Constitutional law

Unit 1: Introduction
a) Meaning and significance of constitution

Introduction:

 Every state must have a constitution. Without a constitution it is difficult to govern a

state. History tells that since the origin of the state there had been some kinds of rules
and regulations in some form to maintain the order and harmony in state.
 In every state be it a democratic or despotic it is essential that such rules must be
accepted which would decide the role and organisation of political institutions in
order to save the save the society from anarchy.

What is constitution?
 The supreme law of the state.
 It is the foundation and source of the legal authority underlying the existence of the
state.
 It provides the framework for the organisation of the state govt.
 A constitution is a basic design, which deals with the structure and power of the govt.
it also includes rights and duties of the govt.
The term constitution is derived from latin ‘constitute’ which means ‘to establish’. The
constitution is the basic document of a state. It is the fundamental rule of a state which
regulates the distribution of powers within organs of govt.

Need of the constitution

 A constitution is needed for a variety of reasons.
 To curb the powers of the govt. by fundamental law.
 To protect the rights of an individual.
 To establish the principle of ‘rule of law’.
 To save the state from anarchy.
 To define the operation of the sovereign power of the state.
 To limit present and future generations from arbitrary govt.

Characteristics of a good constitution:

 Clarity of definiteness: every clause of the constitution should be written in simple
language.
 Briefness: it should not be lengthy. It should only contain important things.
 Comprehensiveness: the constitution should be applicable to whole country.

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  Flexibility: the constitution should not be too rigid to hinder the process of
amendment when needed.
 Fundamental rights: a good constitution must contain the fundamental rights of the
people.
 Independence of judiciary: the judiciary should function freely and act as a guardian
of the fundamental rights.
 Directive principles of state policy
Types of constitution:-
1. Written constitution – a written constitution is one which is written down in the form
of a constitutional document. Eg: India has a written constitution.

2. Unwritten constitution – the British constitution is characterised as an unwritten

constitution because it is not embodied in one comprehensive constitutional
document.

Constitutionalism
Introduction
It is a modern concept that desires a political order governed by the laws and regulations. It
stands for the supremacy of law and not of individuals. It insists limited govt. it also stands
for the existence of a constitution in the state, since it is the instrument of govt., or the
fundamental law of land, whose objects are to limit the arbitrary action of govt., to guarantee
the rights of the governed, and to define the operation of the sovereign power.

Preamble
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity, and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation;
IN OUR CONSTITUENT ASSEMBLY, this twenty-sixth day of November 1949, do
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

History

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

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

Key words in the Preamble

 We, the people of India: It indicates the ultimate sovereignty of the people of
India. Sovereignty means the independent authority of the State, not being subject to
the control of any other State or external power.
 Sovereign: The term means that India has its own independent authority and it is not
a dominion of any other external power. In the country, the legislature has the power
to make laws which are subject to certain limitations.
 Socialist: The term means the achievement of socialist ends through
democratic means. It holds faith in a mixed economy where both private and public
sectors co-exist side by side.
Socialism

Democratic socialism communism socialism

It was added in the constitution by 42nd amendment, 1976

Case law - D.S. Nakara v. Union of India, 1983 - The Court observed that the basic framework of
socialism is to provide a decent standard of life to the working people and to eliminate inequality in income,
status and standard of life. Thus we can say that democratic socialism aims to end poverty, ignorance, disease
and inequality of opportunity.

 Secular: The term means that all the religions in India get equal respect, protection
and support from the state.

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 o It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976.
Case law- 1. S.R. Bommai v. Union of India, 1994 - The nine-judge bench of Apex Courts found the
concept of secularism as the basic feature of the Constitution.

2. In Aruna Roy v. Union of India, the Court has held that the word "secularism" used in the Preamble of the
Constitution is reflected in the provisions contained in Articles 25 to 30 and Article 51A.

 Democratic: The term implies that the Constitution of India has an established form
of Constitution which gets its authority from the will of the people expressed in an
election.
 Republic: The term indicates that the head of the state is elected by the people. In
India, the President of India is the elected head of the state.
Status of Preamble
 The preamble being part of the Constitution is discussed several times in the Supreme
Court. It can be understood by reading the following two cases.

o Berubari Case: It was used as a reference under Article 143(1) of the

Constitution. It was decided for consideration by the bench consisting of eight
judges.
o Through the Berubari case, the Court stated that ‘Preamble is the key to open
the mind of the makers’ but it can not be considered as part of the
Constitution. Therefore it is not enforceable in a court of law.
 Kesavananda Bharati Case: In this case, for the first time, a bench of 13 judges was
assembled to hear a writ petition. The Court held that:

o The Preamble of the Constitution will now be considered as part of the

Constitution.
o The Preamble is not the supreme power or source of any restriction or
prohibition but it plays an important role in the interpretation of statutes and
provisions of the Constitution.
o So, it can be concluded that preamble is part of the introductory part of the
Constitution.
 In the 1995 case of Union Government Vs LIC of India also, the Supreme Court has
once again held that Preamble is the integral part of the Constitution but is not directly
enforceable in a court of justice in India.
Amendment of the Preamble
 42nd Amendment Act, 1976: After the judgment of the Kesavanand Bharati case, it
was accepted that the preamble is part of the Constitution.

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 o As a part of the Constitution, preamble can be amended under Article 368 of
the Constitution, but the basic structure of the preamble can not be amended.
o As of now, the preamble is only amended once through the 42nd Amendment
Act, 1976.
 The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through
42nd Amendment Act, 1976.

o ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.

o ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
 Part IVA, Article 51A was added to the Constitution to outline the
Fundamental Duties of Indian citizens, promoting a sense of civic
responsibility.
 Articles 39A (equal justice and free legal aid), 43A (participation of workers
in management), and 48A (protection and improvement of the
environment) were added to the Directive Principles of State Policy in Part
IV.

Our constitution consists of 448 articles, 25 parts and 12 schedules after amendment. But
originally it contains 395 articles, 22 parts and 8 schedules.

Parts of the Indian Subject Mentioned in the Part Articles in Indian

Constitution Constitution

Part I Union & Its Territory Article 1-4

Part II Citizenship Article 5-11

Part III Fundamental Rights Article 12-35

Part IV Directive Principles Article 36-51

Part IV A Fundamental Duties Article 51A

Part V The Union Article 52-151

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Part VI The States Article 152-237

Part VII Note: 7th Amendment Act, 1956 repealed –

Part 7

Part VIII The Union Territories Article 239-242

Part IX The Panchayats Article 243-243O

Part IX A The Municipalities Article 243P-243ZG

Part IX B Co-operative Societies Article 243ZH-243ZT

Part X Scheduled and Tribal Areas Article 244-244A

Part XI Relation between Union & States Article 245-263

Part XII Finance, Property, Contracts and Suits Article 264-300A

Part XIII Trade, Commerce and Intercourse within the Article 301-307
territory of India

Part XIV Services under the Union and States Article 308-323

Part XIV A Tribunals Article 323A-323B

Part XV Elections Article 324-329A

Part XVI Special Provisions relating to certain classes Article 330-342

Part XVII Official Languages Article 343-351

Part XVIII Emergency Provisions Article 352-360

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 Part XIX Miscellaneous Article 361-367

Part XX Amendment of the Constitution Article 368

Part XXI Temporary, Transitional and Special Article 369-392

Provisions

Part XXII Short title, Commencement, Authoritative Article 393-395

Text in
Hindi and Repeals

Part 1: The union and its territory ( article 1- 4 )

Article 1: It says that India, that is Bharat, shall be a union of states and the territory of
India consists of that of the states, union territories specified in the First Schedule and other
acquired territories.

Article 2: The acquired territories can be converted in to a state/states.

Jammu and Kashmir were converted into Union territories in 2019. Ladakh was also so
converted.
Sikkim was a special case which was included as a completely new type of statehood under a
new Article 2A and conditions mentioned in tenth schedule, and was called 'associate state'.
But this experiment failed and Sikkim was later added to Indian Union by the Constitutional
Amendment Act (1975).
Article 3: It talks about Formation of new States and alteration of areas, boundaries or names
of existing States.
In this article, in clauses (a) to (e), State includes a Union territory, but in the proviso, State
does not include a Union territory.
The power conferred on Parliament by clause (a) includes the power to form a new State or
Union territory by uniting a part of any State or Union territory to any other State or Union
territory.
Article 4: It is invoked when a law is enacted under Article 2 or 3 for the marginal, incidental
and the consequential provisions needed for changing boundary of a state or union territory.

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As per Article 4 (2), no such law framed under Article 4 (1), shall be deemed to be an
amendment of the constitution for the purposes of article 368.

Part 2: citizenship (article 5 – 11 )

Article 5: Citizenship at the Commencement of the Constitution

At the commencement of this Constitution, every person who has his domicile in the territory
of India and –
(a) who was born in the territory of India; or
(b) either of whose parents were born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years
immediately preceding such commencement, shall be a citizen of India.

Article 6: Rights of citizenship of certain persons who have migrated to India from Pakistan
Notwithstanding anything in Article 5, a person who has migrated to the territory of India
from the territory now included in Pakistan shall be deemed to be a citizen of India at the
commencement of this Constitution if –
(a) he or either of his parents or any of his grand-parents was born in India as defined in the
Government of India Act, 1935 (as originally enacted); and
(b) (i) In the case where such a person has so migrated before the 19th July 1948, he has been
ordinarily resident in the territory of India since the date of his migration, or
(ii) in the case where such a person has so migrated on or after the 19th July 1948, he has been
registered as a citizen of India by an officer appointed on that behalf by the Government of
the Dominion of India on an application made by him therefor to such officer before the
commencement of this Constitution in the form and manner prescribed by that Government:
 Provided that no person shall be so registered unless he has been resident in the
territory of India for at least six months immediately preceding the date of his
application.
Article 7: Rights of citizenship of certain migrants to Pakistan
Notwithstanding anything in articles 5 and 6, a person who has after the first day of March
1947, migrated from the territory of India to the territory now included in Pakistan shall not
be deemed to be a citizen of India:
Provided that nothing in this article shall apply to a person who, after having so migrated to
the territory now included in Pakistan, has returned to the territory of India under a permit for
resettlement or permanent return issued by or under the authority of any law and every such

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person shall for clause (b) of Article 6 be deemed to have migrated to the territory of India
after the 19th July 1948.
Article 8: Rights of citizenship of certain persons of Indian origin residing outside India
Notwithstanding anything in Article 5, any person who or either of whose parents or any of
whose grandparents was born in India as defined in the Government of India Act, 1935 (as
originally enacted), and who is ordinarily residing in any country outside India as so defined
shall be deemed to be a citizen of India if he has been registered as a citizen of India by the
diplomatic or consular representative of India in the country where he is for the time being
residing on an application made by him therefor to such diplomatic or consular
representative, whether before or after the commencement of this Constitution, in the form
and manner prescribed by the Government of the Dominion of India or the Government of
India.
Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens
No person shall be a citizen of India by Article 5 or be deemed to be a citizen of India by
Article 6 or Article 8 if he has voluntarily acquired the citizenship of any foreign State.
Article 10: Continuance of the rights of citizenship
Every person who is or is deemed to be a citizen of India under any of the foregoing
provisions of this Part shall, subject to the provisions of any law that may be made by
Parliament, continue to be such citizen.
Article 11: Parliament to regulate the right of citizenship by law
Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament
to make any provision concerning the acquisition and termination of citizenship and all other
matters relating to citizenship.

Citizenship in India is the legal status that grants individuals certain rights and privileges
within the country. The Citizenship Act of 1955 governs matters related to Indian citizenship.
The act defines various ways through which a person can acquire or lose Indian citizenship.
There are three main ways through which individuals can acquire Indian citizenship:
By Birth:
 Individuals born in India on or after January 26, 1950, are considered citizens of India
by birth.
 Individuals born in India between January 26, 1950, and July 1, 1987, are considered
citizens regardless of the nationality of their parents.
 Individuals born in India on or after July 1, 1987, but before the commencement of
the Citizenship (Amendment) Act, 2003, are considered citizens if at least one parent
is a citizen of India at the time of their birth.

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By Descent
 Individuals born outside India on or after January 26, 1950, but before December 10,
1992, are considered citizens if their father is a citizen of India at the time of their
birth.
 Individuals born outside India on or after December 10, 1992, are considered citizens
if either of their parents is a citizen of India at the time of their birth.
By Registration
 Individuals who are not citizens by birth or descent can acquire Indian citizenship
through registration under certain conditions. This includes people who have been
residing in India for several years or are married to Indian citizens.
The Citizenship (Amendment) Act of 2003 introduced provisions for Overseas Citizens of
India (OCI) and Persons of Indian Origin (PIO), allowing certain categories of foreign
nationals of Indian origin to have certain privileges and rights in India without full
citizenship.
It’s important to note that the acquisition of Indian citizenship can also lead to the loss of
citizenship in some cases. For example, a person who voluntarily acquires the citizenship of
another country may lose their Indian citizenship. Additionally, the government of India has
the authority to cancel or revoke citizenship under specific circumstances.

Citizenship Amendment Act, 1955

The Citizenship Act of 1955 prescribes five ways of acquiring citizenship, viz, birth, descent,
registration, naturalisation and incorporation of territory.
 By Birth:
o A person born in India on or after January 26, 1950 but before July 1, 1987 is
a citizen of India by birth irrespective of the nationality of his parents.
o A person born in India on or after July 1, 1987 is considered as a citizen of
India only if either of his/her parents is a citizen of India at the time of his
birth.
o Further, those born in India on or after December 3, 2004 are considered
citizens of India only if both of their parents are citizens of India or one of
whose parents is a citizen of India and the other is not an illegal migrant at
the time of their birth.
o The children of foreign diplomats posted in India and enemy aliens cannot
acquire Indian citizenship by birth.
 By Registration:
o The Central Government may, on an application, register as a citizen of India
any person (not being an illegal migrant) if he belongs to any of the following
categories, namely:-

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  A person of Indian origin who is ordinarily resident in India for seven
years before making an application for registration;
 A person of Indian origin who is ordinarily resident in any country or
place outside undivided India;
 A person who is married to a citizen of India and is ordinarily resident
in India for seven years before making an application for registration;
 Minor children of persons who are citizens of India;
 A person of full age and capacity whose parents are registered as
citizens of India;
 A person of full age and capacity who, or either of his parents, was an
earlier citizen of independent India, and is ordinarily resident in India
for twelve months immediately before making an application for
registration;
 A person of full age and capacity who has been registered as an
overseas citizen of India cardholder for five years, and who is
ordinarily resident in India for twelve months before making an
application for registration.
o A person shall be deemed to be of Indian origin if he, or either of his parents,
was born in undivided India or in such other territory which became part of
India after August 15, 1947.
o All the above categories of persons must take an oath of allegiance before
they are registered as citizens of India
 By Descent:
o A person born outside India on or after January 26, 1950 but before
December 10, 1992, is a citizen of India by descent, if his father was a citizen
of India at the time of his birth.
o A person born outside India on or after December 10, 1992 is considered as a
citizen of India if either of his parents is a citizen of India at the time of his
birth.
o If a person born outside India or after December 3, 2004, has to acquire
citizenship, his/her parents have to declare that the minor does not hold a
passport of another country and his/her birth is registered at an Indian
consulate within one year of birth.
 By Naturalisation:
o A person can acquire citizenship by naturalisation if he/she is ordinarily
resident of India for 12 years (throughout 12 months preceding the date of

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 application and 11 years in the aggregate) and fulfils all qualifications in the
third schedule of the Citizenship Act.
 By Territorial Incorporation:
o If any foreign territory becomes a part of India, the Government of India
specifies the persons who among the people of the territory shall be the
citizens of India. Such persons become citizens of India from the notified date.
 The Act does not provide for dual citizenship or dual nationality. It only allows
citizenship for a person listed under the provisions above ie: by birth, descent,
registration, naturalisation and territorial incorporation.
 The act has been amended six times in 1986, 1992, 2003, 2005, 2015 and 2019.
 Through these amendments, Parliament has narrowed down the wider and universal
principles of citizenship based on the fact of birth.
 Moreover, the Foreigners Act places a heavy burden on the individual to prove that
he/she is not a foreigner.
What are the Important Amendments?
 1986 Amendment: Unlike the constitutional provision and the original Citizenship
Act that gave citizenship on the principle of jus soli to everyone born in India, the
1986 amendment to Section 3 was less inclusive as it added the condition that those
who were born in India on or after January 26, 1950 but before July 1, 1987, shall be
an Indian citizen.
o Those born after July 1, 1987 and before December 4, 2003, in addition to
one’s own birth in India, can get citizenship only if either of his parents was an
Indian citizen at the time of birth.
 2003 Amendment: The amendment made the above condition more stringent,
keeping in view infiltration from Bangladesh.
o Now the law requires that for those born on or after December 4, 2004, in
addition to the fact of their own birth, both parents should be Indian citizens
or one parent must be an Indian citizen and others should not be illegal
migrants.
o With these restrictive amendments, India has almost moved towards the
narrow principle of jus sanguinis or blood relationship.
o This lays down that an illegal migrant cannot claim citizenship by
naturalisation or registration even if he has been a resident of India for seven
years.
 2015 Amendment: The Citizenship (Amendment) Act, 2015, has modified the
provisions pertaining to the Overseas Citizen of India (OCI) in the Principal Act. It has

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 introduced a new scheme called “Overseas Citizen of India Cardholder” by merging
the Persons of Indian Origin (PIO) card scheme and the OCI card scheme.
 2019 Amendment: The amendment proposes to permit members of six communities
— Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh
and Afghanistan to continue to live in India if they entered India before December 31,
2014.
o It also reduces the requirement for citizenship from 11 years to just 5 years.
o Two notifications also exempted these migrants from the Passport Act and
Foreigners Act.
o A large number of organisations in Assam protested against this Bill as it may
grant citizenship to Bangladeshi Hindu illegal migrants.
o The justification given for the bill is that Hindus and Buddhists are minorities
in Bangladesh, and fled to India to avoid religious persecution, but Muslims
are a majority in Bangladesh and so the same cannot be said about them.

Part 3: Fundamental rights (article 12 – 35)

o The Fundamental Rights are enshrined in Part III of the Constitution (Articles
12-35).
o Part III of the Constitution is described as the Magna Carta of India.

 ‘Magna Carta’, the Charter of Rights issued by King John of England

in 1215 was the first written document relating to the Fundamental
Rights of citizens.
o The Fundamental Rights: The Constitution of India provides for six
Fundamental Rights:

 Right to equality (Articles 14–18)

 Right to freedom (Articles 19–22)
 Right against exploitation (Articles 23–24)
 Right to freedom of religion (Articles 25–28)
 Cultural and educational rights (Articles 29–30)
 Right to constitutional remedies (Article 32)
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 o Originally the constitution also included Right to property (Article
31). However, it was deleted from the list of Fundamental Rights by
the 44th Amendment Act, 1978.

 It is made a legal right under Article 300-A in Part XII of the

Constitution.
 Provision for Laws Violating Fundamental Rights: Article 13 of the Indian
constitution declares that all laws that are inconsistent with or in derogation of any of
the fundamental rights shall be void.

o This power has been conferred on the Supreme Court (Article 32) and the
high courts (Article 226).
o Further, the article declares that a constitutional amendment cannot be
challenged (as it is not a law).

 However, the Supreme Court in the Kesavananda Bharati case

(1973) held that a Constitutional amendment can be challenged if it
violates basic structure including Fundamental right.
 Writ Jurisdiction: A writ is a legal order given by a court of law.

o The Supreme Court (Article 32) and the High courts (Article 226) can issue
the writs of habeas corpus, mandamus, prohibition, certiorari and quo-
warranto.
Features of the Fundamental Rights:
 Protected by Constitution: Fundamental Rights, unlike ordinary legal rights, are
protected and guaranteed by the constitution of the country.

o Some of the rights are available only to the citizens while others are available
to all persons whether citizens, foreigners or legal persons like corporations or
companies.
 Not Sacrosanct, Permanent, or Absolute: They are not sacrosanct or permanent and
the Parliament can curtail or repeal them but only by a constitutional amendment act.

o The rights are not absolute but qualified.

 The state can impose reasonable restrictions on them, however, the

reasonability of the restrictions is decided by the courts.

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  Rights are Justiciable: The rights are justiciable and allow persons to move the
courts for their enforcement, if and when they are violated.

o Any aggrieved person can directly go to the Supreme Court in case of

violation of any fundamental right.
 Suspension of Rights: The rights can be suspended during the operation of a
National Emergency except the rights guaranteed by Articles 20 and 21.

o Further, the six rights guaranteed by Article 19 can be suspended only when
there is an external emergency war or external aggression) [and not on the
ground of armed rebellion (i.e., internal emergency].
 Restriction of Laws: Their application to the members of armed forces, paramilitary
forces, police forces, intelligence agencies and analogous services can be restricted or
abrogated by the Parliament (Article 33).

o Their application can be restricted while martial law (military rule imposed
under abnormal circumstances) is in force in any area.

Fundamental Rights (available to citizens as well foreigners) Fundamental Rights available to ci

(except enemy aliens)

 Equality before law. Prohibition of discrimination on grou

sex or place of birth

 Protection in respect of conviction for offences. Equality of opportunity in matters of

 Protection of personal life and liberty. Protection of the six fundamental righ
in article 19.

 Right to elementary education. Protection of language, script and cul

 Protection against arrest and detention in certain cases. Right of minorities to establish and ad
institutions

 Prohibition of human trafficking and forced labour. 

 Prohibition of employment of children in factories. 

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  Freedom of conscience and free profession, practice and 
propagation of religion.

 Freedom to manage religious affairs. 

 Freedom from payment of taxes for promotion of any 

religion.

 Freedom from attending religious instruction or worship

in certain educational institutions.

Article 12: "the State" includes the Government and Parliament of India and the Government
and the Legislature of each of the States and all local or other authorities within the territory
of India or under the control of the Government of India.
Authority means
( i ) Power to make rules, bye- laws, regulations, notifications and statutory orders.
( ii ) Power to enforce them.
Local Authority means Municipal Boards, Panchayats, Body of Port Commissioners and
others legally entitled to or entrusted by the government, municipal or local fund.
( d ) Other Authorities
Authorities other than local authorities working
( i ) Within the territory of India or;
( ii ) Outside the territory of India.

In Rajasthan State Electricity Board v/s Mohan Lal it was held that to be State, it is not
necessary that the authority must be performing governmental or sovereign functions. It
should-
( i ) Be created by the Constitution of India;
(ii ) Have power to make laws;
( d ) Performance of functions very close to governmental or sovereign functions

In Sukhdev v/s Bhagatram , LIC , ONGC ANDIFC were held to be State as performing
very close to governmental or sovereign functions. The Corporations are State when they
enjoy
( i ) Power to make regulations;
( ii ) Regulations have force of law.
( e ) Clearance of five tests
In R.D. Shetty v/s International Airport Authority, the Court laid down five tests to be an
other authority-

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3 judge bench
( i ) financial assistance of the govt. and its magnitude.
( ii ) control of management & policies of the body by the govt. ( its nature & extent)
( iii ) whether a body is a statutory body?

( iv ) the functions carried out by the body are :

 Public functions, closely related to govt. functions

( v ) whether the body enjoys state comfort monopoly.

In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a juristic
person is State is not how it has been brought but why it has been brought.
The court took an expansive view of article 12 the concept of instrumentality or agency of
govt. is not limited to a corporate created by a statue. It applies to corporative society also.
The structure or manner of creations of the body is not important. There are other factors
which must also be taken into consideration, non- statutory bodies can also be state if they
pass the five factor test.

In Union of India v/s R.C.Jain, to be a local authority, an authority must fulfill the following
tests-
( i ) Separate legal existence.
( ii ) Function in a defined area.
( iii ) Has power to raise funds.
( iv ) Enjoys autonomy.
( v ) Entrusted by a statute with functions which are usually entrusted to municipalities.
In Rati Lal v/s State of Bombay, it was held that judiciary is not State for the purpose of
Article 12.
In A.R. Antulay v/s R.S. Nayak and N.S. Mirajkar v/s State of Maharashtra , it has been
observed that when rule making power of judiciary is concerned it is State but when exercise
of judicial power is concerned it is not State.
In Zee telefilms v. UOI , it was said that BCCI is not a state.
Article 13:
Article 13 (1) discusses the laws which were made before the commencement of the
Constitution (26 January 1950) and Article 13 (2) delves about the laws which are made after
the Constitution is in place.

Article 13 (1) states that all the laws which are made before the Constitution will be void as
long as they are violating the provisions of the Fundamental Rights. It further states that only
that part of the law which will be void which is against the provisions of the constitution and
not the whole law itself. This guarantee is against the existing laws and future laws and not to
the laws which are made before the commencement of the constitution.

17
Article 13(2) states that all the laws which are made after the commencement of the
Constitution are void to the extent of the infringement of the Fundamental Rights given in
part 3 of the Constitution.
Judicial review and fundamental rights
Judicial review is the power of the judiciary to review an executive decision as well as
parliamentary law and to declare it as invalid if it is not in accordance with the provisions of
constitution of the law.
The concept of judicial review evolved in the US Marbury v. Madison case of 1803.
The ‘Doctrine of Eclipse’ asserts that all the Pre-Constitutional laws which are against the
fundamental rights of the Indian Constitution will become dormant and not dead. They will
remain dormant as long as the state does not amend the law and its infringing nature. So this
doctrine applies to only Article 13(1) of the Indian Constitution.

In Keshavan Madhvan Menon v. State of Bombay, the court said that the law which is
infringing the rights of the citizens after the commencement of the constitution is ‘void ab
initio’ for the citizens of the country but it will remain enforceable for the non-citizens and
companies. The doctrine of Eclipse makes the law unenforceable but it doesn’t make the law
void ab initio.

The ‘doctrine of Waiver’ means that a person who is receiving a right or a privilege can
waive that right according to his will. Once the right is waived by the individual then they
cannot claim it back. In Behram v. State of Bombay, it was decided by the court that the
rights which are given in part 3 of the constitution cannot be waived by an individual.

The ‘Doctrine of Separability’ means that if a part of a law is against the provisions of the
constitution then only that offending part will be declared as void and not the whole statute.
This doctrine is applied in both Article 13 (1) and Article 13 (2) of the Indian Constitution.
In R.M.D.C. v. Union of India, AIR 1957, Supreme Court has given some rules relating to
this doctrine:

“1. It is important to understand the intention of the legislature before using this doctrine.

2. When separation of invalid part of the statute is very difficult then the whole law will be
held as invalid.

3. If after deleting the invalid part, the valid part has no value left to it then the whole act will
be rejected in its entirety.”
Shankari Prasad v. Union of India AIR 1951
In that case, the Supreme Court held that the word law under Article 13(2) doesn’t include a
constitutional amendment.

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In the case of Golak Nath v. State of Punjab, AIR 1967, the Supreme Court overruled the
Shankari Prasad verdict and stated that the word ‘Law’ in Article 13(2) includes the
constitutional amendments. If any constitutional amendment is infringing the Fundamental
rights then that amendment will be void.

To nullify the Golak Nath decision the Parliament passed the 24th Amendment Act, 1971,
wherein parliament added Clause 4 in Article 13 which stated that nothing in Article 13 shall
apply to any amendment of this Constitution made under Article 368.

Later in the case of the Kesavananda Bharati v. the State of Kerala, AIR 1973, the
constitutionality of the 24th Amendment was held valid. So the present position of the word
“Law” is that a Constitutional Amendment does not include the word. This gives the
Parliament the power to amend the provisions of the Fundamental rights as long as they align
with the basic structure doctrine of the Indian Constitution.

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.
Article 14 rejects any type of discrimination based on caste, race, and religion, place of birth
or sex. This Article is having a wide ambit and applicability to safeguard the rights of people
residing in India.

This article is divided into two parts:

Equality before the Law: This part of the article indicates that all are to be treated equally in
the eyes of the law. This is a negative concept as it implies the absence of any privilege in
favor of any person. This is a substantive part of the article.

Equal protection of the Laws: This part means that the same law will be applied to all the
people equally across the society. This is a positive concept as it expects a positive action
from the state. This is a procedural part of article 14.
“The dissent of Justice Subba Rao in the State of U.P. v. Deoman Upadhyaya 1960stated that
Article 14 comprises both “positive content” as well as “negative content”. Whereas, equality
before the law is a negative content, equal protection of the laws exhibits a positive content of
Article 14.
Maneka Gandhi v. Union of India, 1978
The petitioner (Maneka Gandhi) was a journalist whose passport was issued on June 1, 1976,
under the Passports Act, 1967. Later on July 2nd, 1977, the Regional Passport Officer, New
Delhi, ordered the petitioner to surrender her passport by a letter posted. On being asked
about the reasons for her passport confiscation, the Ministry of External Affairs declined to
produce any reasons “in the interest of the general public.”
Therefore, the petitioner had filed a writ petition under Article 32 of the Constitution of India
stating the size of her passport as a violation of her fundamental rights, specifically Article 14

19
(Right to Equality), Article 19 (Right to Freedom of Speech and Expression) and Article 21
(Right to Life and Liberty) guaranteed by the Constitution of India.
The respondent countered stating that the petitioner was required to be present in connection
with the proceedings that were going on, before an inquiry comission.
Issues Concerning Court
o Are the requirements of Articles 21, 14, and 19 related to one another or mutually
exclusive?
o Should the law-enforced method, which in this case, was the Passport Act of 1967, be
tested for reasonableness?
o Is it true that Article 21 includes the right to go outside the country?
o Is it fair to pass legislation that revokes the right to life?
Maneka Gandhi Case Judgement by Court
o The court changed the way we see the Constitution by stating that Article 21 cannot
allow arbitrary or irrational processes, even though it mentions "process established
by law."
o The writers of the Constitution always intended the process to be fair, reasonable, and
fair to everyone.
o The court overruled the Gopalan case and said that Articles 19, 14, and 21 are
connected, and any law must meet the standards set by these articles.
o The court decided that "personal liberty" should be understood broadly and liberally,
not a narrow and strict one.
o Article 21 includes the right to travel internationally, as seen in the Satwant Singh
case. The court stated that Sections 10(3)(c) and 10(5) are administrative orders that
can be challenged for being unreasonable, contemptuous, denying natural justice, and
going beyond their authority.
Natural Justice as a part of Article 14: From the case of A.K. Kraipak v. Union of India, It
is evident that Natural Justice (natural justice is technical terminology for the rule against bias
and the right to a fair hearing (audi alteram partem) is an integral part of Article 14. The
court held that “the Principle of Natural Justice helps in the prevention of miscarriage of
Justice, These Principles also check the arbitrary power of the State.”
Further expansion of Article 14 was done in the case of Visakha v State of Rajasthan, 1997

“The judgment sought to enforce the fundamental rights of working women under Articles
14, 19 and 21 of the Constitution of India. Sexual Harassment violates the fundamental right
of the women of gender equality which is codified under Article 14 of Indian Constitution
and also the fundamental right to life and to live a dignified life. The Court held that even
though there is no express provision for sexual harassment at workplace under Indian
Constitution, it is implicit through these fundamental rights.”

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Expansion of Article 14 in terms of defining Gender: In the case of National Legal Service
Authority [NALSA] v UOI, 2014.

“This case was filed by the National Legal Services Authority of India (NALSA) to legally
recognize persons who fall outside the male/female gender binary, including persons who
identify as “third gender”. While drawing attention to the fact that transgender persons were
subject to “extreme discrimination in all spheres of society”, the Court held that the right to
equality (Article 14 of the Constitution) was framed in gender-neutral terms (“all persons”).
Consequently, the right to equality would extend to transgender persons also.”

Further in Shayara Bano v UOI, 2016 “the 5 Judge Bench of the Supreme Court pronounced
its decision in the Triple Talaq Case, declaring that the practice of instantaneous triple talaq
[Talaq-ul-biddat] was unconstitutional. The Bench observed that the fundamental right to
equality guaranteed under Article 14 of the Constitution, manifested within its fold, equality
of status. Gender equality, gender equity and gender justice are values intrinsically entwined
in the guarantee of equality, under Article 14.”
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
Article 15 protects the citizens against various forms of discrimination based on religion and gender.
The Constitution of India guarantees various rights to its citizens, including no discrimination on
account of religion, race, caste, or place of birth. Article 15 restricts discrimination on the ground of:

Religion – It means that no person should be discriminated against on the basis of religion from
accessing any public place or policy by the state or any group.

Race – Ethnic origin should not form a basis of discrimination. For example, a citizen of Afghan
origin should not be discriminated against those of an Indian origin.

Caste – Discrimination on the basis of caste is also prohibited to prevent atrocities on the lower castes
by the upper caste.

Sex – Gender of an individual shall not be a valid ground for discrimination in any matter.

Place of birth – A place where an individual is born should not become a reason for discriminating
among other members of the country.
Clause 1 of the Article prohibits the State from discriminating against citizens on five protected
grounds only. This means that if the discrimination is only on the basis of these 5 points then it will be
void.

One of the important points to remember under this clause is that the prohibition is against the state
and not against any private individuals. This clause is used to give horizontal reservations like
reservations for visually impaired people. The Supreme Court in D.P. Joshi v. State of Madhya
Pradesh, AIR 1955 has made it clear that the place of birth and place of residence are two different
things and States are allowed to differentiate on the basis of place of residence. In this case, the
residents of the State were allowed exemption from paying the capitation fee. But the non-residents
were asked to pay a capitation fee for admission in the medical college. This was held valid by the
Supreme Court.

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Clause 2 discussed Access to Public Places. This clause gives access to shops, public restaurants,
hotels and places of public entertainment to all. This clause also makes wells, tanks, bathing Ghats,
roads and places of public resort accessible for every citizen. This clause is applied not only to the
state but also against the individuals. It is illegal and unjust to restrict or prevent access to a public
place established by the state exclusively for public use.

Clause 3 discusses Special Provision for Women and Children. This clause is an exception to clause 1
and 2. This clause provides special preference to Women and Children as a matter of positive
discrimination. It entails that nothing in this Article can stop the state from giving special preference
to the Women and Children. In Revathi v. Union of India, AIR 1998 case, the court held that the word
‘for’ which is given under this clause means that states can give special preference to Women and
Children in legislation. Clause 4 discusses Special Provisions for Backward Classes. This is the
second exception of clause 1 and 2 of Article 15. This clause was not part of the original Constitution
and was included through the 1st Constitutional Amendment. This clause makes special provision for
the advancement of any socially and educationally backward classes of citizens (SEBCs), Schedule
Caste (SC) and Schedule Tribes (STs).

In Balaji v. State of Mysore, AIR 1963, the government of Mysore set up a reservation of 68% of the
total seats in Engineering and Medical colleges. These seats were reserved in the favor of SEBCs, STs
and SCs. The court held that this legislation breached the limit of reservation which should not be
more than 50% of the total seats. The court also stated that the backwardness must be both Social and
Economical. It can’t be either social or economical alone.

Clause 5 discusses Reservation in Educational institutions. This is the 3rd Exception of Article 15.
This exception was added by the 93rd Constitutional Amendment. This clause was added as a result of
a Judgment of PA Inamdar and Ors. V. State of Maharashtra and Ors. In this judgment the court held
that different states cannot impose its reservation policy on minority and non-minority unaided private
colleges, including professional colleges. The validity of this act and 93rd Constitutional Amendment
was challenged in Ashok Kumar Thakur v. Union of India (2008)

Clause 6 lays down the Special Provisions for EWS category. This provision was added by the 103rd
Constitutional amendment Act, 2019. This is the latest exception that provides for special provisions
for the Economic Weaker Section (EWS).
On November 7, 2022, a five-judge bench of the Supreme Court of India, in the case of Janhit
Abhiyan v. Union of India, ruled that the 103rd Amendment does not violate the fundamental
structure of the Constitution.

Article 16: Equality of opportunity in matters of public employment

Kalekar Commission (1953) - president appointed the first backward classes commission
popularly known as (kaka kalekar commission) under article 340(1) of the constitution, which inter
alia, had the mandate of identifying methods of improving the condition of socially and educationally
backward classes.

Mandal Commission (1979)- the second backward classes commmsion headed by B.P.
Mandal was set up under article 340(1) which was tasked with determining the criteria for
defining the “socially and educationally backward classes” (SEBCs). Subsequently it
recommended a 27% reservation for SEBCs in addition to the previously existing 22.5%
reservation for SC/STs.
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  Prime minister V.P. Singh issued office of memorandum on AUGUST 13, 1990 and reserved
27% seats for socially and backward classes as OBC reservation

Article 16 discusses equality in opportunity of employment for all the citizens. There are 6
Clauses under this article. Starting clause 1 and 2 talks about equality of Opportunity and
clause 3 to 6 are the exceptions of clause 1 and 2.

Clause 1 states that there shall be equal opportunity for the citizens in the matter of
employment or appointment to any office under the State. This clause does not provide the
right to employment; it only gives the right to equal opportunity in case of any available
vacancy in public employment. This clause also applies to promotions or termination and
other aspects of state employment. This equality is applied only to the people who are
applying for the same employment opportunity or are working in the same post.

Clause 2 states that there will be no discrimination based on religion, race, caste, sex,
descent, place of birth, residence in employment. The state cannot discriminate only on the
basis of the above criterias.

It is stated in clause 3 of Article 16 that nothing in this article shall prevent Parliament from
making any law which prescribes to the citizens who are appointed to any office under the
State in regard to any requirements as to residence within that State or Union territory prior to
employment or appointment to any office under the State.

Article 16(4) of the Indian constitution provides for the reservation of services under the
State in favor of the backward class of citizens. Backward class includes Schedule Castes and
Scheduled Tribes.

In the case of Balaji v. State of Mysore, AIR 1963 the court held that caste cannot be the sole
determining criteria for gauging the backwardness of a community. It can be their Poverty or
the place where they live also. In the case of T. Devadashan v. Union of India, AIR 1964, the
court struck down the carry forward rule for the vacancies of backward classes. The Court
held that, following Balaji, the reserve vacancies in any one year had risen to more than 50%
because they were not constitutional because of the carry-forward clause. The 50% rule only
applies to proper reservations, i.e., backward classes reservations made under Article 16(4).
The law cannot be applied to exemptions, concessions, or reliefs given to retroactive classes
in compliance with Article 16(4).
Indra Sawhney v. Union of India, AIR 1993 (Mandal case):
 The concept of a creamy layer was laid down and it was directed that such a creamy
layer be excluded while identifying backward classes.
 Reservation was capped at 50% and no reservation in promotions were allowed.
 Over ruled T. Devadasan v. UOI (1964) by declaring carry forward rule as
constitutional as long as it does not exceed 50% ceiling.

77th Amendment Act, 1995

16 (4A) was added by which the govt. nullified the effect of Indra Sawhney. Article

23
16 (4A) allowed the state to provide reservations to a SC/ST in matters of promotion,
as long as the state believes that the SC/ST is not adequately represented in the govt.
services.

After reservation in promotion was constitutionally recognised, it led to a situation

where reserved category candidates, who were promoted over general class
counterparts, became their senior due to earlier promomtion.
This anomaly was addressed by two judgements UOI v. Virpal Singh (1995) and
AjitSingh v. state of Punjab (1996), which introduced the concept of a catch- up
rule.

S. Binod Kumar V. UOI (1996)

Held that relaxations in qualifying marks in matters of reservation in promotion was

not permissible under article 16 (4) in view of the command contained in article 335
of the constitution. Article 335 states that reservations are subject to the principle of
administrative efficiency.

Article 335. The claims of the member of the Scheduled Castes and the Scheduled
Tribes shall be taken into consideration, consistently, with the maintenance of
efficiency of administration in the making of appointments to services and posts in
connection with the affairs of the Union or of a State.

Provided that nothing in this article shall prevent in making of any provision in
favour of the members of the Scheduled Castes and the Scheduled Tribes for
relaxation in qualifying marks in any examination or lowering the standards of
evaluation, for reservation in matters of promotion to any class or classes of services
or posts in connection with the affairs of the Union or of a State.

81st Amendment Act, 2000

The govt. introduced article 16(4B), which allowed reservation in promotion to

breach the 50% ceiling set on regular reservations. The amendment allowed the state
to carry forward unfilled vacancies from previous year ( carry forward rule ).

82nd amendment 2000 – The state added a proviso to article 335.

85th amendment ( 2001) – In the 85th amendment, parliament amended article 16

(4A) and introduced the principle of consequential seniority to promoted SC/ ST
Candidate and negated to catch up rule.

M. Nagaraj v. Union of India

In Nagraj, the petitioners challenged the 77th , 81st, 82nd , and 85th amendments before
the supreme court.

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  The five judge bench upheld the constitutional validity of reservation in promotion to
SC/STs. It upheld the consequential seniority rule under article 16 (4A), the carry
forward rule under article 16 (4B) and the proviso to article 335.
 However the court noted that article 16 (4 A) and 16 (4B) are enabling provisions and
there is no automatic right to reservation in promotion for SC/STs.
The court held that for reservation in promotion to be valid, the state has to meet three
compelling requirements:
1. Demonstrate the backwardness of SC/ST
2. Prove that the SC/ST is inadequately represented in relevant public employment.
3. Maintain the overall efficiency of administration.
After Nagraj,
Following Nagraj which introduced the three controlling conditions, various high courts and
the supreme court struck down statues and rules extending reservation in promotion policies.
The various courts ruled that the state had failed to furnish enough data to meet the
controlling conditions. In particular the courts, criticised the state for failing to demonstrate
backwardness and insufficient representation.
Article 17: Abolition of untouchability
The Indian Constitution, specifically Article 17, has abolished the practice of untouchability in all its
forms. This article explicitly declares the prohibition of untouchability. Furthermore, the
Untouchability Offences Act of 1955 (renamed as the Protection of Civil Rights Act in 1976) considers
the practice of untouchability as a criminal offense, and individuals engaging in such practices are
subject to legal punishment. According to this Act, anything accessible to the general public should
be equally accessible to all Indian citizens. Article 17 is a very important part of the Right to Equality.
It not only provides equality but also social justice. Also the Schedule Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 led to the establishment of special courts to decide the cases
related to the commission of offenses under this act. Section 18 of this Act makes the commission of
offenses under this Act a non-bailable offense.

In Jai Singh v. Union of India Rajasthan High Court and in Devrajiah v. B. Padmana of Madras
High Court, the court defined the word untouchability. The court said that ‘The subject matter of
Article 17 is not untouchable in its literal or grammatical sense but the ‘practice as it had developed
historically in the country’. It refers to the social disabilities imposed on certain classes of persons
because of their birth in certain castes. Hence, it does not cover the social boycott of a few
individuals or their exclusion from religious services, etc.

In the case of People’s Union for Democratic Rights v. Union of India, AIR 1982 the Supreme
Court held that when the rights under Article 17 are violated by any private individual then it will be
the responsibility of the state to take action immediately.

Merely because the aggrieved person could themself protect or enforce their invaded fundamental
rights, did not absolve the State from its constitutional obligations.

In State of Karnataka v. Appa Balu Ingale, the Supreme Court expressing its concern on the
continuance of the practice of untouchability, held that it was an indirect form of slavery is only

25
extension of the caste system. In this case, the accusation against the respondents was that they had
forcibly restrained the complainant from taking water from a newly dug-up borewell because they
were untouchable.

Article 18: Abolition of titles

Article 18(1) of the Indian Constitution abolishes all titles and prohibits the state from conferring
titles on any individual, whether they are a citizen or a non-citizen. However, military and academic
distinctions are exceptions to this prohibition. This means that universities, for instance, can grant
titles or honors to individuals based on their merit. Article 18(2) specifically prohibits Indian citizens
from accepting titles from foreign states. Article 18(3) states that non-citizens holding positions of
profit or trust under the Indian State require the President's consent to accept titles from foreign
states. Additionally, Article 18(4) stipulates that no person, whether a citizen or a non-citizen, holding
a position of profit or trust, can accept any gifts, salary, or office from a foreign state without the
President's consent. Clauses (3) and (4) aim to ensure the loyalty of non-citizens towards the Indian
State and prevent any breach of trust.

A "title" refers to an attachment to one's name, such as a prefix or suffix (e.g., Sir, Nawab, Maharaja).
In a democracy, the creation of titles and titular glories is discouraged as it goes against the principles
of social equality.

However, it is argued that titles like "Bharat Ratna," "Padma Vibhushan," and "Padma Shri"
(introduced in 1954) are not prohibited under Article 18 because they signify state recognition of
exceptional work by citizens in various fields. It is important to note that Article 18 does not confer
any fundamental right but rather imposes restrictions on executive and legislative powers. The
conferral of titles is seen as contrary to the fundamental principle of equality guaranteed by Article
14, which ensures equal treatment of all citizens.

In Balaji Raghavan vs UOI, the Supreme Court upheld the validity of civilian honors but criticized the
government for not exercising restraint in awarding these. It held that the national awards were not
meant to be used as titles and those who have done so should forfeit the award.

In the case of Indira Jaising v. Supreme Court of India (2017), a complaint was lodged in this matter
questioning the usage of the term ‘senior advocate’ before the names of the advocates. The
Supreme Court ruled that this is not the title, but rather a demarcation, and therefore does not
violate Article 18 of the Indian Constitution.

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

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

2. Freedom to assemble peacefully and without arms (Article 19(1)(b));

3. Freedom to form associations, unions or co-operative societies (Article 19(1)(c));

4. Freedom to move freely throughout the territory of India (Article 19(1)(d));

5. Freedom to reside and settle in any part of the territory of India (Article 19(1)(e)), and

6. Freedom to practise any profession, or to carry on any occupation, trade or business (Article
19(1)(g)).

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Freedom of speech and expression – 19 (1) (a)
Reasonable restrictions – 19 (2)

All citizens shall have the right to freedom and expression

Grounds for reasonable restrictions –

1. Interests of sovereignty and integrity of India. ( added by 16th amendment, 1963 )

2. Security of the state
3. Friendly relations with foreign states (added by 1st amendment, 1951 )
4. Public order (added by 1st amendment, 1951 )
5. Decency or morality
6. Contempt of court
7. Defamation
8. Incitement to an offense

Freedom of speech does not include freedom of silence

Bijoe Emanuel v. state of Kerela National Anthem case (1986)

Freedom of the press under freedom of speech and expression

Brij Bhusan and Anr v. State of Delhi (1950)

Romesh Thappar v. state of madras (1950)

Sakal papers v. UOI (1961)

R. Rajgopal v. State of Tamil Nadu (Auto shankar case ) (1994)

Commercial advertisement part of freedom of speech

Hamdard dawakhana v. union of India (1960)

Tata press v. MTNL ( 1995)

Freedom of assembly – 19 (1) (b)

Reasonable restrictions – 19 (3)

Ground of reasonable restriction

1. Public oreder
2. Maintenance of sovereignty and integrity of India.

The assembly under 19 (1) (b) should be peaceful and without arms. Section 141 of IPC defines what
an unlawful assembly is.

Freedom of association – 19 (1) (c)

Reasonable restriction – 19 (4)

Grounds of reasonable restrictions –

1. Interests of the sovereignty and integrity of India

2. Public order
3. Morality

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19 (1) (c) guarantees freedom to form associations and co-operative societies

 The right to form association also includes right to not to be part of an association.
 The part with co- operative societies was added by the 97th amendment together with PART
IX B of constitution that talks about co- operative societies.

Freedom of movement and residence – 19 (1) (d) & (e)

Reasonable restrictions – 19(5)

Grounds of reasonable restrictions –

1. Interests of the general public

2. For the protection of the interests of any schedule tribe

Freedom to own property – Article 300 A

44th amendment, 1988 – 19 (1) (f) and article 31 ( right to property ) removed from constitution and
Article 300 A – Right To Property added

Article 20:

Article 20 of the Indian Constitution safeguards certain rights in criminal proceedings. It provides
protection against self-incrimination, double jeopardy, and retrospective punishment.

Article 20(1) prohibits the imposition of retrospective punishment. It states that no person shall be
punished for an act that was not an offense at the time it was committed. This provision ensures that
individuals cannot be held accountable for actions that were legal when they occurred but were later
made illegal by subsequent legislation.

In the landmark judgment, Kedar Nath v. State of West Bengal the Supreme Court held that when an
act is declared a criminal offense by the legislature and provides penalties for it, such declaration is
always prospective and cannot be applied retrospectively as per the provisions of Article 20(1)

However, it is important to note that this clause prohibits only the procedure of sentencing and
convicting, not the trial itself. Therefore, a person accused under a particular procedure cannot claim
protection under this clause or the doctrine of ex post facto law.

In the case of Mohan Lal v. State of Rajasthan involving the Narcotics, Drugs, and Psychotropic
Substances Act, the court opined that Article 20 prohibits only conviction and punishment under an
ex post facto law, not the trial or prosecution itself. Furthermore, a trial conducted under a different
procedure from the one existing at the time of the offense does not fall within the scope of this
provision and cannot be deemed unconstitutional.

In another significant judgment, Maru Ram Etc. v. Union Of India & Anr (1980 AIR 2147), the Court
observed that Article 20(1) also encompasses the principle that penalties for an offense should not be
retrospectively increased beyond what existed at the time of the offense.

However, there is an exception to the restriction imposed by this provision. In the case of Rattan Lal v.
The State of Punjab, the Supreme Court allowed for retrospective application of criminal laws in
situations where the issue at hand concerns the reduction of punishment for the said offense.

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Article 20(2) prohibits a person from being prosecuted and punished for the same offense more than
once. This principle of double jeopardy prevents individuals from being subjected to multiple trials or
punishments for the same offense. Once a person has been acquitted or convicted and punished for
a particular offense, they cannot be tried or punished again for the same offense.

There is a maxim upon which article 20 (2) is based. The maxim is ”nemo debet vis vesari pro una et
eodem causa”. It means no person shall be vexed twice for the same offense.

Its related provision is section 300 CrPc.

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

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

However, the prosecution may happen if the facts are distinct in subsequent proceedings. Same was
established by the Supreme Court of India in case of A.A. Mulla v. State of Maharashtra and was
observed that; Article 20 (2) would not be attracted in those cases where the facts are distinct in
subsequent offence or punishment.

Article 20(3) ensures that no person accused of an offense shall be compelled to be a witness against
themselves. This means that an individual cannot be forced to provide evidence or testimony that
may incriminate themselves. It is a fundamental right that protects individuals from being compelled
to be witnesses in their own criminal prosecution.

There is a latin maxim nemo tenetur prodere accusare scipsum which means “no man is bound to
accuse himself”.

Prohibition against self-incrimination could only be put into effect if the person is accused of a
criminal offence. This doctrine could not be invoked for cases other than criminal cases. Also, as held
by the Hon’ble Supreme Court in Raja Narayanlal Bansilal vs Maneck Phiroz Mistry, to claim the
immunity from being self-incriminated, there must exist a formal accusation against the person and
mere general inquiry and investigation don’t form grounds for the same.

These safeguards provided under Article 20 are essential components of a fair and just legal system.
They uphold the principles of fairness, protection against self-incrimination, and the prevention of
arbitrary or excessive punishment. It's important to note that these protections are applicable in
criminal proceedings and serve as a shield against certain violations of individual rights. However,
reasonable restrictions and limitations can be imposed in the interests of public order, security of the
State, or the proper administration of justice.

Nandani Satpathy v. P.L Dani 1977 SC – Protection under article 20 (3) is available from the stage of
police interrogation.

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Yusuf Ali v. state of Maharashtra – Tape recorded statement without his knowledge but without
force or oppression was held to be admissible in evidence.

M.P. Sharma v. Satish Chandra 1954 SC – ‘TO BE A WITNESS’ – oral , documentary or testimonial
evidence .
compulsory taking of finger impressions, or specimen signatures or handwriting would be hit by
article 20 (3).

STATE OF BOMBAY V. KATHI KALU 1961 SC – not only oral or written statements but it will be
including production of documents, blood samples, finger impressions or giving material relevant at
trial to determine the guilt.

SELVI V. STATE OF KARNATAKA 2010 SC – consent in ie detector ( Narco, polygraph, brain mapping
P300 wave test ) is mandatory and if consent is not given it is violative of article 20 (3) , 21, section
161 (2)CRPC.

ARTICLE 21 :

Article 21 asserts that no person shall be deprived of their life except according to the procedure
established by law. This means that every individual has the right to live, and their life cannot be
taken away except in accordance with the prescribed legal procedures. The right to life encompasses
various aspects, including the right to live with dignity, the right to livelihood, and the right to a
healthy environment. Article 21 also protects the personal liberty of individuals. It states that no
person shall be deprived of their personal liberty except according to the procedure established by
law. Personal liberty includes the freedom to move freely, the freedom to choose one's place of
residence, and the freedom to engage in any lawful occupation or profession.

In the landmark judgment, A.K. Gopalan v. The State of Madras, the Supreme Court held that
personal liberty means the “liberty of the body” which is freedom from arrest and detention from
false detention. The Supreme Court added that the meaning of the word ‘law’ means state made law
only. So clearly this was a narrow interpretation of the word Personal freedom and Law. But in later
cases, this view was redressed by the Judiciary. In the case of R.C. Cooper v. Union of India (1970) the
court held that the word personal liberty would not only include Article 21 but also includes the 6
Fundamental Freedoms given under Article 19 (1).

In the case of Kharak Singh v. State of Uttar Pradesh, AIR 1963, the court adopted a wider meaning of
personal liberty and said that it will include all the rights which are given under Article 19(1).

In the landmark judgment Maneka Gandhi v. Union of India (1978), Supreme Court held that the
right to life and personal liberty under Article 21 is not limited to mere animal existence but includes
the right to live with dignity. The court emphasized that the procedure established by law must be
fair, just, and reasonable, and it cannot be arbitrary, oppressive, or unreasonable.

In Olga Tellis v. Bombay Municipal Corporation (1985), the court recognized the right to livelihood as
an integral part of the right to life under Article 21. It held that the eviction of pavement dwellers
without providing alternative arrangements would violate their right to life and personal liberty.

In the landmark judgment, Vishaka v. State of Rajasthan (1997), the supreme court addressed the
issue of sexual harassment at the workplace. The court held that the right to a safe and secure
working environment is a fundamental right flowing from Article 21. It laid down guidelines to
prevent and redress sexual harassment at workplaces until appropriate legislation was enacted.

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In, National Legal Services Authority v. Union of India and Ors (2014), The National Legal Services
Authority filed a PIL to protect the interests of transgendered persons. The court held that the
Gender of a person is to be decided by the person themself after looking into the Right to Life Article.
So all the rights which are given to normal people must be given to transgendered people like Public
toilets, medical care for transgendered persons and the provisions of reservations under Article 15
and 16 must be extended to them as they classify as a minority section.

In the case, Animal Welfare Board v. A. Nagaraja (2014), rights which are given to animals were up for
contention (especially bulls used in Jallikattu festival). In this case, the Animal Welfare Board of India
(AWBI) brought the attention of the court towards the cruelty and inhuman behavior which is faced
by the animals which are used in the Jallikattu festival.

The court held that they have a duty under the doctrine of ‘parens patriae’ to take care of the rights
of animals. Article 51A (g) of the Constitution also gives the principle of compassion towards living
beings and animals. So under this case, the Supreme Court ruled that Jallikattu is constitutionally
void.

In another landmark judgment, K.S. Puttaswamy v. Union of India (2017) (privacy judgment) the
Supreme Court recognized the right to privacy as a fundamental right protected under Article 21. The
court held that privacy is an essential aspect of personal liberty and dignity and is intrinsic to the
entire constitutional scheme.

In Common Cause v. Union of India (2018), the court legalized passive euthanasia and recognized the
right to die with dignity as a fundamental right under Article 21. The court held that individuals have
the right to refuse medical treatment or life support and can make an advance directive specifying
their wishes in case of terminal illness.

Article 21 also prohibits arbitrary or unlawful detention. It ensures that no person can be detained
without proper legal justification or without following the due process of law. It safeguards against
arbitrary arrests and protects individuals from being unlawfully deprived of their freedom. It also
encompasses the right to a fair trial. It guarantees that every person accused of an offense shall have
the right to a fair and impartial trial, including the right to legal representation, the right to be heard,
and the right to present evidence in their defense.

RIGHT TO LIVELIHOOD : in Olga Tellis v. Bombay municipal corporation, air 1986 supreme court held
that right to life include right to livelihood also.

RIGHT TO SHELTER : in Chameli Singh v. state of U.P., (1996) right to shelter is a fundamental right
under article 21.

REPRODUCTIVE CHOICES: In Suchitra Srivastava v. Chandigarh administration, air 2010 SC right to

make reproductive choices ( decision to produce child or not ) is included in article 21.

Article 21 A of the Indian Constitution guarantees the right to education as a fundamental right for
children between the ages of 6 and 14 years. It was introduced by the 86th Amendment Act of 2002
with the aim of providing free and compulsory education to all children in the specified age group.
The amendment makes it the duty of the State to ensure that every child within the specified age
group receives compulsory education. It prohibits discrimination and ensures equal opportunities for
education. Article 21 A guarantees that education provided by the State to children in the specified

31
age group should be free of charge. It aims to remove financial barriers that could hinder access to
education. The responsibility for implementing the provisions of Article 21A lies with the respective
state governments. They are tasked with ensuring that adequate infrastructure, facilities, and
qualified teachers are available to provide quality education to all children.

To give effect to the provisions of Article 21 A, the Right to Education (RTE) Act was enacted in 2009.
The RTE Act further elaborates on the specifics of free and compulsory education, including the
responsibilities of the government, admission processes, curriculum, and standards for schools, and
mechanisms for monitoring and enforcing the right to education

ARTICLE 22 : of the Indian Constitution provides certain safeguards regarding arrests and
detentions. It aims to protect the rights and liberties of individuals who are arrested or detained by
the authorities.

It applies to both citizens and non-citizens.

Protection against Arrest and Detention - Article 22 safeguards individuals against arbitrary arrest
and detention. It ensures that no person can be arrested or detained without being informed of the
grounds for such arrest or detention.

In the case of Joginder Kumar v. State of U.P. it was held that a detained person should know the
cause of his detention and is entitled to let any third person know the location of his detention.

The Supreme Court in Hussainara Khatoon v. State Of Bihar has held that the right to a speedy trial
is a constitutional right.

Right to be Presented before Magistrate - Article 22 guarantees that an arrested person must be
produced before the nearest magistrate within 24 hours of their arrest. This provision aims to
prevent unlawful and prolonged detention without proper judicial oversight.

This clause also finds support in Section 56 of CrPc and Section 167 of CrPc.

Right to Consult a Legal Practitioner - Article 22 grants the right to an arrested person to consult and
be defended by a legal practitioner of their choice. This right helps ensure that individuals have
proper legal representation during the process of arrest and detention.

In the case of State of West Bengal v. Anwar Ali Sarkar, the Supreme Court held that the right to
legal representation was a fundamental right and that the state was obligated to provide legal aid to
a person who could not afford it. This decision was significant in ensuring that the right to legal
representation was available to all, regardless of their financial means.

Communication of Grounds for Arrest - An arrested person must be informed of the grounds for
their arrest and detention. They have the right to know the reasons behind their arrest, enabling
them to effectively exercise their legal rights.

Preventive Detention – The detention without trial and conviction by a court. Article 22 also
addresses the issue of preventive detention, which allows the authorities to detain individuals for
preventive reasons, such as the maintenance of public order or national security. It imposes certain
additional safeguards, such as the requirement for the grounds of detention to be communicated

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and the provision for a review by an advisory board.

It's important to note that Article 22 provides certain exceptions during times of emergency, such as
during a proclamation of Emergency by the President of India. In such circumstances, certain
restrictions on the rights and safeguards under Article 22 may be imposed.

In the case, D.K. Basu v. State of West Bengal (1997), A Public Interest Litigation was filed by Dr Dilip
Kumar Basu related to a case of Custodial violence. The Supreme Court laid down strict guidelines
related to custodial violence and deaths. These guidelines are to be followed in all cases of arrest and
detention until legal provisions are made for the safeguard of a person in custody.

Article 23: of the Indian Constitution addresses the prohibition of trafficking in human beings and
forced labor. Article 23 prohibits trafficking in human beings, including trafficking for the purpose of
forced labor, slavery, or exploitation. It recognizes the inherent dignity and rights of individuals,
ensuring protection against such practices. It also prohibits forced labor or any form of compulsory
labor. It ensures that no person can be compelled to work against their will or under exploitative
conditions.

The prohibition on forced labor does not apply to work required as a part of a compulsory service for
public purposes, such as military service, or in cases of emergency or calamity threatening the life or
well-being of the community.

Article 23 emphasizes the importance of protecting individual freedom and dignity, ensuring that no
person is subjected to exploitation or degrading conditions of work. It safeguards the right to receive
fair and reasonable remuneration for work done.

The objective of Article 23 is to eradicate practices that exploit and subjugate individuals, particularly
vulnerable sections of society. It upholds the principles of equality, justice, and respect for human
rights.

It's important to note that to address the issues related to trafficking, forced labor, and other forms
of exploitation, the Indian government has enacted specific laws such as the Immoral Traffic
(Prevention) Act, Bonded Labor System (Abolition) Act, and other relevant legislation to provide legal
frameworks and mechanisms for preventing and combating such offenses.

In, Sanjit Roy v. The State of Rajasthan, AIR 1983, court held that payment of wages which is lower
than the minimum wage to a person who is working in famine relief work is against the provisions of
Article 23. The State cannot take advantage of the situation of the person who is engaged in famine
relief work.

In, Deena v. Union of India, AIR 1983, the court held that the labor which is taken from prisoners
without paying them proper remuneration of their work is against the provisions of Article 23. They
are entitled to reasonable wages according to their work.

In, Vishal Jeet v. Union of India (1990), the Supreme Court emphasized that the right to receive
timely and fair wages is an essential component of the prohibition on forced labor under Article 23.
The court held that delayed payment or non-payment of wages could be considered as forced labor,
violating the constitutional rights of workers.

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Budhadev Karmaskar v. State of West Bengal, the Court directed for the rehabilitation of the sex
workers. The Supreme Court also directed to form the Sex workers rehabilitation panel and directed
the State and Central Government to provide funds for the working of this panel.

ARTICLE 24: of the Indian Constitution pertains to the prohibition of child labor. It aims to protect
the rights and welfare of children by prohibiting their employment in certain hazardous occupations
or processes.

Article 24 prohibits the employment of children below the age of 14 years in any factory, mine, or
hazardous occupation. The intention is to prevent exploitation, safeguard the health and
development of children, and ensure their access to education. The article allows for certain
exceptions where child labor may be permitted, such as engaging children in non-hazardous family-
based work, work as part of a school's curriculum, or in any other harmless or innocent occupation.

This article also empowers the government to enact legislation to determine the specific occupations
and processes that are considered hazardous for children. The government has the authority to
impose necessary restrictions and regulations to enforce this provision effectively.

Article 24 is closely linked to Article 21A, which guarantees the right to education for children
between the ages of 6 and 14 years. By prohibiting child labor, Article 24 promotes the realization of
the right to education and ensures that children have the opportunity to develop their potential and
skills through proper schooling.

In this landmark case, M.C. Mehta v. State of Tamil Nadu (1997), the Supreme Court addressed the
issue of child labor in the firecracker industry. The court prohibited the employment of children in
hazardous industries, including the manufacture of firecrackers. It emphasized the importance of
enforcing Article 24 to protect the rights and welfare of children and directed the government to take
necessary measures to eradicate child labor.

In People's Union for Democratic Rights v. Union of India (1982), The Supreme Court dealt with the
issue of child labor in matchbox factories. The court recognized that child labor in hazardous
industries was a violation of their fundamental rights. It held that the prohibition on child labor
under Article 24 must be effectively enforced to ensure the well-being and development of children.

In Bachpan Bachao Andolan v. Union of India (2011), the Supreme Court addressed the issue of child
labor in various industries, including carpet weaving. The court reiterated the importance of
implementing and enforcing the provisions of Article 24 to eradicate child labor and protect the
rights of children. It directed the government to take measures for the rescue, rehabilitation, and
education of children involved in labor.

Article 25 : of the Indian Constitution guarantees the fundamental right to freedom of religion. It
encompasses various aspects related to the freedom to profess, practice, and propagate religion. The
freedom of religion under this article is subject to reasonable restrictions imposed in the interest of
public order, morality, and health. This means that while individuals have the right to practice their
religion, it should not disrupt the harmony of society or infringe upon the well-being of others.

Article 25 distinguishes between religious practices and secular activities associated with religious
institutions. The state has the authority to regulate or restrict secular activities that may be

34
associated with religious practices, such as social reforms, economic activities, and other activities
unrelated to the core aspects of religion. It also includes the right of religious denominations or any
section thereof to manage their own religious affairs, including establishing and maintaining religious
institutions, as long as they do not violate any other laws or public order.

In the case of Vaishno Devi Shrine, Board v. State of Jammu and Kashmir, AIR 1997, In this case, the
validity of Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988 was challenged. This act was
made for better management and governance of the temple. This act was challenged based on a
violation of the Fundamental right of Religion of the petitioner. It abolished the hereditary post of
the priests and gave the power to the state to make the appointment of priests. The Supreme Court
held that the service of a priest is a secular activity and it can be regulated by the state under clause
2 of Article 25.

In the case, Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (1962), the Supreme Court
addressed the issue of religious freedom and held that the freedom to manage religious affairs
includes the right to determine the essential practices of a religious denomination. The court
emphasized that the state should not interfere in matters of religious faith unless such practices are
considered immoral or contrary to public order.

In the case, Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar
of Sri Shirur Mutt (1954), Supreme Court dealt with the power of the state to intervene in the
administration of religious institutions. The Supreme Court held that while the state can regulate and
supervise the administration of religious institutions, it should not interfere with the essential
religious practices and customs of a denomination unless they are deemed to be socially harmful or
against public order.

In the case of Acharya Jadishwaranand Avadhuta v. Commissioner of Police, Calcutta, 1984 (Anand
Marga Case), the Supreme Court held that the Tandava dance which is followed by the community of
Anand Marga is not an essential part of the religion. So an order can be passed for the prohibition of
Tandava dance in public and it will not violate Article 25 and 26 of the Indian Constitution.

In the case of Moulana Mufti Sayeed Mohd. Norrur Rehman Barkariq v. State of West Bengal, AIR
1999, the High Court said that the restriction imposed by the state on the use of Microphones and
loudspeakers at the time of Azaan is not against the Article 25 and 26 of the Indian Constitution.

In the case, Shyam Narayan Chouksey v. Union of India, the Supreme Court dealt with the question of
showing respect to the national anthem. The Supreme Court held that every citizen or persons are
bound to show respect to the National Anthem of India, whenever played or sung on specific
occasions the only exemption is granted to disabled people. It further held that playing of the
national anthem in cinema halls is not mandatory but optional and directory.

In the case, Shayara Bano v. Union of India (Triple Talaq case), a 5 judges bench of the Supreme Court
discussed whether the practice of Talaq-e-biddat (triple talaq) is a matter of faith to the Muslims and
whether it is constituent to their personal law. By a 3:2 majority, the court ruled that the practice of
Talaq-e-biddat is illegal and unconstitutional. The court also held that an injunction would continue
to bar the Muslim male from practicing triple talaq till a legislation is enacted for that purpose.

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Article 26 : provides for the freedom to manage the religious affairs of the citizens and is subject to
Public order, morality and health.

Article 26(a) Right to establish and maintain institutions for religious and charitable purposes.The
right to establish and maintain religious institutions is given to every religious institution. The word
establishes and maintains must be read together. So it is important for a religious institution to first
establish a religious institution and only then the right to maintain an institution is to be given to that
group. It is to be noted that the right to maintain an institution will also include the right to
administer it.

In the case of TMA Pai Foundation v. The State of Karnataka, AIR 2003, the court held that the right
to establish and maintain a religious institution is given to every religion. It can be a majority religion
or even a minority religion.

Article 26(b) Right to manage its own affairs in matters of religion. Every religious institution has the
right to manage its own affairs in the matters of religion. The State has got no right to interfere in
these matters unless it is affecting the public order, morality and health of the citizens.

Article 26(c) details the right to own and acquire movable and immovable property. The state can
regulate the property of a religious denomination by law.

Article 26(d) is on the right to administer such property in accordance with law. The State can
regulate the administration of the property belonging to the religious entity. It is also important to
understand that the state cannot altogether take away the right of the administration from the
religious institution.

In the case of Seshammal v. State of Tamil Nadu, 1972, the hereditary post of Archakas and
Mathadhipatis of Hindu temples in Tamil Nadu challenged the validity of Tamil Nadu Religious and
Charitable Endowments Act, 1970 under Article 32 on the violation of Right to Freedom. The
Supreme Court decided that the post of Archaka is secular. The appointment of Archaka is not a
religious practice nor is it an integral part of a religion. So the court upheld the appointment of
Archakas according to prevailing usage and custom. The right to succession also remained valid.

In the case of N. Adithayan v. Travancore Devaswom Board, 2002, it was challenged if non-Brahmins
can be appointed as a pujari in a temple. The Supreme Court held that the Brahmins do not have the
monopoly over-performing puja in a temple. The court also added that non-Brahmins can be
appointed as a pujari as long as he is well versed in his job.

Article 27 : It ensures that individuals are not forced to contribute through taxes towards the
promotion or maintenance of any specific religion or religious denomination. It upholds the principle
of religious neutrality and prevents the use of public funds for the advancement of a particular
religious belief or institution. The aim of Article 27 is to maintain a secular state where the
government remains impartial towards all religions and does not favor or promote any specific
religion using public funds. It ensures that taxpayers' money is not utilized to endorse or support any
particular religious agenda, thus preserving the religious freedom and equality of citizens.

In Sri Jagannath v. the State of Orissa, AIR 1954, the court upheld the fee which was imposed. The

36
court stated that the annual contribution was a fee and not a tax. This payment was demanded to
meet the expenses of the Commissioner and his office which was set up for the administration of the
religious institution.

In Nasima Khatun v. State of West Bengal, AIR 1981, the Bengal Wakfs Act was amended in 1973.
Through this amendment, the contribution was to be asked by people for the education for
economically weaker and meritorious students. The court said that this tax does not fall under Article
27 as a tax but it is a kind of Fee, which is not a prerogative of Article 27.

In P.M. Bhargava v. University Grants Commission, AIR 2004, the court said that the teaching of
Jyotish Vigyan in a University by University Grants Commission is not religious teaching. This is a
secular activity. So it does not fall under Article 27 of the Indian Constitution.

Article 28 : of the Indian Constitution pertains to the freedom of religion in educational institutions.
It safeguards the rights of individuals, religious groups, and educational institutions with regards to
religious instruction, religious worship, and attendance at religious ceremonies.

No religious instruction can be provided in any educational institution wholly maintained by state
funds. This ensures that public educational institutions funded by the government remain secular
and do not impart religious teachings.

In educational institutions that are not wholly maintained by state funds, religious instruction is
allowed. However, it requires the consent of parents or guardians. Students attending these
institutions have the right to choose whether or not to receive religious instruction. In educational
institutions that are not wholly maintained by state funds, students belonging to a particular religion
have the right to attend religious worship or religious instruction conducted by the institution.

The purpose of Article 28 is to maintain the secular character of educational institutions funded by
the state and to uphold the freedom of individuals to pursue their own religious beliefs or choose
not to participate in religious activities.

In Aruna Roy v. Union of India, AIR 2002, a PIL was filed under Article 32 wherein it was contended by
the petitioner that the National Curriculum Framework for School Education (NCFSE) is violative of
the provisions of the constitution. It was contended that it was anti-secular and it should be set
aside. The court ruled that there is no violation of Article 28 and there is also no prohibition to study
religious philosophy for having value-based life in a society.

Article 29 : of the Indian Constitution safeguards the cultural and educational rights of minorities. It
aims to protect the interests of religious, linguistic, and cultural minorities in India.

Any section of citizens residing in India having a distinct language, script, or culture of its own has the
right to conserve and promote its language, script, or culture. This provision ensures the preservation
and development of the unique identity and heritage of minority communities. Minority
communities, whether based on religion or language, have the right to establish and administer
educational institutions of their choice. This enables minorities to establish educational institutions
that cater to their specific cultural and linguistic needs. Article 29 also prohibits discrimination
against any citizen on the grounds of religion, race, caste, language, or any of them with respect to
admission into educational institutions maintained or aided by the state.

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In the case of D.A.V. College, Jalandhar v. The State of Punjab (1971), and the Supreme Court held
that setting up of University and teaching Punjabi language is not infringing clause 1 of Article 29.

In the case, St. Stephen's College v. University of Delhi (1992), the Supreme Court dealt with the
question of whether minority educational institutions can reserve seats for students belonging to
their own community. The court ruled that minority institutions have the right to admit students
from their own community, provided the admission process is fair and transparent.

In the case, T.M.A. Pai Foundation v. State of Karnataka, the Supreme Court addressed the issue of
the right of minority educational institutions to establish and administer their institutions. The court
upheld the autonomy of minority institutions in matters of admission and administration,
emphasizing that they have the right to preserve their own character and identity.

In the case, Animal Welfare Board v. Union of India (Jallikattu case), the Supreme Court dealt with
the question whether the sport of Jallikattu was protected as a cultural right under Article 29 of the
Constitution of India? The Supreme Court upheld the practice of Jallikattu, as permitted by the 2017
Tamil Nadu Amendment to the Prevention of Cruelty to Animals Act, 1960. The five-judge Bench in
2023 overruled the view taken by a two-judge Bench of the court in its 2014 ruling in Welfare Board
of India v. A. Nagaraja, banning such sports including Jallikattu.

Article 30 : of the Indian Constitution guarantees the right of minorities to establish and administer
educational institutions of their choice. All minorities, whether based on religion or language, have
the right to establish and administer educational institutions of their choice. This includes the right to
determine the type of institution, its affiliation, and the right to appoint staff. The state cannot
discriminate against any educational institution on the grounds of its minority status while granting
aid. Minority institutions should receive the same treatment and protection as institutions
established by the majority.

While minorities have the right to establish and administer educational institutions, they must still
adhere to reasonable regulations that the state may impose in the interest of maintaining standards
of education, ensuring welfare, or preventing maladministration.

The purpose of Article 30 is to protect the educational rights of religious and linguistic minorities,
allowing them to preserve and promote their distinct culture, language, and religious identity
through educational institutions of their choice. It recognizes the importance of minority
communities in the nation's diversity and provides them with the freedom to establish and manage
educational institutions that cater to their specific needs and aspirations. Article 31(A) was added as
part of the 42nd Constitutional Amendment which states that in case of any property acquired by the
government of an educational institution then it is the duty of the government to give appropriate
compensation.

In this case, St. Xavier's College v. State of Gujarat (1974), the Supreme Court clarified that minority
educational institutions have the right to admit students belonging to their own community and can
give preference to them while making admissions, as long as the admission process is fair and
transparent.

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In D.A.V. College, Jullundur v. State of Punjab (1971), the Supreme Court held that minority
institutions have the right to appoint teachers of their choice, subject to their qualifications and
suitability. It emphasized the importance of preserving the minority character of such institutions.

In this case, S.P. Mittal v. Union of India 1983, the court discussed Auroville, a township formed on
the ideals of Sri Aurobindo. Tamil Nadu government took management of this township and filed a
presidential ordinance which later on became The Auroville (Emergency Provisions) Act, 1980.

Seeing that the government took control of a ‘religious’ enterprise, the Constitutional validity of the
Act was challenged on 4 grounds. One of the grounds was that it was violative of Article 29 and 30. It
was held by the bench that the aforesaid Act does not violate Article 29 and 30. The court held that
it, in no way curtailed their right or prevented any citizen from conserving its own language, script or
culture and thus was not violative of Article 29.

Also in this case, in order to seek protection under Article 30, one must prove that they are a
linguistic or religious minority and the institution in question was established by them. Considering
that Auroville was not religious and was founded on the ideology of Sri Aurobindo, they could not
seek protection under these articles.

In the landmark case T.M.A. Pai Foundation v. State of Karnataka (2002), the Supreme Court dealt
with the autonomy of minority educational institutions and their right to establish and administer
institutions of their choice. The Supreme Court held that minority institutions have the right to
administer their affairs, including the right to appoint staff, but they must still operate within certain
reasonable regulations imposed by the state.

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