits of the lengthy freedom struggle and
bring a sense of satisfaction and fulfillment.

3. Quantification of Freedom
Every Indian citizen in free to practice a religion of his choice, but that is not so in the gulf countries.
Our right to speech and expression allows us to freely criticize the govt. but this is not so in
China. (Source: Hanumant.com)

Fundamental Rights in India

As regard India Simon Commission and Joint Parliamentary Committee had reject the idea of
enacting declaration of Fundamental right on the ground that the abstract declaration is useless.
Although the demand of the people was not met by the British Parliament under the government of
India Act 1935 yet the enthusiasm of the people to have such right in the constitution was not
impaired. The recommendation of the Nehru Committee was included in the constitution in 16
May’1946 by the cabinet mission.

PART III talks about the fundamental rights such as:

 Right to Equality (Article 14 – 18)

 Right to Freedom (Article 19 – 22)
 Right against Exploitation (Article 23 – 24)
 Right to freedom of Religion (Article 25 – 28)
 Cultural and Educational Right (Article 29 – 30)
 Right to Constitution Right (Article 32)

Art. 19(1)a – 19(1)g and Art. 19(2) places reasonable restriction on rights. Our rights are not
absolute rights.

Definition of State
Article 12 of the Constitution defines the State as follows:

“In this part, unless the context otherwise requires, “the State” includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local or
other authorities within the territory of India or under the control of the Government of India.”

The definition of the term “the State” specifies the authorities and instrumentalities functioning
within or without the territory of India, which shall be deemed to be “the State” for the purpose of
part III of the Constitution. The definition is inclusive and not exhaustive. Therefore, authorities and
instrumentalities not specified in it may also fall within it if they otherwise satisfy the characteristics
of “the State” as defined in this article.
Local Authorities
A local authority having a legal grievance may be able to take out a writ. Thus, a writ was issued on
the petition of a local authority against a public utility concern, for the latter’s failure to fulfil its
statutory obligation to supply power to the local authority, a consumer;

Case Law:

Corporation of City of Nagpur v. N.E.L & Power Co., AIR 1958 Bom 498

Other Authorities
Mr. Justice Bhagwati has given following test for determining whether an entity is an instrumentality
or agency of the State –

 Share capital of the corporation is held by Government

 Where the financial assistance of the State is so much as to meet almost entire expenditure
of the corporation
 State protected monopoly status of a corporation
 Existence of deep and pervasive State control
 If the functions of the corporations of public importance and closely related to governmental
functions

Article 13: Laws inconsistent with or in derogation of the

fundamental rights
Case Laws:

1. A.K. Gopalan Vs. State of Madras. 1951

By unanimous decision declared that Section 14 of the Act invalid and thus manifested its
competence to declare void any parliamentary enactment repugnant to the provisions of the
Constitution.
2. Minerva Mills case, 1980
Supreme Court had trunk down section 4 of the 42nd Amendment Act which gave
preponderance to the Directive Principles over Articles 24, 19 and 31 of the Part III of the
Constitution, on the ground that Part III and Part IV of the Constitution are equally important and
absolute primacy of one over the other is not permissible as that would disturb the harmony of
the Constitution.The Supreme Court was convinced that anything that destroys the balance
between the two part will, by that very fact, destroy an essential element of the basic structure of
our constitution

Doctrine of Severability
Article 13 of the Indian Constitution provides for Doctrine of Severability which states that All laws
in force in India before the commencement of Constitution shall be void in so far they are
inconsistent with the provisions of the Constitution.
A law becomes invalid only to the extent to which it is inconsistent with the fundamental rights. So
only that part of the law will be declared invalid which is inconsistent, and the rest of the law will
stand. However, on this point a clarification has been made by the courts that invalid part of the law
shall be severed and declared invalid if really it is severable, i.e if after separating the invalid part
the valid part is capable of giving effect to the legislature’s
intent, then only it will survive, otherwise the court shall declare the entire law as invalid.

Case Laws:

1. A.K. Gopalan v. State 0f Madras

held that the preventive detention minus section 14 was valid as the omission of the Section 14
from the Act will not change the nature and object of the Act and therefore the rest of the Act will
remain valid and effective.
2. D.S. Nakara v. Union of India
the Act remained valid while the invalid portion of it was declared invalid because it was
severable from the rest of the Act.
3. R.M.D.C. v.Union of India, AIR 1957 S.c. 628
1. The intention of the legislature is the determining factor in determining whether the valid parts
of a statue are severable from the invalid parts.
2. If the valid and invalid provisions are so inextricably mixed up so that they cannot be
separated from the other, then the invalidity of a portion must result in the invalidity of the Act in
its entirety.
3. Even when the provisions which are invalid, are distinct and separate from those which are
invalid if they form part of a single scheme which is intended to be operative as a whole, then
also the invalidity of a part will result in the failure of the whole.
4. If after the invalid portion is expunged from the Statute what remains cannot be enforced
without making alterations and modifications therein, then the whole of it must be stuck down as
void as otherwise it will amount to judicial legislation.

Doctrine of Eclipse
It states that an existing law which is inconsistent with a fundamental right become inoperative from
the date of the commencement of the constitution, it cannot be accepted as dead altogether. The
Doctrine of Eclipse is based on the principle that a law which violates fundamental rights, is not
nullity or void ab initio but becomes, only unenforceable i.e. remains in a moribund condition. “It is
over-shadowed by the fundamental rights and remains dormant, but it is not dead.” .

Case Laws:

1. Bhikhaji v. State of M.P., AIR 1955 S.c. 781

“In this case the provisions of.C.P. and Berar Motor Vehicles (Amendment) Act 1948 authorized
the State Government to take up the entire motor transport business in the Province to the
exclusion of motor transport operators. This provision though valid when enacted, but became
void on the commencement of the Constitution in 1950 as they violated Article 19(1 )(g) of the
Constitution. However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st
Amendment Act) so as to authorize . the Government to monopolise any business. The
Supreme Court held that the effect of the amendment was to remove the shadow and to make
 the impugned Act free from blemish or infirmity. It became enforceable against citizens as well
as non-citizens after the constitutional impediment was removed. This law was eclipsed for the
time being by the fundamental rights. As soon as the eclipse is removed, the law begins to
operate from the date of such removal”. (Courtesy: Adv. Smita via LegalServices.co.in)

Right to Equality (Article 14-18)

Application of the same laws uniformly to all of them will, therefore, be inconsistent with the principle
of equality.

Article 14 – Equality before law

The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India. Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.

It is the core article under Right to Equality. It deals with two kinds of rights. It states that the State
shall not deny to any person

1. Right to equality before the law.

2. Right to Equal Protection before the law.

1. Right to Equality before the law

It is a negative concept because it means that no man is above the law or in other words all
individuals are subject to the Law of the land. Rule of law means the absolute supremacy of
ordinary law of land as opposed to the influence of arbitrary power of the ruler.

The three principles which govern the Rule of law are:

 (I) No man shall be punished either in body or goods (material) except for the violation of law
in force. Further, the violation of law shall be established in an ordinary court of land in an
ordinary legal manner.
 (II) All individuals irrespective of their social or economic understanding are subject to
ordinary law of land. Further, all the individuals are subject to the jurisdiction of the court. I.e. all
individuals can be sued before the court. A person can appear before the court in form of
attorney or himself.
 (III) The constitution is the result of ordinary Law of land.

However the third rule had been modified in its application under the Indian constitution where the
third law reads as the Constitution is Supreme law of Land and all laws passed by the legislature
shall conform to it to be legally valid.

SIGNIFICANCE OF RULE OF LAW

(i) It is the adoption of rule of law that has changed the constitution from Rex Lex (king is law) to Lex
Rex (Law is king)
(ii) The rule of law is essential to maintain an individual’s liberty. Therefore, Rule of law is an
essential feature of democracy.

PROTECTION OF RULE OF LAW

The constitution under article 32 and 226 confers the power on Supreme Court and the High Court’s
respectively to safeguard the Rule of law by exercising the writ jurisdictions. Further the constitution
emphasizes that the Rule of Law is an immutable Principle of Governance of the Country.

In Keshavananda Bharati Vs State of Kerala, 1973 case Supreme Court held that the Rule of
Law is a part of basic structure of the constitution and cannot be destroyed.

EXCEPTIONS TO THE RULE OF LAW

 (1) Article 361- The President or the Governor of State is not answerable to a court of law
with regard to exercise of its executive functions.
 (2) No criminal proceedings whatsoever can be instituted against the President and
Governor of State during his/her term of office. He should be first remove impeached to continue
the proceedings against him.
 (3) No civil proceedings in which relief is claimed can be instituted against the President or
the Governor of State in a court, except of the expiry under a 2 month notice served on the
President and Governor.
 (4) According to the International Laws- The visiting subject to the jurisdiction of local court.

2. Equal protection before Law

 (1) It originated as a concept in USA.
 (2) It is a positive concept.
 (3) It means equality of treatment in equal circumstances. Among equals the law shall be
equal and equally administered. “The like should be treated alike”. All the persons placed in
equal circumstances shall be treated similarly. Therefore, it ensures equality among equals. It
does not mean inequality among equals.
 (4) It allows State to classify individuals on a reasonable basis into similar groups. Once such
a classification is made, the law shall apply equally among all the people within a group. Then
no person within a group shall be treated differently. However, the State is free to discriminate
people between the groups.
 (5) The concept of equal protection before law is also called “Positive Discrimination” on the
Part of the State and the policy of reservation is legally justified under it.
 (6) This concept is based on the Aristotelian Principle that ‘Equality can exist only among the
equals and equality cannot exist among unequals.

Thus the Legislative may:

 (i) Exempt certain classes of property from taxation such as charities, libraries etc.
 (ii) Impose different specific takes upon different trades and professions.
 (iii)Tax income and property of individuals in different manner etc.

CASE LAWS
Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc on 28 August, 1981

A.H. under A.I. was retired from service in the following contingencies:

 (a) On attaining the age of 35 years;

 (b) On marriage if it took place within four years of the service; and
 (c) On first pregnancy.

The court held that the last portion of regulation 46 (i) (c) struck down. The provision ‘or on first
pregnancy whichever occurs earlier’ is unconstitutional, void and violative of Article 14 of the
Constitution and will, therefore, stand deleted. It will, however, be open to the Corporation to make
suitable amendments.

It is undisputed that what Art. 14 prohibits is hostile discrimination and not reasonable classification.
If equals and unequals are differently treated, there is no discrimination so as to amount to an
infraction of Art. 14 of the Constitution. A fortiori if equals or persons similarly circumstanced are
differently treated, discrimination results so as to attract the provisions of Art. 14.

Case Laws:

 Bhagwati Justice of the Supreme Court in Maneka Gandhi v Union of India

 Ramana Dayaram Shetty v International Airport Authority (IAA)
 Mithu v State of Punjab
 Ramakrishna Dalmia v Justice Teldolkar
 Air India v Nergesh Meerza and others
 Indian Council of Legal Aid and Advice, etc. etc. v Bar Council of India and another

Article 15 – Prohibition of discrimination on grounds of

religion, race, caste, sex or place of birth
Protective Discrimination

Case Laws:

Mrs. Valsamma Paul v Cochin University and others

Githa Hariharan v Reserve Bank of India

Pranatosh Roy (Dr.) v University of Calcutta

Sexual Harassment
Vishaka v State of Rajasthan

Women Reservation
Rajesh Kumar Gupta v State of U.P.

P. Sagar v State of A.P.

Dattareya v State of Bombay

Women Reservation Bill

Article 16 – Equality of opportunity in matters of public
employment
CASES

M.R. BALAJI V STATE OF MYSORE

DEVADASAN V UNION OF INDIA
STATE OF KERALA V N.M. THOMAS
AKHIL BHARATIYA KARMACHARI SANGH V UNION OF INDIA
INDIRA SAWHNEY & OTHERS V UNION OF INDIA AND OTHERS
Promotions – Before & After the 77th Amendment of the
Constitution
Article 17 – Abolition of Untouchability
“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

 Casteism is a great enemy.

 Casteism is founded on “Manusmrithi” in the ancient India.
 Several Acts such as: the Scheduled Castes  and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, Protection of Civil Rights Act, 1955
 Punishment
Article 18 – Abolition of titles
No title, not being a military or academic distinction, shall be conferred by the State.

No citizen of India shall accept any title from any foreign State.

No person who is not a citizen of India shall, while he holds any office of profit or trust under the
State, accept without the consent of the President any title from any foreign State.

No person holding any office of profit or trust under the State shall, without the consent of the
President, accept any present, emolument, or office of any kind from or under any foreign State

 BHARAT RATNA, PADMA VIBHUSHAN, PADMA BHUSHAN AND

PADMA SHRI AWARDS:
THE ORDER OF LEOPOLD
Fundamental Rights
The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the
view of guaranteeing individual rights that were considered vital by the framers of the constitution.
The right to freedom in Article 19 guarantees the following six freedoms:

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

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

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

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

Freedom to reside and settle in any part of the territory of India which is also subject to reasonable
restrictions by the State in the interest of the general public or for the protection of the scheduled
tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous
and tribal peoples from exploitation and coercion. Article 370 restricts citizens from other Indian
states and Kashmiri women who marry men from other states from purchasing land or property in
Jammu & Kashmir.
Freedom to practice any profession or to carry on any occupation, trade or business on which the
State may impose reasonable restrictions in the interest of the general public. Thus, there is no right
to carry on a business which is dangerous or immoral. Also, professional or technical qualifications
may be prescribed for practicing any profession or carrying on any trade.
The constitution guarantees the right to life and personal liberty, which in turn cites specific
provisions in which these rights are applied and enforced:
Protection with respect to conviction for offences is guaranteed in the right to life and personal
liberty.

 19. Protection of certain rights regarding freedom of speech

etc
(1) All citizens shall have the right

 (a) to freedom of speech and expression;

 (b) to assemble peaceably and without arms;
 (c) to form associations or unions;
 (d) to move freely throughout the territory of India;
 (e) to reside and settle in any part of the territory of India; and
 (f) omitted
 (g) to practise any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent
the State from making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity
of India, the security of the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offence

(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty
and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by
the said sub clause

(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty
and integrity of India or public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub clause

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions
on the exercise of any of the rights conferred by the said sub clauses either in the interests of the
general public or for the protection of the interests of any Scheduled Tribe

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any law imposing, in the interests of the general
public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in
particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to,

 (i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
 (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any
trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or
otherwise

MANEKA GANDHI VS UNION OF INDIA

20. Protection in respect of conviction for offences
 (1) No person shall be convicted of any offence except for violation of the law in force at the
time of the commission of the act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the commission of
the offence
 (2) No person shall be prosecuted and punished for the same offence more than once
 (3) No person accused of any offence shall be compelled to be a witness against himself

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

21. Protection of life and personal liberty No person shall be

deprived of his life or personal liberty except according to
procedure established by law
Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21
declares that no citizen can be denied his life and liberty except by law. This means that a person’s
life and personal liberty can only be disputed if that person has committed a crime. However, the
right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence.
(Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of
India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code,
under which people attempting suicide could face prosecution and prison terms of up to one year. In
1996 however another Supreme Court ruling nullified the earlier one.) “Personal liberty” includes all
the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel
abroad is also covered under “personal liberty” in Article 21.
In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to
primary education part of the right to freedom, stating that the State would provide free and
compulsory education to children from six to fourteen years of age. Six years after an amendment
was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008. It
is now soon to be tabled in Parliament for approval before it makes a fundamental right of every
child to get free and compulsory education.

The constitution also imposes restrictions on these rights. The government restricts these freedoms
in the interest of the independence, sovereignty and integrity of India. In the interest of morality and
public order, the government can also impose restrictions. However, the right to life and personal
liberty cannot be suspended. The six freedoms are also automatically suspended or have
restrictions imposed on them during a state of emergency.

The Right against Exploitation is enshrined in Articles 23 and 24 of the Indian Constitution. These are important
Fundamental Rights that guarantee every citizen protection from any kind of forced labour. In this article, you can
read all about the right against exploitation and its implications for the IAS exam.

Right against Exploitation

There are two articles of the Constitution which guarantee the right against exploitation. They are described
below:

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.
 Labour without payment is known as begar.
 Article 23 forbids any form of exploitation.
 Also, one cannot be forced to engage in labour against his/her will even if remuneration is given.
 Forced labour is forbidden by the Constitution. It is considered forced labour if the less-than-minimum
wage is paid.
 This article also makes ‘bonded labour’ unconstitutional.
 Bonded labour is when a person is forced to offer services out of a loan/debt that cannot be repaid.
 The Constitution makes coercion of any kind unconstitutional. Thus, forcing landless persons into labour
and forcing helpless women into prostitution is unconstitutional.
 The Article also makes trafficking unconstitutional.
 Trafficking involves the buying and selling of men and women for illegal and immoral activities.
 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:

o Suppression of Immoral Traffic in Women and Girls Act, 1956

o 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.
Read about important articles in the Indian Constitution in the linked article.
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.

Right against Exploitation – Indian Polity:-

What does the right against exploitation say about child Labour?
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.” The fundamental right against exploitation guaranteed to all
citizens prohibits child labour in mines, factories, and hazardous conditions.

Which article deals with the right against exploitation?

Articles 23 and 24 of the Indian Constitution deal with the right against exploitation.

What is the right to equality?

The right to equality is guaranteed by the Constitution in Articles 14 – 18. It provides for the equal treatment of
everyone before the law, prevents discrimination on various grounds, treats everybody as equals in matters of
public employment, and abolishes untouchability, and titles (such as Sir, Rai Bahadur, etc.). You can read more
about the right to equality in the linked article.