What freedoms are guaranteed by the Indian Constitution ? Are such freedoms exhaustive ?

Discuss if such freedoms are absolute rights and if not, discuss the need for limiting them.
Right To Freedom - The Article 19 to 22 deals with different aspects of this basic right. Article 19
guarantees to the citizen of India the six fundamental freedoms which are exercisable by them
throughout and in all part of the territory of India. These are - (a) Freedom of Speech and Expression,
(b) Freedom of Assembly; (c) Freedom of Association, (d) Freedom of Movement; (e) Freedom of
Residence and Settlement; (f) .......omitted by 44th Amendment, (g) Freedom of Profession,
Occupation Trade or Business. These freedoms are, however, not absolute. The clauses (2) to (6) of
Article 19 recognize the right of the state to make laws putting reasonable restrictions for the
reasons set out in those sub-clauses. The restrictions which may be imposed under any of the
clauses must be reasonable restrictions. Hence, a law restricting the exercise of any of the six
freedoms guaranteed by clause (1) of Article 19 to be constitutionally valid, must satisfy two
conditions - (i) the restriction must be for the particular purpose mentioned in the clause permitting
the imposition of the restriction on that particular right, and (ii) the restriction must be a reasonable
restriction.
Reasonable Restrictions : The Supreme Court has laid down the guidelines for determining the
reasonableness of restrictions which are as follows - It is the courts and not the legislature which has
to judge finally whether a restriction is reasonable or not. The term `reasonable restriction' in Article
19(6) connotes that the limitation imposed on a person in the enjoyment of his right should not be
arbitrary or of an excessive nature, beyond what is actually required in the interest of the public. The
expression seeks to strike a balance between the individual rights guaranteed by Article 19 and
Social Control permitted by clauses (2) to (6) of Article 19. Therefore, the restriction must have a
reasonable relation with the object which the legislation seeks to achieve and must never exceeded.
There is no definite or absolute test to judge the reasonableness of a restriction. Each case is to be
judged on its own merits. The following factors have to be taken into consideration for any judicial
verdict - (a) the nature of the right infringed, (b) the underlying purpose of the restrictions imposed,
(c) the extent and urgency of the civil wrongs to be remedied, (d) the disproportion of the
imposition, (e) the prevailing conditions at that time.
The restriction must be reasonable from the substantive as well as procedural stand point. A
restriction which is imposed for securing the objects laid down in the Directive Principles of State
Policy may be regarded as reasonable restriction [Hanif Qureshi v. State of Bihar, AIR 1958 SC 731].
The court must determine the reasonableness of a restriction by objective standard and not by
subjective one. In other words, the question is not of the court feels the restriction to be reasonable
but where a normal reasonable man would regard the restriction to be reasonable. It is the
reasonableness of the restriction which is to be determined by the court and not the reasonableness
of the law. Restriction may also amount to prohibition under certain circumstances.
The rights guaranteed by Article 19 are available only to citizens and not to an alien or a foreigner.
`Citizens' under Article 19 mean only natural persons and not legal persons such as corporations or
companies. The only of proving to the satisfaction of the court that the restriction is reasonable is
upon the State. The harder the restriction the heavier the owns to prove the reasonableness.

Discuss the scope of the "freedom of Speech and Expression". Does it include freedom of press
also ? It is an absolute right ?

Freedom of speech and expression is a bulwark of a democratic form of government. Article 19(1)(a)
guarantees to all citizens the right to freedom of speech and expression. According to Article 19(2)
the State may make a law imposing reasonable restrictions on the exercise of that right in the

1
interests of the security of state, friendly relations with foreign states, public order, decency or
morality, contempt of court defamation, incitement to an offence, or sovereignty and integrity of
India. Any limitation on the exercise of the fundamental right under Article 19(1)(a) not falling within
the four corners of Article 19(2) cannot be valid.
Meaning and scope. - Freedom of Speech and expression means the right to express one's own
convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It
thus includes the expression of one's ideas through any communicable medium or visible
representation, such as, gesture, signs and the like. The expression connotes also publication and
thus the freedom of the press is included in this category. Free propagation of ideas is the necessary
objective and this may be done on the platform or through the press. The freedom of propagation of
ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the
liberty of publication. Indeed, without circulation the publication would be of little value.
The `freedom of speech and expression' includes liberty to propagate not one's views only. It also
includes the right to propagate or publish the views of other people, otherwise this freedom would
not include the freedom of the press.
Freedom of expression has four broad special purposes to serve:
(1) it helps an individual, to attain self-fulfilment;
(2) it assist in the discovery of truth;
(3) it strengthens the capacity of an individual in participating in decision making; and
(4) it provides a mechanism by which it would be possible to establish a reasonable balance between
stability and social change. All members of society should be able to form their own beliefs and
communicate them freely to others.
In Union of India v. Association for Democracy Reforms, AIR 2002 SC 2112 the Supreme Court has
held that the voters have fundamental right to know about antecedents of candidates contesting
election. Democracy cannot survive without free and fair election, without free and fairly informed
voters. Votes cast by uninformed voters in favour of a candidate would be meaningless.
In the instant case, the petitioners for Democratic Reforms filed a public interest litigation and for
direction to implement the recommendations made by the Law Commission in its 170th Report.
Freedom of press - The Constitution does not contain any specific provision ensuring freedom of the
press which has therefore to depend on Article 19(1)(a). In Ramesh Thapar v. State of Madras, AIR
1950 S.C. 124, the Supreme Court held that the freedom of speech and expression includes freedom
of propagation of ideas which freedom is ensured by the freedom of circulation of a publication, for
without circulation, the publication would be of little value. The Supreme Court, therefore held in
this case that a ban authorising the Government to impose a ban upon entry and circulation of a
journal in a State, is restrictive of freedom of speech and expression and it can be valid only if it falls
within Article 19(2).
Explaining the concept of freedom of press the Supreme Court stated in Express News Paper v.
Union of India, AIR 1958 S.C. 578 that no law could be enacted having the effect of imposing a pre-
censorship, curtailing the circulation, restricting the choice of employment or unemployment in the
editorial force, preventing news papers from being stated or undermining its independency by
driving the press to seek government aid to survive. In this case Supreme Court was called upon to
adjudge the validity of the Working Journalist Act, 1955, enacted by Parliament to regulate certain
conditions of service of persons employed in news-paper establishment i.e. the payment of gratuity,
hours of work, leave, fixation of wages etc. The ground of challenge before the Court was that it
would adversely affect the financial position of the marginally situated newspaper which might be
forced to go out of circulation and thus the tendency of the Act was to curtail circulation and thereby
to narrow the scope of dissemination of information. The Court held the Act valid as it did not take
away the right of freedom of speech and expression enjoyed by the petitioners under Article 19(1)
(a).
In Prabhu Dutt v. Union of India, AIR 1982 SC 6 the Supreme Court has held that the right to know
news and information regarding administration of the governments is included in the freedom of

2
press. But this right is not absolute and restrictions can be imposed on it in the interest of society
and the individual from which the press obtains the information. They can obtain information from
an individual when he voluntarily agrees to give such information. In the instant case the Court
directed the Superintendent of the Tihar Jail to permit the Chief Reporter of the Hindustan Times
Newspaper to interview Ranga and Billa, the two death sentence convicts, under Article 19(1)(a) as
they were willing to be interviewed. The Jail authorities had refused the permission to the
newspaper representative to interview the convicts.
Imposition of Pre-Censorship on Press Pre-consorship is unconstitutional. The Supreme Court
in Brij Bhushan v. State of Delhi, A.I.R. 1950 S.C. 129, held that the imposition of censorship on a
journal previous to its publication would amount to an infringement of Article 19(1)(a). In Bennet
Colman and Co. v. Union of India, A.I.R. 1973 S.C. 106 the Court held that the newsprint policy is not
reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges petitioners
rights of freedom of speech and expression.
In Express Newspapers (Pvt.) Ltd. v. Union of India, A.I.R. 1986 S.C. 872, it has been held that the
notices of re-entry upon, forfeiture of lease and the threatened demolition of the Express building
are intended to silence the voice of Indian Express and therefore violative of Article 19(1)(a) of the
Constitution.
In K.A. Abbas v. Union of India, A.I.R. 1971 S.C. 481, it has been held that the pre-censorship of films
is justified under Article 19(2) on the ground films have to be treated differently from other forms of
art and expression because of its instant affect on persons who watch it particularly on adolescents.
Grounds of Restrictions. - The following are the grounds of restrictions on the freedom of speech
and expression as has been mentioned in Article 19(2) of the Constitution.
(a) Security of the state,
(b) Friendly relations with foreign states,
(c) Public order,
(d) Decency or morality,
(e) Contempt of Court,
(f) Defamation,
(g) Incitement to an offence,
(h) Integrity and sovereignty of India.

Discuss the freedom to assemble peaceably and without arms as provided u/Article 19(1) of the
Constitution. What are the limitations on this freedom ?

Freedom Of Assembly. Article 19(1)(b) guarantees to all citizens of India right "to assemble
peaceably and without arms." The right of assembly includes the right to hold meetings and to take
out processions. This right is however subject to the following restrictions :-
1. The assembly must be peaceable;
2. It must be unarmed;
3. Reasonable restrictions can be imposed under Clause (3) of Article 19.
The right of assembly is implied in the very idea of the democratic Government. The right of
assembly thus includes right to hold meetings and to take out processions. This right, like other
individual rights is not absolute but restrictive. The assembly must be non-violent and must not
cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected
under Article 19(1)(b) and reasonable restrictions may be imposed under clause (3) of Article 19 in
the interest of `sovereignty and integrity of India' or `public order'.
When a lawful assembly becomes unlawful. - Article 19(1)(b) saves existing Indian law regulating
public meetings in the interest of public order if the restrictions are reasonable. If an assembly

3
becomes unlawful it can be dispersed. Chapter VIII of the Indian Penal Code lays down the
conditions when an assembly becomes "unlawful". Under Section 141 of the Indian Penal Code, as
assembly of five or more persons becomes an unlawful assembly if the common object of the
persons composing assembly is -
(a) to resist the execution of any law or legal process,
(b) to commit any mischief or criminal trespass,
(c) obtaining possession of any property by force,
(d) to compel a person to do what he is not legally bound to do or omit which he is legally entitled to
do.
(e) to overawe the Government by means of criminal force or show of criminal force or any public
servant in the exercise of his lawful powers.
An assembly which was not unlawsful when assembled may subsequently become unlawful if it
becomes violent or is likely to result in disturbance. Under Section 129 of the Criminal Procedure
Code, 1973 such an assembly may be ordered to be dispersed if the disturbance to the public peace
is reasonably apprehended. Section 151 of the Indian Penal Code makes it an offence not to disperse
after a lawful command to disperse has been given.
Section 107 of the Criminal Procedure Code empowers Magistrate to obtain security for keeping the
peace from any person who is likely to commit a breach of peace. Section 144, Criminal Procedure
Code, 1973 empowers the Magistrate to restrain an assembly, meeting or procession if there is a risk
of obstruction, annoyance or injury to any person lawfully employed or danger to human life, health
or safety or a disturbance of the public tranquillity or a riot or any affray.
In Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166 - It was observed that broadly stated a
demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is
a communication of one's ideas to other to whom it is intended. There are forms of demonstration
which would fall within the freedom guaranteed by Article 19(1)(a) and 19(1)(b) A violent and
disorderly demonstration would not obviously be within Article 19(1)(a) or (b). But peaceful and
orderly demonstration would fall within the freedoms guaranteed under these clauses.

Write a short note on following :-

(A) Protection against Ex-Post Facto Law

(B) Protection against Double Jeopardy

(C) Prohibition against Self Incrimination.

(A) Protection Against Ex-Post Facto Law The Clause (1) of Article 20 : Provides protection to the
persons accused of crimes against ex-post-facto law - It prohibits the legislature to make
retrospective criminal laws. The first part of clause (1) provides that "no person shall be convicted of
any offence except for violation of `law in force' at the time of the commission of the act charged as
on offence." This means that if an act is not an offence at the date of its commission it cannot be an
offence at the date subsequent to its commission. The protection afforded by clause (1) is available
only against conviction or sentence for a criminal offence under ex post facto law and not against
the trial. The protection of clause (1) of Article 20 cannot be claimed in case of preventive detention,
or demanding security from a person. The prohibition is just for conviction and sentence only and
not for prosecution and trial under a retrospective law. The second part of clause (1) protects a
person from `penalty greater than which he might have been subjected to at the time of the
commission of the offence'. But the accused can take advantage of the beneficial provisions of the

4
ex post facto law. The rule of beneficial interpretation required that ex-post-facto law when is
beneficial to the accused is not prohibited by clause (1) of Article 20.
In Shiv Bahadur Singh v. State of U.P., AIR 1953 SC 394 - It was observed that what is prohibited
U/Article 20 is only conviction or sentence under an ex post facto law and not the trial thereof, such
trial under a procedure different from what obtained at the time of the commission of the offence or
by a court different from that which had competence at the time cannot ipso facto be held to
unconstitutional. Article 20(1) in its broad import has been enacted to prohibit convictions and
sentences under ex-post facto laws. This article must be taken to prohibit all convictions or
subjections to penalty after the Constitution in respect of Ex post facto law whether the same was a
post-Constitution Law or a pre-Constitution Law.
In G.P. Nayyar v. State (Delhi Admn.), AIR 1979 SC 602 - Article 20(1) deals with Ex post facto laws
though that expression has not been used in the article. Though sovereign legislature has power to
legislate retrospectively, creation of an offence for an act which at the time of its commission was
not an offence or imposition of a penalty greater than that which was under the law provided
violates Article 20(1). All that Article 20(1) prohibits is ex- post facto law and is designed to prevent a
person being punished for an act or omission which was considered innocent when done. It only
prohibits the conviction of person or his being subjected to a penalty under ex-post facto laws.
(B) Protection Against Double Jeopardy Clause (2) of Article 20 : The clause (2) provides protection
to the accused persons against double jeopardy the clause (2) declares that no person shall be
prosecuted and punished for the same offence more than once. This clause embodies the common
law rule of memo debts vis vexari which means that no man should be put twice in peril for the
same offence. If he is prosecuted again for the same offence for which he has already been
prosecuted he can take complete defence of this former acquittal or conviction. Article 20(2)
embodies the following essentials for the application of double jeopardy rule - (1) The person must
be accused of an `offence'. The word `offence' as defined in general clauses Act means `any act or
omission made punishable by law for the time being in force; (2) The proceeding or the prosecution
must have taken place before a `court' or `judicial tribunal'; (3) The person must have been
`prosecuted and punished' in the previous proceeding; (4) The `offence' must be the same for which
he was prosecuted and punished in the previous proceedings. Proceedings before departmental and
administrative authorities cannot be a proceeding of judicial nature. The clause (2) of Article 20 does
not apply where the person is prosecuted and punished for the second time and subsequent
proceeding is a mere continuation of the previous proceeding, e.g., in the case of an appeal against
acquittal.
In Venkataraman v. Union of India, AIR 1954 SC 375 - It was observed that -
"The roots of the principle which Article 20(2) enacts are to be found in the well established rule of
English law which finds expression in the maxim `Nemo debet bis vexari' - a man must not be put
twice in peril for the same offence. If a man is indicted again for the same offence in an English
Court, he can plead, as a complete defence his former acquittal or conviction or as it is technically
expressed, take the plea or `autrefois acquit' or "autrefois convict."
In Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 - It was observed that -
In order to invoke the protection of Article 20(2) there must have been a prosecution and
punishment in respect of the same offence before a Court of law or judicial tribunal, required by law
to decide the matters in controversy, judicially on evidence on oath which it must be authorised by
law to administer and not before a tribunal which entertains a departmental or administrative
enquiry even though set up by a statute but not required to proceed on legal evidence given on
oath. The Article contemplates proceedings of the nature of criminal proceedings before Court of
law or a judicial tribunal and the prosecution in this context means initiation of proceedings of a
criminal nature before such a Court or tribunal in accordance with the procedure prescribed in the
statute which creates the offence and regulated the procedure.
In Vekata Raman v. Union of India (supra) it was observed that the language of Article 20 and the
words actually used in Article 20(2) afford a clear indication that the proceedings in connection with

5
the prosecution and punishment of a person must be in the nature of criminal proceeding before a
court of law or judicial tribunal and not before a tribunal which entertains a departmental or
administrative enquiry even though, set up by a statute but which is not required by law to try a
matter judicially and on legal evidence.
In State of Bombay v. S.L. Apte, AIR 1961 SC 578. It was observed that-
"If the offences were distinct there is no question of the rule as to double jeopardy as embodied in
Article 20(2) of the Constitution being applicable.
Though S. 26, of the General Clauses Act, in its opening words refers to `the Act or omission
constituting an offence under two or more enactments', the emphasis is not on the facts alleged in
the two complaints but rather on the ingredients which constitute two offences with which a person
is charged. This is made clear by concluding portion of the section which refers to `shall not be liable
to be punished twice for the same offence.'
The above construction of Article 20(2) of the Constitution and S. 26 of the General Clauses Act is
precisely in line with the terms of S. 403(2) of the Criminal Procedure Code.
Where therefore the accused are sought to be punished for the offence under Section 105 Insurance
Act, after their trial and conviction for the offence under S. 409, Penal Code, they are not being
sought to be punished for the same offence twice but for two distinct offences constituted or made
up of different ingredients and therefore the bar of Article 20(3) of the Constitution or of S. 26 of the
General Clauses Act, 1897, is not applicable.
(c) Prohibition Against Self Incrimination Clause (3) of Article 20 : The clause (3) provides protection
to the accused persons against self-incrimination. It provides prohibition against self- incrimination.
Article 20(3) provides that no person accused of any offence shall be compelled to be a witness
against himself. This guarantee extends to any person accused of an offence and prohibits all kinds
of compulsion to make him witness against himself. In M.P. Sharma v. Satish Chandra [AIR 1954 SC
300] case the court observed that this right embodies the following essentials; (1) It is a right
pertaining to a person who is "accused of an offence"; (2) It is a protection against "compulsion to be
a witness"; (3) It is a protection against such compulsion relating to his giving evidence "against
himself". A person is said to be an accused person against whom a formal accusation relating to the
commission of an offence has been levelled which in normal course may result in his prosecution
and conviction. It is not necessary that the actual trial or inquiry should have started before the
court. In M.P. Sharma Satish Chandra case, it was held that a person, whose name was mentioned as
an accused in the FIR by the police and investigation was ordered by the Magistrate, could claim the
protection of this guarantee. The protection under Article 20(3) covers not merely testimonial
compulsion in a court room but also compelled testimony previously obtained and any compulsory
process for production if evidentary documents which are reasonably likely to support the
prosecution against him. The compulsory taking of finger impressions or specimen handwriting of an
accused would come within the mischief of Article 20(3). But in State of Bombay v. Kathi Kalu [AIR
1961 SC 1808] case the court held that when a person gives his finger impression or specimen
writing or signature, though, it may amount to furnishing evidence in the large sense is not included
within the expression "to be a witness". Hence, neither seizures made under search warrant, not the
compulsory taking of photographs, finger prints or speciman writing of an accused would come
within the prohibition of Article 20(3). What is forbidden under Article 20(3) is to compel a person to
say something from his personal knowledge relating to the charge against him. The protection under
Article 20(3) is available only against the compulsion of accused to give evidence "against himself".
But left to himself he may voluntarily waive his privilege by entering into the witness box or by giving
evidence voluntarily on request. Request implies no compulsion, therefore, evidence given on
request is admissible against the person giving it. To attract the protection of Article 20(3) it must be
shown that the accused was compelled to make the statement likely to be incrimination of himself.

6
Examine the scope of fundamental right to life and personal liberty under the Indian Constitution.
Article 21 says that no person shall be deprived of his life or personal liberty except according to
procedure established by law. Safety of life and liberty of person are the two most essential things in
an ordered society. The Constitution assures them not only to Indian citizens but to all persons in
India. It has not been left to the whim of the executive to rob a person of his personal liberty and put
him in detention. As person may be put in custody, if the law warrants and when he is so put, it
should be in conformity with the procedure established by law. All the safeguards that the law
prescribes to protect the liberty of person from being jeopardised should be available to a person
before he is put in detention.
Personal Liberty. - The word "personal Liberty" under Article 21, imports wide interpretation. In A.K.
Gopalan v. State of Madras, AIR 1960 SC 27, "Personal Liberty" was held to mean "Liberty of the
physical body, e.g., freedom from arrest and detention from false imprisonment or wrongful
confinement." It was said that the expression "Personal Liberty" was antithesis of physical restraint
and preventive detention. But this restrictive meaning has not been accepted in the subsequent
case Kharak Singh v. State of U.P., AIR 1963 SC 1295, it was held that the expression "life" was not
limited to bodily restraint or confinement to person only but something more than mere animal
existence. In this case the petitioner, Kharak Singh was charged in a dacoity case but was released as
there was no evidence against him. The Police opened a history-sheet against him and he was kept
in Police surveillance which included secret picketing of his house by the police, domicillary visits at
nights and unification of his movement and activities. The Supreme Court held that the domicillary
visits by the police were an invasion on the petitioner's personal liberty. By the term, "Life" as used
here, means something more than mere existence. The inhibition against its deprivation; extends to
all those limits and faculties by which life is enjoyed. The Court held that the unauthorised intrusion
into a person's home and the disturbance caused to him, is the violation of the personal liberty of an
individual. Hence the Police Regulation authorising domicillary visits was plainly violative of Article
21 as there was no law on which it could be justified and it must be struck down as unconstitutional.
In Satwant Singh v. Asstt. Passport Officer, New Delhi, AIR 1967 S.C. 1836 the Supreme Court
further extended the scope of this Article and held that "right to travel abroad", was part of a
person's personal liberty within the meaning of Article 21 of the Constitution. In this case the
petitioner who was a citizen of India, had to travel frequently for business purposes. The
Government ordered him to surrender the passport but the petitioner challenged it on the ground
that the right to travel abroad and return to India, was part of his personal liberty. The Supreme
Court accepted the contention of the petitioner and held that the right to travel aboard was part of a
person's personal liberty within the meaning of Article 21 and therefore no person can be deprived
of his right to travel abroad except according to procedure established by law. In fact there was no
law on which the government could justify its action.
Procedure established by law. - The word "Law" in Article 21 refers to law made by the State and
not to positive law or law in the abstract sense embodying the principle of natural justice and
`procedure established by law' means procedure established by law made by the State, that is to
say, by the Union Parliament or the Legislature of the State.

7
The Supreme Court had held in Maneka Gandhi v. Union of India, AIR 1978 S.C. 597, wherein the
petitioner's passport was impounded that the Government was not justified in withholding the
reasons for impounding the passport from the petitioner. Delivering majority judgment Justice
Bhagwati asked "Is the presentation of some sort of procedure enough or must the procedure
comply with any particular requirement?" He then held the procedure contemplated in Article 21
could not be unfair or unreasonable. And this principle of reasonableness which was an essential
element of equality or non- arbitrariness, pervaded Article 14 like a brooding omnipresence and the
procedure contemplated in Article 21 must answer the test of reasonableness in order to be in
conformity with Article 14. Hence any procedure which permitted impairment of individual's right to
go abroad without giving him a reasonable opportunity to be heard, could not but be condemned as
unfair and unjust. The order withholding reasons for impounding the passport was therefore not
only in breach of statutory provisions of Passport Act but also in violation of the rule of natural
justice embodied in the maxim "audi alteram partem". Although there are no positive words in the
statute (Passport Act) requiring that the party shall be heard, yet the justice of the Common Law,
shall supply this omission of the legislature. The power conferred on the Passport authority to
impound the passport under Section 10(3)(c) of the Act, was a quasi-judicial power. The rules of
natural justice, would therefore be applicable in the exercise of this power. Fairness in action,
therefore, demands that an opportunity to be heard should be given to the person affected. Thus
the court gave a new dimension to Article 21 in the Maneka Gandhi Case. It held that the right to live
is not merely confined to physical existence but it includes within its ambit the right to live with
human dignity.
Elaborating the same view the Court in Francis Coralie v. Union Territory of Delhi, AIR 1978 SC
597 said that the right to live is not restricted to mere animal existence. It means something more
than just physical survival. The right to `live' is not confined to the protection of any faculty or limb
through which life is enjoyed or the soul communicates with the outside world but it also includes
"the right to live with human dignity", and all that goes along with it, namely, the bare necessities of
life such as, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing
ourselves in diverse forms, freely moving about and mixing and commingling with fellow human
being.
Right To Livelihood - In Ollega Tills v. Bombay Municipal Corpo., AIR 1986 SC 180 - Five judge bench
of Supreme Court has finally ruled that the word `life' in Article 21 includes the `right to livelihood'
also. The court said :
"It does not mean merely that life cannot be extinguished or taken away as, for example, by the
imposition and execution of death sentence, except according to procedure established by law. That
is but one aspect of the right to life. An equally important facet of that right is the right to livelihood
because no person can live without the means of livelihood. If the right to livelihood is not treated as
a part of the constitutional right to life, the easiest ways of depriving a person of his right to life
would be to deprive him of his means of livelihood. In view of the fact that Articles 30(a) and 41
require the State to secure to the citizen an adequate means of livelihood and the right to work, it
would be sheer pendentary to exclude the right to livelihood from the content of the right to life."
Similarly in D.K. Yadav v. J.M.A. Industries (1993) 3 SCC 258 Supreme Court held that right to life
enshrined under Article 21 includes right to livelihood and therefore before terminating the service
of an employee or workman fair play requires that a reasonable opportunity should be given to him
to explain his case.
Right to shelter. - In Chameli Singh v. State of U.P., (1996) 2 SCC 549 it has been held that the right
to shelter is a fundamental right under Article 21 of the Constitution. In any organised society, the
right to live as a human being is not ensured by meeting only the animal needs of man. It is secured
only when he is assured of all facilities to benefit himself. Right to live guaranteed in any civilised
society implies the right to food, water decent environment, education, medical care and shelter.
These are basic human rights known to any civilised society.

8
Right to privacy. - In R. Rajagopal v. State of T.N., (1994) 6 SCC 632 popularly known as "Auto
Shanker case" the Supreme Court has expressly held the "right to privacy", or the right to be let
alone is guaranteed by Article 21 of the Constitution. A citizen has a right to safeguard the privacy of
his own, his family, marriage, procreation, motherhood, child-bearing and education among other
matters. None can publish anything concerning the above matters without his consent whether
truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right
of the person concerned and would be liable to an action for damages. However, position may be
differed if he voluntarily puts into controversy or voluntarily invites or raises a controversy.
This rule is subject to an exception that if any publication of such matters are based on public record
including court record it will be unobjectionable.
Right to Health and access to Medical Treatment :- Of late, the right to health and access to medical
treatment has been included in the plethora of right brought under the ambit of Article 21. The
attitude of judiciary in expanding the horizons of Article 21 has been analysed with special reference
to the right to health and medical assistance as a right under Article 21.
In Vincent Panikurlangara v. Union of India, AIR 1987 SC 990 the Supreme Court held that a healthy
body is the very foundation for all human activities. So, in a welfare State, it is the obligation of the
State to ensure the creation and the sustaining of conditions congenial to good health.
Further in Parmanand Katara v. Union of India, AIR 1989 SC 2039, a petition was filed under Article
32 of the Constitution, when a private doctor refused to treat a patient who met with an accident
because of non-compliance of procedural formalities regarding accident victims. The Court ordered
the medical institution to provide medical aid and treatment immediately irrespective of whether
the procedural formalities have been complied with. The observation in Parmananda Katara created
a new right - the right to get medical aid and it has become an integral part of Article 21 of the
Constitution. This stand has been retreated by the apex Court in Consumer Education and Research
Centre v. Union of India, AIR 1995 SC 922.
Right to end one's own life : - The issue of attempt to commit suicide brought to life again. In 1994
this offence was declared void by the Division Bench of the Supreme Court P. Rathiram AIR 1994 SC
1844. The Court then declared that Section 309 of Indian Penal Code which provides punishment for
an attempt to commit suicide, deserved to be effaced from the statute book to humanise our penal
laws. But two years thereafter the Full Bench of the apex Court completely overruled the above
principle in Smt. Gian Kaur v. State of Punjab case, AIR 1996 SC 1257, by holding that right to life is
not like other fundamental rights such as the right to form association and speech which are positive
rights. Right to speech includes the right not to speak; the right to form association includes the right
not to form association. But right to life does not include the right not to live. Thus a five Judge
constitutional bench has set off a controversy on the legality of the right to life. Is it compulsory or
optional ? The Court ruled it is compulsory. The State cannot bestow a right to die on the citizens.
The State is constitutionally bound to protect a citizen's life, howsoever miserable it may be. In this
context Article 21 of the Constitution is its backbone.
Right to education : - The Supreme Court of India by a process of judicial interpretation in Mohini
Jain's case (AIR 1992 SC 1858) held that the right to education is a fundamental right under Article 21
of the Constitution which can not be denied to a citizen by charging higher fees known as capitation
fees. Later on the correctness of Mohini Jain's case was examined by the Full Bench of the apex
Court in Unnikrishnan v. State of A.P., AIR 1993 SC 2178. The Five Judge Bench by 3-2 majority
partly agreed with Mohini Jain decision and held that right to education is a fundamental right under
Article 21 of the Constitution as it directly flows from right to life. But as regards its content the
Court partly overruled Mohini Jain case and held that the right to free education can be made
available only to children until they complete the age of 14 years but after that the obligation of the
State to provide education is subject to the limits of its economic capacity and development.
Eighty-Sixth Amendment Act has add a new Article 21-A which makes the right of education of
children of the age of 6 to 14 years a fundamental right. It also substitutes Article 45 which is as
follows : "The State shall endeavour to provide early childhood care and education for all children

9
until they complete the age of six years". It also added a new fundamental duty to Part IV of the
Constitution.
Protection against illegal arrest detentions and Custodial Death - In Joginder Kumar v. State of
U.P., (1994) 4 SCC 260 the Supreme Court has laid down guidelines governing arrest of a person
during investigation. This has been done with a view to strike a balance between the needs of police
on the one hand and the protection of human rights of citizens from oppression and injustice at the
hands of law enforcing agencies. The Court has held that a person is not liable to arrest merely on
the suspicion of complicity in an offence. There must be some reasonable justification in the opinion
of the police officer effecting the arrest that such arrest was necessary and justified.
Following are the guidelines laid down by the Court :-
(1) An arrested person being held in custody is entitled, if he so requests to have one friend, relative
or other person who is known to him or likely to have an interest in his welfare told as far as is
practicable that he has been arrested and where is being detained.
(2) Police officer shall inform the arrested person when he is brought to the police station of this
right.
(3) An entry shall be required to be made in the Diary as to who was informed of the arrest.
These protections from power flow from Article 21 and Article 22 of the Constitution and therefore
they must be enforced strictly.
Prevention of sexual harassment of working women - In a landmark judgment in Vishaka v. State
of Rajasthan, AIR 1997 SC 3011, the Supreme Court has laid down exhaustive guidelines to prevent
sexual harassment of working women in places of their work until a legislation is enacted for the
purpose. The Court held that it is the duty of the employer or other responsible person in work-
places or other institutions, whether public or private, to prevent sexual harassment of working
women.
Ban on Smoking in Public Places - In Murli S. Deora v. Union of India, AIR 2002 SC 40 the petitioner
filed a public interest litigation in the Supreme Court seeking order for banning smoking in public
places. The Court, considering the adverse effect of smoking on smokers and other persons directed
Central, State Governments and Union Territories to immediately issue orders banning smoking in
public places like hospitals, health institutes, public offices, public transport including railways, court
buildings, educational institutions, libraries and auditoriums. Fundamental Right guaranteed under
Article 21 of the Constitution, inter alia provides that non-smoker shall not be deprived of his life
without due process of law.
Right to food - Starvation Death : State to provide free food. - In a significant judgment in PUCL v.
Union of India, the Supreme Court has held that the people who are starving because of their
inability to purchase foodgrains have right to get food under Article 21 and therefore they ought to
be provided the same free of cost by the States out of surplus stock lying with the States particularly
when it is unused and rotting.

Examine the scope of fundamental right to life and personal liberty under the Indian Constitution.

Article 22 of the Constitution provides preventive detention laws. The object of preventive detention
is to prevent a person from committing a crime and not to punish him as is done under punitive
detention. Preventive detention has not been unknown in other democratic countries like England
and Canada but there recourse has been had to it only in war time.
The legislative capacity of Parliament or the State legislatures to enact a law of preventive detention,
is however, limited to clauses 4 to 7 of Article 22 which lay down a few safeguards for a person

10
subjected to such detention. The scheme of these clauses is to classify preventive detention in three
categories, viz. :-
(a) A preventive detention upto two months, provision for which may be made either by Parliament
or a state legislature, in such a case, no reference may be made to an Advisory Board :
However Constitution (44th Amendment Act, 1978) has substituted a new clause for clause (4)
which now reduces the maximum period for which a person may be detained without obtaining the
opinion of Advisory Board from 3 months 2 months. The detention of a person for a longer period
than 2 months can only be made after obtaining the opinion of the Advisory Board.
(b) Preventive detention for over three months subject to safeguard of an Advisory Board consisting
of persons qualified to act as High Court judges. No person can remain in preventive detention for
more than 3 months unless the Board holds that in its opinion, there are sufficient cause for
detention. The Supreme Court has held in Puranlal Lakhan Lal v. Union of India, AIR 1958 S.C.
163 that the Advisory Board's function is not to determine the period of detention but only to
determine whether the detention by itself is justified.
(c) Preventive detention for over three months without the safeguard of an Advisory Board. Such
detention is possible if Parliament prescribes by law the circumstances under which, and the class or
classes of cases in which a person may be detained for over three months without reference to
Advisory Board.
Parliament may also prescribe the maximum period for which a person can be detained in cases (b)
and (c). This provision, it has been held is merely permissive and does not oblige Parliament to
prescribe any maximum period. Further, Parliament may by law prescribe the procedure to be
followed by an Advisory Board in an inquiry under Clause (4).
The following safeguards have been provided to a detenu :-
(1) Grounds of detention must be communicated - Article 22(5) gives the right to the detenu to be
communicated the grounds of detention as soon as possible, the detaining authority making the
order of detention must as soon as possible communicate to the person detained the grounds of his
arrest and to give the detenu the earliest opportunity of making representation against the order of
the detention.
In Ram Bahadur v. State of Bihar, AIR 1975 S.C. 245, it has been held that where the order of
detention is founded on distinct and separate grounds, if any of the grounds is vague or irrelevant,
the entire order must fail.
(2) Right of representation. - Article 22 imposes an obligation upon the Government to afford the
detenu the opportunity to make representation under clause (5). It makes no distinction between
order of detention for only two months or less and those for a long duration. The obligation applies
to both kinds of orders. It does not say that the representation will be considered by the appropriate
Government in the former class of cases and by the Board in the latter class of cases. It is clear form
clauses (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and
dual right in favour of a detenue, namely : (1) to have his representation irrespective of the length of
detention considered by the appropriate Government and (2) to have once again in the light of the
circumstances of the case considered by the Board before it gives its opinion.
(3) Advisory Board. - Article 22 provides that the detenu under the preventive detention law shall
have the right to have his representation against his detention reviewed by an Advisory Board. If the
Advisory Board reports that the detention is not justified the detenu must be released forthwith. If
the Advisory Board reports that the detention is justified the Government may fix the period for
detention.
The 44th Amendment Act 1978 has amended Article 22 and reduced the maximum period for which
a person may be detained without obtaining the opinion of the Advisory Board from 3 months to 2
months. It has also changed the constitution of the Board which shall now consist of a chairman and
two other members. The chairman must be a sitting judge of the appropriate High Court and the
other members shall be either sitting or retired judges of any High Court.

11
The detenu has no right of legal assistance in the proceedings before the Advisory Board. But if the
Government is given such a facility, it should equally be provided to the detenu. The discretion of
the Board to permit or not to permit must be exercised in conformity with Articles 14 and 21 of the
Constitution i.e., it must not be exercised arbitrarily. Nand Lal v. State of Punjab, AIR 1981 SC 2041.
In A.D.M. Jabalpur v. S.S. Shukla, AIR 1976 SC 1207, the Supreme Court had held that when an
emergency is declared and the right to enforce fundamental right under Article 21 is suspended no
person had right to go to court for challenging the validity of his detention. The effect of decision is
that the court would not be empowered to examine the question of mala fide on grounds of the
order of detention. In Makhan Singh v. State of Punjab, AIR 1964 SC 381, it had ruled that it could
examine the validity of the detention on the ground that the order was passed with malice or there
was excessive delegation of power or the provisions of emergency law were not followed. The Court
however, held that Makhan Singh's case did not apply in this case.
The 44th Amendment now provides that Article 21 will not be suspended during emergency and
hence detention can be challenged in the court of law.

How does the Indian Constitution guarantee the right against exploitation ?

23 of the Constitution of India, prohibits traffic in human being and `begar' and other similar forms
of forced labour. The second part of this Article declares that any contravention of this provision
shall be an offence punishable in accordance with law. Clause (2) however permits the State to
impose compulsory services for public purposes provided that in making so it shall not make any
discrimination on grounds only of religion, race, caste, or class or any of them. According to Article
24, no child below the age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.
`Traffic in human beings' means selling and buying men and women like goods and includes
immovable traffic in women and children for immoral or other purposes. Though slavery is not
expressly mentioned in Article 23, it is included in the expression `traffic in human being'. Under
Article 35 of the Constitution Parliament is authorised to make laws for punishing acts prohibited by
this Article. In pursuance of this Article Parliament has passed the Suppression of Immoral Traffic in
Women and Girls Act, 1956, for punishing acts which result in traffic in human beings.
Article 23 protects the individual not only against the State but also private citizens. It imposes a
positive obligation on the State to take steps to abolish evils of "traffic in human beings" and begar
and other similar forms of forced labour wherever they are found.
In People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1943 Supreme Court held
that scope of Article 23 is wide and unlimited and strikes at "traffic in human being" and "begar and
other forms of forced labour" wherever they are found. It is not merely "begar" which is prohibited
by Article 23 but also all other forms of forced labour. "Begar" is a form of forced labour under which
a person is compelled to work without receiving any remuneration. This Article strikes at forced
labour in whatever form it may manifest itself, because it is violative of human dignity and contrary
to basic human values. The practice of forced labour is condemned in almost every international
instrument dealing with human rights. Every form of forced labour "begar" or other forms, is
prohibited by Article 23 and it makes no difference whether the person who is forced to give his
labour or service to another is paid remuneration or not. Even if remuneration is paid, labour or
services supplied by a person would be hit by this Article, if it is forced labour, e.g. labour supplied
not willingly but as a result of force or compulsion.
In Sanjit Roy v. State of Rajasthan, AIR 1983 SC 328, it has been held that the payment of wages
lower than the minimum wages to the person employed on Famine Relief Work is violative of Article
23. Whenever any labour or service is taken by the State from any person who is affected by drought
and scarcity condition the State cannot pay him less wage than the minimum wage on the ground

12
that it is given them to help to meet famine situation. The State cannot take advantage of their
helplessness.
In Bandhu Mukti Morcha v. Union of India, AIR 1984 SC 802, the Supreme Court held that when an
action is initiated in the court through public interest litigation alleging the existence of bonded
labour the Government should welcome it as it may give the Government an opportunity to examine
whether bonded labour system exists and as well as to take appropriate steps to eradicate that
system. This is the constitutional obligation of the Government under Article 23 which prohibits
`forced labour' in any form.

Explain the scope of freedom of religion as guaranteed under Constitution of India.

Articles 25 to 28 of the Constitution of India deal with the fundamental rights relating to freedom or
religion. There rights are guaranteed to all persons and not merely to citizens. India is a secular State
and therefore no preferred religion. All religions enjoy the same Constitutional protection without
any discrimination.
Constitutional Provisions. - Article 25 provides that all persons are equally entitled to freedom of
conscience and the right to freely profess, practice and propagate religion subject to public order,
morality and health.
Article 26 says that subject to public order, morality, and health every religious denomination or any
section thereof shall have the right :
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religions;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
Article 27 of the Constitution provides that State shall not compel any citizen to pay any taxes for
promotion or maintenance of any particular religious institution. Article 28 lays down that no
religions instructions shall be given in any educational institution wholly maintained out of State
fund.
Meaning of Religion. - The word `religion' has wide connotation. Religion is a matter of faith with
individuals. Religion lays down certain code of ethical rules for the observance by its followers. It is
not confined to religious belief but extends to various rituals and ceremonies and modes of worship
which the followers of a particular religion consider necessary and conducive for the members of
their community.
In S.R. Bommai v. Union of India, (1994) 3 SCC 1 Supreme Court has held that "Secularism is a basic
feature of Constitution". State treats equally a religious and religious denominations. Religion is a
matter of individual faith and cannot be mixed with secular activities. Secular activities can be
regulated by State by enacting a law.
Restrictions on the Freedom of Religion. - The freedom of religion is subject to following restrictions
:
(1) Public order morality and health. - Nothing can be done in the name of religion which will
adversely affect public order, morality and health. In Ghulam Abbas v. State of U.P., (1984) 1 S.C.C.
81, Supreme Court has held that shifting of a property (grave) connected with religion to avoid
clashes between two religious Communities or sects is valid and does not affect religious rights being
in the interest of public in general.
An order under Section 144 of Criminal Procedure Code prohibiting such a procession in the interest
of public order and morality is not violative of Articles 25 and 26 of the Constitution.

13
(2) Regulation of Secular and Financial Activities. - Article 25(2)(a) provides that nothing shall affect
the operation of any existing law or prevent the state from making any law, regulating or restricting
any economic, financial, political or other secular activities which may be connected with religious
practice.
In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 S.C. 731, it was held that slaughter of a cow on
the day of Bakreed, was not an essential element of Muslim religion and hence could be prohibited
by law.
(3) Social Reforms. - Article 25(2)(b) provides that the state is empowered to pass a law providing
for social welfare or social reforms or throwing open of religious institutions of a public character to
all classes and sections of Hindus.
Under Article 25(2) State can eradicate social dogmas which stand in the way of Country's progress.
In State of Bombay v. Narasu Appamali, AIR 1952 Bomb. 84, an Act which prohibited bigamy was
held to be valid under Article 25(2)(b). Thus where there is a conflict between the social need and
religious practice, religion must yield.
Hence, the freedom of religion is confined to only "matters of religion" and state can regulate
secular and economic activities connected with religion.
In Ismail Faruqui v. Union of India, (1994) 6 SCC 360 the Supreme Court by a majority has held that
the State can in exercise of its sovereign power acquire places of worship like mosques, churches,
temples etc. which is independent of Article 300-A of the Constitution if it is necessary for
maintenance of law and order. Such acquisition per se does not violate Articles 25 and 26 of the
Constitution. What is protected under Articles 25 and 26 is a religious practice which forms an
essential and integral part of religion. A practice may be a religious practice but not an essential part
of religious practice. While offer of prayer or worship is a religious practice, its offering at every
location where such prayers can be offered would not be an essential religious practice. Status of
mosque in secular India is same as and not higher than that of places of worship of other religion
such as temple, church etc. A mosque is not an essential part of the practice of the religion of Islam
and Namaz (prayer) by Muslims may be offered anywhere, even in open. The right to worship does
not include the right of worship at any every place, so long as it can be practised effectively, unless
the right to worship at a particular place is itself an integral part of that right.

Discuss the cultural and educational rights as guaranteed to linguistic and religious minorities
under the Constitution of India.

Cultural and Educational Rights of Minorities

Article 29 and 30 of the Constitution of India guarantees certain cultural and educational rights to
the citizens of India. According to Article 29 any section of the citizens residing in the territory of
India or any part thereof having a distinct language, script or culture of its own shall have the right to
conserve the same. No citizen shall be denied admission into educational institution maintained by
the state or receiving aid out of State funds on the grounds only religion, race, caste, language or any
of them. According to 'Article 30' all minorities whether based on religion or language, shall have the
right to establish and administer educational institution of their choice.
The 44th Amendment Act 1978 has inserted a new clause (1-A) to Article 30 which provides that in
making any law providing for the compulsory acquisition of any property of an educational
institution established and administered by a minority referred to in clause (1), the State shall ensure
that the amount fixed by or determined under such law for the acquisition of such property is such
as would not restrict or abrogate the right guaranteed under that clause.

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Clause (2) of Article 30 prohibits the State from making discrimination in the matter of grant of aid to
any educational institution on the ground that it is managed by a religious minority or linguistic
minority.
The fundamental freedom to establish and administer educational institution by minorities
guaranteed under clause (1) of Article 30 is absolute in terms. It is not subject to any reasonable
restrictions of the nature provided in Article 19 of the Constitution. All minorities, linguistic or
religious have under Article 30 an absolute right to establish and administer educational institutions
of their own choice. Any law or executive direction which seeks to infringe the substance of that
right under Article 30 (1) would to that extent be void.
The right to administer educational institutions of their choice is not, however, an absolute right.
This is subject to regulation which are meant for ensuring the efficiency and smooth functioning of
the minority institutions. The right to administer is not the right to maladministration. But the
regulatory measures must be reasonable and should not be destructive of the minority character of
the institution.
In re The Kerala Education Bill, AIR 1958 SC 956, it was observed that a minority community can
effectively conserve its language, script or culture by and through educational institutions and
therefore, the right to establish and maintain educational institutions of it's choice is a necessary
concomitant to the right to conserve it's distinctive language, script or culture and that is what is
conferred on all minorities by Article 30 (1). This right however is subject to clause (2) of Article 29
which provides that no citizen shall be denied admission into any educational institutions maintained
by the state or receiving aid out of State funds on the grounds only of religion, race, caste, language
or any of them. In State of Bombay v. Bombay Education Society, AIR 1954 SC 561 it was observed:
Where a minority, like the Anglo-Indian community, which is based, inter alia on religion and
language has the fundamental right to conserve its language, script and culture to conserve its
language, script and culture under Article 29(1) and has the right to establish and administer
educational institutions of their choice under Article 30(1), surely then there must be implicit in such
fundamental right, the right to impart instruction in their own institutions to the children of their
own community in their own language. To hold otherwise will be to deprive Article 29(1) and Article
30(1) of the greater parts of their contents. Such being the fundamental right, the police power of
the State to determine the medium of instruction must yield to this fundamental right to the extent
it is necessary to give effect to and cannot be permitted to run counter to it.
In W. Proost v. State of Bihar, AIR 1969 SC 465, it was observed that the width of Article 30(1)
cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter
article is a general protection which is given to minorities to conserve their language, script or
culture. The former is a special right to minorities to establish educational institution of their choice.
This choice is not limited to institution seeking to conserve language, script or culture and the choice
is not taken away if the minority community having established an educational institution of its
choice also admits members of other communities. That is a circumstance irrelevant for the
application of Article 30(1) since no such limitation is expressed and none can be implied. The two
articles create two separate rights although it is possible that they may meet in a given case.
In D.A.V. College, Bhatinda v. State of Punjab, AIR 1971 S.C. 1731, the university declared that
Punjabi would be the sole medium of instruction in the affiliated colleges. The court held that the
right of the minority to establish and administer educational institutions of their choice includes the
right to have a choice of medium of instructions also and the university circular was directly
infringing upon the rights of minorities to have instructions in Hindi as their own language and,
therefore, was violative of Articles 29(1) and 30(1) of the Constitution. The right under Article 30(1)
is available to both the pre-Constitution and post-Constitution institutions.
Recently Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355, the 11
Judge Constitutional Bench led by Chief Justice B.N. Kirpal by 6:5 majority has held that minority
educational institution not aided by the State cannot be regulated by the State. However, if an
institution was aided by the State it can be regulated by the State. The minority community has a

15
right to establish educational institution. The State and universities can, however, provide
educational qualifications for the teaching staff. The Court held that the State and the University
concerned will not interfere in the management of unaided minority schools so long as the
education is transparent and merit is given primacy in admissions more so in professional
institutions.
On the question as to who constitutes a minority, the Court said "The linguistic and religious
minorities have to be considered on the basis of States and the population therein as the States
were reorganised on the basis of language".
Explaining the extent of State control, the Court said admission of students to unaided minority
educational institutions where the scope for merit-based selection was practically nil, could not be
regulated by the State Government or university, except for providing the qualifications and
minimum conditions of eligibility in the interest of academic standards. However, it said this right is
subject to the condition that "admission to the unaided educational institution was on a transparent
basis and merit was adequately taken care of".
As regards to aided institutions, the Court made it clear that "a minority institution does not cease to
be so, the moment grant-in-aid is received. An aided minority educational institution will be entitled
to have the right of admission of students belonging to the minority group. At the same time, it
would be required to admit a reasonable extent of non-minority students, so that the rights under
Article 30(1) are not substantially impaired and further, citizen's rights under Article 29(2) are not
infringed."
The Court empowered the State Governments to notify the percentage of non- minority students to
be admitted. It would vary according to the types of institutions. The courses of education and other
factors such as educational needs observance of inter se merit amongst the minority groups could
also be ensured.

Compare the writ jurisdiction of the Supreme Court with that of High Courts under the Indian
Constitution ?

Article 32 of the Constitution of India provides one of the most important Constitutional Remedies. It
gives right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by Part- III of the Constitution.
For the enforcement of the fundamental rights a parallel writ jurisdiction has been conferred on the
High Courts under Article 226. As regards the inter- relation between the two articles it appears that
Supreme Court's jurisdiction is independent of and is in no way curtailed or qualified by the
jurisdiction of High Court. A person aggrieved of violation of his fundamental rights, may come
straight to Supreme Court for relief and he is not bound to invoke the jurisdiction of the High Court
first. The reason is Article 32 is itself a fundamental right and provides for remedy in case of violation
of fundamental right.
In Gopal Das v. Union of India, AIR 1955 SC 1 Supreme Court observed that the sole object of Article
32 is the enforcement of the fundamental rights guaranteed by the Constitution. Whatever other
remedies may be open to a person aggrieved, he has no right to complain under Article 32, where no
"fundamental right" has been infringed.
In Kochuni v. State of Madras, AIR 1959 SC 727, the court held the view that Article 32 is the most
powerful weapon in the hand of the Supreme Court of India. With this power it keeps the legislature
and executive within bounds of their respective powers.
In Fertiliser Corporation Kamgar Union v. Union of India, AIR 1981 S.C. 345, it has been held that
the jurisdiction conferred on the Supreme Court by Article 32, is an important part of the "basic
structure" of the Constitution because it is meaningless to confer fundamental rights without

16
providing an effective remedy for their enforcement. When they are violated, Parliament may
empower the Supreme Court with such a power under Article 139. But the power of the High Court
to issue writs cannot be in derogation of the Supreme Court under Article 226. In other words, an
order under Article 32 will supersede the orders of the High Court previously passed.
The power of the Supreme Court to issue writs under Article 32 is a bit narrower than that of the
High Courts under Article 226 of the Constitution. Under Article 32 a writ can be issued only for the
infringement of fundamental rights guaranteed under Part III. But under Article 226 writs can be
issued for the infringement of the fundamental rights or for any other purpose. Thus the High Courts
enjoy a wider power under Article 226 to issue writs, orders, or directions.
Following are the cases in which application of Article 32 does not lie:
(1) In Sadhu Singh v. Delhi Administration, AIR 1965 SC 9, it has been held that the court will not
under Article 32, interfere with an administrative order, however erroneous, where the
constitutionality of the statute or the order made thereunder is not challenged on the ground of
contravention of a fundamental right.
(2) Article 32 of the Constitution is not directly concerned with the determination of the
constitutional validity of a particular legislative enactment. To make out a case under this Article, it is
incumbent upon the petitioner to establish not merely that the law complained of is beyond the
competence of the particular legislature as not being covered by any of the items in the legislature
list, but that it affects or invades his fundamental rights guaranteed by the Constitution of which he
could seek enforcement by an appropriate writ or order - Chiranjeet Lal v. Union of India, 1950 SC
109.
Clause (1) of Article 32 guarantees the right to move the Supreme Court for seeking relief from the
Court by way of five writs as contained in the clause. The Supreme Court of India may not only issue
above writs but also directions orders or writs similar to the above so far as to fit in with any
circumstances peculiar to India. But the remedy must be sought within reasonable time.
In Sommawanti v. State of Punjab, AIR 1964 SC 131, Supreme Court has held that where the
suspension of fundamental rights has the constitutional protection. Article 32 will have no operation.

Discuss the nature, scope and purpose of Directive Principles of State Policy as enumerated in
Constitution.
Ans. Articles 38 to 51 of the Constitution provide certain Directive Principles or policies to be
pursued by the Governments in the governance of the country. These principles are embodied as
directions to the legislative and executive branches of the government to follow them in their
routine working. These Directive principles impose certain obligations on the state to take to positive
action in certain directions in order to promote the welfare of the people and to achieve economic
democracy.
Ivor Jenning calls it the “Philosophy of Fabian Socialism”. According to G.N. Joshi the part IV of
Indian constitution containing DPSP, “Constitutes a very comprehensive political, social and
economic programme for modern democratic state”.
Directive Principles are more akin to moral rather than to legal precepts as they are non-justiciable.
Directive Principles have been included in the Constitution for following reasons:
(1) Constitutional declarations regarding social and economic policies have become increasingly
frequent.
(2) Directive Principles have at least educative value.
(3) These principles serve as restraint on those who might capture power.
The Directive Principles require the state to take positive action, and since they can be guaranteed
only so far as such action is practicable in the circumstances the state is bound under its
constitutional obligation to apply these principles in making laws. In re Kerala Education Bill, AIR
1958 SC 956, the Supreme Court has stated that in determining the scope and ambit of the

17
fundamental rights relied on by or on behalf of any person or body, the court may not entirely
ignore the Directive Principles but should adopt the principle of harmonious construction and should
attempt to give effect to both as far as possible. The Directive principles are a ready and dependable
index of what a public purpose is intended to be.

The Object of Directive Principles : According to Dr. Ambedkar the directive principles are
instruments of instructions to the legislature and the executives. Explaining the significance of these
principles in the Constitution Dr. Ambedkar said :

'Whoever captures the power, will not be free to do what he likes with it. In the exercise of
it, he will have to respect these instruments which are called 'Directive-Principles'. He cannot ignore
them.'
These principles have the same place as the 'Conventions' in the 'English Constitution' which
have come to acquire sanctity not inferior to the sanctity of law or rather superior to it in as much as
the strictly legal aspect of things under the English Constitution yields places to the 'Conventions'
deemed essential to democracy. These are not justiciable. They are merely guidelines to
Government in action.

The Directive principle of State Policy are as follows:-

Directive Principles generally. - (i) The State shall strive to promote the welfare of the people by
securing a social order permitted by social, economic and political justice [Article 38(1)].
(ii) The State shall, in particular strive to minimise the inequalities in income and endeavour to
eliminate inequalities in status, facilities and opportunities not only amongst individuals but also
amongst groups of people residing in different areas or engaged in different vocations [Article 38(2)].
(iii) The State shall endeavour to secure just and human conditions of work, a living wage, a decent
standard of living and social and cultural opportunities for all workers (Article 43).
(iv) The State shall endeavour to raise the level of nutrition and standard of living and to improve the
health of the people. (Article 47).
(v) Promotion of international peace and amity. (Article 51).
(vi) Equitable distribution of the material resources of the community and prevention of
concentration of wealth and means of production (Article 39).

The Constitution (42nd Amendment) Act, 1976, has amended Article 39 (f). The new clause provides
that children are given opportunities and facilities to develop in a healthy manner and in condition of
freedom and dignity and that childhood and youth are protected against exploitation and against
moral and material abandonment. While interpreting, the word 'distribution' used in Article 39(b),
Justice Krishna Iyer said in the State of Karnataka v. Ranganath Reddy, AIR 1978 SC 215, that it
cannot be given full play as it fulfil the basic purpose of restructuring the economic order. It
embraces the entire material resources of the community. Its task is to distribute such resources. Its
goal is to undertake distribution as best subserve the common good. It recognises by such
distribution the ownership and control.

Directive in shaping the policy of the State :-

1. To establish economic democracy and justice by securing certain economic rights.
2. To secure a uniform civil code for the citizens (Article 44).
3. To provide free and compulsory primary education (Article 45).
4. To prohibit the consumption of liquor and intoxicating drugs except for medical purpose (Article
47).
5. To develop cottage industries (Article 43).
6. To organise agriculture and animal husbandry on modern lines (Article 48).

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7. To prevent slaughter of useful cattle, i.e., cows calves and other milch and draught cattle (Article
48).
8. To organise village Panchayats as units of self-government (Article 40).
9. To protect and maintain places of historic, artistic interest (Article 49).
10. To separate the judiciary from the Executive (Article 50).
11. To promote with special care the educational and economic interest of the weaker sections of
the people (Article 46).
Directive in the nature of non-justiciable rights of every citizen:
(i) Right to adequate means of livelihood (Article 39(a)].
(ii) Right of both sexes to equal pay for equal work [Article 39(d)].
(iii) Right against economic exploitation [Article 39 (e), (f)]
(iv) Right to work (Article 41).
(v) Right to education (Article 41).
(vi) Right to public assistance in case of unemployment, old age, sickness and other cases of
undeserved want (Article 42).
(vii) Free legal aid to safeguarding backward class (Article 39-A).
(viii) Participation of workers in management of industries (Article 43-A).
(ix) Protection and improvement of environment and safeguarding of forests and wild life (Article 48-
A).

93rd Amendment Bill, 2001. - The Ninety third (Amendment) Bill, 2001 which will subsequently
become The Constitution (86th Amendment) Act 2001 proposes to substitute as new article for
Article 45 which provides that "the State shall endeavour to provide early childhood care and
education for all children until they complete the age of six years."

DIFFERENCE/RELATIONSHIP BETWEEN DIRECTIVE PRINCIPLES AND

FUNDAMENTAL RIGHTS

The relationship or difference between Directive Principles and Fundamental Rights are as follows:

1. The Directive Principles cannot be enforced by the courts; they are declaratory while
Fundamental Rights are enforced by the courts: they are mandatory.
2. The Directive Principles are instrument of institutions of the Govt. while the Fundamental
Rights are limitation upon the state actions.
3. The Directive Principles contains positive commands to the state to promote a social and
welfare state while the Fundamental Rights contain (loosely speaking) negative injunctions to
the state not to do various things.
4. The Directive Principles set the guidelines, for achieving socialistic goals through democratic
methods while the Fundamental Rights guarantees some basic rights to individuals.
5. The Directive Principles are required to be implemented by legislation; while Fundamental
Rights are self-executory in nature.
6. 25th Amendment 1971 added Article 31-C in the Constitution; which provided that a law for
implementing directives contained in Article 39(b) and (c) could not be struck down on the
ground that it contravened rights conferred by Article 14, 19 or 31.
7. 42nd Amendment, 1976 widened the scope of Article 31-C so as to cover all Directive
Principles. Thus it gave preference to all the directive principles over the Fundamental Right
contained under Article 14, 19 or 31. However, this portion of 42nd Amendment was struck

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 down by Supreme Court in Minerva Mill's v. U.O.I., AIR 1980 SC 1789. Thus, it is inoperative
now.

The leading cases on the relationship between the Fundamental Rights and the Directive Principles
are as follows:
State of Madras v. Champakam Dorairajan, AIR 1951 SC 228, in for admission to medical and
engineering colleges for different communities. this case, the order of Madras Government was
challenged which fixed quotas. The Govt. contended that the order was passed under Article 46 of
the Constitution.

The Court held that, "the Directive Principles of state policy have to conform to and run as subsidiary
to the chapter of Fundamental Rights", because the latter are enforceable in the principles cannot
override the Fundamental Rights. The Court held that the order of Madras Govt. was invalid.

In Re Kerala Education Bill (AIR 1957 SC 956), in this case Court observed that though the Directive
Principles cannot override the Fundamental Rights, nevertheless in determining the scope and ambit
of rights the court may adopt the principles of Harmonious Construction and should attempt to give
effect to both as much as possible.

Keshavananda Bharati v. State of Kerala, (AIR 1973 SC 1461), in this case, insertion of Article 31 C,
was questioned. The Supreme Court by 7- 6 majority overruled the Golak Nath's case which denied
Parliament the power to amend Fundamental Rights of citizens. The Court observed that the
Fundamental Rights and Directive Principles are meant to supplement one another. It can well be
said that the directives prescribed the goal to be attained and Fundamental Rights laid down the
means by which that goal is to be achieved.

Minerva Mills v. U.O.I., AIR 1980 SC 1789, in this case. Article 31- C as amended by 42nd amendment
was challenged on the ground that it destroys the 'basic features' of the Constitution. The Supreme
Court struck down Article 31-C as amended by 42nd amendment as unconstitutional.

The majority observed that the Constitution is founded on the bed rock of the balance between Part
III and IV. To give absolute primacy to one over the other is to disturb the harmony of the
Constitution, which is the essential feature of the basic structure. The goals set out in Part IV have to
be achieved without the abrogation of the means provided by Part III.

State of Tamilnadu v. Abu Kavur Bai, (AIR 1984 SC 626), in this case, the Supreme Court held that
although the Directive Principles are not enforceable yet the court should make a real attempt at
harmonizing and reconciling the Directive Principles and the Fundamental Rights and any collision
between the two should be avoided as far as possible.

Bandhua Mukti Morcha v. U.O.I., (AIR 1984 SC 802), in this case, the Supreme Court has held that
though the Directive Principles are unenforceable by the court and the courts cannot direct the
Legislature or Executive to enforce them; once a legislation in pursuance of them has been passed,
the courts can order the State to enforce the law, particularly when non-enforcement of law leads to
denial of a Fundamental Right.

Unni Krishna v. State of A.P., (1993 (1) SCC 645), in this case, the Supreme Court held that the
Fundamental Rights and Directive Principles are supplementary and complementary to each other
and the provisions in part III should be interpreted having regard to the Preamble and Directive
Principles.

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What are the fundamental duties enumerated under Article 51-A of the Constitution? What is the
importance of these duties?

For the first time, the Constitution (Forty-second Amendment) Act, 1976, enumerates and specifies
the fundamental duties of citizens in the Constitution. It is significant to note that in none of the
Constitutions of western countries the duties and obligations are specifically defined. The
Constitutions of socialist countries lay great emphasis on the duties of citizens (The Constitution of
People’s Republic of China, Part-II); but they can also be found in non-socialist states (The
Constitution of Sri Lanka, Chapter-VI). The fundamental duties are intended to serve as a constant
specifically conferred on him certain fundamental rights equally, the citizen also is required to
observe certain basic norms of democratic conduct and democratic behaviour. While Constitution
confers certain fundamental rights on the citizens it also gives power to State to impose reasonable
restrictions on these rights. The rights guaranteed by the Constitution are available to the citizens
only when they fulfil their duties. Under Part IV-A Fundamental Duties was added on the
recommendation of Sardar Swarn Singh committee. This is implicit in the provisions of our
Constitution.
The newly added Article 51-A runs as follows:

"51-A. Fundamental Duties. - It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce practices
derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and
to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of enquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective, so that the nation
constantly rises to higher levels of endeavour and achievements.

The Constitution (93rd Amendment) Bill 2001 passed by Parliament proposes to add new clause (k)
to Article 51-A which provides:-
"Who is parent or guardian to provide opportunities for education to his child or as the case be,
ward between the age of six to fourteen years."

In AIIMS Students Union v. AIIMS, AIR 2001 SC 3262 "Almost a quarter century after the people of
India have given the Constitution unto themselves, a chapter on fundamental duties came to be
incorporated in the Constitution. Fundamental duties, as defined in Article 51A, are not made
enforceable by a writ of Court just as the fundamental rights are but it cannot be lost sight of that
`duties' in Part IV A. Article 51A are pre-fixed by the same word `fundamental' which was prefixed by
the founding fathers of the Constitution to `rights' in Part III. Every citizen of India is fundamentally
duty bound to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievements. State is, all the citizens
placed together and hence though Article 51 A does not expressly cast any fundamental duty on the

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State, the fact remains that the duty of every citizen of India is the collective duty of every citizen of
India is the collective duty of the State. Any reservation, apart from being sustainable on the
constitutional anvil, must also.

What do you understand by 'Writs'? Explain the circumstances in which various writs can be
issued.

Meaning of Writs : According to 'Lord Halsbury' Writ can be called those extraordinary remedies
which are issued upon cause shown in cases where the ordinary legal remedies are inapplicable or
inadequate.
There are two kinds of writs - The prerogative writs and the original or judicial writs. The original or
judicial writs commence between party and party and they issue as of course. The prerogative writs
are exceptional processes which issue only upon proper cause shown. As the prefix "Prerogative"
suggests they do not originate from the enacted or common law but issue from the sovereign rights
of the King as the fountain head of justice. The prerogative writs are ancient remedial process of an
extraordinary nature which have from the earliest time issued from the Court of King's Bench in
which the sovereign was always present in compensation of law. The jurisdiction to issue such writs
was later on extended to the High Court of justice under the Supreme Court of Judicature Act, 1925
in England.

What writs can be issued. - Under Articles 32 and 226 the Constitution of India confers upon the
Supreme Court and the High Courts respectively the power to issue direction, orders, or writs
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari
for the enforcement of the Fundamental Rights and in the case of High Court "for any other
purpose" also. In the case of Fertilizer Corporation Kamgar Union v. Fertilizer Corporation (AIR
1981 SC 344), the importance of Article 32 has been explained in following words:-
The Jurisdiction conferred on Supreme Court has been characterised as an important and integral
part of the basic structure of the Constitution as it is meaningless to confer fundamental rights
without providing any effective machinery and remedy for their enforcement, if and when they are
violated.

(i) Habeas Corpus - This write lies when a person has been detained unlawfully. It may be used to
secure release of a person from confinement without legal justification. In India, detention may be
unlawful if, inter alia, it is not in accordance with law, or there is no valid law to warrant it, or the law
is invalid because it infringes a fundamental right or the legislature enacting it exceeds its limit. The
great value of this writ is that it enables the immediate determination of the right of a person's
freedom.
In Kanu Sanyal v. District Magistrate, Darjeeling, AIR 1983 S.C. 653, the Supreme Court has held
that while dealing with the application of writ of habea corpus, production of the body of the person
allegedly to be unlawfully detained was not essential. Justice Bhagwati held in this case that in a writ
of habeas corpus under Article 32, the production of the body of the person detained, is not
necessary for hearing and disposing of the writ-petition by the court. The production of body of the
person detained illegally is not the essential feature of the writ of habeas corpus.
Who can apply for the writ. - The general rule is that an application can be made by a person who is
illegally detained. But in certain cases, an application for habeas corpus can be made by any person
on behalf of the petitioner, i.e. his friend or a relation.
The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will also
be used for protecting him from inhuman treatment inside the jail.

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This writ is issued to the authority who has the aggrieved party in his custody. When on a petition for
the writ the court considers that a prima facie case for granting the prayer, has been made out, a
rule nisi is called upon the custodian of the prisoner to show cause why the writ cannot be issued. If
the cause is shown insufficient, the writ is issued for setting the prisoner free. The writ is not issued if
the custodian can satisfy the court that the prisoner is not under unlawful detention. The Supreme
Court has held in Janardan v. State of Hyderabad, AIR 1951 SC 217 that if it should appear on the
face of return that a person is in detention in execution of a sentence or an indictment on a criminal
charge, that would be a sufficient answer to an application for a writ of habeas corpus.

(ii) Writ of Mandamus : Mandamus is a judicial remedy which is in the form of an order from a
superior court to any Government, Court, Corporation or Public Authority to do or to forbear from
doing some specific act which that body is obliged under law to do or refrain from doing, as the case
may be, and which is in the nature of a public duty and in certain cases of a statutory duty. No one
can ask for a mandamus without a legal right. There must be a judicially unforceable as well as
legally protected right before one suffering a legal grievance can ask for a mandamus. A person can
be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do
something and obtains from doing it. In the words of the Supreme Court "there must be in the
applicant a right to compel the performance of some duty cost on the opponent. The duty sought to
be enforced must have three qualities - (i) It must be a duty of a public nature. A duty will be of a
public nature if it is created by the provisions of the Constitution or of a statute or some rule of
common law. A duty corresponding to a private

(iii) Quo-Warranto: By issuing the writ of quo-warranto the court seeks from the person to whom it
is issued information as to the warrant or authority by which the said person supports his right to an
office, franchise or liberty. It lies against a person who claims or usurps an office, franchise or liberty
with respect to which information is sought so that such person's right to the same may be
determined in the light of the authority or warranto cited by such person in support thereof. The
writ of quo-warranto cannot be issued unless the defendant is in actual possession of the office and
exercises the office - R. v. Green, 2 QB. 460. The holding of a liberty as a matter of fact is a condition
precedent to the determination of a right to the same and the calling up of information with regard
to it. A motion for a writ of quo warranto can be made at the instance of a private person although
he is not personally aggrieved or interested in the matter. The motion does not require the
intervention of the Government or any public authority. This type of writ is a discretionary remedy
and is not issued as a matter
In G.D. Karkare v. T.L. Shevde, AIR 1952 Nag. 330, the appointment of the Advocate General of
Madhya Pradesh was questioned by Quo-Warranto. An objection was take that mere a private
individual seeking neither enforcement of his fundamental right nor any other legal right cannot ask
for quo- warranto. The High Court held that there was no reason to refuse a citizen under a
democratic republican constitution to move for a writ of quo-warranto for testing the validity of high
appointment under the Constitution. On merit however, it was held that there was no defect in the
appointment questioned in the writ.
The writ of quo-warranto can go only to public offices and not to private bodies like the Managing
Committee of a school, as has been held in Amrendra v. Narendra, AIR 1953 Cal. 114.
(iv) Certiorari : It is a command or order by the superior court to an inferior court or tribunal to
transmit a record or cause or matter pending before them to the superior court not to proceed with
the case which is not within its jurisdiction and also to quash any order made by the court in such a
case. If the order of inferior court is found to be without jurisdiction or against the principles of
natural justice, it will be quashed.
In Champalal v. The Commissioner of Income Tax, (AIR 1970 SC 645), it was held that a petition for a
writ of certiorari may lie to High Court where the order is on the face of it erroneous or raise
question of jurisdiction of infringement of fundamental right of the petitioner.

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Who may apply. - Any person whose legal right has been violated can apply for the issue of this writ.
Any person may on behalf of a group of persons or society or persons at large.
Grounds on which the writ is issued. - The following conditions must be fulfilled before a writ of
certiorari can be issued.-
(1) The act, order or judgment, in respect of which the writ is sought to be issued should be the act,
order or judgement of an inferior court or statutory body exercising judicial or quasi-judicial
functions.
(2) Such court or body must have acted in absence or in excess of the jurisdiction vested in it the
principles of natural justice so as to render such act, order or judgement invalid.
(3) Where there is violation of the principles of natural justice so as to render such act, order or
judgement invalid.
(4) When there is an error apparent on the face of record.
In the case of Gujarat Steel Tubes v. Its Mazdoor Sabha, (AIR 1980 SC 1896), Supreme Court
explained the meaning of the phrase "error apparent on the face of record". It was held that every
order cannot be corrected merely because it is wrong. It can be quashed only if it is vitiated by the
Fundamental flow of gross miscarriage of justice, absence of legal evidence, perverse misreading of
facts, serious errors of law on the face of order, jurisdictional failure and the like.
In Harbanslal v. Jagmohan Saran [AIR (1986) 302], it has been held that the writ of certiorari is
issued only if the order of the inferior tribunal or subordinate court suffers from the error of
jurisdiction or from breach of principles of natural justice or if vitiated by an apparent error of law.
The grounds mentioned above for quashing the orders, are self-explanatory of the term error on the
face of record.

(v) Prohibition : A writ of prohibition commands the court or tribunal to whom it is issued to refrain
from doing something which it is about to do. So writ of Prohibition is issued by a court of Superior
jurisdiction directing an inferior court for the purpose of preventing the inferior. Court from usurping
a jurisdiction with which it is not legally vested or to compel courts entrusted with judicial duties to
keep within the limits of their jurisdiction.
Thus the writ lies both for excess of jurisdiction and absence of jurisdiction. Prohibition has much in
common with certiorari. Thus both these writs lie against a judicial or quasi judicial body but not
against an executive body. But there is one fundamental distinction between the two writs. They are
issued at different stages of the proceedings. When an inferior court takes up for hearing a matter
over which it has no jurisdiction, the person against whom the proceedings are taken can move the
Superior Court for a writ of prohibition and on that, an order will issue forbidding the inferior court
from continuing the proceedings. On the other hand, if the court hears that case or matter and gives
a decision, the party aggrieved will have to move the Superior Court for a writ of certiorari, and on
that, an order will be made quashing the decision on the ground of want of jurisdiction. Sometimes
the two writs may overlap. Thus it may happen that in a proceeding before the inferior court a
decision might have been passed which does not completely dispose of the matter, in which case it
might be necessary to apply both for certiorari and prohibition certiorari for quashing what has had
been decided, and prohibition for arresting the further continuance of the proceeding. Broadly
speaking, a writ of prohibition will lie when the proceedings are to any extent pending and writ of
certiorari for quashing other they have terminated in a final decision. It is well-settled that where
proceedings of an inferior court or tribunal are party within and party without jurisdiction, the
prohibition will lie against doing what is in excess of jurisdiction.
In Bengal Immunity Company Ltd. v. State of Bihar, AIR 1955 SC 661 Supreme Court observed that
the existence of an alternative remedy may be more relevant in the context of a writ of a certiorari
but where an inferior tribunal is shown to have usurped jurisdiction which does not belong to it that
consideration is irrelevant and the writ of prohibition has to be issued as of right.

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