Unit – 1

Meaning of the Constitution Law and Constitutionalism

The concepts of constitutional law and constitutionalism basically refer to the legal
framework of a country. At a time when the constitution is referred to as ‘supreme law of
land’; constitutional law is the study of rules, doctrines and principles related to the
constitution; and constitutionalism is a system of governance under which the power of
government is limited to rule of law.

As defined by Britannica, Constitutional law is the body of rules, doctrines and practices
that govern the operation of political communities. It refers to rights carved out in the
federal and state constitutions. This body of law is majorly developed from state and
Supreme Court rulings along with the respective constitutions. In case of conflict between
important functions of the state, the Supreme Court interpret their constitutions and come
to a conclusion which ensures that the law passed by the legislature does not violate the
Constitutional limits.

The term constitutional law is much more extensive in nature and includes the Constitution,
judicial precedents, relevant statutory laws and conventions. Constitutional law outrights
rights and powers of branches of the government at the central, state and local level and
gives distinct responsibilities and functions to all three of them. It also defines the role,
power and structure of different entities within the state namely, legislature, executive and
judiciary. In countries like India, US, Singapore have their constitution defined in written
form which consequentially means that the constitutional law of those countries is also
subjective and can be ratified time to time, in case of need. Constitutional law regulates the
government of a state and is the study of the set of rules which governs the relationship in
a state between the ruler and the ruled.

Essentially, Constitutional law is the supreme law and all other laws have to conform to the
Constitutional law, containing laws concerning the government and its people.

Whereas, Constitutionalism is a doctrine that means a government’s authority is determined

by a body of laws or constitution. Although some jurists take constitutionalism as a
synonym of limited government, some refer to it as efforts to prevent arbitrariness of
government. It is majorly regarded as a system of governance in which the power of
government is limited by law, checks and balances to reconcile with the individual and
collective freedoms.

Constitutionalism has a variety of meanings, most generally referred to as “ a complex of

ideas, attitudes and patterns of behaviour elaborating the principle that the authority of
government derives from and is limited by a body of fundamental law”. It is basically meant
as the limited government of limitation of government. It does both, recognises the need

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 for a government with adequate powers and at the same time, places limitations on those
powers to prevent arbitrariness.

The Supreme Court in I.R. Coelho v. State of Tamil Nadu [1], the Supreme Court regarded
constitutionalism as a legal principle which requires control over the exercise of
Governmental power to ensure that it does not destroy the democratic principles upon
which it is based. Also, in Rameshwar Prasad and Ors. v. Union of India and Anr.

[2], The Supreme Court stated- “The constitutionalism or constitutional system of

Government abhors absolutism - it is premised on the Rule of Law in which subjective
satisfaction is substituted by objectivity provided by the provisions of the Constitution
itself.”

Various elements of Constitutionalism are:

• Written Constitution
• Independent judiciary
• Judicial review
• Rule of law
• Separation of powers
• Fundamental rights
• Federalism and many more.

Therefore, all the terms, constitution, Constitutional law and Constitutionalism are inter-
related with each other with the linked idea of democracy and protection of rights of citizens
through limited government. These concepts refer to a legal system of the country which
grants collective rights and allows people to enjoy their freedom and promote the principle
of “Rule of Law”.

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 Unit – 2
Historical Perspective of the Constitution of India

The Republic of India is located in South Asia and bordered by Pakistan, China,
Bangladesh, Myanmar, Nepal and Bhutan – all historically part of the Indian subcontinent
or greater India. It is the world’s seventh largest country in terms of geographical size. It is
also the world’s largest democracy demographically and the second most populous country
after China. It is also a very diverse country with different cultures and religions mutually
coexisting. Hindi and English are the official languages for federal business while the
constitution recognizes the existence of many other languages.

Political System and History

Present day India is a federal state with 28 federated entities divided among seven unions.
Its system of government is parliamentary and based on the Westminster model. India first
came into contact with the west in the early 18th century when it was annexed by the British
East India Company. In the mid-19th century, it fell under British colonial rule. The colonial
administration in British India or British Raj – as it was also called - was headed by a
Viceroy who also cumulated the title of Governor General until 1947 when a struggle for
independence, marked by a widespread non-violent resistance movement resulted in
independence from the British Colonial Empire.

Constitutional History and Development

Prior to the constituent assembly that convened in 1948 to draft the Indian constitution
adopted in 1950 and still in force to date, the fundamental law of India was mostly
embodied in a series of statutes enacted by the British Parliament. Key among them was
the Government of India Acts of 1919 and 1935.

The Government of India Act of 1919

Passed as a measure of gratitude for India’s role in world war one, the primary purpose of
this act was to expand native participation in the government. Key reforms of the Act were
the establishment of a dual form of government with limited powers for the major
provinces. The imperial legislative council was transformed into a bicameral legislature for
all India. Finally, the Act established the position of a High Commissioner with residence
in London to Represent India in the United Kingdom.

The Government of India Act of 1935

This Act was adopted in response to opposition and criticisms from the National Congress
of India to the 1919 Act for doing too little in terms of granting autonomy. Its key provisions
included:

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 • Abolition of the dual form of government or diarchy and the granting of a larger
degree of autonomy for the provinces
• Establishment of a Federation of India (which never came into force though)
• Introduction of direct suffrage and extension of the franchise to 37 million people
from the original 5 million
• Membership of the provincial assemblies was altered so as to include more elected
Indian representatives, who were now able to form majorities and be appointed to
form governments
• The establishment of a Federal Court

The Constituent Assembly of 1948 and the Constitution of 1950

In 1946, the British decided to examine the possibility of granting independence to India.
As a result, a British cabinet mission was despatched to India to (1) hold discussions with
the representatives of British India and the Indian States in order to agree on the framework
for writing a constitution, and (2), set up a constituent body and an executive council.
Following this mission and the ensuing negotiations, a Constituent Assembly was indirectly
elected by the provincial legislatures comprising 278 representatives and 15 women. Parties
represented in the CA were the Congress Party which had a majority, Muslim League,
Scheduled Caste Federation, the Indian Communist Party and the Union Party. The CA met
for the first time in December 1946 and by November 1949 the draft constitution was
approved. The constitution went into effect in January 1950 and the CA was transformed
into a Provisional Parliament.

The Constitution which is still in force has been amended over 90 times making it one of
the most frequently amended constitutions in the world. It is also known to be one of the
longest and most detailed in the world with 395 articles and 10 appendixes called schedules.
Extensively modeled on western legal and constitutional practice, its key features include:

• The establishment of a federal system with residual powers in a central government

• A list of fundamental rights
• A Westminster style parliamentary system of government

Key timelines in the 1948 constitutional process

1946 Britain decides on to grant independence to India and cabinet mission
is dispatched to India to discuss modalities for transfer of power
14 August 1947 Proposal for creation of committees is tabled
29 August 1947 Drafting committee is established
6 December 1947 Constituent Assembly formally convenes for the first time, following
elections, to start the process of writing a constitution
4 November Draft is finalized and submitted
1947

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 1948 – 1949 Constituent Assembly meets in sessions open to the public
26 November Constituent Assembly adopts final draft making it official
1949
26 January 1950 Entry into force of the new constitution

Unit – 3
Salient Features and Characteristics of the Constitution of India
• Lengthiest constitution. ...
• Drawn from Different Sources. ...
• Federal System and Unitary Features. ...
• Parliamentary Form of Government. ...
• Parliamentary Sovereignty and Judicial Supremacy. ...

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• Independent and Integrated Judicial System. ...
• Directive Principles. ...
• Rigid and Flexible.
The Constitution of India became effective on 26 January 1950. B. R. Ambedkar was the
chairman of the drafting committee. It lays down the fundamental political code, structure,
procedures, powers, and duties of government institutions. Also, it sets out fundamental
rights, directive principles, and the duties of citizens. It is the supreme law of India. Let us
now discuss the features of Indian constitution.
Features of Indian Constitution
The constitution of India was created by a constituent assembly and not by the Parliament of
India. It was adopted by its people with a declaration in its preamble. Thus, the Parliament of
India cannot override the Indian constitution. The features of Indian constitution are:
1. Lengthiest constitution
It is the lengthiest and the longest constitution in the world. It has 395 Articles and 12
Schedules. Also, about 90 Articles have been added since 1951 and there have been more than
100 Amendments. But, as the Articles are not separately added but as a part of an existing
Articles, the total number of Articles remain the same.
2. Drawn from Different Sources
The basis of the basic structure such as Federal scheme, Judiciary, Governors, Emergency
powers, Public Service Commissions, Administrative details, etc. are from the Government
of India Act, 1935. Similarly, the fundamental rights are from the American constitution,
Directive Principles from the Irish Constitution and the Cabinet form of government is from
the British Constitution.
Also, it adopts various provisions from the Constitutions of Canada, Australia, Germany,
USSR, and France.
3. Federal System and Unitary Features
The federal features of governance are a dual system of government i.e. center and states, the
division of powers between the executive, judiciary and legislature which are the three organs
of the state, Supremacy of the Constitution, independent Judiciary and bicameralism. The
Indian constitution contains all these features. Thus, it is a federal system.
But, it also contains many unitary features such as a strong center, All India Services common
to the center and the states, emergency provisions that can modify the Constitution into a
unitary one, the appointment of Governors by the President on the advice of the center, etc.
Article 1 of the Indian constitution clearly mentions that India is a “Union of states”.
Therefore, this makes the Indian Constitution a federal system with unitary features.

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4. Parliamentary Form of Government
The Indian Constitution chose the Parliamentary form of government. In a Parliamentary form
of government executive is part of the legislature and there is a collective responsibility of the
council of ministers to the legislature. Also, there exists majority party rule and the Prime
Minister is the leader of the country and the Chief Minister is the leader in the state.
5. Parliamentary Sovereignty and Judicial Supremacy
The Indian Constitution has a proper balance between Parliamentary sovereignty and Judicial
Supremacy. The Supreme Court has the power of judicial review vide Articles 13, 32 and 136.
Thus, it can cancel any Parliamentary law as unconstitutional. On the other hand, the
Parliament has the authority to make laws and also amend the major portion of the
Constitution vide Article 368.
6. Independent and Integrated Judicial System
As per the Indian constitution, a single system of judiciary prevails in India. The Supreme
Court is at the top, the High Courts at the state level and district and other subordinate courts
are below and are subject to the supervision of the High Courts. Also, all the levels of courts
have a duty of enforcing central as well as state laws.
7. Directive Principles
The Directive Principles of State Policies in Part IV of the Constitution intends to make India
a welfare state. The Directive Principles are not enforceable by the courts for their violation.
However, it is a moral obligation of the state to apply these principles in making laws.
8. Rigid and Flexible
The Indian Constitution is a combination or a blend of rigidity and flexibility.
As per Article 368, some provisions can be amended by a special majority of the
Parliament i.e. a 2/3rd majority of the members of each House present and voting and majority
which is more than 50 percent of the total membership of each House.
Also, some other provisions can be amended by a special majority of the Parliament and with
the ratification by half of the total states.
However, some provisions of the Constitution can be amended by a simple majority of the
Parliament in the manner of the ordinary legislative process but these do not fall under the
purview of Article 368.

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 Unit – 4

Scheme of Fundamental Rights

Articles 12-35 of Indian Constitution deal with Fundamental Rights. These human rights
are conferred upon the citizens of India for the Constitution tells that these rights are
inviolable. Right to Life, Right to Dignity, and Right to Education etc. all come under one
of the six main fundamental rights.

Fundamental rights are a very important topic in the polity section of the UPSC exam. It is
a basic static portion of the syllabus but it is highly dynamic in the sense that it is featured
in the daily news in some form or the other. In this article, you can read all about 6
fundamental rights of India:

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 1. Right to Equality

2. Right to Freedom

3. Right against Exploitation

4. Right to Freedom of Religion

5. Cultural and Educational Rights

6. Right to Constitutional Remedies

What are the Fundamental Rights?

Fundamental rights are the basic human rights enshrined in the Constitution of India which
are guaranteed to all citizens. They are applied without discrimination on the basis of race,
religion, gender, etc. Significantly, fundamental rights are enforceable by the courts,
subject to certain conditions.

Why are they called Fundamental Rights?

These rights are called fundamental rights because of two reasons:

1. They are enshrined in the Constitution which guarantees them

2. They are justiciable (enforceable by courts). In case of a violation, a person can

approach a court of law.

List of Fundamental Rights

There are six fundamental rights of Indian Constitution along with the constitutional
articles related to them are mentioned below:

1. Right to Equality (Article 14-18)

2. Right to Freedom (Article 19-22)

3. Right against Exploitation (Article 23-24)

4. Right to Freedom of Religion (Article 25-28)

5. Cultural and Educational Rights (Article 29-30)

6. Right to Constitutional Remedies (Article 32)

Why Right to Property is not a Fundamental Right?

There was one more fundamental right in the Constitution, i.e., the right to property.

However, this right was removed from the list of fundamental rights by the 44 th
Constitutional Amendment. This was because this right proved to be a hindrance towards

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attaining the goal of socialism and redistributing wealth (property) equitably among the
people.

Note: The right to property is now a legal right and not a fundamental right.

Introduction to Six Fundamental Rights (Articles 12 to 35): Under this section, we list
the fundamental rights in India and briefly describe each of them.

1. Right to Equality (Articles 14 – 18)

Right to equality guarantees equal rights for everyone, irrespective of religion, gender,
caste, race or place of birth. It ensures equal employment opportunities in the government
and insures against discrimination by the State in matters of employment on the basis of
caste, religion, etc. This right also includes the abolition of titles as well as untouchability.

Aspirants can read more about Right to Equality in the linked article.

2. Right to Freedom (Articles 19 – 22)

Freedom is one of the most important ideals cherished by any democratic society. The
Indian Constitution guarantees freedom to citizens. The freedom right includes many rights
such as:

• Freedom of speech

• Freedom of expression

• Freedom of assembly without arms

• Freedom of association

• Freedom to practise any profession

• Freedom to reside in any part of the country

Read more on the Right to Freedom in the linked article.

Some of these rights are subject to certain conditions of state security, public morality and
decency and friendly relations with foreign countries. This means that the State has the
right to impose reasonable restrictions on them. Aspirants can find the details on Right to
Life (Article 21), in the linked article.

3. Right against Exploitation (Articles 23 – 24)

This right implies the prohibition of traffic in human beings, begar, and other forms of
forced labour. It also implies the prohibition of children in factories, etc. The Constitution
prohibits the employment of children under 14 years in hazardous conditions.

Read more on the Right against Exploitation in the linked article.

4. Right to Freedom of Religion (Articles 25 – 28)

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This indicates the secular nature of Indian polity. There is equal respect given to all
religions. There is freedom of conscience, profession, practice and propagation of religion.
The State has no official religion. Every person has the right to freely practice his or her
faith, establish and maintain religious and charitable institutions.

Read more on the Right to freedom of Religion in the linked article.

5. Cultural and Educational Rights (Articles 29 – 30)

These rights protect the rights of religious, cultural and linguistic minorities, by facilitating
them to preserve their heritage and culture. Educational rights are for ensuring education
for everyone without any discrimination.

Read more on Cultural and Educational Rights in the linked article.

6. Right to Constitutional Remedies (32 – 35)

The Constitution guarantees remedies if citizens’ fundamental rights are violated. The
government cannot infringe upon or curb anyone’s rights. When these rights are violated,
the aggrieved party can approach the courts. Citizens can even go directly to the Supreme
Court which can issue writs for enforcing fundamental rights.

Read more on Right to Constitutional Remedies (Article 32) in the linked article.

Features of Fundamental Rights

• Fundamental rights are different from ordinary legal rights in the manner in which
they are enforced. If a legal right is violated, the aggrieved person cannot directly
approach the SC bypassing the lower courts. He or she should first approach the
lower courts.

• Some of the fundamental rights are available to all citizens while the rest are for all
persons (citizens and foreigners).

• Fundamental rights are not absolute rights. They have reasonable restrictions, which
means they are subject to the conditions of state security, public morality and
decency and friendly relations with foreign countries.

• They are justiciable, implying they are enforceable by courts. People can approach
the SC directly in case of violation of fundamental rights.

• Fundamental rights can be amended by the Parliament by a constitutional

amendment but only if the amendment does not alter the basic structure of the
Constitution.

• Fundamental rights can be suspended during a national emergency. But, the rights
guaranteed under Articles 20 and 21 cannot be suspended.

• The application of fundamental rights can be restricted in an area that has been
placed under martial law or military rule.

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Fundamental Rights Available Only to Citizens

The following is the list of fundamental rights that are available only to citizens (and not
to foreigners):

1. Prohibition of discrimination on grounds of race, religion, caste, gender or place of

birth (Article 15).

2. Equality of opportunity in matters of public employment (Article 16).

3. Protection of freedom of:(Article 19)

• Speech and expression

• Association

• Assembly

• Movement

• Residence

• Profession

4. Protection of the culture, language and script of minorities (Article 29).

5. Right of minorities to establish and administer educational institutions (Article 30).

Importance of Fundamental Rights

Fundamental rights are very important because they are like the backbone of the country.
They are essential for safeguarding the people’s interests.

According to Article 13, all laws that are violative of fundamental rights shall be void.
Here, there is an express provision for judicial review. The SC and the High Courts can
declare any law unconstitutional on the grounds that it is violative of the fundamental rights.
Article 13 talks about not just laws, but also ordinances, orders, regulations, notifications,
etc.

Amendability of Fundamental Rights

Any changes to the fundamental rights require a constitutional amendment that should be
passed by both the Houses of Parliament. The amendment bill should be passed by a special
majority of Parliament.

Read about types of majorities in Indian Parliament in the linked article.

As per the Constitution, Article 13 (2) states that no laws can be made that take away
fundamental rights.

The question is whether a constitutional amendment act can be termed law or not.

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In the Sajjan Singh case of 1965, the Supreme Court held that the Parliament can amend
any part of the Constitution including fundamental rights.

But in 1967, the SC reversed its stance taken earlier when in the verdict of the Golaknath
case, it said that the fundamental rights cannot be amended.

In 1973, a landmark judgement ensued in the Kesavananda Bharati case, where the SC
held that although no part of the Constitution, including Fundamental Rights, was beyond
the Parliament’s amending power, the “basic structure of the Constitution could not be
abrogated even by a constitutional amendment.”

This is the basis in Indian law in which the judiciary can strike down any amendment passed
by Parliament that is in conflict with the basic structure of the Constitution.

In 1981, the Supreme Court reiterated the Basic Structure doctrine.

It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda
Bharati judgement, and held that it should not be applied retrospectively to reopen the
validity of any amendment to the Constitution which took place prior to that date.

Doctrine of Severability

This is a doctrine that protects the fundamental rights enshrined in the Constitution. It is
also known as the Doctrine of Separability. It is mentioned in Article 13, according to which
all laws that were enforced in India before the commencement of the Constitution,
inconsistent with the provisions of fundamental rights shall to the extent of that
inconsistency be void.

This implies that only the parts of the statute that is inconsistent shall be deemed void and
not the whole statue. Only those provisions which are inconsistent with fundamental rights
shall be void.

Doctrine of Eclipse

This doctrine states that any law that violates fundamental rights is not null or void ab initio,
but is only non-enforceable, i.e., it is not dead but inactive. This implies that whenever that
fundamental right (which was violated by the law) is struck down, the law becomes active
again (is revived). Another point to note is that the doctrine of eclipse applies only to pre-
constitutional laws (laws that were enacted before the Constitution came into force) and
not to post-constitutional laws. This means that any post-constitutional law which is
violative of a fundamental right is void ab initio.

Conclusion

To know how many fundamental rights are there in the Indian Constitution is a must-rule
for an IAS aspirant. The list of fundamental rights given above will be helpful for the
candidates in their UPSC preparation. Also, aspirants should know the difference between
human rights and fundamental rights. The basic difference between human rights and
fundamental rights is the scope of acceptance. While fundamental rights have scope within
a country, human rights are accepted worldwide.
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Question - What are the 7 fundamental rights?

Answer - There were 7 fundamental rights in the Constitution. Currently, there are only
six as the ‘Right to Property’ was removed as a fundamental right. It is now only a legal
right. The list of fundamental rights are:

1. Right to equality

2. Right to freedom

3. Right against exploitation

4. Right to freedom of religion

5. Cultural and educational rights

6. Right to constitutional remedies

Unit – 5

The Scheme of the Fundamental Duties and its Legal Status

Fundamental Duties: Over last few days, the Prime Minister, President, Vice President
and Law Minister have been stressing Fundamental Duties. A look at what these duties
are, and how they were included in the Constitution.

Over the last one week, the government has been making a pitch for fundamental duties. In
his Constitution Day address to a Joint Session of Parliament last week, Prime Minister
Narendra Modi stressed the importance of constitutional duties, while making a distinction
between seva (service) and these duties. On the same occasion, President Ram Nath
stressed the difference between rights and duties, while Vice President M Venkaiah
Naidu called for fundamental duties to be included in the school curriculum and the list of
the duties to be displayed at educational institutions and at other public places. Also on
Constitution Day, Union Law Minister Ravi Shankar Prasad, writing in The Indian Express,

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called for citizens to remember their fundamental duties as they remember their
fundamental rights.

Fundamental Duties are described in the Constitution — an Emergency-era provision that

was introduced by the Indira Gandhi government. Days before the pitches made on
Constitution Day, The Indian Express had reported how the government has been dusting
off this provision and asking ministries to spread awareness about Fundamental Duties.

How were Fundamental Duties incorporated in the Constitution?

The Fundamental Duties were incorporated in Part IV-A of the Constitution by the
Constitution 42nd Amendment Act, 1976, during Emergency under Indira Gandhi’s
government. Today, there are 11 Fundamental Duties described under Article 51-A, of
which 10 were introduced by the 42nd Amendment and the 11th was added by the 86th
Amendment in 2002, during Atal Bihari Vajpayee’s government.

These are statutory duties, not enforceable by law, but a court may take them into account
while adjudicating on a matter. The idea behind their incorporation was to emphasise the
obligation of the citizen in exchange for the Fundamental Rights that he or she enjoys. The
concept of Fundamental Duties is taken from the Constitution of Russia.

The 11 Fundamental Duties are:

1. To abide by the constitution and respect its ideals and institutions, the National Flag
and the National Anthem.

2. To cherish and follow the noble ideals which inspired our national struggle for
freedom.

3. To uphold and protect the sovereignty, unity and integrity of India — it is one of
the preeminent national obligations of all the citizens of India.

4. To defend the country and render national service when called upon to do so.

5. To promote harmony and the spirit of common brotherhood amongst all the people
of India transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women.

6. To value and preserve the rich heritage of our composite culture — our cultural
heritage is one of the noblest and richest, it is also part of the heritage of the Earth.

7. To protect and improve the natural environment including forests, lakes, rivers and
wild life and to have compassion for living creatures.

8. To develop the scientific temper, humanism and the spirit of inquiry and reform.

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 9. To safeguard public property and to abjure violence.

10. To strive towards excellence in all spheres of individual and collective activity so
that the nation constantly rises to higher levels of endeavour and achievement.

11. Who is a parent or guardian to provide opportunities for education to his child or,
as the case may be, ward between the age of six and fourteen years.

It is the one on children’s education that was added in 2002 by the 86th Amendment that
provided for the Right to Free and Compulsory Education for children in the age group 6-
14, with the insertion of Article 21A. It also cast an obligation on parents to provide such
opportunities under Article 51A (K).

Under what circumstances was the 42nd Amendment passed?

The amendment came at a time when elections stood suspended and civil liberties curbed.
The government arrested thousands under MISA (Maintenance of Internal Security Act)
and carried out anti-poverty programmes, slum demolition drives, and a forced sterilisation
campaign. “With the opposition MPs locked away, a series of Constitutional amendments
were passed to prolong Mrs Gandhi’s rule,” writes historian Ramachandra Guha in India
after Gandhi.

Apart from adding the Fundamental Duties, the 42nd Amendment also changed
the Preamble to the Constitution to include the words ‘Socialist and Secular’ to describe
India, in addition to its being ‘Sovereign Democratic Republic’.

New ‘Directive Principles’ were added and given precedence over Fundamental Rights.
Jurisdiction of the Supreme Court and High Courts to review constitutionality of the laws
was curtailed. High Courts were prohibited from deciding on the constitutional validity of
central laws. A new Article 144A was inserted, prescribing a minimum of seven judges for
a Constitution Bench, besides stipulating a special majority of two-thirds of a Bench for
invalidating central laws.

How many of the changes made under the 42nd Amendment are still in effect?

In the 1977 elections, the manifesto of the Janata Party promised to restore the Constitution
to its pre-Emergency form. However, after being voted to power, the Morarji Desai
government did not have the numbers for a complete reversal. Reversal happened only in
bits and pieces.

In 1977, the 43rd Amendment restored the jurisdiction of the Supreme Court and High
Courts to review the constitutional validity of laws. The following year, the 44th
Amendment changed the grounds for declaring Emergency under Article 352, substituting

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“internal disturbance” with “armed rebellion”, besides requiring of the President that he
shall not do so unless the decision of the Union Cabinet is communicated in writing to him.

Right to Liberty was strengthened by stipulating that detention under the Preventive
Detention Act shall not be for more than two months. Right to Property was converted from
a Fundamental Right to a legal right, by amending Article 19 and deleting Article 31.

Other Key Amendments to Constitution

First Amendment, 1951

Article 15 was amended by inserting Clause 4, empowering the state to make any special
provision for the advancement of any socially and educationally backward classes or
categories of SCs and STs notwithstanding anything in this Article or in Clause 2 of Article
29. Article 19 was amended to secure constitutional validity of zamindari abolition laws
and to provide for new grounds of restrictions to the Right of Freedom of Speech and
Expression and the right to practice any profession or to carry on any trade or business.
Articles 31A and 31B, and the Ninth Schedule were inserted to give protection to land
reform laws from being questioned on the ground that they are not consistent with
Fundamental Rights.

24th Amendment, 1971

Articles 13 and 368 amended to remove doubts about Parliament’s power to amend the
Constitution including Fundamental Rights further to the judgment of the Supreme Court
in the Golaknath case. The President was obligated to give assent to any Constitution
Amendment Bill presented to him.

26th Amendment, 1971

It repealed Articles 291 and 362 dealing with privy purses, sums of rulers and rights and
privileges of rulers of former Indian states.

52nd Amendment, 1985

Anti-Defection law was provided for in the Tenth Schedule by providing for
disqualification of legislators, vacation of seats and splits and mergers.

61st Amendment, 1989 (61व ां सांशोधन, 1989)

Minimum voting age reduced from 21 years to 18, by amending Article 326.

77th Amendment, 1995

Provided for reservation in promotion in services under the state for SCs and STs by
inserting clause (4A) in Article 16.
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91st Amendment, 2003 (91व ां सश
ां ोधन, 2003)

Put a ceiling on number of ministers at the Centre and in states as 15% of the strength of
Lok Sabha or the Assembly, and not less than 12 in the states.

99th Amendment, 2014 (99व ां सश

ां ोधन, 2014)

Provided for National Judicial Commission to broad-base method of appointment of judges

of the Supreme Court and High Courts. This amendment was however, declared
unconstitutional by the Supreme Court in 2015.

101st Amendment, 2016 (101व ां सांशोधन, 2016)

It facilitated the introduction of GST with concurrent taxing powers to the Union and the
States and Union Territories with legislatures to make laws for levying GST on every
transaction of goods and services.

This article originally appeared in the print edition on December 2, 2019. The article
incorrectly referred to socially and educationally backward classes as “socially and
economically backward classes”. It also mentioned the “64th Amendment” where it should
have been the 61st Amendment, and “Article 325” where it should have been Article 352.
The errors are regretted.

Unit – 6

The Directive Principles of State Policy its Importance and Implementation

Introduction
Part IV of the Constitution of India (Article 36–51) contains the Directive Principles of
State Policy (DPSP). These principles aim at ensuring socioeconomic justice to the people
and establishing India as a Welfare State. The founding fathers of Indian Constitution were
aware of the fact that Independent Indian State was going to face many challenges. After
colonial rule for almost two hundred years, country and the society was left with
widespread poverty, hunger and with deep rooted socio-economic inequalities. The framers
of the Constitution felt that certain policy directions, guidelines or instructions for the
governance of the country were required to handle these problems. Legislature, executive
and administration of the Independent India were expected to exercise their powers in
accordance with the direction and guidelines given in this part of the Constitution.

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Directive Principles of State Policy: Meaning and Nature
Directive Principles are certain ideals, particularly aiming at socio-economic justice, which
according to the framers of the Constitution, Indian State should strive for.
Dr. B. R. Ambedkar described Directive Principles as a “Novel Feature” of the
Constitution. They are in the nature of general directions, instructions or guidelines to the
State. Directive Principles embody the aspirations of the people, objectives and ideals
which Union and the State governments must bear in mind while making laws and
formulating policies.
According to L.M. Singhvi; the Directive Principles are the life giving provisions of the
Constitution. They represent the philosophy of social justice incorporated in the
Constitution of India. Although Directive Principles are non-justiciable or they are not
legally binding by any Courts, they however, are fundamental in the governance of the
country. They lay down a code of conduct for the legislatures, executives and
administrators of India to discharge their responsibilities in tune with these ideals.
Philosophical Base of the Directive Principles
Directive Principles in the Indian Constitution are taken from the Constitution of Ireland.
But the idea and philosophy of these principles can be traced back to French declaration of
human rights, American declaration of independence, liberal as well as socialist philosophy
of 19th century and our own, Gandhian Concept of Sarvodaya.
Ivor Jennings has observed that philosophy underlying most of the Directive Principles, is
“Fabian Socialism”. Many of our Constitution makers were under the great influence of
Socialism and Gandhism. So, through these provisions and principles they laid down the
Socialistic Pattern of Society and Gandhian Ideal State as the objective, which the Indian
State should strive to achieve. Article-37 of the Constitution, states about the application
of the Directive Principles, which says that the provisions contained in this part (Part-IV)
shall not be enforceable by any Court but principles there in laid down, are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to apply
these principles while making the laws. Now we know that -
Part-IV of the Constitution of Indian (Article 36-51) provides The Directive Principles of
State Policy.

• The Directive Principles contained in Indian Constitution are taken from Irish
Constitution, The Irish themselves had, however, taken the ideas from the
Constitution of Spain.
• Similar guidelines were provided in the form of instruments of instruction in the
Government of India Act, 1935.
• Directive Principles of State Policy aim at making India a Welfare State and thus
strike a balance between liberal individualist and socialist ideology

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Classification of the Directive Principles of State Policy
The Directive Principles are classified on the basis of their ideological source and
objectives. For the sake of making their study convenient, we can broadly place them in
four categories, these are;
1. Economic and Social Principles;
2. Directives Based on Gandhian Principles;
3. Directive Principles relating to International Peace; and
4. Miscellaneous.
1. The Economic and Social Principles
India-I A large number of Directive Principles are socialistic in nature and dedicated to
achieve social and economic welfare of the people with the objective to establish India as
a Welfare State. Some of these principles are as follows:
(i) The State shall strive to promote the welfare of the people by securing and protecting a
social order in which justice, social, economic and political, shall inform all institutions of
national life (Article 38).
(ii) Articles 39 says that State shall in particular, direct its policies towards securing:
(a) right to an adequate means of livelihood to all the citizens;
(b) The ownership and control of material resources shall be organised in a manner to
serve the common good;
(c) The operation of the economic system does not result in the concentration of the
wealth to the common detriment. In other words state shall avoid concentration of
wealth in few hands;
(d) Equal pay for equal work for both men and women;
(e) The protection of the strength and health of the workers; and
(f) That the childhood and youth are not exploited;
(iii) Article-42 declares that, the State shall make provisions for securing just and humane
conditions of work and for maternity relief.
(iv) According to Article-43, the State shall endeavour to secure to all workers a living
wage and a decent standard of life, while article 43A says that the State shall take steps to
secure the participation of workers in the management of industries.
2. Directives Based on Gandhian Principles
Mahatma Gandhi was the main guiding force during our freedom struggle. He had
tremendous influence over the common people as well as framers of the Constitution. There
are certain directives principles as aiming at implementing Gandhian Principles. These are
as follows;

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(i) State shall take steps to organise village panchayats as units of Self-government (Article-
40)
(ii) The State shall endeavour to promote cottage industries on an individual or cooperative
basis in rural areas, (Article-43)
(iii) Article-45 provides for free and compulsory education to all children till the age of 14
years. This original provision was amended by 86th Constitutional Amendment Act 2002,
it now declares that, “the State shall endeavour to provide early childhood care and
education for all children until they complete the age of 14 years.” (Article 21-A)
(iv) Article - 46 lays down that the State shall promote educational and economic interests
of the weaker sections of the people particularly that of the Scheduled Castes (SCs) and
Scheduled Tribes (STs) and other weaker sections.
(v) Article - 47 states that State shall take steps to improve public health and prohibit
consumption of intoxicating drinks and drugs that are injurious to health.
(vi) Article - 48 says that, State shall take steps to prohibit slaughter of cows, calves and
other milch and draught cattle.
3. Directive Principles Relating to International Peace and Security
A year after the end of the Second World War, constitution making process began in India.
It was obvious that members of our Constituent Assembly were deeply concerned about
international peace and security. Through Directive Principles of State Policy they tried to
ensure that Government of free India should render active cooperation for world peace and
security. Article 51 declares that to establish international peace and security the State shall
endeavour to–
(i) Promote international peace and security;
(ii) Maintain just and honourable relations with the nations;
(iii) Foster respect for international law and treaty obligations; and
(iv) Encourage settlement of international disputes by arbitration.
4. Miscellaneous Directive Principles
The fourth category of Directive Principles Contains some general subjects which are
sometimes termed as liberal principles. These are as follows;
(i) Article-44: The State shall endeavour to secure for the citizen a uniform civil code
through the territory of India.
(ii) Article-48A: Directs the State to protect and improve the environment and to safeguard
the forests and wildlife of the country.
(iii) Article-49: State should protect every monument or place of artistic or historic interest.

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(iv) Article-50: The State shall take steps to separate judiciary from the executive in the
public services of the State.
The 42nd Constitutional Amendment, 1976 introduced certain changes in the part-IV of
the Constitution by adding new directives like:
(i) Article-39A – State to provide free legal aid to poor.
(ii) Article-43A – Participation of workers in management of Industries.
(iii) Article-48A – Directs the State to protect and improve environment.
The 44th Constitutional Amendment, 1978 inserted Section-2 to Article 38 which declares
that; “The State in particular shall strive to minimise economic inequalities in income and
eliminate inequalities in status, facilities and opportunities not amongst individuals but also
amongst groups”
The 44th Constitutional amendment, 1978, eliminated, Right to property from the list of
Fundamental Rights. It was considered as a hindrance in the path of implementing Directive
Principles.
Distinction between Fundamental Rights and Directive Principles of State Policy
Both Fundamental Rights and Directive Principles are essential features of the Indian
Constitution. But there had been persistent conflict for a considerable period, between the
two. Implementing Directive Principles of State Policy required imposing various
restrictions on the Fundamental Rights. They have different and sometimes conflicting
objectives and it was the main cause of conflict. Directive Principles of State Policy differ
from Fundamental Rights in following respect;
(i) Fundamental Rights are justiciable but Directive Principles of State Policy are non-
justiciable. It means that a person can appeal to the court of law if his/her Fundamental
Rights are violated, but people cannot appeal to the court if the Government does not
implement the Directive Principles.
(ii) Fundamental Rights are negative or prohibitive in nature because they put limitation on
the State. On the contrary, Directive Principles are affirmative directions. They declare the
duty of the State to achieve certain social and economic objectives.
(iii) Fundamental Rights establish liberal political democracy in India. However, Directive
Principles make India a Welfare State.
(iv) Fundamental Rights protect the interests of the individual while Directive Principles
of State Policy seek to promote socio-economic equality and particularly provide
safeguards to weaker and vulnerable sections of the society.
Relations between Directive Principles and Fundamental Rights

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In the first three decades of working of the Constitution, there has been a long drawn debate
that in case of conflict between the Fundamental Rights and Directive Principles, which of
the two classes of the constitutional provisions should be accorded priority? Land Reforms,
Nationalisation of Banks and many other such moves of the government were challenged
in the court on the ground that they infringed upon the Fundamental Rights of the
individual.
The main bone of contention was Article-31 Right to Property, which was acting as major
India-I hindrance in the process of implementing Directive Principles of State Policy. For
some period, contradictory judgements of the Supreme Court and political compulsions of
the ruling class deeply complicated this issue. In ‘Golak Nath case’, 1976, Supreme Court
declared that, Fundamental Rights could not be amended by the parliament even for
implementation of Directive Principles. It was contradictory to its own judgement in
‘Shankari Parsad case’. In ‘Keshvanand Bharti case’ in 1973, the Supreme Court overruled
its Golak Nath (1967) verdict and declared that Parliament can amend any part of the
Constitution but it cannot alter its “Basic Structure”. In 1978, by 44th, Constitutional
Amendment, Right to Property (Article 31) was eliminated from the list of Fundamental
Rights. Parliament, by this move removed the main hinderance from the path of
implementing Directive Principles. Again in Minrva Mill case, 1980, Supreme Court
reiterated that Parliament can amend any part of the Constitution but it cannot change the
“Basic Structure” of the Constitution.
Although the Directive Principles and the Fundamental Rights appear in the Constitution
as distinct entities, there may, nevertheless, be a conflict between them, particularly when
laws are enacted to implement Directive Principles and such acts of the State impinge upon
the Fundamental Rights of the individual. But inspite of these differences there is a close
relationship between the Fundamental Rights and Directive Principles of State Policy, They
are complementary and supplementary to each other, both are required to realise the goals
and ideals declared in the Preamble of the Constitution. Fundamental Rights form political
democracy in India but to sustain this political democracy, implementation of Directive
Principles is essential, as it will eventually lead to emergence of social and economic
democracy or a Welfare State. Fundamental Rights have legal force behind them, however
Directive Principles have sanction of the public opinion. They are fundamental in the
governance of the country, no democratic government, therefore, can afford to ignore them.
Implementation of the Directive Principles of State Policy
Directive Principles are sometimes criticised for being non justiciable, vague and moral
precepts, whose execution is totally left to the discretion of the government. But for more
than sixty years of the working of the Constitution shows that successive governments in
India have taken various steps to implement Directive Principles. Some of the measures in
this effect are as follows–

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(i) In order to give effect to the principle of Article-39, various legislations were enacted
by the government with the objective to organise the ownership and control of material
resources to serve the common good. Some of these are:
(a) Land Reforms – Land is most essential material resource in an agrarian country like
India. Through land reforms zamidari system was abolished, ceiling on land
holdings imposed and surplus land distributed among landless labourers.
(b) Minimum Wages Act, Income Tax and other Taxation measures to tax high income
group and provide exemption and relief to the weaker sections.
(ii) Through 73rd Constitutional Amendment Act, 1992, government fulfilled
constitutional obligation stated in Article-40. Three tier ‘Panchayati Raj System’ was
introduced at the Village, Bloc and District level in almost all parts of the country.
(iii) To promote cottage industries (Article-43), government has established several Boards
such as Village Industries Board, All India Handicraft Board, Silk Board, Coir Board, etc.,
which provide essential help to cottage industuries in finance and marketing.
(iv) Government has implemented provisions related to free and compulsory education
(Article-45). Introduction of 86th Constitutional Amendment and subsequently passed the
Rights to Education Act 2009, Elementary Education has been accepted as Fundamental
Right of each child between the 6 to 14 years of age.
(v) Government has launched various development programmes, like Community
Development Programme (1952), Integrated Rural Development Programme (1978-79)
and in recent years Mahatma Gandhi Rural Employment Guarantee Act (MNREGA-2006)
to raise the standard of living particularly in rural areas, as stated in the Article-47 of the
Constitution.
(vi) Government has introduced various programmes to provide health and nutritional
support to the women and children. i.e. maternity relief and midday meal to school children.
(viii)Central Government sponsored schemes like ‘Pradhan Mantri Gram Swasthya
Yojana’ (PMGSY), ‘National Rural Health Mission’ (NRHM) and many other health and
welfare related programmes are being implemented to fulfil the social sector responsibility
of the Indian State. Directive Principles are no doubt the main guiding force behind all
these welfare measures.
After studying the working of the Constitution and development strategy adopted by the
government in India, we can definitely say that the Directive Principles have always been
accorded due importance and priority in the legislation and policy making. Some of the
Directives Principles have been implemented in word and spirit and some others are being
deliberated. However, there are still wide gaps in the fields of health and education in India
as compared to develop and also many of the developing countries. India, as a Democratic
Welfare State cannot turn a blind eye to it. So rapid modernisation and expansion of basic
health and education demands immediate attention of the government. Constitution also

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contemplates right to work, right to adequate means of livelihood and socioeconomic
justice to all sections of society. So, the government is effectively doing much more in this
direction to realise the ideals set by the founding fathers of our Constitution.
What You Have Learnt
Part IV of the Constitution of India (Article 36-51) contains Directive Principles of State
Policy. These principles are in the form of instructions and guidelines to the government,
aiming at socio-economic equality and establishing Welfare State in India. The State in
India is expected to be guided by Directive Principles while making laws and framing
policies to achieve greater collective good. These principles are non-justiciable or in other
words they are not enforceable by the court of law but there is moral force and public
opinions behind them.
On the basis of ideological source and objectives, Directive Principles can be classified into
four categories;
1. Economic and Social Principles
2. Directives Based on Gandhian Principles
3. Directive Principles relating to International Peace
4. Miscellaneous Principles
The Directive Principles have been taken from Irish Constitution. These India-I principles
aim at establishment of socialistic pattern of society, which is one of the objectives declared
in the Preamble of the Constitution and eventual emergence of India as a Welfare State.
Being a democratic Constitution Indian Constitution provides Fundamental Rights to all
the citizens of the country. There are some basic difference between Fundamental Rights
and Directive Principles of State Policy. Fundamental Rights put restrictions on the State
authority, so they are negative and prohibitive on the other hand Directive Principles are
positive and affirmative in nature. Directive Principles guide the State to act in a particular
manner. Fundamental Rights are justiciable but Directive Principles are non-justiciable.
Fundamental Rights represent liberal individualistic features of the Constitution while
Directive Principles show the socialistic characteristic of the Constitution. Inspite of these
differences, we can say that both fundamental Rights and Directive Principles of State
Policy are essential features of our Constitution. It is a well-recognised fact that for the
sustainance of political democracy, estabilshed by fundamental Rights, socio economic
equality and Welfare State is essential.

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 Unit – 7
Federal structure and distribution of legislative and financial powers between the
Union and the States
Federal System

• A federal system of government is one that divides the powers of government

between the Central (Federal) Government and State and Local Governments.
• One is a central authority which looks after the major affairs of the country. The
other is more of a Local government which looks after the day to day functioning
and activities of their particular Region.
• For example, our Indian Constitution says that India too is a federal country. As you
know we have two levels of parliament' at Center the Union Government and at
State level' we have the individual State Governments.

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 • India is a Union of States' The Constitution of India has divided the legislative,
executive and financial powers between the Centre and the states, which gives the
Constitution a Federal character whereas the judiciary is integrated into a
hierarchical structure.
• The Centre-State relations are divided into three parts which are mentioned below:
1. Legislative Relations (Article 245 -255)
2. Administrative Relations {Article 256 -263)
3. Financial Relations {Article 268 -'293)
Features of Federal Government

• The best way to comprehensively understand the federal is to learn about its
features. Following are Key features of Government.
• It has two levels of government in the country. There can even be more. But the
entire power is not concentrated with one government.
• Each level of government will have a specific power to laws, legislate and execute
these laws. Both of the government will have clearly marked jurisdiction. It will not
be that of the governments is just a Figurehead government.
• Another important feature is that the constitution must guarantee this federal system
of government. Which means the powers and duties of both or all government must
be listed down in the constitution of that country hence guaranteeing a federal
system of governance.
• Just one level of government cannot make unilateral changes or amendments to the
important and essential provisions of the constitution. Such changes must be
approved by all the levels of the Government to be carried through.
• Now, there are two levels of government with separate jurisdictions and separate
duties. Yet, there is still a possibility that a conflict may arise between the two
Governments. The Courts must have the Power to interfere in such a situation and
reach a resolution.
• While there is power-sharing between the two-level of government, there should
also be a system in Place for revenue sharing. Both levels of government should
have their own autonomous revenue. Streams. Because if one such government
depends on the other for funds to carry out its functions, it really is not autonomous
in its true nature.
Legislative Relations - Articles 245 – 255
Article 245 to 255in part X I constitution deals with different aspects of legislative relations
between Centre and States' these include:
1. The territorial jurisdiction of larva made by the Parliament and by the
Legislatures of States.
2. Distribution of legislative subjects.
3. Power of the parliament to legislate with respect to a matter in the State List

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 4. Centre's control state legislation
• However, Seventh Schedule of the Constitution provides for the distribution of
legislative powers between The Centre and the States.
• The legislative subjects are divided into: List I (The Union List),
• List II (the Concurrent List) and List Ill (The State List)
• At present, there are 100 subjects in the Union list which includes subjects such as
foreign affairs, Defence, railway' postal services. Banking, atomic energy,
communication ' currency etc.
• At present, there are 61 subjects in the State list. The list includes subjects such as
police, public Order' roadways' health' agriculture local government, drinking water
facilities' sanitation etc.'
• At present, there are 52 subjects in the Concurrent List' the list includes subjects
such as education, Forests, protection of wild animals and birds, electricity labour
welfare' criminal law and procedure, civil procedure, population control and family
planning, drugs etc.
• Article 245 empowers the centre to give directions to the states in a certain case in
regards to the Exercise of their executive power.
• Article 246 states that Parliament has exclusive powers to make laws with respect
to any of subject Matters specified in List I II and IL l of Seventh Schedule.
• Article 247 vests the power of establishment of additional courts by Parliament for
a matter related to Union List.
• Article 248 states that the Parliament has exclusive pow.er to make any law with
respect to any Matter not included in the Concurrent List or State List.
• Article 249 empowers the Parliament to legislate with respect to a matter in the State
List in the National interest.
• Under Article 250, the Parliament becomes empowered to make laws on the matters
related to State List when a national emergency (under Article 352) is in operation.
• Under Article 252, the parliament is empowered to legislate for two or more States
by their consent.
Administrative Relations

• Article 256 to 263 deals with the administrative relations between the Centre and
the States.
• Article 256 states that the executive power of every State shall be so exercised as to
ensure compliance with the laws made, by the parliament and any existing laws
which apply in that State, and the executive power of the Union shall extend to the
giving of such directions to a State as may appear to the Government of India to be
necessary for that purpose.
Cooperation between the Centre and the States

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 • The constitution lays down provision to secure corporation and coordination
between the centre and the state this include
• Article 261 states that 'full faith and credit shall be given throughout the territory of
India to public acts, records and judicial proceedings of the Union and of every
State.
• According to Article 262, the parliament may by law provide for the adjudication
of any dispute or complaint with respect to the use, distribution or control of the
waters of, or in, any Inter-State river or river valley.
• Article 263 empowers the President to establish an Inter-State Council to inquire
into and advise upon disputes between States, to investigate and discuss subjects in
which some or all of the States, or the Union and one or more of the States, have a
common interest.
• As per Article 307, Parliament may by law appoint such authority as it considers
appropriate for carrying out the purposes of the constitution al provisions related to
the interstate freedom of trade and commerce.
Centre-State Relations during Emergency

• During a National Emergency (under Article 352), the State Government become
subordinate to the Central Government. All the executive functions of the state come
under the control of the Union Government.
• During a State Emergency (under Article 356), the President can assume to himself
all or any of the functions of the Government of the State and all or any of the
powers vested in or exercisable by the Governor or authority in the State other than
the Legislature of the State.
• During the operation of Financial Emergency (under Article 360), the Union may
give directions to any State to observe such canons of financial propriety as may be
specified in the directions, and to the giving of such other directions as the President
may deem necessary and adequate for the purpose.

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 Unit – 8

Parliamentary form of government in India - the Constitution Power and status 0f

the president of India
Introduction
India, also known as Bharat, is a Union of States. It is a Sovereign Socialist Secular
Democratic Republic with a parliamentary system of government. The Republic is
governed in terms of the Constitution of India which was adopted by the Constituent
Assembly on 26th November, 1949 and came into force on 26th January, 1950. The
Constitution provides for a Parliamentary form of government which is federal in structure
with certain unitary features. The constitutional head of the Executive of the Union is the

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President. As per Article 79 of the Constitution of India, the council of the Parliament of
the Union consists of the President and two Houses known as the Council of States (Rajya
Sabha) and the House of the People (Lok Sabha). Article 74(1) of the Constitution provides
that there shall be a Council of Ministers with the Prime Minister as its head to aid and
advice the President, who shall exercise his/her functions in accordance to the advice. The
real executive power is thus vested in the Council of Ministers with the Prime Minister as
its head.
Parliament is the supreme legislative body of India. The Indian Parliament comprises of
the President and the two Houses - Rajya Sabha (Council of States) and Lok Sabha (House
of the People). The President has the power to summon and prorogue either House of
Parliament or to dissolve Lok Sabha. The Constitution of India came into force on January
26, 1950. The first general elections under the new Constitution were held during the year
1951-52 and the first elected Parliament came into existence in April, 1952, the Second
Lok Sabha in April, 1957, the Third Lok Sabha in April, 1962, the Fourth Lok Sabha in
March, 1967, the Fifth Lok Sabha in March, 1971, the Sixth Lok Sabha in March, 1977,
the Seventh Lok Sabha in January, 1980, the Eighth Lok Sabha in December, 1984, the
Ninth Lok Sabha in December, 1989, the Tenth Lok Sabha in June, 1991, the Eleventh Lok
Sabha in May, 1996, the Twelfth Lok Sabha in March, 1998, the Thirteenth Lok Sabha in
October, 1999, the Fourteenth Lok Sabha in May, 2004, the Fifteenth Lok Sabha in April,
2009, the Sixteenth Lok Sabha in May, 2014 and the Seventeenth Lok Sabha in May, 2019.
What is Parliament?
Parliamentary Government has been defined as “Government by talk” or more precisely,
“control of Government by talk”. The word “Parle” is a French word and it means “Talk”.
Parliament is often described as a mere “Talking shop”. Though this description is used
opprobrious, that is what the word ‘Parliament’ means and largely it describes the actual
institutions. It is a place where people talk about the affairs of the nation. In the U.K. the
Parliament consists of the King, the House of Lords and the House of Commons. All three
functionaries join together to complete the actions of Parliament. Both the Houses are in
fact two different institutions having different characteristics and different functions. The
earliest document in which the word Parliament is found is the 11th century “Chanson de
Roland”, where it is used simply to refer to a conversation between two persons. However,
the word soon acquired a derivative meaning that of an Assembly of persons in which
discussions took place. Contemporaries referred to the meeting at Runnymede as the
‘Parliament’ in which King John “gave his charter to the barons. By 1258 ‘Parliament’ had
evidently began to acquire a special meaning. In June of the same year, one of the reforms
demanded by the barons at Oxford was three ‘Parliaments’ a year to treat the business of
the King and the Kingdom. Therefore, it is clear that the essence of Parliament is discussion
and when the word was first applied to the great Councils of the English Kings it was with
a view to emphasizes its deliberative function.
Parliamentary form of Government

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Parliaments are common over the whole of the civilized world. English parliament is the
Mother of all Parliaments. The parliamentary system of government, which is also known
as the Cabinet Government, is based on close relationship between the executive and
legislature. The executive is accountable to the legislature and stays in office inly as long
as it enjoys the confidence of legislature. Under parliamentary system of government there
are two types of executives- nominal and real. The real executive is accountable to the
legislature and when later passes a vote of confidence against it has to render its resignation
or seek the dissolution of the legislature
The Origin of Parliament
The origin of Parliament may be traced to two ideas and both these ideas are of great
antiquity.
The first is that the King, always sought the advice of a council of the wisest and the most
experienced of his subjects.
The second idea is that of representation. Feeling his way toward an ideal of self-
government man has invented various Assembly and Parliament, at many different periods
and in many different countries. The Norman Kings held their courts in different
Parliaments of the country and summoned therein the prominent members of the Church,
big Landlords and Knights for discussion on national affairs. They were not the
representatives of the people in the sense in which today we understand the word
‘representative’. It took eight centuries to transform Parliament into a governing body
resting on the suffrage of all adult persons in the country. Earlier its form was very different
from what it is today. The origin of Parliament can be traced to the Witanegemot and the
Great Council. In 1295, Edward I summoned the ideal Parliament to which attention of the
King was drawn to sanction funds for public cause and before which problems of the people
were placed. The British King was not empowered to impose taxes without the approval of
the Parliament. In a bloodless revolution in 1688, Parliament attained supremacy. But the
Parliament was not democratic in character due to its limited franchise. With the passage
of time persons of young age were given the right to vote.
The Theory of parliamentary system
There are four things involved in the system of parliamentary democracy.
First is the Parliament of elected representative candidates. The second is a system of
Parties, each reflecting some general trend of thought pervading all the society-which will
submit to the electorate a number of candidates for its choice and the programme of policy
for which the candidates stand. A system of parties is a necessary part of any system of
representation. Granted an organised electorate and a system of national parties, the third
characteristic is a cabinet that guides the parliament, and yet at the same time is itself guided
by the parliament. The adjustment of the whole machinery of the representative system of
government is very fine and delicate. The last and the foremost characteristic is the idea of

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representation. Each of the above four concepts has to fit into the other three, each has to
play its part and to be content with its part. But practically it is not the easy thing for any
of the four to be so content. Every human institution tends naturally to institutionalism. It
exaggerates itself. The problem of human government is a problem which can never be
solved absolutely. There are certain requisites for this system to be successful. It is said that
an ounce of practice is worth a pound of theory. Factionalism or irreconcilable conflict of
parties is the one of the saddest defects of a parliamentary system, for the party system is
perhaps the most difficult of all the elements. The great merit of the parliamentary system
is that it provides a constant training ground for the statesmen, with an arena of peaceful
competition in which they can test and measure their powers before a watching and judging
world.
Chief Characteristics of Parliamentary System
In the parliamentary system the chief executive of the state (Prime Minister) is not elected
directly by the people, but he is normally the leader of the majority party in the Parliament.
He chooses his own Cabinet which again, normally should be out of the Parliament only.
The entire Cabinet is accountable to the Parliament and as soon as it looses confidence of
the Parliament, it has to resign from the, office. As against this, in the Presidential system,
the chief executive i.e. the President is elected directly by the people for a fixed term and
he chooses his own ministers (called 'secretaries' in the U.S.). Neither the President nor the
Secretaries are accountable to the Parliament i.e. Congress.
1. In a Parliamentary system powers are centered in the Parliament, The Legislature takes
the responsibility of government.
2. The executive is divided in two parts- Head of the state i.e. Monarch or the President,
and the head of the Government i.e. Prime Minister. The former, is the titular head and the
latter is the real executive head. Relationship between the two has been regulated in India
by the law of Constitution while in England it is left to the operation of flexible conventions.
3. The head of the State appoints the head of the Government. In case of Majority
Parliamentarianism, the President or the crown has no option but in minority
Parliamentarianism the President or the crown may enjoy prerogative in this matter.
4. The head of the Government has full say in appointment of his Ministry. Ministers are
formally appointed by the crown but Prime Minister alone is responsible for the
composition of the Ministry.
5. The Ministerial responsibility is collective. It indicates both the cause and the effect of
the cabinet solidarity. The Government can remain in office as long as it enjoys the
confidence of popular house.
6. Collegiate Nature of the executive indicates that a decision making process has been
shifted to a collective body.

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7. Ministers are usually members of the Parliament.
8. The head of the Government may advice the head of the State to dissolve the Parliament.
9. There is a mutual dependence between the government and the parliament.
10. The government as a whole is only indirectly responsible to the electorate.
11. Though the ultimate power to control and supervise the executive rests with the
Parliament, in practice, it is the Prime Minister who has become all powerful.
12. This system does not represent truly the principle of separation of powers. There is no
separation of personnel between the executive and the legislature. The presidential system
is a form of government in which the president is the chief executive and is elected directly
by the people. In this system all three branches – executive, legislative, and judiciary – are
constitutionally independent of each other, and no branch can dismiss or dissolve any other.
The president is responsible for enforcing laws, the legislature for making them, and the
courts for judging. Each is given specific powers to check and balance the others. It operates
on the principle of separation of powers and the legislative and executive are independent
of each other. The executive head of the state enjoys real executive powers. He is neither
the member of legislature nor accountable to it for its actions and policies. The continuance
of the executive head in the office does not depend on the sweet-will of the legislature. He
holds office for a fixed term and can be removed from his office before the expiry of his
normal term only through the cumbersome process of impeachment.
This system was invented by America’s founders to provide an alternative to the
parliamentary form of government. It became known as ‘presidential’ because a directly
elected president was its most salient difference. This doesn’t mean that the president holds
supremacy like the prime minister or parliament. In fact, power in the presidential system
is divided among many, so no individual or institution can ever become supreme. This
rejection of legislative supremacy is not the only fundamental difference. Since the
presidential system was designed for a full republic, not a constitutional monarchy, it
doesn’t have a head of state. The government is not just an executive committee called the
Cabinet, it’s all three branches. The President, Congress (with two chambers: House of
Representatives and Senate) and Supreme Court, work together to constitute a government,
and all report directly to the people. Elections are therefore held more frequently than the
parliamentary system; every two years for the legislature, and every four for the presidency.
The president and legislators are elected for fixed terms. The judges are appointed for life,
jointly by the president, who nominates, and the Senate, which approves. Total executive
responsibility is assigned to the president as an individual, not collectively to a council of
ministers, as in the parliamentary system. The president’s cabinet is not made of legislators
but of any individuals considered able by the president and approved by the Senate. In fact,
legislators are barred from holding executive offices, and vice versa. Conversely, the
president cannot make laws. He can veto, but the legislature can override if there is broad
consensus. Another big difference is with respect to state governments. The presidential

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system is designed for a federation, not for running states from the center. Accordingly, its
state governments are independent, cannot be dissolved, and are required to be self-
sufficient. Federal and state governments are granted separate and specific powers; residual
powers are left with the states.
The Americans invented the presidential system in 1787 to replace their decade-old fraying
structure. After gaining independence, the 13 American colonies lived under the Articles
of Confederation. But that provided a weak central government and lacked a fair system
for inter-state cooperation. The union began to fall apart. The founders knew they had to
come up with a better system. Having lived under the British Constitution all their lives,
they knew the parliamentary form of government was not the answer. They devised a
revolutionary new system of strong but non-oppressive governments. The presidential
system grants limited powers, empowers state governments, separates the three branches
into different institutions, enables the minority to make laws, grants judiciary the power of
review, and above all, gives the people a direct say. Direct elections at all levels of
government – federal, state, and local – is this system’s best known feature. Many nations
have a so-called presidential system, but America is the model to study. In almost all other
countries the powers are not as well balanced. The American system is not difficult to
understand or replicate, however it cannot be implemented piecemeal. Since it relies on
institutions and their checks on each other, the structure of every institution is equally
important. The American presidential system is not authoritarian. The general depiction of
America’s president as “the most powerful man on the planet” has created an erroneous
impression of autocracy. But nothing could be farther from the truth. In 225 years, no
American president has even been accused of autocratic behavior. Power in this system
cannot find a focal point. This system makes it structurally impossible, due to its powerful
state governments, division of spending and taxing authorities, and separation of the powers
of sword and purse.

Features of Presidential form of government

1. The head of the state enjoys real powers. These powers are vested in him by constitution
or ordinary laws and can exercise these powers on his own.
2. The presidential form of government is based on separation of powers. The three organs
of government stand independent of each other. The president and his ministers cannot be
the members of the legislature nor are they accountable to it.
3. The cabinet under presidential system consists of nominees of the president. They remain
in office as long as accountable to the president rather than legislature.
4. The president can appoint secretaries or ministers to assist him, but they are merely
advisors and act according to his instructions. The president can also remove them from
their post any time he likes.

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5. Under presidential system the head of the state enjoys a fixed tenure and cannot be
removed from office before the expiry of the fixed tenure. He can be removed from the
office through a very special and complicated procedure of impeachment.
6. Under presidential system the legislature cannot dissolve it. Like the executive head the
legislature also enjoys fixed tenure and cannot be dissolve before the expiry of his term.

Unit – 9

Amendment of the Constitution Powers and Procedure

Introduction

The Constitution of India provides for its amendment in order to adjust itself to the
changing conditions and needs. Article 368 in Part XX of the Constitution deals with the
powers of Parliament to amend the Constitution and its procedure.

Body The procedure for the amendment of the Constitution as laid down under Article
368 is as follows:

• An amendment of the Constitution can be initiated only by the introduction of a bill

for the purpose in either House of Parliament and not in the state legislatures.
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 • The bill can be introduced either by a minister or by a private member and does
not require prior permission of the president.
• The bill must be passed in each House by a special majority, that is, a majority
of the total membership of the House and a majority of two-thirds of the members
of the House present and voting.
• Each House must pass the bill separately. In case of a disagreement between the two
Houses, there is no provision for holding a joint sitting of the two Houses for the
purpose of deliberation and passage of the bill.
• If the bill seeks to amend the federal provisions of the Constitution, it must also be
ratified by the legislatures of half of the states by a simple majority.
• After duly passed by both the Houses of Parliament and ratified by the state
legislatures, where necessary, the bill is presented to the President for assent.
• The President must give his assent to the bill. He can neither withhold his assent to
the bill nor return the bill to the Parliament for reconsideration.
• After the President’s assent, the bill becomes an Act (i.e., a Constitutional
Amendment Act) and the Constitution stands amended in accordance with the terms
of the Act.

Criticism of the Amendment Procedure

Critics have criticised the amendment procedure of the Constitution on the following
grounds:

• There is no provision for a special body like Constitutional Convention (as in the
USA) or Constitutional Assembly for amending the Constitution.
• The power to initiate an amendment to the Constitution lies with the Parliament.
The state legislatures cannot initiate any bill or proposal for amending the
Constitution except in one case that is, passing a resolution requesting the
Parliament for the creation or abolition of legislative councils in the states.
• The major part of the Constitution can be amended by the Parliament
alone either by a special majority or by a simple majority. Only in a few cases, the
consent of the state legislatures is required and that too, only half of them.
• The Constitution does not prescribe the time frame within which the state
legislatures should ratify or reject an amendment submitted to them. It is also silent
on the issue, whether the states can withdraw their approval after according the
same.
• There is no provision for holding a joint sitting of both the Houses of Parliament
if there is a deadlock over the passage of a constitutional amendment bill.
• The process of amendment is similar to that of a legislative process. Except for the
special majority, the constitutional amendment bills are to be passed by the
Parliament in the same way as ordinary bills.

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Conclusion

The provisions relating to the amendment procedure are too sketchy. Hence, they leave a
wide scope for taking matters to the judiciary. Despite these defects, it cannot be denied
that the process has proved to be simple and easy and has succeeded in meeting the
changing needs and conditions of society. The procedure is neither highly flexible as to
allow the ruling parties to change it according to their whims nor is it very rigid as to be
incapable of adapting itself to the changing needs.

Unit – 10
The Historical Perspective of the Constitutional Amendments in India

Introduction
The Constitution of India is the largest constitution in the world. India’s Constitution is the
supreme rule of law. The document sets out the framework for the demarcation of
fundamental political code, structure, procedures, powers and responsibilities of
government institutions and sets out fundamental rights, guidelines and citizens’ duties.
The chairman of the drafting committee, Dr. B.R. Ambedkar, is generally regarded as the
chief architect. The Constitution declares India to be a sovereign, socialist, secular,
democratic republic, ensuring justice, equality and freedom for its citizens, and
endeavouring to promote brotherhood.
The original Constitution of 1950 is stored in the Parliament House in New Delhi in a
helium-filled situation. During the Emergency the words ‘secular’ and ‘socialist’ were

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added to the preamble in 1976. It was adopted by the Indian Constituent Assembly on 26
November 1949 and took effect on 26 January 1950. Article 368 of the Indian constitution
lays that the government can amend the constitution. There are two types of amendment
procedure – (i) Rigid and (ii) Flexible. Under the rigid system, it is very difficult for the
people to amend the constitution. This is followed by the constitution of the U.S, Canada,
and Australia. Whereas, the Flexible procedure is where the amendment can be done in the
constitution.
The Indian Constitution is both rigid and flexible, i.e. hard to amend but virtually flexible.
In compliance with Article 368 of the Indian Constitution, a provision must be made in any
of the houses, which must be passed by a large majority or by a simple majority later. If a
vote approves the resolution, it will be submitted to the president for his assent. In 70 years
of Indian Independence, the constitution has been amended 104 times. Starting with 395
Articles and 8 Schedules, it now stands at more than 450 Articles and 12 Schedules – arising
from 104 amendments.

Amendment of Indian Constitution – Article 368

Under Article 368 of the Indian Constitution, the Parliament is empowered to amend it and
its procedures. Amendments to the Indian Constitution are not easy to produce and require
compliance with other provisions. Article 368 grants Parliament some powers allowing it
to amend it while keeping its fundamental form just the same. Article 368 of the
Constitution of India cites two types of amendments to the Constitution of India. The form
of amendment is by a simple legislative majority (Lok Sabha & Rajya Sabha), the second
type of amendment is by a special parliamentary majority, and the third type is with the
approval of a special majority and by half the total state.

Reason for Amendment Procedure by Article 368

The time is not static, it’s continuing to change. The Constitution needs to be revised.
People’s social, cultural, and political situation is starting to shift. If the constitutional
changes were not made, we would not be able to encounter the future difficulties and it
would become a hurdle in the path of development. There is an explanation of why our
founding fathers made the constitution as robust as it is today. It is to ensure the plans are
changing with the country’s growth. Therefore, according to Article 368, Parliament’s
powers to amend the constitution are unlimited in respect of parts of the constitution which
it wishes to amend.

The basic structure of the Indian Constitution

In the Kesavanand Bharati case of 1973, the Supreme Court ruled that the Parliament could
not change certain provisions which constitute the basic constitutional framework.
Constitutional ideologies which are essential to constitutional survival. Some examples are
Free and Fair Election, the nation’s Federal nature, Judicial Review, and Power Separation.
It notes that some basic legislative frameworks and founding values constitute the
foundation of the Constitution. These cannot be touched by anyone.

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Major Amendments in the Constitution

First Amendment, 1951

• The Constitution (First Amendment) Act, 1951 empowered the State to make
special provisions to advance socially and economically backward classes.
• Savings legislation allowing for the purchase of estates, etc.
• Added Ninth Schedule to protect from judicial review the land reforms and other
legislation included in it. Articles 31A and 31B were added after Article
31, respectively.
• Three more reasons for restricting freedom of speech and expression have been
added: public order, friendly relations with foreign states, and incitement to an
offence. It also made the restrictions ‘reasonable’ and, therefore, in nature,
justiciable.
• Issues in the cases included freedom of expression, possession of Zamindari
estate, State trade monopoly, etc. These laws breach property rights, freedom of
speech, and equality before the law.

The Constitution (7th Amendment), 1956

• Second and seventh schedules have been revised.

• The current division of states into four divisions (i.e., Part A, Part B, Part C, and
Part D states) was repealed and reorganized into 14 states and 6 federal
territories.
• Extended high court authority to union territories.
• Provided for two or more States to establish a common high court.
• Provided that additional and acting High Court judges are appointed.
• Implementing the State Reorganization Committee recommendations, and
implementing 1956, State Reorganization Act. Linguistic reorganization of
States. Class A, B, C, and D discontinued.

The Constitution (9th Amendment Act), 1960

• Facilitated the cession to Pakistan of the Berubari Union Indian territories

(located in West Bengal) as provided for in the Indo-Pakistan Agreement
(1958). Schedule 1 of the constitution was amended.
• Adjustments to Indian Territory as a result of an agreement with Pakistan. After
this Union referred the matter to SC, which ruled that the Parliament’s right to
decrease a state’s area (under Article 3) did not include the cession of Indian
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 territories to a foreign government. Indian Territory can therefore, only be ceded
to a foreign State by amending the Constitution pursuant to Article 368.

The Constitution (10th Amendment Act), 1961

• Incorporation as a Union Territory of Dadra, Nagar and Haveli, as a consequence

of the acquisition from Portugal.
• It amended the Constitution under Article 240.

The Constitution (11th Amendment Act), 1961

• Changed the Vice President’s election procedure by providing for an electoral

college, rather than a joint parliamentary meeting of the two houses.
• Provided that on the ground of any vacancy in the appropriate electoral college,
the election of the President or Vice President cannot be challenged.

The Constitution (12th Amendment Act), 1962

• Goa, Daman and Diu were incorporated as Union Territory in the Indian Union.
• It amended the Constitution under Article 240.

The Constitution (13th Amendment Act), 1962

• Formation of Nagaland State, with special protection provided for in Article

371A.
• Article 170 of the constitution was modified.

The Constitution (15th Amendment Act), 1963

• Enabled the High Court to issue writs to any person or authority even outside the
jurisdiction of its terrorist if the cause of action arises within its territorial
boundaries.
• High court judges increased their retirement age from 60 to 62 years.
• Provided that retired high court judges are appointed as acting judges of the same
court.
• Provided the compensatory allowance for the transfer of judges from one High
Court to another.
• Allowed the retired High Court judge to act as the Supreme Court’s ad-hoc judge.

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 • Provided for the age determination procedure of the judges of the Supreme Court
and the High Court.

The Constitution (24th Amendment Act), 1971

• Affirmed Parliament’s authority, by amending Articles 13 and 368, to change

every aspect of the Constitution including constitutional rights.
• Made it compulsory that the President give his approval to a Constitutional
Amendment Bill.
• The Twenty-fourth Constitutional Amendment Act was introduced in reaction to
the Supreme Court’s Golaknath decision (1967), which ruled that the Parliament
has no authority to revoke constitutional freedoms by amending the Constitution.

The Constitution (26th Amendment Act), 1971

• Abolished the privy purses and privileges of the former rulers of princely states.
• Changes were made in Article 366. Added Article 363A and Removed Articles
291 and 362.

The Constitution (31st Amendment Act), 1973

• The seats in Lok Sabha were increased from 525 to 545.

• This was done because of the increase in the population of the country.

The Constitution (36th Amendment Act), 1975

• Sikkim became the 22nd state of India Union.

• The 10th schedule was omitted.

The Constitution (37th Amendment Act), 1975

• Parliament passed it on April 26, 1975, to make way for a Legislative Assembly
and a Council of Ministers for Arunachal Pradesh, the north-westernmost Union
territory of the country.

The Constitution (39th Amendment Act), 1975

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 • The Bill was passed on August 7 by the Lok Sabha, and on August 9, 1975, it
received presidential assent.
• The Act places in court the election of a person holding the office of Prime
Minister or Speaker to Parliament, and the election of President and Vice-
President, beyond challenge.
• In the case of the State of Uttar Pradesh v. Raj Narain 1976 (2) SCR 347, Article
329A was struck down by the Supreme Court for breach of the basic structure.

The Constitution (40th Amendment Act), 1976

• The Parliament was allowed to determine from time to time the borders of the
territorial waters, the continental shelf, the Exclusive Economic Zone (EEZ) and
India’s maritime zones.
• Included in the 9th Schedule 64 more Central and State laws, mostly concerning
land reforms.

The Constitution (42nd Amendment Act), 1976

• In the Preamble, three additional terms (i.e. socialist, secular, and integrity) were
included.
• The citizens have added fundamental duties (new part IV A).
• The President was made bound by the cabinet’s advice. Except for administrative
and other matters tribunals (Added Part XIV A).
• Froze the Lok Sabha seats and the state legislatures on the basis of the 1971
census up to 2001 — Population Management Mechanism. The constitutional
amendments were made without judicial review.
• The Supreme Court and high courts had curtailed the power of judicial review
and written jurisdiction. Raised Lok Sabha tenure and state legislatures from 5
to 6 years.
• Added three new guidelines, namely equal justice and free legal assistance,
employee participation in industry management and environmental protection,
forests and wildlife.
• Facilitated declaration of a national emergency within a portion of India’s
territories. Extended the one-time period of the law of the President of a State
from six months to a year.
• Empowered the Center to deploy its armed forces to deal with a serious law and
order situation in any state.
• Shifted five subjects from the state list to the concurrent list, namely education,
forests, wildlife and bird protection, weights and measures and the

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 administration of justice, constitution and organization of all courts except the
Supreme Court and the high courts.
• The Parliament was empowered to determine the rights and responsibilities of
its members and commissions from time to time. Established for the
development of the Judicial Service of all India.

The Constitution (43rd Amendment Act), 1978

• This Act repeals the egregious fundamental clauses (42nd Amendment)

legislation enacted during the Emergency. It restores civil liberties by
deleting Article 31D which gave Parliament powers to curtail even legitimate
trade union activity under the guise of anti-national activity prevention
legislation.
• The new law, which, in accordance with the Constitution, has been ratified by
more than half of the States, also restores legislative powers for the States to
provide adequate provision for anti-national activities consistent with the
fundamental rights. The Legislation also restored the judiciary to its rightful
place.
• The Supreme Court will now have the power to invalidate state laws, a power
which the 42nd Amendment Act takes away. The High Courts would now be
able to resolve the question of the statutory legitimacy of Central Legislation
requiring citizens residing in remote areas to seek timely justice without having
to come before the Supreme Court.

The Constitution (44th Amendment Act), 1978

• Replaced the term ‘internal disturbance’ with the term ‘armed rebellion’
concerning the national emergency.
• Has made the President declare a national emergency only on the cabinet’s
written recommendation.
• Has rendered some constitutional provisions for a national emergency and the
law of the Constitution.
• Deleted the right to property from the Fundamental Rights register, and made it
a legal right instead.
• Provided that, during a national emergency, the fundamental rights guaranteed
by Articles 20 and 21 cannot be suspended.
• The original term of the Lok Sabha and the state legislatures (i.e., 5 years) was
restored.
• Restored the rules in Parliament and state legislatures on quorum.
• Reference to the British House of Commons in the parliamentary privileges
provisions were omitted.
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 • Gave fundamental immunity of the publishing of truthful accounts of legislative
trials and state assemblies in a journal.
• The President was allowed to give the cabinet’s recommendations back once for
reconsideration. The reconsidered opinion, however, is to be binding on the
President.

The Constitution (52nd Amendment Act), 1985

• Provided for disqualification on the ground of defection of parliamentary

members and state legislatures, and added a new Tenth Schedule containing the
details in this regard.
• The Act made defection of another party unlawful after elections. Any member
who defects after elections to another party will be disqualified from being a
member of parliament or a legislature of the state.

The Constitution (58th Amendment Act), 1987

• Provided for an authoritative text of the Constitution in Hindi language and gave
the Hindi version of the Constitution the same legal sanctity.
• This calls for special provisions for reserving seats for Scheduled Tribes in
Arunachal Pradesh, Nagaland, Mizoram and Meghalaya states. Upon
amending Article 322 the seating change was suspended until 2000 A.D.

The Constitution (61st Amendment Act), 1989

• Reduced the voting age for Lok Sabha and state legislative assembly elections
from 21 years to 18 years.
• That was explained by the then Prime Minister Rajiv Gandhi as an expression of
the full faith of the government in the country’s youth. The youth are educated
and knowledgeable, and therefore, lowering the voting age will provide the
nation’s unrepresented youth with an ability to let their emotions out and
encourage them to potentially become part of the democratic process.

The Constitution (62nd Amendment Act), 1989

• It called for the extension for another ten years of reservation of seats for the
Scheduled Castes and Tribes in Parliament and State Legislatures and
reservation for election for the Anglo Indian population.

The Constitution (65th Amendment Act), 1990

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 • Article 338 of the Constitution has been amended to establish a National
Commission for Scheduled Castes and Scheduled Tribes consisting of a
Chairperson, a Vice-Chairperson and five other members appointed by a warrant
under the Chairperson ‘s control and seal.

The Constitution (69th Amendment Act), 1991

• The Act of Parliament was to award Delhi Statehood as the ‘Delhi National
Capital Territory’. This also provides for Delhi with a 70 member assembly and
a 7 member ministerial council.

The Constitution (71st Amendment Act), 1992

• The amendment enables the inclusion of Nepali, Manipuri, and Konkani into the
Constitution’s Eighth Schedule. The number of languages in the Eighth Schedule
ascends to 18 with the inclusion of these three languages.

The Constitution (73rd Amendment Act), 1992

• On 22 December 1992, the Parliament passed the Seventy-third Constitutional

Amendment Act, 1992, which was notified by the Central Government via the
Official Gazette on 20 April 1993, when it was rectified by the legislators of the
State and authorised by the President of India. The Panchayati Raj institutions
have now become constitutional Legitimacy.
• Since Part VIII of the Constitution, a new section IX was added to the
Constitution, with the inclusion of the powers and duties of Panchayati Raj
Institutions in Article 243A and the fresh schedule called the Eleventh Schedule.
The Act provides for Gram Sabha, a Panchayati Raj three-tier model, reservation
of seats for SCs and STs in proportion to their population, and reservation of
one-third seats for women.

The Constitution (76th Amendment Act), 1994

• This Amendment Act increases the reservation limit for government

employment and admission seats in educational institutions to 69 per cent in
Tamil Nadu in favour of socially and educationally deprived classes.
Additionally, the Amendment Act was included in the Constitution’s Ninth
Schedule to exempt it from the jurisdiction of judicial scrutiny.

The Constitution (77th Amendment Act), 1995

• This amendment has added a new clause (4-a) to Article 16 of the Constitution
which empowers the State to make any reservation provisions in favour of SCs

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 and STs in promotions in government jobs where it is of the opinion that they
are inadequately represented in state services. This was done to nullify the effect
of the judgment of the Supreme Court in the case of the Mandal Commission
(Indra Sawhney vs. Union of India), in which the Court held that quotas on
promotions cannot be made.

The Constitution (80th Amendment Act), 2000

• The Constitution (Eightieth Amendment) Act, 2000, introduced an alternate

scheme for the distribution of taxes between the Union and the Province, based
on the recommendations of the Tenth Finance Committee. Under the current
income-sharing arrangement between the Union and the States, 26% of the total
revenues of Federal taxes and duties are to be transferred to the States instead of
their present portion of income tax, excise duty, special excise duties, and
exemptions instead of taxes on rail passenger fares.

The Constitution (81st Amendment Act), 2000

• Under this amendment, the unfulfilled vacancies of one year reserved for the
Scheduled Castes and the Scheduled Tribes in compliance with the clause of
Reservations made pursuant to Article 16 of the Constitution shall be regarded
to be a distinct class of vacancies to be filled in every following year or year and
these class of vacancies shall not be counted in accordance with the vacancies of
the year in which they were filled to decide the limit of a quota of fifty per cent
against the existing number of vacancies of that year.

The Constitution (84th Amendment Act), 2001

• The Act revised the terms of Articles 82 and 170(3) of the Constitution to
readjust and rationalize the geographical constituencies of the States without
altering the number of seats allotted to each State in the House of People and
Parliamentary Assemblies of States, including Scheduled Castes and Scheduled
Tribes Constituencies, on a population-based basis determined in the 1991
census to remove the gap created by unequal population/electoral growth in
different constituencies.

The Constitution (86th Amendment Act), 2002

• In order to make the right to free and compulsory education a fundamental right,
the Act inserts a new Article, namely Article 21A, which confers the right to free
and compulsory education on all children aged between 6 and 14 years. The Law
amends the Constitution in Part-III, Part -IV, and Part- IV (A).
• One of the most critical changes, with the aid of government support, the
government forced private schools to accept 25 per cent of their class size from

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 socially vulnerable or deprived classes in society by a random allocation process.
This move was taken to seek to offer quality education to everyone.

The Constitution (88th Amendment Act), 2003

• Service tax collected and appropriated by the Union and States, levied by the
Union. The Act amends Articles 268, 270 and VIIth schedule.

The Constitution (92nd Amendment Act), 2003

• The amendment encourages the inclusion of Bodo, Dogri, Maithili, and Santhali
into the constitution’s VIIIth Schedule. The number of languages in the VIIIth
Schedule ascends to 22 with the inclusion of these four languages.

The Constitution (95th Amendment Act), 2010

• The amendment aims to expand the quota of seats in the Lok Sabha and States
for SCs and STs, legislatures from 60 to 70 years.

The Constitution (96th Amendment Act), 2011

• Replaced Odia for Oriya in Indian Constitution 8th Schedule.

The Constitution (97th Amendment Act), 2012

• Added the words “or cooperative societies” in Article 19(l) (c) after the word “or
unions” and the insertion of Article 43B i.e., Promotion of cooperative societies
and added Part-IXB i.e., Co-operative societies. The amendment aims to
promote cooperative economic activities which in effect support rural India
develop. It is required not only to ensure the independent and democratic
operation of cooperatives but also to make the management accountable to
members and other stakeholders.

The Constitution (99th Amendment Act), 2014

• It called for the setting up of the National Judicial Commission.

The Constitution (100th Amendment Act), 2015

• Exchange of other enclave lands with Bangladesh. Conferring citizenship rights

to enclave residents arising from the signing of the Treaty of Land Boundary
Agreement (LBA) between India and Bangladesh.
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The Constitution (101st Amendment Act), 2016

• Goods and Services Tax (GST) commenced on 8 September 2016 with the
enactment and subsequent notices of the 101st Constitution Amendment Act,
2016.
• The constitution incorporated Article 246A, 269A, 269A and 279A. The
amendment allowed amendments to the constitution’s 7th cycle. Union List entry
84 earlier contained duties related to cigarettes, alcoholic liquors, marijuana,
Indian hemp, medicines and drugs, medicinal and bathroom arrangements.
Petroleum oil, high-speed gasoline, engine spirit (petrol), natural gas, and air
turbine power, cigarettes, and cigarettes goods should be listed following the
amendment.
• Entry 92 has been removed (newspapers and ads published therein), they are now
under GST. Entry 92-C (Service Tax) is now deleted from the list of unions.
Entry 52 (entry tax for in-state sale) has now been removed from the State
register.
• Entry 54, Taxes on the export or purchasing of products other than newspapers,
according to the provisions of Entry 92-A of the List I have now been
supplemented by Taxes on the selling of petroleum oil, high-speed gasoline,
motor spirit (petroleum), natural gas, aviation turbine fuel and alcoholic spirit for
human consumption, but not including the sale or distribution in the form of
inter-State commerce or commerce Reference 55 (Taxes on Advertising) was
omitted. Entry 62 (Luxury taxes, including taxes on entertainment,
entertainment, betting and gambling) has now been replaced by these taxes only
to be levied by local authorities.

The Constitution (102nd Amendment Act), 2018

• The bill seeks to give the National Commission on Backward Classes a

constitutional status. It seeks to insert into the constitution a new Article 338B
which provides for NCBC, its mandate, composition, functions, and various
officers. Inserted a new Article 342 - A that empowers the President to notify
that state/union territory’s list of socially and educationally backward classes.

The Constitution (103rd Amendment Act), 2019

• Two constitutional freedoms were changed: Articles 15 and 16. It makes

provision for advancing the economically weaker sections of society. A
significant 10 per cent of all government positions and college seats will also
have a quota beyond the high-income class for voters. This bill is drafted with a
commitment to enforce Article 46 of India’s Constitution, a Directive Principle
which urges the government to protect the educational and economic interests of
the weaker sections of society.

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The Constitution (104th Amendment Act), 2020

• This expanded seat quotas in the Lok Sabha for SCs and STs, and state
legislatures.

Conclusion
Though young, over those seven decades, the Indian Constitution has undergone
tremendous change. Such amendments have modified main elements of the constitution,
such as human freedoms, federalism, political participation, judicial scrutiny, etc. Such
amendments were not usually introduced to strengthen constitutional rights. India’s
constitutional trajectory over the past seventy years — the weakening of our fundamental
freedoms, the reforms made to our political structure, the role of fundamental degradation
played by numerous institutions, and the struggle to defend the constitutional ethic. This
democracy has its backbone in the Constitution.
Although having provisions to amend the constitution was progressive to the fathers of our
nation, it is important that such provisions are not misused. Misuse could lead to undue
legislative or executive authority that could rip apart the fabric of our society. Indians may
not always know all the procedural details of this lengthy and imperfect document, but they
know the core — that it’s not the whims of political greed that governs them, but the
constitutional words. And on Republic Day, this is worth celebrating.
Article 368 is vague on whether or not the parliament has the right to change the basic
structure, but this still does not mean this Article 368 imposes the restriction on the
modification of the basic structure and Part III of the Constitution. The First Amendment,
crafted by the Constitution’s framers, set the tone for the future. It was clear that, if there
were good intentions, it was acceptable to use Constitutional amendments to remove
government constraints. The conditions that led to 104 institutional changes and hundreds
of interpretational amendments will make one miserable. Nevertheless, the Constitution
lasted seven decades despite various attacks by Parliament and the judiciary.

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 Unit – 11

Emergency Provisions National Emergency, President Rule, Financial Emergency

When the Constitution of India was being drafted, India was passing through a period of
stress and strain. Partition of the country, communal riots and the problem concerning the
merger of princely states including Kashmir. Thus, the Constitution-makers thought to
equip the Central Government with the necessary authority, so that, in the hour of
emergency, when the security and stability of the country is threatened by internal and
external threats. Therefore, some emergency provisions were made in Constitution to
safeguard and protect the security, integrity and stability of the country and effective
functioning of State.
Objectives
• l recognise that the Union Government has no option except to assume extraordinary
powers in emergencies;
• Identify the situations in which the President can proclaim a state of National
Emergency under Article 352;

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 • l describe the various effects of National Emergency relating to the executive,
legislative, and financial matters, with special reference to the fundamental Rights;
• l cite examples of National Emergencies proclaimed in the country with their
duration and effect;
• l describe the circumstances in which the President can make a proclamation under
Article 356 imposing President’s Rule in a state;
• l cite a few examples when such proclamations were made due to the breakdown of
constitutional machinery;
• l recall that imposition of President’s Rule has often been controversial in the
context of smooth Centre – State relations;
• Describe the circumstances under which Financial Emergency can be proclaimed
under Article 360;
• l explain the role of Parliament during Financial Emergency;
• l describe the effects of Financial Emergency.
Emergency Caused by War, External Aggression etc.
Provisions have been made in the Constitution for dealing with extraordinary situations that
may threaten the peace, security, stability and governance of the country or a part thereof.
There are three types of extraordinary or crisis situations that are envisaged. First, when
there is a war or external aggression has been committed or there is threat of the same, or
if internal disturbances amounting to armed rebellion take place; second, when it becomes
impossible for the government of a State to be carried on in accordance with the
Constitution; and third, if the credit or financial stability of the country is threatened. In
each case the President may issue a proclamation with varying consequences. In this section
we will discuss the emergency caused by war etc., popularly known as the national
emergency.
Proclamation of National Emergency (Article 352)
The Constitution of India has provided for imposition of emergency caused by war, external
aggression or internal rebellion. This is described as the National Emergency. This type of
emergency can be declared by the President of India if he is satisfied that the situation is
very grave and the security of India or any part thereof is threatened or is likely to be
threatened either (i) by war or external aggression or (ii) by armed rebellion within the
country. The President can issue such a proclamation even on the ground of threat of war
or aggression. According to the 44th Amendment of the Constitution, the President can
declare such an emergency only if the Cabinet recommends in writing to do so.
Such a proclamation of emergency has to be approved by both the Houses of Parliament
by absolute majority of the total membership of the Houses as well as 2/3 majority of
members present and voting within one month, otherwise the proclamation ceases to
operate. In case the Lok Sabha stands dissolved at the time of proclamation of emergency
or is not in session, it has to be approved by the Rajya Sabha within one month and later
on by the Lok Sabha also within one month of the start of its next session. Once approved
by the Parliament, the emergency remains in force for a period of six months from the date
of proclamation. In case it is to be extended beyond six months, another prior resolution
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has to be passed by the Parliament. In this way, such emergency continues indefinitely. But
if the situation improves the emergency can be revoked by another proclamation by the
President of India.
The 44th Amendment of the Constitution provides that ten per cent or more members of
the Lok Sabha can requisition a meeting of the Lok Sabha and in that meeting, it can
disapprove or revoke the emergency by a simple majority. In such a case emergency will
immediately become inoperative.
National Emergency has been declared in our country three times so far. For the first time,
emergency was declared on 26 October 1962 after China attacked our borders in the North
East. This National Emergency lasted till 10 January 1968, long after the hostilities ceased.
For the second time, it was declared on 3 December 1971 in the wake of the second India
Pakistan War and was lifted on 21 March 1977. While the second emergency, on the basis
of external aggression, was in operation, third National Emergency (called internal
emergency) was imposed on 25 June 1975. This emergency was declared on the ground of
‘internal disturbances’. Internal disturbances justified impositin of the emergency despite
the fact that the government was already armed with the powers provided during the second
National Emergency of 1971 which was still in operation.
Effects of National Emergency
The declaration of National Emergency has far-reaching effects both on the rights of
individuals and the autonomy of the states in the following manner:
• The most significant effect is that the federal form of the Constitution changes into
unitary. The authority of the Centre increases and the Parliament assumes the power
to make laws for the entire country or any part thereof, even in respect of subjects
mentioned in the State List.
• The President of India can issue directions to the states as to the manner in which
the executive power of the states is to be exercised.
• During this period, the Lok Sabha can extend its tenure by a period of one year at a
time. But the same cannot be extended beyond six months after the proclamation
ceases to operate. The tenure of State Assemblies can also be extended in the same
manner.
• During emergency, the President is empowered to modify the provisions regarding
distribution of revenues between the Union and the States.
• The Fundamental Rights under Article 19 about which you have already learnt are
automatically suspended and this suspension continues till the end of the
emergency. But according to the 44thAmendment, Freedoms listed in Article 19 can
be suspended only in case of proclamation on the ground of war or external
aggression.
From the above discussion, it becomes quite clear that emergency not only suspends the
autonomy of the States but also converts the federal structure of India into a unitary one.
Still it is considered necessary as it equips the Union Government with vast powers to cope
up with the abnormal situations. The exigencies of the situation prevailing in the period

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1975-77 necessitated certain changes in the Constituion reagarding emergency provisions.
Therefore, the 44th amendment was passed on 30th April 1979 to strengthen the democratic
features of the Indian Constituion and to protect citizens’ rights even during the national
emergency.
Emergency due to Failure of Constitutional Machinery in a State
It is the duty of the Union Government to ensure that governance of a State is carried on in
accordance with the provisions of the Constitution. Under Article 356, the President may
issue a proclamation to impose emergency in a state if he is satisfied on receipt of a report
from the Governor of the State, or otherwise, that a situation has arisen under which the
Government of the State cannot be carried on smoothly. In such a situation, proclamation
of emergency by the President is called ‘proclamation on account of the failure (or
breakdown) of constitutional machinery.’ In popular language it is called the President’s
Rule.
Like National Emergency, such a proclamation must also be placed before both the Houses
of Parliament for approval. In this case approval must be given within two months,
otherwise the proclamation ceases to operate. If approved by the Parliament, the
proclamation remains valid for six months at a time. It can be extended for another six
months but not beyond one year. However, emergency in a State can be extended beyond
one year if
(a) A National Emergency is already in operation; or if
(b) The Election Commission certifies that the election to the State Assembly cannot be
held.
This type of emergency has been imposed in most of the States at one time or the other for
a number of times. It was in 1951 that this type of emergency was imposed for the first time
in the Punjab State. In 1957, the Kerala State was put under the President’s Rule. There
have been many cases of misuse of ‘constitutional breakdown’. For example, in 1977 when
Janata Party came into power at the Centre, the Congress Party was almost wiped out in
North Indian States. On this excuse, Desai Government at the Centre dismissed nine State
governments where Congress was still in power. This action of Morarji Desai’s Janata
Government was strongly criticised by the Congress and others. But, when in 1980 (after
Janata Government had lost power) Congress came back to power at the Centre under
Mrs.Gandhi’s leadership and dismissed all the then Janata Party State Governments. In
both cases there was no failure of Constitutional machinery, but actions were taken only on
political grounds.
In 1986, emergency was imposed in Jammu and Kashmir due to terrorism and insurgency.
In all, there are more than hundred times that emergency has been imposed in various States
for one reason or the other. However, after 1995 the use of this provision has rarely been
made.
Effects of Imposition of President’s Rule in a State

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The declaration of emergency due to the breakdown of Constitutional machinery in a State
has the following effects:
• The President can assume to himself all or any of the functions of the State
Government or he may vest all or any of those functions with the Governor or any
other executive authority.
• The President may dissolve the State Legislative Assembly or put it under
suspension. He may authorise the Parliament to make laws on behalf of the State
Legislature.
• The President can make any other incidental or consequential provision necessary
to give effect to the object of proclamation.
The way President’s Rule was imposed on various occasions has raised many questions.
At times the situation really demanded it. But at other times, President’s Rule was imposed
purely on political grounds to topple the ministry formed by a party different from the one
at the Centre, even if that particular party enjoyed majority in the Legislative Assembly.
Suspending or dissolving assemblies and not giving a chance to the other political parties
to form governments in states has been due to partisan consideration of the Union
Government, for which Article 356 has been clearly misused.
In view of the above facts, Article 356 has become very controversial. In spite of the
safeguards provided by the 44th Amendment Act, this provision has been alleged to be
misused by the Union Government. That is why, there is a demand either for its deletion or
making provision in the Constitution to restrict the misuse of this Article. The Sarkaria
Commission which was appointed to review the Centre–State relations also recommended
that Article 356 should be used only as a last resort. The Commission also suggested that
the State Legislative Assembly should not be dissolved unless the proclamation is approved
by the Parliament. It further suggested that all possibilities of forming an alternative
government should be fully explored before the Centre imposes emergency in a State on
grounds of breakdown of Constitutional machinery. The Supreme Court held in the
Bommai case that the Assembly may not be dissolved till the Proclamation is approved by
the Parliament. On a few occasions such as when Gujral Government recommended use of
Article 356 in Uttar Pradesh, the President returned the recommendation for
reconsideration. The Union Government took the hint and dropped the proposal.
Financial Emergency
The third type of Emergency is Financial Emergency provided under Article 360. It
provides that if the President is satisfied that the financial stability or credit of India or any
of its part is in danger, he may declare a state of Financial Emergency. Like the other two
types of emergencies, it has also to be approved by the Parliament. It must be approved by
both Houses of Parliament within two months. Financial Emergency can operate as long as
the situation demands and may be revoked by a subsequent proclamation.
Effects of Financial Emergency
The proclamation of Financial Emergency may have the following consequences:

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(a) The Union Government may give direction to any of the States regarding financial
matters.
(b) The President may ask the States to reduce the salaries and allowances of all or any
class of persons in government service.
(c) The President may ask the States to reserve all the money bills for the consideration of
the Parliament after they have been passed by the State Legislature.
(d) The President may also give directions for the reduction of salaries and allowances of
the Central Government employees including the Judges of the Supreme Court and the
High Courts.
So far, fortunately, financial emergency has never been proclaimed.
Conclusion
According to the Indian Constitution, the President has been given extraordinary powers to
deal with certain abnormal situations in order to protect the security, integrity and stability
of the country. For this purpose, there are three types of emergencies which can be
proclaimed by the President of India on the written advice of the Union Cabinet. These
three types of emergencies are:
(a) National emergency (Article 352).
(b) Emergency due to the breakdown of constitutional machinery in a State (Article 356).
(c) Financial emergency (Article 360).
National emergency under Article 352 has been declared three times so far. Twice it was
imposed due to the external aggression once by China and another time by Pakistan,
whereas it was declared only once on the basis of the fear of internal disturbances. This
emergency was imposed on 25 June 1975. Emergency on account of failure of
Constitutional machinery has been declared in most of the States some time or the other.
But Financial Emergency has not been declared so far.
Emergency, when imposed, affects the Fundamental Rights of the citizens. It also affects
the autonomy of the State Governments. The powers of the Union Government increase
and it can make laws even on the subjects included in the State List. The Centre gives
directions to the State Governments. Practically speaking, the federal nature of the
Constitution changes into a unitary form. So much so that when the proclamation of
national emergency is in operation, some of the Fundamental Rights guaranteed by the
Constitution remain suspended.
The second type of emergency under Article 356 is the most frequently imposed
emergency. Under this, a State is put under the President’s Rule if the elected
representatives fail to form or run the government in a State according to the Constitution
of India. This is the most misused form of emergency which has been vehemently criticised
by many.

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The third type of emergency is Financial Emergency which has not been declared so far.
During this type of emergency, the President of India may give directions to the Union as
well as State Governments to reduce the salaries and allowances of their employees
including the judges. The purpose of declaring this type of emergency is to solve the
financial crises.
The proclamation of each type of emergency is made by the President on the written advice
of the Union Cabinet. Such a proclamation has to be approved by both the Houses of
Parliament within one month in case of National Emergency and within two months in case
of the remaining two types of emergencies, from the date of imposition of such emergency.
The Proclamation of national emergency as well as the imposition of President’s Rule, if
approved by the Parliament, will continue to be in operation for six months from the date
of proclamation. In case it is to be extended beyond six months, a subsequent prior
resolution has to be passed by the Parliament to this effect. In case of Financial Emergency
once proclaimed, it continues to operate as long as it is required.
The Emergency Provisions provide the President with sweeping powers to deal with
abnormal and extraordinary situations. Any misuse of these powers can easily lead to
subversion of democracy. But the actual working of the Constitution for more than five
decades has demonstrated that emergency powers were generally used in the interest of the
country barring a few cases where emergency was imposed due to political considerations.
In spite of misuse of emergency provisions in some of the States, there is a broad consensus
that emergency provisions still have a role to play under the conditions prevailing in India.

Unit – 12

Local Self Government Constitutional Scheme in India

We know there is a government in India at the Center and State levels. But there is another
important system for local governance. The foundation of the present local self-government
in India was laid by the Panchayati Raj System (1992).

But the history of Panchayati Raj starts from the self-sufficient and self-governing village
communities. In the time of the Rig-Veda (1700 BC), evidence suggests that self-governing
village bodies called ‘sabhas’ existed. With the passage of time, these bodies became
panchayats (council of five persons).

Panchayats were functional institutions of grassroots governance in almost every village.

They endured the rise and fall of empires in the past, to the current highly structured system.

What is Local self-government?

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Local self-government implies the transference of the power to rule to the lowest rungs of
the political order. It is a form of democratic decentralization where the participation of
even the grass root level of the society is ensured in the process of administration.

History of local administration

The village panchayat, as a system of administration, began in the British days, as their
offer to satisfy the demands for local autonomy. They opened up the governance of the
lowest levels to the citizens. The GoI act, 1935 also authorizes the provinces to enact
legislations.

How did the concept of local self-government evolve in India?

Even though such minor forms of local governance was evident in India, the framers of the
constitutions, unsatisfied with the existing provisions, included Article 40 among
the Directive Principles, whereby:

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

Later, the conceptualisation of the system of local self-government in India took place
through the formation and effort of four important committees from the year 1957 to 1986.
It will be helpful if we take a look at the committee and the important recommendations
put forward by them.

1. Balwant Rai Mehta Committee (1957)

Originally appointed by the Government of India to examine the working of two of its
earlier programs, the committee submitted its report in November 1957, in which the term
‘democratic decentralization’ first appears.

The important recommendations are:

• Establishment of a three-tier Panchayati Raj system – gram panchayat at village level

(direct election), panchayat Samiti at the block level and Zila Parishad at the district
level (indirect election).

• District Collector to be the chairman of Zila Parishad.

• Transfer of resources and power to these bodies to be ensured.

The existent National Development Council accepted the recommendations. However, it

did not insist on a single, definite pattern to be followed in the establishment of these
institutions. Rather, it allowed the states to devise their own patterns, while the broad
fundamentals were to be the same throughout the country.

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Rajasthan (1959) adopted the system first, followed by Andhra Pradesh in the same year.
Some states even went ahead to create four-tier systems and Nyaya panchayats, which
served as judicial bodies.

2. Ashok Mehta Committee (1977-1978)

The committee was constituted by the Janata government of the time to study Panchayati
Raj institutions. Out of a total of 132 recommendations made by it, the most important ones
are:

• Three-tier system to be replaced by a two-tier system.

• Political parties should participate at all levels in the elections.

• Compulsory powers of taxation to be given to these institutions.

• Zila Parishad to be made responsible for planning at the state level.

• A minister for Panchayati Raj to be appointed by the state council of ministers.

• Constitutional recognition to be given to Panchayati Raj institutions.

Unfortunately, the Janata government collapsed before action could be taken on these
recommendations.

3. G V K Rao Commitee (1985)

Appointed by the Planning Commission, the committee concluded that the developmental
procedures were gradually being taken away from the local self-government institutions,
resulting in a system comparable to ‘grass without roots’.

• Zila Parishad to be given prime importance and all developmental programs at that
level to be handed to it.

• Post of DDC (District Development Commissioner) to be created acting as the chief

executive officer of the Zila Parishad.

• Regular elections to be held

4. L M Singhvi Commitee (1986)

Constituted by the Rajiv Gandhi government on ‘Revitalisation of Panchayati Raj

institutions for Democracy and Development’, its important recommendations are:

• Constitutional recognition for PRI institutions.

• Nyaya Panchayats to be established for clusters of villages

Though the 64th Constitutional Amendment bill was introduced in the Lok Sabha in 1989
itself, Rajya Sabha opposed it. It was only during the Narasimha Rao government’s term

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that the idea finally became a reality in the form of the 73rd and 74th Constitutional
Amendment acts, 1992.

Panchayati Raj System under 73rd and 74th Constitutional Amendment acts, 1992

The acts of 1992 added two new parts IX and IX-A to the constitution. It also added two
new schedules – 11 and 12 which contains the lists of functional items of Panchayats and
Municipalities. It provides for a three-tier system of Panchayati Raj in every state – at
the village, intermediate and district levels.

What are Panchayats and Municipalities?

• Panchayat and Municipality are the generic terms for the governing body at the local
level. Both exist as three tier systems – at the lower, intermediate and upper levels.

• The 73rd Constitutional Amendment act provides for a Gram Sabha as the
foundation of the Panchayati Raj system. It is essentially a village assembly
consisting of all the registered voters in the area of the panchayat. The state has the
power to determine what kind of powers it can exercise, and what functions it has to
perform at the village level.

• The 74th Constitutional Amendment act provides for three types of Municipalities:

1. Nagar Panchayat for a transitional area between a rural and urban area.

2. Municipal Council for a small urban area.

3. Municipal Corporation for a large urban area.

• Municipalities represent urban local self-government.

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 • Most of the provisions of the two acts are parallel, differing only in the fact that they
are being applied to either a Panchayat or a Municipality respectively.

• Each Gram sabha is the meeting of a particular constituency called ward.

• Each ward has a representative chosen from among the people themselves by direct
election.

• The chairperson of the Panchayat or Municipality at the intermediate and district

level are elected from among these representatives at the immediately lower level
by indirect election.

Types of Urban Local Government

There are eight types of urban local governments currently existing in India:

1. Municipal Corporations.

2. Municipality.

3. Notified area committee.

4. Town area committee.

5. Cantonment board.

6. Township.

7. Port trust.

8. Special purpose agency.

How the elections are held in the local government bodies?

• All seats of representatives of local bodies are filled by people chosen through direct
elections.

• The conduct of elections is vested in the hands of the State election commission.

• The chairpersons at the intermediate and district levels shall be elected indirectly
from among the elected representatives at the immediately lower level.

• At the lowest level, the chairperson shall be elected in a mode defined by the state
legislature.

• Seats are reserved for SC and ST proportional to their population.

• Out of these reserved seats, not less than one-third shall be further reserved for
women.

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 • There should be a blanket reservation of one-third seats for women in all the
constituencies taken together too (which can include the already reserved seats for
SC and ST).

• The acts bar the interference of courts in any issue relating to the election to local
bodies.

What are the Qualifications needed to be a member of the Panchayat or Municipality?

Any person who is qualified to be a member of the state legislature is eligible to be a

member of the Panchayat or Municipality.

“But he shall not be disqualified on the ground that he is less than 25 years of age if he
has attained the age of 21 years”

This means that unlike the state legislature, a person needs to attain only 21 years of age to
be a member of panchayat/municipality.

What is the duration of the Local Government bodies?

• The local governing bodies are elected for a term of five years.

• Fresh elections should be conducted before the expiry of the five-year term.

• If the panchayat/municipality is dissolved before the expiry of its term, elections shall
be conducted within six months and the new panchayat/municipality will hold office
for the remainder of the term if the term has more than six months duration.

• And for another five years if the remaining term is less than six months.

What are the Powers invested on these Local Government bodies?

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The powers of local bodies are not exclusively defined. They can be tailor-fitted by the
state governments according to the environment of the states. In general, the State
governments can assign powers to Panchayats and Municipalities that may enable them to
prepare plans for economic development and social justice. They may also be authorized
to levy, collect, or appropriate taxes.

Summary

To conclude, local self-government is one of the most innovative governance change

processes our country has gone through. The noble idea of taking the government of a
country into the hands of the grass root level is indeed praiseworthy.

However, like any system in the world, this system is also imperfect. Problems of
maladministration and misappropriation of funds are recurring. But this shall not stand in
the way of efficient governance; and if these ill practices are rooted out, there would be no
comparisons around the world to our system of local self-government.

Unit – 13

Scheme of Fundamental Rights to Equality

Before knowing about the right to equality, aspirants should know the types of equality to
get an idea of what it is. It is also mentioned in our Preamble. The types of equality are:

1. Natural
2. Social
3. Civil
4. Political
5. Economic
6. Legal

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The Right to Equality is one of the Fundamental Rights enshrined in the Constitution of
India. It is very important to understand what this right entails and includes. Below we
provide the associated articles of the Constitution under the right to equality.
Right to Equality

Article Brief Description

Article 14 The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India, on grounds of
religion, race, caste, sex or place of birth.
Article 15 The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, and place of birth or any of them.
Article 16 There shall be equality of opportunity for all citizens in matters relating
to employment or appointment to any office under the State.
Article 17 Abolition of untouchability.
Article 18 Abolition of all titles except military and academic.

Equality before the law (Article 14)

• Article 14 treats all people the same in the eyes of the law.

• This provision states that all citizens will be treated equally before the law.
• The law of the country protects everybody equally.
• Under the same circumstances, the law will treat people in the same manner.

Prohibition of discrimination (Article 15)

This article prohibits discrimination in any manner.

• No citizen shall, on grounds only of race, religion, caste, place of birth, sex or any of
them, be subject to any liability, disability, restriction or condition with respect to:
• Access to public places
• Use of tanks, wells, ghats, etc. that are maintained by the State or that are meant for the
general public.
• The article also mentions that special provision can be made for women, children and
the backward classes notwithstanding this article.

Equality of opportunity in matters of public employment (Article 16)

Article 16 provides equal employment opportunities in State service for all citizens.

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• No citizen shall be discriminated against in matters of public employment or
appointment on the grounds of race, religion, caste, sex, place of birth, descent or
residence.
• Exceptions to this can be made for providing special provisions for the backward
classes.

Abolition of untouchability (Article 17)

Article 17 prohibits the practice of untouchability.

• Untouchability is abolished in all forms.

• Any disability arising out of untouchability is made an offenc.

Abolition of titles (Article 18)

Article 18 abolishes titles.

• The State shall not confer any titles except those which are academic or military titles.

• The article also prohibits citizens of India from accepting any titles from a foreign State.

• The article abolishes the titles that were awarded by the British such as Rai Bahadur,
Khan Bahadur, etc.

• Awards like Padma Shri, Padma Bhushan, Padma Vibhushan, Bharat Ratna and
military honours like Ashok Chakra, Param Vir Chakra do not belong to this category.

Questions related to Right to Equality

Is equality a basic human right?

The right to equality and non-discrimination is a fundamental component of international
human rights law.

What are the exceptions to the right of equality of opportunity in matters of public
employment?
Under Article 16, exceptions to the right of equality of opportunity in matters of public
employment are provided for to protect the interests of the weaker and vulnerable sections
of society such as women, children, the backward classes (SC/ST) and minorities. The
Parliament may also pass a law to the effect that a certain post be filled only by people
residing in a certain area, to fulfil the conditions of the post that warrants the knowledge of
the locality and the local language. The article also mentions that there can be a law which
provides that the incumbent of an office in connection with the affairs of any religious or

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denominational institution shall be a person professing a particular religion or belonging to
a particular denomination.

What does the Constitution of India say about equality?

The Indian Constitution has granted the right to equality to all citizens. All are equal before
the law and there can be no discrimination on the basis of religion, race, caste, gender, place
of birth, etc.

Unit – 14
Scheme of the Fundamental Right to Certain Freedom under Article 19

A. ARTICLE 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;

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e) To reside and settle in any part of the territory of India; and

f) Omitted by the 44th Amendment Act

g) To practice 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 prevents 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 the professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade or business, or 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].

B. EXPLANATION WITH LANDMARK CASES:

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1. Freedom of Speech and Expression: Article 19 of the Constitution provides freedom
of speech which is the right to express one’s opinion freely without any fear through
oral/written/electronic/broadcasting/press. Freedom of expression includes Freedom of
Press. It covers the blogs and websites too.

Landmark case:

Maneka Gandhi v. Union of India: Freedom of speech and expression has no

geographical limitation and it carries with it the right of a citizen to gather information and
to exchange thought with others not only in India but abroad also.

2. Freedom of Assembly: The constitution guarantees right to hold meetings and take
out processions. The processions and meetings should be unarmed and peaceful. This
right may be restricted in the interest of the public order or sovereignty and integrity of the
country. This Article has also been reviewed and interpreted by the Supreme Court many
times.

3. Freedom of Association: The Constitution declares that all citizens will have the right
to form associations and unions.

Landmark case:

T.K. Rangarajan v. State of Tamil Nadu: Right to form association does not carry the
right to strike.

4. Freedom of Movement: The freedom of Movement is guaranteed by the Constitution

and citizens can move from one state to another and anywhere within a state. A person
free to move from any point to any point within the country’s territories. There are certain
exceptions such as Scheduled Tribe areas and army areas.

Landmark case:

Kharak singh v. State of UP: Watching and shadowing of suspects for the purpose of
keeping record of their movement and activities & Domiciliary visits.

5. Freedom of Residence: An Indian citizen is free to reside in any state except from
Jammu & Kashmir. Again this is subject to certain restrictions.

Landmark case:

Ibrahim Wazir v. State of Bombay: Indian citizen came to India without permit and was
arrested and deported to Pakistan by the Government.

7. Freedom of Trade and Occupation: The Constitution of India guarantees each

of its citizens to do trade, Occupation or business anywhere in the country.

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 Unit – 15

Scope of Right to Life and Personal Liberty under Article 21

Article 21 (and its many interpretations) is the perfect example of the transformative character
of the Constitution of India. The Indian judiciary has attributed wider connotation and meaning
to Article 21, extending beyond the Constitution makers’ imagination. These meanings derived
from the ‘right to life’ present unique complexities. It is impossible to understand the expansive
jurisprudence on Article 21 within the length of this piece. Therefore, Rija Jain understands the
various components of freedom that stem from the ‘right to life’. She presents a straightforward
and comprehensive explainer on the case laws that have interpreted the right.

By Riya Jain, UILS Panjab University.

*The piece was first published by Riya in 2015, this is the updated form.

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Introduction

Article 21 reads: “No person shall be deprived of his life or personal liberty except according
to a procedure established by law.”

In Francis Coralie Mullin vs The Administrator (1981), Justice P. Bhagwati had said that
Article 21 ’embodies a constitutional value of supreme importance in a democratic society’.
Further, Justice Iyer characterised Article 21 as ‘the procedural Magna Carta protective of life
and liberty’.

Article 21 is at the heart of the Constitution. It is the most organic and progressive provision in
our living Constitution. Article 21 can only be claimed when a person is deprived of his ‘life
or ‘personal liberty’ by the ‘State’ as defined in Article 12. Thus, violation of the right by
private individuals is not within the preview of Article 21.

Article 21 secures two rights:

1) Right to life, and

2) Right to personal liberty.

It prohibits the deprivation of the above rights except according to a procedure established by
law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American
Constitution, Article 40(4) of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.

It is also fundamental to democracy as it extends to natural persons and not just citizens. The
right is available to every person, citizen or alien. Thus, even a foreigner can claim this right.
It, however, does not entitle a foreigner to the right to reside and settle in India, as mentioned
in Article 19 (1) (e).

This Article is an all tell for Article 21. The first part will understand the meaning and concept
of ‘right to life’ as understood by the judiciary. Further, the piece will lay out how several
violations of the body, reputation and equality have been understood and brought under the
purview of the right to life and the right to live with dignity.

Meaning, Concept and Interpretation of ‘Right to Life’ Under Article 21

‘Everyone has the right to life, liberty and the security of person.’

The right to life is undoubtedly the most fundamental of all rights. All other rights add quality
to the life in question and depend on the pre-existence of life itself for their operation. As
human rights can only attach to living beings, one might expect the right to life itself to be in
some sense primary since none of the other rights would have any value or utility without it.
There would have been no Fundamental Rights worth mentioning if Article 21 had been
interpreted in its original sense. This Section will examine the right to life as interpreted and
applied by the Supreme Court of India.

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Article 21 of the Constitution of India, 1950 provides,

“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”

‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not
connote mere animal existence or continued drudgery through life. It has a much wider,
including, including the right to live with human dignity, Right to livelihood, Right to health,
Right to pollution-free air, etc.

The right to life is fundamental to our very existence, without which we cannot live as human
beings and includes all those aspects of life, which make a man’s life meaningful, complete,
and worth living. It is the only Article in the Constitution that has received the broadest possible
interpretation. Thus, the bare necessities, minimum and basic requirements for a person from
the core concept of the right to life.

In Kharak Singh v. State of Uttar Pradesh [i], the Supreme Court quoted and held: By the term
‘life’ as here used, something more is meant than mere animal existence. The inhibition against
its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision
equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out
of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world.

In Sunil Batra v. Delhi Administration [ii], the Supreme Court approved the above
observations. It held that the ‘right to life’ included the right to lead a healthy life to enjoy all
faculties of the human body in their prime conditions. It would even include the right to protect
a person’s tradition, culture, heritage and all that gives meaning to a man’s life. In addition, it
consists of the Right to live and sleep in peace and the Right to repose and health.

Right to Live with Human Dignity

In Maneka Gandhi v. Union of India [iii], the Supreme Court gave a new dimension to Art.
21. The Court held that the right to live is not merely a physical right but includes within its
ambit the right to live with human dignity. Elaborating the same view, the Court in Francis
Coralie v. Union Territory of Delhi [iv] observed:

“The right to live includes the right to live with human dignity and all that goes along with it,
viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head
and facilities for reading writing and expressing oneself in diverse forms, freely moving about
and mixing and mingling with fellow human beings and must include the right to basic
necessities the basic necessities of life and also the right to carry on functions and activities as
constitute the bare minimum expression of human self.”

Another broad formulation of life to dignity is found in Bandhua Mukti Morcha v. Union of
India [v]. Characterising Art. 21 as the heart of fundamental rights, the Court gave it an
expanded interpretation. Bhagwati J. observed:

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“It is the fundamental right of everyone in this country… to live with human dignity free from
exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39
and Articles 41 and 42 and at the least, therefore, it must include protection of the health and
strength of workers, men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane conditions of work and maternity
relief.

“These are the minimum requirements which must exist in order to enable a person to live with
human dignity and no State neither the Central Government nor any State Government-has the
right to take any action which will deprive a person of the enjoyment of these basic essentials.”

Following the above-stated cases, the Supreme Court in Peoples Union for Democratic
Rights v. Union of India [vi], held that non-payment of minimum wages to the workers
employed in various Asiad Projects in Delhi was a denial to them of their right to live with
basic human dignity and violative of Article 21 of the Constitution.

Bhagwati J. held that rights and benefits conferred on workmen employed by a contractor under
various labour laws are intended to ensure basic human dignity to workers. He held that the
non-implementation by the private contractors engaged for constructing a building for holding
Asian Games in Delhi, and non-enforcement of these laws by the State Authorities of the
provisions of these laws was held to be violative of the fundamental right of workers to live
with human dignity contained in Art. 21[vii].

In Chandra Raja Kumar v. Police Commissioner Hyderabad [viii], it has been held that the
right to life includes the right to live with human dignity and decency. Therefore, keeping of
beauty contest is repugnant to the dignity or decency of women and offends Article 21 of the
Constitution only if the same is grossly indecent, scurrilous, obscene or intended for
blackmailing. Therefore, the government is empowered to prohibit the contest as objectionable
performance under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition
Act, 1956.

In State of Maharashtra v. Chandrabhan [ix], the Court struck down a provision of Bombay
Civil Service Rules, 1959. Thi provision provided for payment of only a nominal subsistence
allowance of Re. 1 per month to a suspended government servant upon his conviction during
the pendency of his appeal as unconstitutional on the ground that it was violative of Article 21
of the Constitution.

Right against Sexual Harassment at Workplace

Sexual harassment of women has been held by the Supreme Court to be violative of the most
cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.

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“The meaning and content of the fundamental rights guaranteed in the Constitution of India
are of sufficient amplitude to compass all the facets of gender equality including prevention of
sexual harassment or abuse. “

The above statement by Justice Verma in the famous Vishakha judgment liberalised the
understanding of Article 21. Therefore, making it even more emancipatory.

In Vishakha v. State of Rajasthan [x], the Supreme Court declared sexual harassment at the
workplace to violate the right to equality, life and liberty. Therefore, a violation of Articles 14,
15 and 21 of the Constitution.

In this case, in the absence of a relevant law against sexual harassment, the Supreme Court laid
down the following guidelines to ensure gender parity in the workplace:

This meant that all employers or persons in charge of the workplace, whether in the public or
private sector, should take appropriate steps to prevent sexual harassment.

1. Express prohibition of sexual harassment as defined above at the workplace

should be notified, published and circulated inappropriate ways.

2. The Rules/Regulations of Government and Public Sector bodies relating to

conduct and discipline should include rules/regulations prohibiting sexual
harassment and provide for appropriate penalties in such rules against the
offender.

3. As regards private employers steps should be taken to include the prohibitions

above in the standing orders under the Industrial Employment (Standing Orders)
Act, 1946.

4. Appropriate work conditions should be provided for work, leisure, health, and
hygiene to ensure that there is no hostile environment towards women at
workplaces. No employee woman should have reasonable grounds to believe that
she is disadvantaged in connection with her employment.

5. Where such conduct amounts to specific offences under IPC or under any other
law, the employer shall initiate appropriate action by making a complaint with the
appropriate authority.

6. The victims of Sexual harassment should have the option to seek the transfer of
the perpetrator or their own transfer.

In Apparel Export Promotion Council v. A.K. Chopra [xi], the Supreme Court reiterated
the Vishakha ruling and observed that:

“There is no gainsaying that each incident of sexual harassment, at the place of work, results
in the violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty
the two most precious Fundamental Rights guaranteed by the Constitution of India….
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“In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of
sufficient amplitude to encompass all facets of gender equality, including prevention of sexual
harassment and abuse and the courts are under a constitutional obligation to protect and
preserve those fundamental rights. That sexual harassment of a female at the place of work is
incompatible with the dignity and honour of a female and needs to be eliminated….”

Understanding Article 21 through Against Sexual Assault and Rape

Rape has been held to be a violation of a person’s fundamental life guaranteed under Article
21. Therefore, the right to life would include all those aspects of life that go on to make life
meaningful, complete and worth living.

In Bodhisattwa Gautam v. Subhra Chakraborty [xii], the Supreme Court observed:

“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the
entire society. It destroys the entire psychology of a woman and pushed her into deep emotional
crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on
coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore,
the most hated crime. It is a crime against basic human rights and is also violative of the
victim’s most cherished of the fundamental rights, namely, the right to life with human dignity
contained in Art 21”.

Right to Reputation and Article 21

Reputation is an essential part of one’s life. It is one of the finer graces of human civilisation
that makes life worth living. The Supreme Court referred to D.F. Marion v. Minnie Davis
[xiii] in Smt. Kiran Bedi v. Committee of Inquiry [xiv]. It said:

“Good reputation was an element of personal security and was protected by the Constitution,
equally with the right to the enjoyment of life, liberty, and property. The Court affirmed that
the right to enjoyment of life, liberty, and property. The Court affirmed that the right to
enjoyment of private reputation was of ancient origin and was necessary to human society.”

The same American decision has also been referred to in State of Maharashtra v. Public
Concern of Governance Trust [xv]. The Court held that good reputation was an element of
personal security and was protected by the Constitution, equally with the right to enjoy life,
liberty and property.

It has been held that the right equally covers a person’s reputation during and after his death.
Thus, any wrong action of the state or agencies that sullies the reputation of a virtuous person
would undoubtedly come under the scope of Article 21.

State of UP v. Mohammaad Naim [xvi] succinctly laid down the following tests while dealing
the question of expunction of disgracing remarks against a person or authority whose conduct
comes in consideration before a court of law. These are:

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 • Whether the party whose conduct is in question is before the Court or has an
opportunity of explaining or defending himself.

• Whether there is evidence on record bearing on that conduct justifying the remarks.

• Whether it is necessary for the decision of the case, as an integral part thereof, to
animadvert on that conduct, it has also been recognised that judicial pronouncements
must be judicial. It should not normally depart from sobriety, moderation, and reserve.

In State of Bihar v. Lal Krishna Advani [xvii], a two-member commission got appointed to
inquire into the communal disturbances in the Bhagalpur district on October 24, 1989. The
commission made certain remarks in the report, which impinged upon the respondent’s
reputation as a public man without allowing him to be heard. The Apex Court ruled that it was
amply clear that one was entitled to have and preserve one’s reputation, and one also had the
right to protect it.

The Court further said that if any authority, in the discharge of its duties fastened upon it under
the law, transverse into the realm of personal reputation adversely affecting him, it must
provide a chance to have his say in the matter. Finally, the Court observed that the principle of
natural justice made it incumbent upon the authority to allow the person before any comment
was made or opinion was expressed, likely to affect that person prejudicially.

Right to Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not
include the right to livelihood. In Re Sant Ram [xviii], a case arose before the Maneka Gandhi
case, where the Supreme Court ruled that the right to livelihood would not fall within the
expression ‘life’ in Article 21. The Court said curtly:

“The Right to livelihood would be included in the freedoms enumerated in Art.19, or even in
Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid of the argument
that the word ‘life’ in Art. 21 includes ‘livelihood’ also.”

But then the view changed. The definition of the word ‘life’ in Article 21 was read broadly.
The Court, in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath
Nandkarni [xix], came to hold that ‘the right to life’ guaranteed by Article 21 includes ‘the
right to livelihood’.

The Olga Tellis v. Bombay Municipal Corporation [xx], popularly known as the ‘Pavement
Dwellers Case’, is important. Herein, a five-judge bench of the Court implied that the right to
livelihood is borne out of the right to life. It said so as no person can live without the means of
living, that is, the means of livelihood. The Court further observed:

“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not mean,
merely that life cannot be extinguished or taken away as, for example, by the imposition and
execution of death sentence, except according to procedure established by law. That is but one

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aspect of the right to life. An equally important facet of the right to life is the right to livelihood
because no person can live without the means of livelihood.”

If the right to livelihood is not treated as part and parcel of the constitutional right to life, the
easiest way of depriving a person of his right to life would be to deprive him of his means of
livelihood to the point of abrogation [xxi].

In the instant case, the Court further opined: “The state may not by affirmative action, be
compelled to provide adequate means of livelihood or work to the citizens. But, any person
who is deprived of his right to livelihood except according to just and fair procedure
established by law can challenge the deprivation as offending the right to life conferred in
Article 21.”

Emphasising upon the close relationship of life and livelihood, the Court stated: “That,
which alone makes it impossible to live, leave aside what makes life livable, must be deemed
to be an integral part of the right to life. Deprive a person from his right to livelihood and you
shall have deprived him of his life [xxii].”

Article 21 does not place an absolute embargo on the deprivation of life or personal liberty and,
for that matter, on the right to livelihood. What Article 21 insists is that such lack ought to be
according to procedure established by law which must be fair, just and reasonable. Therefore,
anyone deprived of the right to livelihood without a just and fair procedure set by law can
challenge such deprivation as being against Article 21 and get it declared void [xxiii].

In DTC v. DTC Mazdoor Congress [xxiv], the Court was hearing a matter where an employee
was laid off by issuing a notice without any reason. The Court held that the same was utterly
arbitrary and violative of Article 21.

In M. Paul Anthony v. Bihar Gold Mines Ltd [xxv], it was held that when a government
servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry
against him, subsistence allowance must be paid to him. The Court has emphasised that a
government servant does not have his right to life and other fundamental rights.

However, if a person is deprived of such a right according to procedure established by law

which must be fair, just and reasonable and in the larger interest of people, the plea of
deprivation of the right to livelihood under Article 21 is unsustainable.

In Chameli Singh v. State of Uttar Pradesh [xxvi], the SC held that the state acquired a
landowner’s land following the procedure laid down in the relevant law of acquisition. So even
though the right to livelihood of the landowner is adversely affected, it is not violated.

The Court opined that the state acquires land in exercising its power of eminent domain for a
public purpose. The landowner is paid compensation in place of land. Therefore, the plea of
deprivation of the right to livelihood under Art. 21 is unsustainable.

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In M. J. Sivani v. State of Karnataka & Ors [xxvii], the Supreme Court held that the right to
life under Article 21 does protect livelihood. However, the Court added a rider that its
deprivation could not be extended too far or projected or stretched to the recreation, business
or trade detrimental to the public interest or has an insidious effect on public moral or public
order.

The Court further held that regulating video games of pure chance or mixed chance and skill
are not violative of Article 21, nor is the procedure unreasonable, unfair or unjust.

An important case that needs to be mentioned when speaking about the right to livelihood
is MX of Bombay Indian Inhabitants v. M/s. ZY [xxviii]. In this case, the Court had held
that a person could not be denied employment if they tested positive for HIV. And they cannot
be rendered ‘medically unfit’ owing to the same. In interpreting the right to livelihood, the
Court emphasised that the same couldn’t hang on to the fancies of the individuals in authority.

Is Right to Work a Fundamental Right under Article 21?

In Sodan Singh v. New Delhi Municipal Committee [xxix], the five-judge bench of the
Supreme Court distinguished the concept of life and liberty within Art.21 from the right to
carry on any trade or business, a fundamental right conferred by Art. 19(1) (g). Regarding the
same, the Court held that the right to carry on trade or business is not included in the concept
of life and personal liberty. Thus, Article 21 is not attracted in the case of trade and
business.

The petitioners in the case were hawkers doing business off the paved roads in Delhi. They had
claimed against the Municipal authorities who did not allow former to carry out their business.
The hawkers claimed that the refusal to do so violated their Right under Article 21 of the
Constitution.

The Court opined that the petitioners had a fundamental right under Article 19(1) (g) to
carry on trade or business of their choice. However, they had no right to do so in a
particular place. Hence, they couldn’t be permitted to carry on their trade on every road in the
city. If the road is not wide enough to conveniently accommodate the traffic on it, no hawking
may be permitted at all or permitted once a week.

The Court also held that footpaths, streets or roads are public property intended to several
general public and are not meant for private use. However, the Court said that the affected
persons could apply for relocation and the concerned authorities were to consider the
representation and pass orders thereon. Therefore, the two rights were too remote to be
connected.

The Court distinguished the ruling in Olga Tellis v. Bombay Municipal Corporation
[xxx]. In the case the Court held:

“In that case, the petitioners were very poor persons who had made pavements their homes
existing in the midst of filth and squalor and that they had to stay on the pavements so that they

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could get odd jobs in the city. It was not the case of a business of selling articles after investing
some capital.”

In Secretary, the State of Karnataka v. Umadevi [xxxi], the Court rejected that right to
employment at the present point of time can be included as a fundamental right under Right to
Life under Art. 21.

Right to Shelter

In UP Avas Vikas Parishad v. Friends Coop. Housing Society Limited [xxxii], the right to
shelter has been held to be a fundamental right which springs from the right to residence
secured under Article 19(1) (e) and the right to life guaranteed under Article 21. The state has
to provide facilities and opportunities to build houses to make the right meaningful for the
poor. [xxxiii].

Upholding the importance of the right to a decent environment and a reasonable

accommodation in Shantistar Builders v. Narayan Khimalal Totame [xxxiv], the Court
held:

“The Right to life would take within its sweep the right to food, the right to clothing, and the
right to decent environment and reasonable accommodation to live in. The difference between
the need for an animal and a human being for shelter has to be kept in view.

The Court advanced: For the animal it is the bare protection of the body, for a human being
it has to be a suitable accommodation, which would allow him to grow in every aspect –
physical, mental and intellectual. The Constitution aims at ensuring fuller development of every
child. That would be possible only if the child is in a proper home. It is not necessary that every
citizen must be ensured of living in a well-built comfortable house but a reasonable home,
particularly for people in India, can even be a mud-built thatched house or a mud-built
fireproof accommodation.”

In Chameli Singh v. State of UP [xxxv], a three-judge bench of the Supreme Court had
considered and held that the right to shelter is a fundamental right available to every citizen.
And the same was read into Article 21 of the Constitution. Thus, ‘right to shelter’ was
considered encompassing the right to life, making the latter more meaningful. The Court
advanced:

“Shelter for a human being, therefore, is not mere protection of his life and limb. It is however
where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to
shelter, therefore, includes adequate living space, safe and decent structure, clean and decent
surroundings, sufficient light, pure air and water, electricity, sanitation and other civic
amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter,
therefore, does not mean a mere right to a roof over one’s head but right to all the
infrastructure necessary to enable them to live and develop as a human being [xxxvi].”

Right to Social Security and Protection of Family

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Right to life covers within its ambit the right to social security and protection of the family. K.
Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash
Chandra Bose [xxxvii], held that right to social and economic justice is a fundamental right
under Art. 21. The learned judge explained:

“Right to life and dignity of a person and status without means were cosmetic rights. Socio-
economic rights were, therefore, basic aspirations for meaning the right to life and that Right
to Social Security and Protection of Family were an integral part of the right to life.”

In NHRC v. State of Arunachal Pradesh [xxxviii] (Chakmas Case), the SC said that the
state is bound to protect the life and liberty of every human being, be he a citizen or otherwise.
Further, it cannot permit anybody or a group of persons to threaten another person or group of
persons. No state government worth the name can tolerate such threats from one group of
persons to another group of persons. Therefore, the state is duty-bound to protect the threatened
group from such assaults. If it fails to do so, it will fail to perform its constitutional as well as
statutory obligations.

In Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde [xxxix], it was held that the
right to economic empowerment of poor, disadvantaged and oppressed Dalits was a
fundamental right to make their right of life and dignity of person meaningful.

In Regional Director, ESI Corporation v. Francis De Costa [xl], the Supreme held that
security against sickness and disablement was a fundamental right under Article 21 read with
Section 39(e) of the Constitution of India.

In LIC of India v. Consumer Education and Research Centre [xli], it was further held that
right to life and livelihood included right to life insurance policies of LIC of India, but that it
must be within the paying capacity and means of the insured.

Further, Surjit Kumar v. State of UP. [xlii] is a crucial case that reads Article 21 as extending
protection against honour killing. In the case, a division bench of Allahabad high court took
serious note on harassment, ill-treatment, and killing of a person for wanting to get married to
a person of another caste or community. The accused justified the harassment and killing,
claiming that the victim had brought dishonour to the family. The Court said that such a practice
of ‘honor killing’ was a blot on society and inter-caste marriage was not against the law.
Therefore, the Court directed the police to take strong measures against the accused.

Right to Health and Medical Care

In State of Punjab v. M.S. Chawla [xliii], it was held that the right to life guaranteed under
Article 21 includes within its ‘ambit the right to health and medical care’.

In Vincent v. Union of India, [xliv] the Supreme Court emphasised that a healthy body is the
very foundation of all human activities. Further, Article 47, a Directive Principle of State
Policy, lays stress note on the improvement of public health and prohibition of drugs
detrimental to health as one of the primary duties of the state [xlv].

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In Consumer Education and Research Centre v. Union of India [xlvi], the Supreme Court
laid down:

“Social justice which is a device to ensure life to be meaningful and livable with human dignity
requires the state to provide to workmen facilities and opportunities to reach at least minimum
standard of health, economic security and civilised living. The health and strength of worker,
the Court said, was an important facet of right to life. Denial thereof denudes the workmen the
finer facets of life violating Art. 21.”

In Parmananda Katara v. Union of India [xlvii], the Supreme Court has very specifically
clarified that preservation of life is of paramount importance. The Apex Court stated that ‘once
life is lost, status quo ante cannot be restored’. [xlviii] It was held that it is the professional
obligation of all doctors (government or private) to extent medical aid to the injured
immediately to preserve life without legal formalities to be complied with by the police.

Article 21 casts the obligation on the state to preserve life. It is the obligation of those in
charge of the community’s health to protect life so that the innocent may be protected
and the guilty may be punished. No law can intervene to delay and discharge this paramount
obligation of the members of the medical profession.

The Court also observed: “Art. 21 of the Constitution cast the obligation on the state to
preserve life. The patient whether he be an innocent person or a criminal liable to punishment
under the laws of the society, it is the obligation of those who are in charge of the health of the
community to preserve life so that the innocent may be protected and the guilty may be
punished. Social laws do not contemplate death by negligence to tantamount to legal
punishment…. Every doctor whether at a Government hospital or otherwise has the
professional obligation to extend his services with due expertise for protecting life.”

This link between the right to medical care and health and Article 21 played out most vividly
during the pandemic. Especially since the state couldn’t manage the crisis and many people
were left to fend for themselves.

Coming back to understanding the right to medical care pre-covid era, another case that
understands this interlink better is Paschim Banga Khet Mazdoor Samity v. State of West
Bengal. [xlix] In this case, a person suffering from severe head injuries from a train accident
was refused treatment at various hospitals on the excuse that they lacked the adequate facilities
and infrastructure to provide treatment.

Through this case, the Supreme Court developed the right to emergency treatment. The
Court went on to say that the failure on the part of the government hospital to provide
timely medical treatment to a person in need of such treatment results in the violation of
his right to life guaranteed under Article 21.

It acknowledged the limitation of financial resources to give effect to such a right. Still, it
maintained that the state needed to provide for the resources to give effect to the people’s
entitlement of receiving emergency medical treatment [l].
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It has been reiterated, time and again, that there should be no impediment to providing
emergency medical care. Again, in Pravat Kumar Mukherjee v. Ruby General Hospital &
Others [li], it was held that a hospital is duty-bound to accept accident victims and patients
who are in critical condition and that it cannot refuse treatment on the ground that the victim is
not in a position to pay the fee or meet the expenses or on the ground that there is no close
relation of the victim available who can give consent for medical treatment [lii].

The Court has laid stress on a crucial point, viz., the state cannot plead lack of financial
resources to carry out these directions meant to provide adequate medical services to the
people. The state cannot avoid its constitutional obligation to provide adequate medical
assistance to people on account of financial constraints.

But, in State of Punjab v. Ram Lubhaya Bagga [liii], the Supreme Court recognised that
provision of health facilities could not be unlimited. The Court held that it has to be to the
extent finance permits. No country has unlimited resources to spend on any of its projects.

In Confederation of Ex-servicemen Association v. Union of India [liv], the right to get free
and timely legal aid or facilities was not held as a fundamental right of ex-servicemen.
Therefore, a policy decision in formulating a contributory scheme for ex-servicemen and
asking them to pay a one-time contribution does not violate Art. 21, nor is it inconsistent with
Part IV of the Constitution.

No Right to Die

While Article 21 confers on a person the right to live a dignified life, does it also confers a right
to a person to end their life? If so, then what is the fate of Section 309 Indian Penal Code
(1860), which punishes a person convicted of attempting to commit suicide? There has been a
difference of opinion on the justification of this provision to continue on the statute book.

This question came for consideration for the first time before the High Court of Bombay
in State of Maharashtra v. Maruti Sripati Dubal. In this case, the Bombay High Court held
that the right to life guaranteed under Article 21 includes the right to die. The Hon’ble High
Court struck down Section 309 of the IPC that provides punishment for an attempt to commit
suicide on a person as unconstitutional.

In P. Rathinam v. Union of India [lv], a two-judge Division Bench of the Supreme Court took
cognisance of the relationship/contradiction between Section 309 IPC and Article 21. The
Court supported the decision of the High Court of Bombay in Maruti Sripati Dubal’s
Case held that the right to life embodies in Article 21 also embodied in it a right not to live a
forced life, to his detriment, disadvantage or disliking.

The Court argued that the word life in Article 21 means the right to live with human dignity,
and the same does not merely connote continued drudgery. Thus the Court concluded that the
right to live of which Article 21 speaks could bring in the right not to live a forced life. The

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Court further emphasised that an ‘attempt to commit suicide is, in reality, a cry for help and
not for punishment’.

The Rathinam ruling came to be reviewed by a full bench of the Court in Gian Kaur v. State
of Punjab [lvi]. The question before the Court was: if the principal offence of attempting to
commit suicide is void as unconstitutional vis-à-vis Article 21, then how abetment can thereof
be punishable under Section 306 IPC?

It was argued that ‘the right to die’ had been included in Article 21 (Rathinam ruling) and Sec.
309 declared unconstitutional. Thus, any person abetting the commission of suicide by another
is merely assisting in enforcing his fundamental Right under Article 21.

The Court overruled the decision of the Division Bench in the above-stated case and has put
an end to the controversy and ruled that Art.21 is a provision guaranteeing the protection of
life and personal liberty and by no stretch of imagination can extinction of life’ be read to be
included in the protection of life. The Court observed further: “……’Right to life’ is a natural
right embodied in Article 21 but suicide is an unnatural termination or extinction of life and,
therefore, incompatible and inconsistent with the concept of right to life”

However, in this regard, in 2020, the Supreme Court had sought a response from the central
government. The Court had asked the center to explain its stance on the conflict between
Section 309 and the Mental Healthcare Act, promulgated in 2017 (MHCA). As opposed to
Section 309, which criminalises attempts to suicide, the MHCA proscribes prosecution of the
person attempting it. Given that the Section is colonial legislation, many have vocalised to do
away with the same altogether. Additionally, in 2018, in a 134-page-long judgment, Justice
DY Chandrachud said it was ‘inhuman’ to punish someone who was already distressed.

Euthanasia and Right to Life

Euthanasia is the termination of the life of a person who is terminally ill or in a permanent
vegetative state. In Gian Kaur v. State of Punjab [lvii], the Supreme Court has distinguished
between Euthanasia and an attempt to commit suicide.

The Court held that death due to termination of natural life is certain and imminent, and the
process of natural death has commenced. Therefore, these are not cases of extinguishing life
but only of accelerating the conclusion of the process of natural death that has already started.

The Court further held that this might fall within the ambit of the right to live with human
dignity up to the end of natural life. This may include the right of a dying man to also die with
dignity when his life is ebbing out. However, this cannot be equated with the right to die an
unnatural death curtailing the natural span of life.

Sentence of Death –Rarest Of Rare Cases

The law commission of India has dealt with the issue of abolition or retention of capital
punishment, collecting as much available material as possible and assessing the views

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expressed by western scholars. The commission recommended the retention of capital
punishment in the present state of the country.

The commission held recognised the on-ground conditions of India. By that, it meant the
difference in the social upbringing, morality and education, its diversity and population. Given
all these factors, India could not risk the experiment of the abolition of capital punishment.

In Jagmohan v. State of UP [lviii], the Supreme Court had held that the death penalty was not
violative of Articles 14, 19 and 21. It was said that the judge was to make the choice between
the death penalty and imprisonment for life based on circumstances, facts, and nature of crime
brought on record during trial. Therefore, the choice of awarding death sentence was done in
accordance with the procedure established by law as required under article 21

But, in Rajindera Parsad v. State of U.P. [lix], Krishna Iyer J., speaking for the majority,
held that capital punishment would not be justified unless it was shown that the criminal was
dangerous to society. The learned judge plead for the abolition of the death penalty and said
that it should be retained only for ‘white collar crimes’

However, in Bachan Singh v. State of Punjab [lx], the leading case of on the question, a
constitution bench of the Supreme Court explained that article 21 recognised the right of the
state to deprive a person of his life in accordance with just, fair and reasonable procedure
established by valid law. It was further held that the death penalty for the offence of murder
awarded under section 302 of IPC did not violate the basic feature of the Constitution.

Right to get Pollution Free Water and Air

In Subhas Kumar v. State of Bihar [lxi], it has held that a Public Interest Litigation is
maintainable for ensuring enjoyment of pollution-free water and air which is included in ‘right
to live’ under Art.21 of the Constitution. The Court observed: “Right to live is a fundamental
right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free
water and air for full enjoyment of life. If anything endangers or impairs that quality of life in
derogation of laws, a citizen has right to have recourse to Art.32 of the Constitution for
removing the pollution of water or air which may be detrimental to the quality of life.”

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a proper environment
free from the dangers of diseases and infection. Maintenance of health, preservation of the
sanitation and environment have been held to fall within the purview of Article 21 as it
adversely affects the life of the citizens and it amounts to slow poisoning and reducing the life
of the citizens because of the hazards created if not checked.

The following are some of the well-known cases on the environment under Article 21:

In M.C. Mehta v. Union of India (1988) [lxii], the Supreme Court ordered the closure of
tanneries polluting the water.

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In M.C. Mehta v. Union of India (1997) [lxiii], the Supreme Court issued several guidelines
and directions for the protection of the Taj Mahal, an ancient monument, from environmental
degradation.

In Vellore Citizens Welfare Forum v. Union of India [lxiv], the Court took cognisance of
the environmental problems being caused by tanneries that were polluting the water resources,
rivers, canals, underground water, and agricultural land. As a result, the Court issued several
directions to deal with the problem.

In Milk Men Colony Vikas Samiti v. State Of Rajasthan [lxv], the Supreme Court held that
the “right to life” means clean surroundings, which leads to a healthy body and mind. It includes
the right to freedom from stray cattle and animals in urban areas.

In M.C. Mehta v. Union of India (2006) [lxvi], the Court held that the blatant and large-scale
misuse of residential premises for commercial use in Delhi violated the right to a salubrious
sand decent environment. Taking note of the problem, the Court issued directives to the
government on the same.

In Murli S. Deora v. Union of India [lxvii], the persons not indulging in smoking cannot be
compelled to or subjected to passive smoking on account of the act of sTherefore, rights. Right
to Life under Article 21 is affected as a non-smoker may become a victim of someone smoking
in a public place.

Right against Noise Pollution

In Re: Noise Pollution [lxviii], the case was regarding noise pollution caused by obnoxious
noise levels due to the bursting of crackers during Diwali. The Apex Court suggested to desist
from bursting and making use of such noise-making crackers and observed that:

“Article 21 of the Constitution guarantees the life and personal liberty to all persons. It
guarantees the right of persons to life with human dignity. Therein are included, all the aspects
of life which go to make a person’s life meaningful, complete and worth living. The human life
has its charm and there is no reason why life should not be enjoyed along with all permissible
pleasures. Anyone who wishes to live in peace, comfort, and quiet within his house has a right
to prevent the noise as pollutant reaching him.”

Continued…

“No one can claim a right to create noise even in his own premises that would travel beyond
his precincts and cause the nuisance to neighbors or others. Any noise, which has the effect of
materially interfering with the ordinary comforts of life judged by the standard of a reasonable
man, is nuisance…. While one has a right to speech, others have a right to listen or decline to
listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his
voice trespass into the ears or mind of others.

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Nobody can indulge in aural aggression. If anyone increases his volume of speech and that too
with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear
a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right
of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article
19(1) (a) cannot be pressed into service for defeating the fundamental right guaranteed by
Article 21 [lxix]”

Right to Know

Holding that the right to life has reached new dimensions and urgency the Supreme Court in RP
Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if
democracy had to function effectively, people must have the right to know and to obtain the
conduct of affairs of the state.

In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there was a strong
link between Art.21 and the right to know, particularly where secret government decisions may
affect health, life, and livelihood.

Reiterating the above observations made in the instant case, the Apex Court in Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, ruled that the citizens
who had been made responsible for protecting the environment had a right to know the
government proposal.

Personal Liberty

The liberty of the person is one of the oldest concepts to be protected by national courts. As
long as 1215, the English Magna Carta provided that,

No freeman shall be taken or imprisoned… but… by the law of the land.

The smallest Article of eighteen words has the greatest significance for those who cherish the
ideals of liberty. What can be more important than liberty? In India, the concept of ‘liberty’ has
received a far more expansive interpretation. The Supreme Court of India has rejected the view
that liberty denotes merely freedom from bodily restraint, and has held that it encompasses
those rights and privileges that have long been recognised as being essential to the orderly
pursuit of happiness by free men.

The meaning of the term’ personal liberty’ was considered by the Supreme Court in Kharak
Singh’s case, which arose out of the challenge to Constitutional validity of the U. P. Police
Regulations that provided for surveillance by way of domiciliary visits secret picketing.

Oddly enough, both the majority and minority on the bench relied on the meaning given to the
term ‘personal liberty’ by an American judgment (per Field, J.,) in Munn v Illinois, which

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held the term ‘life’ meant something more than mere animal existence. The prohibition against
its deprivation extended to all those limits and faculties by which life was enjoyed.

This provision equally prohibited the mutilation of the body or the amputation of an arm or leg
or the putting of an eye or the destruction of any other organ of the body through which the
soul communicated with the outer world. The majority held that the U. P. Police Regulations
authorising domiciliary visits [at night by police officers as a form of surveillance,
constituted a deprivation of liberty and thus] unconstitutional.

The Court observed that the right to personal liberty in the Indian Constitution is the right of
an individual to be free from restrictions or encroachments on his person, whether they are
directly imposed or indirectly brought about by calculated measures.

The Supreme Court has held that even lawful imprisonment does not spell farewell to all
fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those
‘necessarily’ lost as an incident of imprisonment

Right to Privacy and Article 21

Although not explicitly mentioned in the Constitution, the right to privacy was considered a
‘penumbral right’ under the Constitution, i.e. a right declared by the Supreme Court as integral
to the fundamental right to life and liberty. After the KS Puttuswamy judgment, the right to
privacy has been read and understood by the Court in various landmark judgments.

The Supreme Court has culled the right to privacy from Article 21 and other provisions of the
Constitution, read with the Directive Principles of State Policy.

Although no single statute confers a crosscutting ‘horizontal’ right to privacy, various statutes
had provisions that either implicitly or explicitly preserved this right.

For the first time in Kharak Singh v. State of UP, [lxxi] the Court questioned whether the
right to privacy could be implied from the existing fundamental rights such as Art. 19(1) (d),
19(1)(e) and 21, came before the Court. “Surveillance” under Chapter XX of the UP Police
Regulations constituted an infringement of any of the fundamental rights guaranteed by Part
III of the Constitution. Regulation 236(b), which permitted surveillance by “domiciliary visits
at night”, was held to violate Article 21. A seven-judge bench held that:

“the meanings of the expressions “life” and “personal liberty” in Article 21 were considered
by this Court in Kharak Singh’s case. Although the majority found that the Constitution
contained no explicit guarantee of a “right to privacy”, it read the right to personal liberty
expansively to include a right to dignity. It held that “an unauthorised intrusion into a person’s
home and the disturbance caused to him thereby, is as it were the violation of a common law
right of a man -an ultimate essential of ordered liberty, if not of the very concept of civilisation”

In a minority judgment, in this case, Justice Subba Rao held that: “the right to personal liberty
takes in not only a right to be free from restrictions placed on his movements but also free from

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encroachments on his private life. It is true our Constitution does not expressly declare a right
to privacy as a fundamental right but the said right is an essential ingredient of personal
liberty. Every democratic country sanctifies domestic life; it is expected to give him rest,
physical happiness, peace of mind and security. In the last resort, a person’s house, where he
lives with his family, is his ‘castle’; it is his rampart against encroachment on his personal
liberty”.

This case, especially Justice Subba Rao’s observations, paved the way for later elaborations on
the right to privacy using Article 21.

In Govind v. State of Madhya Pradesh [lxxii], The Supreme Court took a more elaborate
appraisal of the right to privacy. In this case, the Court was evaluating the constitutional validity
of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for
police surveillance of habitual offenders including domiciliary visits and picketing of the
suspects. The Supreme Court desisted from striking down these invasive provisions holding
that:

“It cannot be said that surveillance by domiciliary visit would always be an unreasonable
restriction upon the right of privacy. It is only persons who are suspected to be habitual
criminals and those who are determined to lead a criminal life that is subjected to
surveillance.”

The Court accepted a limited fundamental right to privacy as an emanation from Arts.19 (a),
(d) and 21. Mathew J. observed in the instant case,

“The Right to privacy will, therefore, necessarily, have to go through a process of case by case
development. Hence, assuming that the right to personal liberty. the right to move freely
throughout India and the freedom of speech create an independent fundamental right of privacy
as an emanation from them that one can characterise as a fundamental right, we do not think
that the right is absolute…..

…… Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral
zones and that the right to privacy is itself a fundamental right that fundamental right must be
subject to restrictions on the basis of compelling public interest.”

Scope and Content of Right to Privacy Pre-Puttaswamy Judgment

Tapping of Telephone

Emanating from the right to privacy is the question of tapping of the telephone.

In RM Malkani v. State of Maharashtra, the Supreme Court held that Courts would protect
the telephonic conversation of an innocent citizen against wrongful or high handed’
interference by tapping the conversation. However, the protection is not for the guilty citizen
against the efforts of the police to vindicate the law and prevent corruption of public servants.

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Telephone tapping is permissible in India under Section 5 (2) of the Telegraph Act, 1885.
The Section lays down the circumstances and grounds when an order for tapping a telephone
may be passed, but no procedure for making the order is laid down therein.

The Supreme Court in PUCL v. Union of India held that in the absence of just and fair
procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible
to safeguard the fundamental rights of citizens under Section 19 and 21. Accordingly, the Court
issued procedural safeguards to be observed before restoring to telephone tapping under
Section 5(2) of the Act.

The Court further ruled: “Right to privacy is a part of the right to ‘life’ and ‘personal liberty’
enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right
to privacy, Article 21 is attracted. The said right cannot be curtailed “except according to
procedure established by law”. The Court has further ruled that Telephone conversation is an
important facet of a man’s private life. Right to privacy would certainly include telephone
conversation in the privacy of one’s home or office. Telephone tapping would, thus, infract
Article 21 of the Constitution of India unless it is permitted under the procedure established by
law. The procedure has to be just, fair and reasonable.”

Disclosure of Dreadful Diseases

In Mr X v. Hospital Z [lxxv], the question before the Supreme Court was whether the
disclosure by the doctor that his patient, who was to get married had tested HIV positive, would
be violative of the patient’s right to privacy.

The Supreme Court ruled that the right to privacy was not absolute and might be lawfully
restricted for the prevention of crime, disorder or protection of health or morals or protection
of rights and freedom of others.

The Court explained that the right to life of a lady with whom the patient was to marry would
positively include the right to be told that a person with whom she was proposed to be married
was the victim of a deadly disease, which was sexually communicable.

Since the right to life included the right to a healthy life to enjoy all the facilities of the human
body in prime condition, it was held that the doctors had not violated the right to privacy.

Right to Privacy and Subjecting a Person to Medical Tests

It is well settled that the right to privacy is not treated as absolute and is subject to such action
as may be lawfully taken to prevent crimes or disorder or protect health or morals or protection
of rights and freedom of others. If there is a conflict between the fundamental rights of two
parties, which advances public morality would prevail.

In the case Sharda v. Dharmpal [lxxvi], a three-judge bench ruled that a matrimonial court
had the power to direct the parties in a divorce proceeding to undergo a medical examination.

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A direction issued for this could not be held to violate one’s right to privacy. The Court,
however, said that there must be sufficient material for this.

Right to Privacy: Woman’s Right to Make Reproductive Choices

A woman’s right to make reproductive choices includes the woman’s right to refuse
participation in the sexual activity or the insistence on using contraceptive methods such as
undergoing sterilisation procedures. The woman’s entitlement to carry a pregnancy to its full
term, to give birth subsequently raise children.

Right to Travel Abroad

In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi [lxxvii], the Supreme
Court has included the right to travel abroad contained in the expression “personal liberty”
within the meaning of Article 21.

In Maneka Gandhi v. Union of India [lxxviii], the validity of Sec. 10(3)(c) of the passport
Act 1967, which empowered the government to impound the passport of a person, in the
interest of the general public, was challenged before the seven-judge Bench of the Supreme
Court.

It was contended that, right to travel abroad being a part of the right to “personal liberty” the
impugned Section didn’t prescribe any procedure to deprive her of her liberty and hence it was
violative of Art. 21.

The Court held that the procedure contemplated must stand the test of reasonableness in order
to conform to Art.21 other fundamental rights. It was further held that the right to travel abroad
falls under Art. 21, natural justice must be applied while exercising the power of impounding
a passport under the Passport Act. Bhagwati, J., observed:

The principle of reasonableness, which legally as well as philosophically, is an essential

element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and
that It must be “‘right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it
would be no procedure at all and the requirement of Article 21 would not be satisfied.

Right against Illegal Detention

In Joginder Kumar v. State of Uttar Pradesh [lxxix], the petitioner was detained by the
police officers and his whereabouts were not told to his family members for a period of five
days. Taking serious note of the police high headedness and illegal detention of a free citizen,
the Supreme Court laid down the guidelines governing arrest of a person during the
investigation:

An arrested person being held in custody is entitled if he so requests to have a friend, relative
or other person told as far as is practicable that he has been arrested and where he is being
detained.

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The police officer shall inform the arrested person when he is brought to the police station of
this right. An entry shall be required to be made in the diary as to who was informed of the
arrest.

In the case of DK. Basu v. State of West Bengal [lxxx], the Supreme Court laid down detailed
guidelines to be followed by the central and state investigating agencies in all cases of arrest
and detention. Furthermore, the Court ordered that the guidelines be followed till legal
provisions are made on that behalf as preventive measures. It also held that any form of torture
or cruel, inhuman or degrading treatment, whether it occurs during interrogation or otherwise,
falls within the ambit of Article 21.

Article 21 And Prisoner’s Rights

The protection of Article 21 is available even to convicts in jail. The convicts are not deprived
of all the fundamental rights they otherwise possess by mere reason of their conviction.
Following the conviction of a convict is put into jail he may be deprived of fundamental
freedoms like the right to move freely throughout the territory of India. But a convict is entitled
to the precious right guaranteed under Article 21, and he shall not be deprived of his life and
personal liberty except by a procedure established by law [lxxxi].

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article
21. The Court has interpreted Article 21 to have the widest possible amplitude. On being
convicted of a crime and deprived of their liberty following the procedure established by law.
Article 21 has laid down a new constitutional and prison jurisprudence [lxxxii].

The rights and protections recognised to be given in the topics to follow.

Right to Free Legal Aid & Right to Appeal

In M.H. Hoskot v. State of Maharashtra [lxxxiii], while holding free legal aid as an integral
part of fair procedure, the Court explained:

“The two important ingredients of the right of appeal are; firstly, service of a copy of a
judgement to the prisoner in time to enable him to file an appeal and secondly, provision of
free legal service to the prisoner who is indigent or otherwise disabled from securing legal
assistance. This right to free legal aid is the duty of the government and is an implicit aspect
of Article 21 in ensuring fairness and reasonableness; this cannot be termed as government
charity.”

In other words, an accused person, where the charge is of an offence punishable with
imprisonment, is entitled to be offered legal aid if he is too poor to afford counsel. In addition,
counsel for the accused must be given sufficient time and facility for preparing his defence.
Breach of these safeguards of a fair trial would invalidate the trial and conviction.

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Right to Speedy Trial

In Hussainara Khatoon v. Home Secretary, State of Bihar [lxxxiv], the Supreme Court
observed that an alarming number of men, women and children were kept in prisons for years
awaiting trial in courts of law.

The Court noted the situation and observed that it was carrying a shame on the judicial system
that permitted incarceration of men and women for such long periods without trials.

The Court held that detention of undertrial prisoners in jail for a period more than what they
would have been sentenced to if convicted was illegal. And the same violated Article 21. The
Court ordered to release of undertrial prisoners who had been in jail for a longer period than
the punishment meted out in case of conviction.

In A.R. Antulay v. R.S. Nayak [lxxxv], a Constitution Bench of five judges of the Supreme
Court dealt with the question and laid down specific guidelines for ensuring speedy trial of
offences some of them have been listed below [lxxxvi]:

Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be
tried speedily.

Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of
investigation, inquiry, appeal, revision, and retrial.

The concerns underlying the right of the speedy trial from the point of view of the accused are:

The period of remand and pre-conviction detention should be as short as possible.

The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an
unduly prolonged investigation, inquiry or trial should be minimal; and

Undue delay may well result in impairment of the ability of the accused to defend him.

While determining whether the undue delay has occurred, one must regard all the attendant
circumstances, including the nature of the offence, the number of accused and witnesses, and
the Court’s workload concerned. Every delay does not necessarily prejudice the accused. An
accuser’s plea of denial of the speedy trial cannot be defeated by saying that the accused did at
no time demand a speedy trial

In the case of Anil Rai v. State of Bihar [lxxxvii], the Supreme Court directed the Judges of
the High Courts to give quick judgments, and in certain circumstances, the parties are to apply
to the Chief Justice to move the case to another bench or to do the needful at his discretion.

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Right to Fair Trial

The free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court
in Zahira Habibullah Sheikh v. State of Gujarat [lxxxviii] said that the right to free and fair
trial to the accused and the victims, their family members, and relatives and society at large.

Right to Bail

The Supreme Court has diagnosed the root cause for long pre-trial incarceration to bathe
present-day unsatisfactory and irrational rules for bail, which insists merely on financial
security from the accused and their sureties. Many of the undertrials being poor and indigent
are unable to provide any financial security. Consequently, they have to languish in prisons
awaiting their trials.

But incarceration of persons charged with non-bailable offences during the pendency of trial
cannot be questioned as violative of Article 21 since the same is authorised by law. In Babu
Singh v. State of Uttar Pradesh [lxxxix], the Court held that the right to bail was included in
the personal liberty under Article 21. Its refusal would be the deprivation of that liberty, which
could be authorised in accordance with the procedure established by law.

Anticipatory bail is a statutory right, and it does not arise out of Article 21. Therefore,
anticipatory bail cannot be granted as a matter of right as it cannot be granted as a matter
of right as it cannot be considered as an essential ingredient of Article 21.

Right against Handcuffing

Handcuffing has been considered prima facie inhuman and therefore unreasonable, over-harsh
and at first flush, arbitrary. It has been held to be unwarranted and violative of Article 21.

In Prem Shankar v. Delhi Administration [xc], the Supreme Court struck down the Rules
that provided that every undertrial accused of a non-bailable offence punishable with more than
three years prison term would be routinely handcuffed. Instead, the Court ruled that
handcuffing should be resorted to only when there was “clear and present danger of escape” of
the accused under - trial, breaking out of police control.

Right against Solitary Confinement

It has been held that a convict is not wholly denuded of his fundamental rights, and his
conviction does not reduce him into a non – person whose rights are subjected to the whims of
the prison administration. Therefore, the imposition of any major punishment within the prison
system is conditional upon the observance of procedural safeguard.

In Sunil Batra v. Delhi Administration [xci], the petitioner was sentenced to death by the
Delhi session court and his appeal against the decision was pending before the high Court. He
was detained in Tihar Jail during the pendency of the appeal. He complained that since the date
of conviction by the session court, he was kept in solitary confinement.

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It was contended that Section 30 of the Prisoners Act does not authorise jail authorities to send
him to solitary confinement, which by itself was a substantive punishment under Sections 73
and 74 of the Indian Penal Code, 1860 and could be imposed by a court of law. Therefore, it
could not be left to the whim and caprice of the prison authorities. The Supreme Court accepted
the petitioner’s argument and held that the imposition of solitary confinement on the petitioner
was violative of Article 21.

Right against Custodial Violence

The incidents of brutal police behaviour towards persons detained on suspicion of having
committed crimes are routine. There has been a lot of public outcry from time to time against
custodial deaths.

The Supreme Court has taken a very positive stand against the atrocities, intimidation,
harassment and use of third-degree methods to extort confessions. The Court has classified
these as being against human dignity. The rights under Article 21 secure life with human
dignity and the same are available against torture.

Death by hanging is Not Violative of Article 21

In Deena v. Union of India [xcii], the constitutional validity of the death sentence by hanging
was challenged as being “barbarous, inhuman, and degrading” and therefore violative of
Article 21.

The Court, in this case, referred to the Report of the UK Royal Commission, 1949, the opinion
of the Director-General of Health Services of India, the 35th Report of the Law Commission
and the opinion of the Prison Advisers and Forensic Medicine Experts. Finally, it held that
death by hanging was the best and least painful method of carrying out the death penalty. Thus,
not violative of Article 21.

Right against Public Hanging

The Rajasthan High Court, by an order, directed the execution of the death sentence of an
accused by hanging at the Stadium Ground of Jaipur. It was also directed that the execution
should be done after giving widespread publicity through the media.

On receipt of the above order, the Supreme Court in Attorney General of India v. Lachma
Devi [xciii] held that the direction for the execution of the death sentence was unconstitutional
and violative of Article 21.

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It was further made clear that death by public hanging would be a barbaric practice. Although
the crime for which the accused has been found guilty was barbaric, it would be a shame on
the civilised society to reciprocate the same. The Court said,

“A barbaric crime should not have to be visited with a barbaric penalty.”

Right against Delayed Execution

In T.V. Vatheeswaram v. State of Tamil Nadu [xcv], the Supreme Court held that the delay
in execution of a death sentence exceeding 2 years would be sufficient ground to invoke
protection under Article 21 and the death sentence be commuted to life imprisonment. The
cause of the delay is immaterial. The accused himself may be the cause of the delay.

In Sher Singh v. State of Punjab [xcvi], the Supreme Court said that prolonged wait for the
execution of a death sentence is an unjust, unfair and unreasonable procedure, and the only
way to undo that is through Article 21.

But the Court held that this could not be taken as the rule of law and applied to each case, and
each case should be decided upon its own facts.

Procedure Established By Law and Article 21

The expression ‘procedure established by law’ has been the subject of interpretation in a catena
of cases. A survey of these cases reveals that courts in judicial interpretation have enlarged the
scope of the expression.

The Supreme Court took the view that ‘procedure established by law’ in Article 21 means
procedure prescribed by law was enacted by the state and rejected to equate it with the
American ‘due process of law’.

But, in Maneka Gandhi v Union of India, the Supreme Court observed that the procedure
prescribed by law for depriving a person of his life and personal liberty must be ‘right, just and
fair’ and not ‘arbitrary, fanciful and oppressive’.

It also held that otherwise, it would be no procedure, and the requirement of Article 21 would
not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance
in India as the ‘due process of law’ clause in America.

Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration said:

“(though) our Constitution has no due process clause (but after Maneka Gandhi’s case) the
consequence is the same, and as much as such Article 21 may be treated as counterpart of the
due process clause in American Constitution.”

In December 1985, the Rajasthan High Court sentenced a man, Jagdish Kumar, and a woman,
Lichma Devi, to death for killing two young women by setting them on fire. In an
unprecedented move, the Court ordered both prisoners to be publicly executed.

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In response to a review petition by the Attorney General against this judgment, the Supreme
Court in December 1985 stayed the public hangings, observing that ‘a barbaric crime does not
have to be met with a barbaric penalty’.

Furthermore, the Court observed that the execution of a death sentence by public hanging
violates Article 21, which mandates the observance of a just, fair and reasonable procedure.

Thus, an order passed by the High Court of Rajasthan for public hanging was set aside by the
Supreme Court on the ground, among other things, that it was violative of Article 21. Again,
in Sher Singh v State of Punjab, the Supreme Court held that unjustifiable delay in execution
of death sentence violates Article 21.

The Supreme Court has taken the view that this Article read is concerned with the fullest
development of an individual, ensuring his dignity through the rule of law. Therefore, every
procedure must seem to be ‘reasonable, fair and just’.

The right to life and personal liberty has been interpreted widely to include the right to
livelihood, health, education, environment and all those matters that contributed to life with
dignity.

The test of procedural fairness has been deemed to be proportional to protecting such rights.
Thus, where workers have been deemed to have the right to public employment and the right
to livelihood, a hire-fire clause in favour of the state is not reasonable, fair and just, even though
the state cannot affirmatively provide a livelihood for all.

Under this doctrine, the Court will examine whether the procedure itself is reasonable, fair and
just. And whether it has been operated in a fair, just and reasonable manner.

This has meant, for example, the right to a speedy trial and legal aid is part of any reasonable,
fair and just procedure. The process clause is comprehensive and applicable in all areas of State
action covering civil, criminal and administrative action.

In one of the landmark decisions in the case of Murli S. Deora v. Union of India, the Supreme
Court of India observed that the fundamental right guaranteed under Article 21 of the
Constitution of India provides that none shall be deprived of his life without due process of
law.

The Court observed that smoking in public places is an indirect deprivation of life of non-
smokers without any process of law. Considering the adverse effect of smoking on smokers
and passive smokers, the Supreme Court directed the prohibition of smoking in public
places.

It issued directions to the Union of India, State Governments and the Union Territories to take
adequate steps to ensure the prohibition of smoking in public places such as auditoriums,
hospital buildings, health institutions etc.

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In this manner, the Supreme Court gave a liberal interpretation to Article 21 of the Constitution
and expanded its horizon to include the rights of non-smokers.

Further, when there is an inordinate delay in the investigation – it affects the right of the
accused, as he is kept in tenterhooks and suspense about the outcome of the case. If the
investigating authority pursues the investigation as per the provisions of the Code, there can be
no cause of action.

But, if the case is kept alive without any progress in any investigation, then the provisions of
Article 21 are attracted. The right is against actual proceedings in Court and against police
investigation.

The Supreme Court has widened the scope of ‘procedure established by law’ and held
that merely a procedure had been established by law, a person cannot be deprived of his
life and liberty unless the procedure is just, fair and reasonable.

Hence, it is well established that to deprive a person of his life and personal liberty must be
done under a ‘procedure, established by law’. Such an exception must be made in a just, fair
and reasonable manner and must not be arbitrary, fanciful or oppressive. Therefore, for the
procedure to be valid, it must comply with the principles of natural justice.

Article 21 and the Emergency

In ADM Jabalpur v. S. Shukla [xcviii], popularly known as the habeas corpus case, the
Supreme Court held that Article 21 was the sole repository of the right to life and personal
liberty.

Therefore, if the presidential order suspended the right to move any court to enforce that right
under Article 359, the detune would have no locus standi to a writ petition for challenging the
legality of his detention.

Hence, such a wide connotation of Article 359 denied the cherished right to personal liberty
guaranteed to the citizens. Experience established that during the emergence of 1975, the
people’s fundamental freedom had lost all meaning.

So that it must not occur again, the constitution act, 1978, amended article 359 to the effect that
during the operation of the proclamation of emergency, the remedy for the enforcement of the
fundamental right guaranteed by article 21 would not be suspended under a presidential order.

Given the 44th amendment, 1978, the observations in the above-cited judgments are left merely
of academic importance.

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