Sample Theory For Fundamental Rights - UGC NET LAW UNIT-2

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Fundamental Rights
2.2 FUNDAMENTAL RIGHTS
Part III of the constitution contains fundamental rights. Fundamental rights covers all the civil and
political rights
Part III of Indian constitution = Magna Carta of India
Dr. Ambedkar described it as 'most criticised part of constitution J. Gajendra gadkar described
fundamental rights as very foundation and corner stone of the democratic way of life ushered in this
country by the constitution.
The inclusion of a chapter of fundamental right in the constitution of India is in accordance with
the trend of modern democratic thought, the idea being to preserve that which is an indispensable
condition of a free society. Fundamental Rights were deemed essential to protect the rights and liberties
of the people against encroachment of the power delegated by them to their government.
Importance of Fundamental Rights
In a historic judgement of Menka Gandhi V. Union of India (1978) J. Bhagwati observed that
these rights represent the basic values cherished by the people of this country since the Vedic times and
they are calculated to protect the dignity of the individual and create conditions in which every human
being can develop his personality to the fullest extent.
The object behind the inclusion of this chapter is to establish a Government of Law not of man.
In Nagraj V. Union of India (2007), Supreme court held that fundamental rights are not gift from
the state to citizens. These rights are important as they possess intrinsic values.
Indian constitution where provides fundamental rights to citizens there permits reasonable
restrictions to be imposed on individual's liberties in the interest of society.
Above view was discussed in leading case :
A.K. Gopalan V. State of Madras (1950), [J. Mukherjee] Court observed that there cannot be
such things as absolute and uncontrolled liberty wholly freed from restraint, for that would lead to anarchy
and disorder.
New Judicial Trend in Fundamental Rights
 In Gopalan's case, the court had taken a very restrictive approach, ruling that the various
fundamental Rights included in the constitution are mutually exclusive i.e. if an enactment
is made under a particular article, its validity has to be judged in the light of the provisions
of that particular article alone and not with respect to other articles.
But the trend have changed since then and particularly after the Menka Gandhi, Sunil
Batra & Hussainara Khatoon cases.
 In Menka Gandhi Case, J. Bhagwati held the correct way of interpreting the provisions of
part III Should be to expand the reach and ambit of fundamental Rights rather than
attenuate their meaning and content. Further court held that the various articles are not
mutually exclusive but from a single integrated scheme in the constitution.
Whether Fundamental Rights can be suspended ?
Yes, Article 358 provides that when the proclamation of emergency is made by the President
under Article 352 the freedoms guaranteed by Art. 19 are automatically suspended and would continue
to be so for period of emergency.
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Law (Sample Theory)
Article 359 also empower the President to suspend the right to move any court for the enforcement
of rights conferred by Part III of the constitution (except Art. 20 & 21.)
Note :
(1) Art 19 (I) (F) Right to Property has been abolished by 44th Amendment.
(2) Fundamental Rights available against state only not against private individual.
[Case. P.D. Shamdasani V. Central Bank of India State of west Bengal V. Subodh Gopal Base]
Definition of state [Art 12]
State includes :
1. The Government and parliament of India i.e. executive and legislature of the union.
2. The Government and the legislature of each state i.e. executive and legislature of states.
3. All local and other authorities within the territory of India
4. All local and other authorities under the control of the Government of India.
The term state thus includes executive as well as legislative organs of the union & states. Thus
the Income Tax Department a part of the executive has been held to be state in Bidi supply co. V. Union
of India.
Local Authorities includes municipalities, District Boards, Panchayats, improvement trusts, poverty
trusts and mining settlement boards.
Case Mohammad yasin V. Town Area Committee. (1952)
Supreme court held that the bye-laws of a Municipal committee charging a prescribed fee on the
wholesale dealer was an order by a state authority contravened Art 19 (1) (g).
Other Authorities
The principle with respect to other authorities as it evolved through following cases :
1. University of Madras V. Santa Bai (1957, Madras High court)
2. Devdas V. Karnataka Engineering college (1964, Karnataka high court)
3. Krishna Gopal V. Punjab University (1966, Punjab High court)
In all these cases, the high court were of the view that the authorities concerned were not other
authorities as other authorities in Art 12 is proceeded by three other categories and hence as per the
principle of Ejusdem Generis it should derive its colour from the other three. And as the first three
categories in Art 12 they have sovereign power of the state been in above cases they did not enjoy
sovereign power and hence they were not state.
1. Ujjam bai V. State of Uttar Pradesh (1962) : The supreme court rejected the above
restrictive approach and held that the rule of Ejusdem Generis requires that there should
be a common genus serving through all the categories. The first three categories in Article
were not of a common genus nor could they be placed in one single category on any
national basis.
2. Electricity Board Rajasthan V. Mohan Lal (1967) : The Supreme court rejected the
Ejusdem Generis argument. The first three categories are not of similar nature and are
also not specific particularly the category of local bodies - e.g. Municipal corporation are
different from village Panchayats.

Law (Sample Theory)
Rajasthan Electricity Board, Cochin Devasan Board, Cooperative Society which have power
to make bye law's under cooperative societies Act, 1911, are comes under other authorities. Chief
Justice of H.C (Parmatma Sharan V-Chief Justice) and President (Haribhai V. State) comes within the
ambit of the expression other authorities.
Rajasthan Electricity Board case has overruled the decision, of the Madras high court in Santa
Bai's case that university is not a state.
Following the decision of Rajasthan Electricity Board case Patna University was held to be 'state'
in Umesh V. V.N. Singh In Sukhdev singh V. Bhagatram (1975) Supreme court following the test laid
down in Electricity Board Rajasthan case by 4 : 1 majority held that Oil and Natural Gas Commission
(ONGC), Life Insurance Corporation (LIC) and Industrial Finance Corporation (IFC) are authorities under
Art 12 and therefore they are state. The effect of this decision was that the authorities not created by
the constitution or by statute could not be a 'state'. This is a very restrictive interpretation of the expression
'other authorities' under Art 12.
But in subsequent decisions the supreme court has given a broad and liberal interpretation to the
expression other authorities in Art 12. Other authorities includes all those bodies which are though not
created by the constitution or by a statute are acting as agencies or instrument of the Government.
Leading Case R.D. Shetty V. International Airport Authority (1974)
In this case J. Bhagwati preferred and rightly, the broader test as suggested by Mathew J. in
sukhdev V. Bhagatram Case. J. Bhagwati held that if a body is an agency or instrument of government
it may be an authority under Art 12. Whether it is statutory corporation, a government company or even
a registered society. Thus international Airport Authority, which had been created by Act of Parliament
was the state under Art 12.
Further court laid down the following tests for determining whether a body is an agency or
instrumentality of Government :
1. financial resources of the state is the chief funding source.
2. existence of deep and pervasive state control
3. Functional character being government in essence.
4. If a department of Government is transferred to a corporation
5. Whether the corporation enjoys monopoly status which is state conferred or state protected.
However these tests are not conclusive but illustrative only.
This approach was confined in two subsequent cases :
1. Som Prakash V. Union of India (1981), J. Krishna Iyer held that Bharat Petroleum
corporation registered under the corporation Act is an instrumentality of state government
and hence 'state'.
2. Ajay Hasia V. Khalid Mujib (1981) It has been held that a society registered under the
societies Registration Act, 1898, is an agency or instrumentality of the state and hence
a state under Art 12.
State :
1. ICAR - S.M. Ilyas V. ICAR (1993)
2. Children's Aid society - Sheela Barse V. Secretary Children's Aid Society (1987)
3. Public Trust -
4. Central Inland water Transport Corporation - Central inland water transport cor. V. Brojo
Nath Ganguly.
5. Sainik School Society -
6. Indian statistical Society - B.S. Minhas V. Indian statistical institute (1983)

Law (Sample Theory)
7. Banks
8. State Trading corporations
9. ESIR [Sabhjit Jewary case impliedly overruled in P.K. Ram Chandra Case 1984]
10. Steel Authority of India
11. CSIR - Pradeep kumar Biswas was V. Indian Institute of Chemical Biology (2002)
Not State :
1. NCERT - Chandra Mohan khanna case
2. BCCI
3. Institute of constitutional & Parliamentary studies – Tekraj Vasandi V.U.O.I
4. International Crop Research Institute – G. Bassi Reddy V. PCRI
5. Cooperative Sugar Mill
Whether Judiciary is State ?
The Judiciary, though not expressly mentioned in Art 12. It should be included so, since courts
are set up by statute and exercise power conferred by law.
In Naresh Vs. State of Maharashtra (1967), it was held that even if a court is the state a writ
under Art 32 can not be issued to a high court of competent Jurisdiction against its judicial orders
because such orders can't be said to violates fundamental rights.
A.R. Antulay Vs. R.S. Nayak. (1988), it was held that state includes judiciary also.
Other Cases :
1. Prem chand Garg V. Excise Commissioner
2. State of Bihar V. Bal Mukund
3. Khoday Distilleries Ltd V. Registrar General Supreme court of India
4. L. Chandra Kumar V. U. O. I.
5. Kesavanand Bharti case.
Laws Inconsistent with Fundamental Rights – Art 13
Clause 1 : All pre-constitution or existing laws i.e. laws which were in force immediately before
the commencement of the constitution shall be void to the extent to which they are inconsistent with
fundamental rights from the date of the commencement of constitution.
Clause 2 : The state shall not make any law which takes away or abridges the fundamental
rights, and any law in contravention of fundamental right shall to the extent of contravention, be void.
Clause 3 : It gives the term 'law' very broad connotation which includes any ordinance, order, bye
law, rule regulation, notification custom or usage having the force of law.
Art 13, in fact provides for the Judicial review of all legislations in India, past as well as future.
This power has been conferred on the high courts & the supreme courts of India (Art 226, Art 32) which
can declare a law unconstitutional if it is inconsistent with any of the provisions of part III of the constitution.
Doctrine of Judicial Review was for the first time propounded by supreme court of America in
Marbury V. Madison.
In state of Madras V. V.G. Row (1952), J. Shastri Patanjali observed that our constitution
contains express provisions for judicial review of legislation as to its conformity with the constitution.
Justice Kania, in A.K. Gopalan V. State of Madras (1950) pointed out 'In India' it is the constitution
that is supreme & that a statute law to be valid, must be all conformity with the constitutional requirements
and it is for the judiciary to decide whether any enactment is constitutional or not."
Judicial Review is the basic feature of Indian Constitution
1. Kesavanand Bharti Case
2. L. Chandra Kumar V. U. O. I.
Law (Sample Theory)
The basis of Judicial Review of legislative act is far more secure under our constitution its
potentialities are much more limited as compared to that in USA.
Meaning of Law and Law in Force
Art 13 (3) (a) defines law very widely by an inclusive definition. It doesn't expressly include a law
enacted by the legislature for such an enactment is obviously law.
The expression 'law in force' used in Art 13 (1) and 13 (3) (b) has not been defined but in Edward
Mills Co. Ltd V. Ajmer (1995) S.C. held that 'law in force' means the same thing as 'existing law' which
has been defined in Art 372 to mean 'any law ordinance order bye law rule or regulation passed or made'
before the commencement of this constitution by any legislature authority or person having power to
make such law, ordinance, order bye - law, rule or regulation.
Whether Amendment to the constitution is law As per Art 13
Art 13 (4) declares "Nothing is this Article shall apply to any amendment of this constitution made
under Art. 368. This clause was inserted by the (24th Amendment) Act 1972.
Case 1.
Shankari Prasad V. Union of India. Sajjan singh V. State of Rajasthan - Amendment is not
Law.
These cases were overruled in I.C.Golaknath V. State of Punjab (1967) and held that the word
law included every branch of law, statutory, constitutional etc. and if an amendment to the constitution
took away or abridged fundamental rights of citizens the amendment could be declared void.
In order to remove the difficulty created by the supreme court's decision in Golak Nath's case new
clause (4) was added to Art. 13 which makes it clear that constitutional amendment passed under Art
368 shall not be considered as law within the meaning of Art . 13 and therefore can't be challenged as
infringing the Provision of part III of the constitution.
Note : The validity of the constitution (24th Amendment) Act 1971 was considered by the supreme
court in Kesavanand Bharati Case [Fundamental Right Case]. The court overruled the Golak Nath
case and upheld the validity of the said amendment.
Article 13
1. 13(1) Pre Constitution Laws : All laws which were in force immediately before the
commencement of the constitution. They are void to the extent to which they are inconsistent
with fundamental Rights from the date of the commencement of the constitution.
Such laws are not void ab initio.
Art 13 (1) is prospective in nature.
Case : Keshav Madhav Menon V. State of Bombay (1951)
There is no fundamental Right that a person shall not be prosecuted and punished for an
offence committed and before the constitution came into force. So far as the past Acts
are concerned the law exists not with standing that it doesn't exist with respect to the
future exercise of the fundamental Rights.
Case : Lachmandas V. St. Of Bombay (1952)
2. 13(2) Post Constitution Laws : It prohibits state to make any law which takes away or
abridges right conferred by part III of the constitution. If state makes such a law then it will
be ultra vires and void to the extent of the contravention. It is still born law and can't be
revived by removal of the constitutional prohibition by subsequent amendment of the
constitution.
Such laws are void ab initio.

Law (Sample Theory)
Doctrine of Severability
This doctrine means that if an offending provision can be separated from that which is constitutional
then only that part which is offending is to be declared as void and not the entire statute.
This is however, subject to one exception. If the valid portion is so closely mixed up with invalid
portion that it can't be separated without leaving an incomplete or more or less mingled remainder then
the courts will hold the entire Act void.
Doctrine of severability was followed in following cases :
1. A. K. Gopalan V. state of Madras (1950)
2. State of Bombay V. F. N. Balsara (1951)
3. Romesh Thappar V. state of Madras (1950) – [Separation not possibly whole Act struck
down]
4. R. M. D. C. V. Union of India (1957)
5. Kihota Hollohan V. Zachillhu (1993)
6. State of Bihar V. Kameshwar singh (1952)
Doctrine of Eclipse
The doctrine of eclipse is based on the principle that a law which violate fundamental Right is not
nullity or void ab initio but becomes only unenforceable i.e. remains in a moribund condition. "It is over
shadowed by the fundamental rights and remains dormant but it is not dead. Such laws are not wiped
out wiped out entirely from the statute book.
Can such law which becomes unenforceable after the constitution came into force be again
revived and made effective by an amendment in the constitution ?
It was to solve this problem that the supreme court formulated the doctrine of eclipse in Bhikaji
V. State of M.P (1955)
In that case provision of C.P and Berar Motor Vehicles (Amendment) Act 1947 authorised the
state Government to make up the entire motor transport business in the province to the exclusion of
motor transport operators. This provision, though valid when enacted, become void on the coming into
force of the constitution. However in 1951 clause (6) of Art 19 was amended by the constitution (1
amend.) Act. So as to authorise the Government to monopolies any business. The Supreme court held
that the effect of the Amendment was to remove the shadow and to make the impugned Act free from
all blemish or infirmity. It became enforceable against citizens as well non - citizens after the constitutional
impediment was removed. This law was merely eclipsed for the time being by the fundamental rights.
As soon as the eclipse is removed the law begins to operate from the date of such removal.
Does the Doctrine of Eclipse Apply to a Post Constitutional
 The Doctrine of eclipse doesn't apply to post constitutional law and therefore a subsequent
constitutional amendment can't revive it. :
1. Deep Chand V. state of U.P.
2. Mahendra Lal Jain V. state of U.P.
 A post constitution law which takes away or abridges the right conferred by Art 19 will be
operative as regards to non-citizen because fundamental rights are not available to non
citizens. – State of Gujrat V. Ambica Mills.
 Doctrine of Eclipse to post constitutional law even against citizens. – Dularey Lodh V.
IIIrd Additional District Judge, Kanpur.
Doctrine of Waiver
The citizens have been given the fundamental Rights. The fundamental Rights protect the basic
and inherent rights and liberties of a person. The purpose of the fundamental Rights is to act as a check

Law (Sample Theory)
upon the unbridled powers of the state. So that the state does not transgress upon the basic human
values liberty and dignity.
A question arises that can a citizen waive his fundamental right ?
The doctrine of waiver has no application to the provision of law enshrined in Part III of the
constitution. It is not open to an accused person to waive or give up his constitutional rights and get
convicted (Behram Vs. state of Bombay)
Case : Basheshar Nath Vs. Income Tax Commissioner (1959)
The majority in this case, on the above grounds held that the doctrine of waiver doesn't apply to
India.
Right to Equality [Art 14-18]
Art. 14 – embodies the general principles of equality before law and prohibits unreasonable
discrimination between persons.
Art. 14 embodies the idea of equality expressed in the Preamble. The succeeding Art 15, 16, 17
& 18 lay down specific application of the general rules laid down in Art. 14.
Art. 15 – Prohibition of Discrimination on grounds of religion, race, caste, sex or place of birth
Art. 16 – Equality of opportunity in matters of public employment.
Art. 17 – Abolition of untouchability
Art. 18 – Abolition of title.
Art. 14 : The state shall not deny to any person equality before law or the equal protection of the
laws within the territory of India."
Equality Before Law Equal Protection of the Laws
 Source - England [Dicey's rule  Source - American constitution [14 amend]
of Law]
 Negative Concept  Positive concept
 It implies the absence of special  It implies equality of treatment in equal
privilege in favour of individuals circumstances, there should be no
and the equal subject of all discrimination between one person and
classes to the ordinary law. another.
Dr. Jenning : Equality before law
means that among equals law
should be equal & should be
equally administered, that like
should be treated alike. e.g. the
right to sue & be sued.
In State or west Bengal V. Anwar Ali sarkar (1952)
Patanjali Sastri CJ, stated that second expression is corollary of the first and it is difficult to
imagine a situation in which the violation of the equal protection of laws will not be the violation of equality
before law.
Rule of Law
The guarantee of equality before the law an aspect of what Dicey calls the rule of law in England.
It means that no man is above the law and that every person is subject to the jurisdiction of ordinary
courts. [Ravinder Singh V. U. O. I – Rule of law requires that no person shall be subjected to harsh
uncivilised or discriminatory treatment even when the object is securing the paramount exigencies of law
and order.]

Law (Sample Theory)
Three meaning of Rule of law

1. Absence of Arbitrary Power or Supremacy of the law
2. Equality before the Law
3. Constitution is the result of the ordinary law of the land.
The first and second aspects apply to Indian system but the third aspect doesn't apply.
Exceptions to Rule of Law
1. Power of private citizens are not the same as the powers of public officials.
e.g. Police office has power to arrest but not private person has
2. Certain classes of persons subject to special rules.
e.g. Art. 361 affords an immunity to the President of India and the state Governors.
3. Ministers and other executive bodies are given very wide discretionary powers by statute.
4. Certain members of society are governed by special rules in their professions. e.g. lawyers,
doctors, nurses etc.
Article 14 Permits Classification but Prohibits Class Legislation
Art. 14 doesn't mean that every law must have universal application for, all persons, are not, by
nature, attainment, or circumstances in the same position. The varying needs of different classes of
persons often require separate treatment.
Thus what Art. 14 forbids is class legislation but it doesn't forbid measurable classification.
Class legislation is that which makes an improper discrimination by conferring particular privileges
upon a class of persons arbitrarily selected. While Art. 14 forbids class legislation it permits reasonable
classifications of persons objects and transactions by the legislature for the purpose of achieving specific
ends.
Test of Reasonable Classification
Classification to be reasonable must fulfill the following 2 conditions :
1. The classification must be founded on an intelligible differentia which distinguishes persons
or things that are grouped together from others left out of the group and.
2. The differentia must have a rational relation to the object sought to be achieved by the Act.
What necessary is that there must be a nexus between the basis of classification and the object
of the Act which makes the classification. Thus the legislature may fix the age at which persons shall
be deemed competent to contract between themselves but no will claim that competency [Anwar Ali
Case]
The true meaning and scope of Art 14 have been explained in number of cases by the supreme
court in following cases :
Ramkrishna Dalmia Vs. Justice Tendulkar (1958)
R.K. Garg Vs. U.O.I (1981)
Chiranjit Lal Vs. U.O.I (1951)
State of Bombay Vs. F.N. Balsara (1951)
Maneka gandhi Vs. U.O.I (1978)
Air India Vs. Nargesh Meerza (1981)
Motor General Traders Vs. state of A.P. (1984)
In re special Court Bill case Chandrachud J. reformulated new propositions to be followed regarding
the applicability of Art. 14. This has been rightly criticised by H.M. seervai as making the well - settled
principles unsettled & creating confusion and uncertainty and encouraging litigation. The principles laid
by J. Das in Dalmia's case has not been disputed by Chandrachud J. and therefore there was no need
to formulate the Same unless it was necessary to add something to the existing principles.
Law (Sample Theory)
The proposition laid down in Ramkrishna Dalmia V. Justice Tendulkar are as follows :
1. A law may be constitutional even though it relates to a single individual if an account of
some special circumstances or reasons applicable to him and not applicable to others
that single individual may be treated as class by itself.
2. There is always presumption in favour of the constitutionality of a statute and the burden
is upon him who wants to show that there is no classification at all.
3. It must be presumed that the legislature understands and correctly appreciates the need
of its own people and that its discrimination are based on adequate grounds.
4. In order to sustain the presumption of constitutionality the court may take into consideration
matters of common knowledge, matters of report, history of the times.
5. The classification made by legislature need not be scientifically perfect or logically complete.
Equal treatment doesn't mean identical treatment.
6. The question whether a classification is reasonable and proper, or not, must however be
judged more on common sense than on legal subtitles.
7. The basis of classification may be different e.g. geographical, vocational, difference in
time, difference in nature of persons trade or occupation etc.
Evolution of the New Approach
Bhagwati J. Speaking for himself, Chandrachud & krishna Iyer J. (in a concurring opinion) in E.P.
Royappa V. state of Tamilnadu (1974) laid down the new approach.
"Equality is a dynamic concept it can't be cribbed, cabined and confined within traditional doctrinaire
limits. From a positivistic point of view, equality is antithetic to arbitrariness where an act is arbitrary, it
is implicit in it that it is unequal both according to political logic and constitutional law and it is therefore
violative of Art. 14.
A few months later in concurring opinion in M. Chhaganlal V. Greater Bombay Municipality
(1974) he reiterated the above principle emphasizing the importance of the equality doctrine. Again in
Maneka Gandhi V.U.O.I. (1978) he said, Art. 14 Strikes at arbitrariness in state action and ensures
fairness and equality of treatment. The principle of reas reasonableness which logically as well as
philosophically, is an essential elements of equality or non arbitrariness, pervades Art 14 like a boarding
omnipresence.
In R.D. Shetty V Airport Authority (1979) and Kasturilal V. State of J&K (1980) he gave the
unanimous opinion of 3 judges benches to the same effect. And finally in Ajay Hasia V. khalid mujib (1981)
court spoke for the unanimous opinion of a constitution bench of the supreme court – "Art. 14 Strikes
at arbitrariness because an action that is arbitrary must necessarily involve negation of equality. The
doctrine of classification is not an objective or end of Art. 14. It is a mere judicial formula for determining
whether the legislative or executive action in question is arbitrary."
The new doctrine his brought the criterion reasonableness out of the mere doctrine of equality
and has expanded it to include Art. 21 & 19 etc.
Cases Laws
1. D.S. Nakara Vs. U.O.I (1983) (Desai J.) : Supreme court struck down rule 34 of the
central services (Pension) rules 1972 as unconstitutional on the ground that the
classification made by it between Pensioners retiring before a particular date and retiring
after date was not based on any rational principle and was arbitrary and violative of Art.
14.
2. Suneel Jately Vs. State of Haryana (1984) : Reservation of 25 seats for admission to
HBBS and BDS course for students who were educated from class I to VIII in common
rural schools was held to be violative of Art. 14 and invalid.

Law (Sample Theory)
3. Mithu Vs. State of Punjab (1983) : Sec 303 IPC was challenged and it was declared as
unconstitution.
4. K.A. Abbas Vs. U.O.I (1971) : Court held that the classification of films into two categories
of 'U' films and 'A' films is a reasonable classification.
5. Nishi Magghu Vs. St. of J&K (1980) : Classification made on the basis of regional
imbalance was vague in absence of identification of areas suffering from such imbalance.
6. Air India Vs. Nargesh Meerza (1981) : Supreme court struck down the Air India and
Indian Airlines Regulations on the retirement and pregnancy bar on the services of air
hostesses as unconstitutional on ground that the conditions laid down therein were
unreasonable and arbitrary.
7. K Nagraj Vs. State of A.P. (1985) : Court held that the reduction of age of retirement was
not arbitrary and unreasonable and violative of Art. 14.
8. Pradeep Jain Vs. U.O.I (1984) (J. Bhagwati) : The Supreme court held that the wholesale
reservation of seats in the MBBS and BDS Course made by State Govt. on the basis of
domicile or residence within the state as being violative of Art . 14.
9. St. Of Maharashtra Vs. Manu bhai Pragaji Vashi (1995) : Court directed the state to
give the grants in aid to recognised private colleges on the same criteria as such grants
are given to other faculties.
10. BALCO Employees Union (Regd.) Vs. Union of India (2002) : No judicial review of
Economic Policy of Government.
11. Vishakha Vs. State of Raj. (1997) : Guidelines have been laid down to prevent sexual
harassment of working woman.
12. Randhir Singh Vs. U.O.I (1982) : Equal pay for equal work is a constitutional goal under
Art. 14, 16 and 39 (C) of the constitution.
13. Mewa Ram Vs. A.I.I Medical Sciences. (1989) : It is open to state to prescribe the
different scales of pay for different posts having regard to educational qualifications duties
and responsibilities of the post.
14. AIIMS Students Union Vs. AIIMS (2001) : P.G. Course admission must be on merit
basis.
15. Danial Latifi Vs. U.O.I (2001) : Supreme court upheld the validity of Sec 3 & 4 of the
Muslim Women (Protection of Rights on Divorce) Act, 1986. and held that it is not violation
of Art 14.
16. John vallamattom Vs. U.O.I (2003) : Sec 118 of Indian succession Act has been challenged
because this section plans restriction on a Christian having nephew niece or any near
relative on his power to bequeath his property for religious purpose. Court held that sec
118 is unconstitution.
17. Javed Vs. State of Haryana (2003) : Disqualifying persons having more than two children
to be candidates in Panchayat election is not violative of Art. 14.
18. E.V. Chinnaiah Vs. St. of A.P. (2005) : Sub-classification of scheduled caste for reservation
is not permissible.
19. APBC sangh Vs. Jharkhand state Vaishya Federation (2006) : Amalgamation of extremely
Backward case and Backward class into one group : Amounts to treating unequals as
equals is violative of Art. 14.
20. Anuj Garg Vs. Hotel Association of India (2008) : Prohibition of employment of women
in hotels & bars serving liquor violates gender equality.
21. Vijay Sharma Vs. U.O.I (2008) : Ban on sex selection is not violative of Art. 14.

Law (Sample Theory)
22. Krishna Singh Vs. st of Rajasthan (1955) : Geographical can be the basis of classification.
A law may be applicable to one state and not to another.
23. Saghir Ahmad Vs. state : A monopoly created by the state in its favour was held not
violative of Art 14.
24. Rajbala Vs. St. of Haryana (2016) : Minimum educational qualification and certain
disqualifications for seeking election in Panchayat is not violation of Art. 14.
25. State of Bihar Vs. Bihar 10 + 2 lectures Associations (2007) : Distinction between
trained teacher and untrained teacher is valid, rational and reasonable.
26. Subramanian Swamy and Ors. Vs. Raju Thr. Member Juvenile Justice Board (2014)
: Classification of criminals as Juveniles and other criminals as wholly consistent with Art.
14.
27. Chiranji lal Vs. U.O.I (1961) : A single individual may constitute a class.
Article 14 and Legitimate Expectation
The doctrine of legitimate expectation in the substantive sense has been accepted as part of our
law & that the decision makes can normally be compelled to give effect to his representation in regard
to the expectation based on previous practice or past conduct unless some over, riding public interest
comes in the way. The change of policy can defeat substantive legitimate expectation if it can be justified
on wednesbury reasonableness.
The principle of substantive legitimate expectation has been accepted by the courts in India in
following cases :
 Navyjoti co-op Group Housing society V. U.O.I (1993)
 Food Corporation of India V. Ms. Kamdhenu Cattle feed (1993)
 U.O.I V. Hindustan Development corporation (1993)
In an arbitrary action - state liable to pay compensation to citizen [Lucknow Development Authority
V. M.K. Gupta]
Article 14 and Rule of Natural Justice
Central Inland Water Transport Corporation Ltd. V. Brojo Nath (1986)
Supreme court held that service rules empowering the Govt. corporation to terminate services of
permanent employees without giving reasons on 3 months notice or pay in lieu of notice period is
violative of Art 14. being unconscionable.
The above decision was followed in Delhi Transport Corporation V. DTC Mazdoor congress.
Article 15
No Discrimination on Grounds of Religion Race, Caste etc.
Art. 15 provides for a particular application of the general principle embodies in Art 14. When the
discrimination is based upon one of the grounds mentioned in Art. 15 the reasonableness of the
classification will be tested under Art 14.
The guarantee under Art. 15 is available to citizens only and not to every person whether citizen
or not citizen as under Art. 14.
Clause 1 : State is prohibited to discriminate between citizens on grounds only of religion, race,
caste, sex, place of birth or any of them.
The word 'only' indicates that discrimination can't be made merely on the ground that one belongs
to a particular caste, sex etc. It follows from this that discrimination on grounds other than religion race,
caste, sex or place of birth is not prohibited.
D.P. Joshi V. State of Madhya Bharat (1955) : Discrimination on ground of residence doesn't
violate Art. 15 (1).

Law (Sample Theory)
Clause 2 : No citizen shall be subjected to any disability, restriction or condition on grounds only
of religion, race, caste, sex, place of birth or any of them with regard to :
(a) access to shops, public restaurants, hotels and places of public entertainment or
(b) the use of wells, tanks, baths, roads and public places of public resort maintained wholly
or partly out of state funds or dedicated to use of general public.
Art. 15 (1) prohibits discrimination by the state and
Art. 15 (2) prohibits both the state and private individual from making any discrimination
Clause 3 : Nothing in this Article shall prevent the state from making any special provision for
women & children.
It is an exception of Art 15 (1) & (2).
Yusuf Abdul Aziz V. State of Bombay (1954)
Sec 497 of Indian Penal code which only punishes man for adultery and exempts the woman
from punishment even though she may be equally guilty as on abettor was held to be valid since the
classification was not based on the ground of sex alone.
Salil Bali V. U.O.I (2013)
Supreme court regarding the provisions of the Juvenile Justice (care & Protection of children) Act,
2000 fixing 18 years as upper age limit for treating persons as Juvenile held it to be constitutionally valid.
The constitution enables the state Govt. to make special provision for children.
Clause 4 : Nothing in this Article or clause (2) of Article 29 shall prevent the state from making
any special provision for the advancement of any socially and educationally backward classes of citizen
or for the schedule castes and the scheduled tribes.
This clause was added by 1st Amendment in 1951 due to decision in state of Madras V.
Champakam Dorairajan.
The provision mode in clause 4 is only an enabling provision and doesn't impose any obligation
on the state to take any special action under it.
Under clause 4 two things are to be determined :
(a) Socially and educationally backward cases
(b) the limit of reservation.
Clause 4 of Art 15 has been interpreted in following cases :
 Balaji V. state of Mysore (1963) : Court held that the sub classification made by the
order between 'backward classes' and 'more backward classes' was not justified under
Art. 15 (4).
 Indra Sawhney V. U.O.I (1993) [Mandal Commission Case] The Supreme court by 6
: 3 majority held that the sub classification of backward classes into more backward and
backward classes for the purpose of Art 16 (4) can be done but as a result of sub-
classification the reservation can't exceed more than 50 percent.
 A. Periakaruppan V. state of Tamil Nadu (1971) : Classification of backward classes on
basis of castes is well within the preview Art. 15 (4).
 State of A.P. V. U.S.V Balaram (1972) : Supreme court held that caste of a person can't
be the sole test for ascertaining whether a peculiar class or community is backward class
or not, yet if an entire caste is, as a fact, found to be socially and educationally backward
their inclusion in the list of backward classes by their name is not violative of Art. 15 (4).
 Dr. Neelima V. Dean of P.G. studies A.P. Agriculture university Hyderabad (1993) :
High caste girl marrying Schedule Tribes not entitled to Reservation benefit.

Law (Sample Theory)
 State of M.P. V. Nivedita Jain (1981) : Supreme Court upheld the validity of relaxation
of minimum qualifying marks for admission for SCs & STs. The Supreme court also
overruled the full bench decision of the Patna High Court in Amalendu kumar V. state of
Bihar, where it was held that the reduction of the qualifying marks in favour of the SCs
& STs was violative of Art 15 (1), and hence unconstitutional.
 Bhawna Garg V. University of Delhi (2012) : Reservation for Nominees of Government
of India is not unconstitutional.
 T.M.A P. foundation & others V. state of Karnataka. (2003) : The contention was that
the reservation of seats in favour of NGOI was in breach of the principle of selection solely
on the basis of merit as laid down in this case.
 P.A. Inamdar V. state of Maharashtra (2005)
 TMA Pai foundation V. state of karnataka.
The Supreme court held that the state could not make reservation of seats in admission in
privately run educational institutions. There the admissions could be done on the basis of common
admission test conducted by the state or these institutions and on the basis of merit.
In Islamic Academy V. state of Kerela (2003) the court held that the state could fix quota for
admissions to these educational institutions but it could not fix fee and also admissions could be done
on the basis of common admission test and on the basis of merit. In P.A. Inamdar court overruled the
Islamic Academy ruling to the effect that the state could fix the quota for admissions to private professional
educational institutions.
Clause 5 : Nothing in this Article or in sub clause (9) of (1) of Article 19 shall prevent the state
from making any special provision by law for the advancement of any socially and educationally backward
classes of citizen or for the scheduled castes or the scheduled Tribes in so far as such special
provisions relate to their admission to educational institutions including private educational institutions
referred to in clause (1) of Art. 30.
This clause has been inserted through 93rd Amendment.
Pramati Educational & Cultural trust V. U.O.I (2014) : Supreme court held that Art. 15 (5) is
not an exception or a proviso overriding Art. 15 but an enabling provision to make equality of opportunity
promised in the Preamble in the constitution a reality. Clause 5 of Art . 15 in so far as it treats unaided
private educational institutions & aided private unaided private educational institutions alike in not violative
of Art. 14.
Ashok Kumar Thakur V. U.O.I (2008) : A five judge bench of supreme court headed by chief
Justice K.G. Balakrishnan held that providing 27% reservation in admission to OBC candidates in higher
educational institutions is constitutional.
Article 16
Equality of Opportunity in Public Employment
Art 16 (1) guarantee equality of opportunity for citizens in matters of 'employment' or 'appointment'
to any post under the state.
Art 16 (2) says that no citizen shall, on grounds only of religion, race, caste, sex, descent, place
of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment
or office under the state.
General Rule – Art 16 (1) & (2)
Exception – Art 16 (3), (4), (4A), (4B), (5)
Clause 3 : Nothing in this Article shall present Parliament from making any law prescribing in
regard to a class or classes of employment or appointment to an office under the Government of or any
local or other authority within a state or union territory, any requirement as to residence within that state
or union territory prior to such employment or appointment.

Law (Sample Theory)
Clause 4 : It enables the state to make provisions for the reservation of posts in government jobs
in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented
in the services of the state.
Clause 4 A : It empowers the state to make any provision for reservation in matters of promotions
for SCs & STs which in the opinion of the state are not adequately represented in the services under
the state.
 This clause has been added by 77 Amendment Act 1995
Clause 4 B : This clause seeks to end 50% limit for S.C & S.T. and OBC in Backlog vacancies
which could not be filled up due to non availability of eligible candidates of these categories in the
previous year or years.
 This clause has been added by 81st Amendment Act 2000.
Clause 5 : This clause saves a law from the operation of clauses (1) & (2) which provides for
the incumbent of any office a religious qualification for appointment.
Note : Under Article 16 the guarantee against discrimination is limited to 'employment' and
appointment under the state. Art. 15 however is more general and deal with all cases of discrimination
which do not fall under Art. 16.
Descent & Residence (Clause 2)
It is to be noted that these two grounds descent and residence not included in Art. 15. But it is
included in Art. 16 (2). This is just to assure that parochialism and nepotism is eliminated in matters of
appointment in Government services.
Case : Dasaratha Rama Rao V. State (1961)
The Supreme court held that the office of the village Munsif was an office under the state and
Sec. 6 (1) of the madras Act which required the collector to select persons from among the last holder
of the office discriminated on ground of descent.
Residence can be a ground for Reservation of Posts. (Cl.3)
In exercise of power conferred by Art 16 (3), Parliament has passed the Public Employment
(Requirement as to Residence) Act 1957. It provides that no one will be disqualified on the ground that
our is not the resident of particular state. However the Act makes an exception for employment in
Himachal Pradesh, Manipur, Tripura & Telangana.
Case : Narsimha Rao V. State of A.P. (1970)
The word 'State' in Art 16 (3) signifies the whole of the state and not parts of the state & therefore
residential qualification can be prescribed for the whole of the state.
Reservation for Backward Classes (clause 4)
Art. 16 (4) applies only if two conditions are satisfied
1. The class of citizens is backward, and
2. The said class is not adequately represented in the services of the state.
Case :
Balaji V. State of Mysore (1963) Caste of a person cannot be sole

Chitralekha V. State of Mysore (1964) test for ascertaining that particular
Triloknath V. state of J&K (1967) class is backward class or not.
It is not necessary that once a caste is considered backward class, it should continue to be
backward for all the times. The Government should review the test [state of A.P. V. Balram]

Law (Sample Theory)
Carry Forward Rule [Clause 4]

Case: Devadasan V. Union of India (1964)
In this case the constitutional validity of carry forward rule was discussed by Supreme court.
Carry forward rule framed by Government to regulate appointment of persons of backward classes in
Govt. service was involved. According to this rule if sufficient number of candidates belonging to the S.C.
& S.T. were not available for appointment to the reserved quota of the next vacancies that remained
unfilled would be treated as unreserved and filled by the fresh available candidates, but a corresponding
number of posts would be reserved in the next year. For S.C. & S.T in addition to their reserved quota
of the next year.
Supreme Court by a majority of 4 : 1 struck down the carry – forward rule as unconstitutional on
the ground that the power vested in Govt. under Art 16 (4) could not be exercised so as to deny
reasonable equality of opportunity in matters of public employments for members of classes other than
backward. Accordingly the Court held that the reservation ought to be less than 50% but how much less
than half would depend upon prevailing circumstances in each case.
Case: Indra Sawhney V. Union of India (1993) [Mandal case]
In this case supreme court overruled above case, and held the carry forward rule valid so long
as it didn't in a particular year exceed 50% of vacancies. The 50% limit can only be exceeded in
extraordinary situation prevailing in a state (nagaland etc)
Preferential Treatment to S.C. & S.T.
Case: State of Kerela V. N.M. Thomas (1976)
1 members Bench of the supreme court by majority of 5 : 2 held that classification of employees
belonging to S.C. and S.T. for allowing them an extended period of two years for passing tests for
promotion from other classes of employees was a just and reasonable classification. According to the
majority, reservation for backward classes may be made even outside the scope of Art 16 (4).
Above decision was followed by supreme court in ABSK sangh V. U.O.I (1981)
In K.C. Vasanth Kumar V. State of Karnataka, the st. of karnataka had requested the supreme
court to give clear guidelines to be followed in the matter of reservation for S.C & ST. Judges expressed
following opinion
 The reservation in favour of the SCs & STs must continue as at present without application
of the means test.
 The means test i.e. the test of economic backwardness ought to be applicable even to
the SCs & STs after 15 year
 So for other backward classes concerned two tests should be applied :
(a) that they should be comparable to the SCs & STs in the matter of their
backwardness.
(b) that they should satisfy the means test such as the st. Govt. may lay down, in the
context prevailing economic conditions.
 The policy of reservations in employment education and legislative institutions should be
reviewed every five years or so.
Judges constitution Bench of the Supreme court by 6 : 3 majority in Indra Sawhney V. U.O.I
(1993) held that the decision of the union Government to reserve 27% Government Jobs for backward
classes constitutionally valid provided socially advanced persons - creamy layer.
Layer among then are eliminated is constitutionally valid.
Note : No. of Judges in India sawhney V. U.O.I = 9
Name of Judges – B.P. Jeevan Reddy, CJ. M.J. Kania, M.N Venkatachaliah, A.M Ahmadi S.R.
Pandian, S.B sawant.
Law (Sample Theory)
Dissenting Judges – T.K. Thomnsen, kuldip singh, R.M.

The court examined the scope of Art. 16 (4) and laid down that economy is not criteria of
identifying Backward classes. Caste could be used for the purpose of identifying the backward classes.
Further court stated that Art. 16 (4) is not an exception to Art 16 (1)
Note : Expert Body Report on Creamy Layer – J. Ram Nandan committee.
National commission for Backward class ? 1993 (Established)
National commission for socially & Education ? 2017 (Established) only backward classes.
Other Case Laws Under Art. 16
1. Madan Mohan Sharma V. st. of Rajasthan (2008) : Selection criteria can't be changed
during selection process.
2. Arunachal Pradesh Public Service Commission V. tage Habung (2013) : Qualifying
marks fixed in the process of conducting recruitment test is valid.
3. State of Haryana V. Rajpal Sharma(1997) : Teacher employed in private managed aided
school is entitled to the same salary as teacher employed in Govt school.
4. Hukum Chand Gupta V. Director General I.C.A. (2013) : The two posts having the
same nomenclature not to require necessarily the same pay scale.
5. Praveen singh V. state of Punjab (2001) : Viva voce test is not sole test for appointment.
6. SBI SC/ST Employees Welfare Asso. V. SBI (1996) : Lapsed Vacancies due to non
availability of reserved category candidates can't be revived retrospectively.
7. P.G. Institute of Medical & Research V. faculty Association (1998) : Reservation in a
single post for OBC not permissible
8. U.O.I V. Virpal singh Chauhan. (1996) : Quota candidates not entitled to seniority over
general category.
9. M. Nagraj V. U.O.I (2007) (5 Judges Bench – CJI – Y.K Sabarwal) : The provision of
Art. 16(4) & 16(4B) flow from Art. 16 (4) which don't alter the basic structure of Art. 16 (4)
& are valid.
Article 17
Abolition of Untouchability
Art. 17 abolishes Untouchability and forbids its practise in any form. The enforcement of any
disability arising out of untouchability is to be an offence punishable in accordance with law.
It should be noted that Art 15 (2) also helps in the eradication of untouchability.
Article 18
Abolition of Titles
This Article prohibits the state to confer title on any body whether a citizen or a non-citizen. Military
and academic distinctions are however, exempted from prohibition for they are incentive to further efforts
in the perfection of the military power.
Clause 2 prohibits a citizen of India from accepting any title from any foreign state.
Clause 3 provides that a foreigner holding any office of profit or trust under the state can't accept
any title from any foreign state without the consent of the President.
Clause 4 provides that no person holding any office of profit or trust under the state shall accept,
without the consent of the President any present, emolument or office of any kind from or under any
foreign state.
Right to Freedom [Art 19 – 22]
Article 19
This article guarantees to the citizens of India the following 6 fundamental freedoms :
Law (Sample Theory)
(a) Freedom of speech & Expression

(b) Freedom of Assembly
(c) Freedom to form Associations or unions or Cooperative societies.
(d) Freedom of movement
(e) Freedom to reside and to settle
(f) *[omitted by constitution 44th Amendment Act. 1976]
(g) Freedom of profession, occupation, trade or business.
These six freedoms are not absolute. The restriction may be imposed under any of the clauses
must be reasonable restrictions. The restriction on the rights under Art. 19 (1) can only be imposed by
'Law' and not executive or departmental instructions. It is the courts and not the legislature which has
to judge whether a restriction is reasonable or not. [Chintamani Rao V. State of M.P (1951)]
Right Available to Citizen Only
The rights guaranteed by Art. 19 are available to citizens and not to an alien or a foreigner. [Louis
De Raedt V. U.O.I]
Corporation or company can't claim right under Art. 19. [Tata engineering & Locomotive Co.
V. State of Bihar (1965)]
Company can't claim right under Art. 19 but its share holder can claim right [Bank Nationalisation
case][Newspaper case]
Freedom of Speech & Expression – [Art. 19 (1) (a) & 19 (2)]
All citizens shall have the right of freedom of speech and expression.
Restriction imposed on following 8 grounds – [19 (2)]
(a) Security of the state, friendly relation with foreign states
(b) Public order
(c) Decency
(d) Morality
(e) Contempt of court
(f) Defamation
(g) Incitement to offence
(h) Integrity & Sovereignty of India.
Leading Cases
1. Romesh Thapar V. St. of Madras : J. Pantanjli sastri observed that freedom of speech
& of the Press lay at the foundation of all democratic organisation
2. Indian Express Newspaper V. U.O.I Prabhu Dutt V. U.O.I : Right to know news and
information regarding administration of the govt. is included in the freedom of press.
3. Secretary minister of I.B. V. Cricket Association of Bengal : Government has no
monopoly on electronic media.
4. Hamdard Dawakhana V. U.O.I (1960) Tata Press Ltd. V. Mahanagar Telephone
Nigam Ltd. : Commercial Advertisement is a part of freedom of speech & expression.
5. P.U.C.L V. U.O.I (1997) : Telephone Tapping violator Art. 19 (1) (a) unless it comes within
grounds of restriction under Art. 19 (2).
6. O.K. Ghose V. E. X. Joseph : Right to strike is not included within the ambit of freedom
of speech.
7. Brij Bhushan V. state of Delhi : Pre-censorship of journal is invalid.

Law (Sample Theory)
8. Bennet coleman & Co. V. U.O.I : The validity of the Newspaper Control order which fixed
the maximum number of pages which a newspaper could publish was challenged as
violative of fundamental right under Art. 19 (1) (a).
9. Auto shankar Case (R. Rajagopal V. State of T.N.) : Court held that petitioners have a
right to publish the autobiography of auto shankar in so far as it appears from the public
record even without his consent or authorisation.
10. K.A. Abbas V. U.O.I : Court held that pre-censorship of films was justified under Art 19
(22).
11. National Anthem Case (Bijoe Emmanuel V. state of Kerela) : Freedom of speech
includes freedom of silence.
12. Common cause V. U.O.I (2015) : Supreme court laid down guidelines to restrain U.O.I
and all state government from misusing public funds on Govt. advertisements.
13. State of Karnataka V. U.O.I (2016) : S.C. reviewed its judgment in above case and
extended the exception carved out permitting the publication of the photographs of the
President Prime Minister & chief Justice of country.
14. Union of India V. Association for Democratic Reforms (2002) : Voters right to know
about their candidates.
Freedom of Assembly [Art. 19 (1) (b) & 19 (3)]
The right of assembly includes right to hold meetings & to take out processions. This right is
subject to following restrictions – under Art 19 (3)
1. In the interest of sovereignty & integrity of India
2. Public order.
Freedom to form Association [Art 19 (1) (C) & 19 (4)]
All citizens shall have the right to form associations or unions or co-operative societies. Art 19
(4) imposes restriction on following ground :
1. in the interest of public order
2. morality
3. sovereignty or integrity of India.
Freedom of Movement [Art 19 (1) (d) & 19 (5)]
Citizen have right to move freely throughout the territory of India. Following are the restrictions-
1. In the interest of general public
2. For protection of the interest of any scheduled Tribe.
Freedom of Residence [Art 19 (1) (e) & 19 (5)]
Every citizen has the right to reside and settle in any part of the territory of India.
Freedom of Profession, occupation, Trade or Business [Art 19 (1) (g) & 19 (6)]
All citizens shall have the right to practice any profession, or to carry on any occupation, trade
or business. It can be restricted & regulated on following grounds -
1. in the interest of public
2. prescribing professional or technical qualifications necessary for practicing any profession
or carrying on any occupation, trade or business
3. enabling the state to carry on any trade or business to the exclusion of citizens wholly or
partially.

Law (Sample Theory)
Protection in Respect of Conviction for Offences [Article - 20]
Art 20
Clause 1 Clause 2 Clause 3
Ex Post Facto Law Double Jeopardy Prohibition against

self incrimination
1. Protection against Ex-Post Facto Law
Article 20 (1) says no person shall be convicted of any offence except for violation of a law in
force at the time of the commission of the act charged as an offence, nor he subjected to a penalty
greater than that which have been inflicted under the law in force at the time of the commission of the
offence.
Thus it imposes restriction on Legislature to make retrospective criminal laws. It does not prohibit
imposition of civil liability retrospectively.
Ex Post Facto Law : It means such law which imposes penalties retrospectively i.e. on acts
already done and increases the penalty for such acts.
 Protection under this clause is available in Indian Constitution only against conviction or
sentence for a criminal offence not against trail, under the American law the prohibition
applies even in respect of trial.
 The protection of Art 20 (1) can't be claimed in case of preventive detention.
Penalty greater than that at The Time of The Commission of The Offence
Case : Kedar Nath V. State of west Bengal.
The accused committed an offence in 1947, which under the act then in force was punishable
by imprisonment or fine or both. The Act was amended and enhanced the punishment. The supreme
court held that the enhanced punishment could not be applicable to the act committed by the accused
in 1947 & hence set aside the additional fine imposed by the amended Act.
Case : Dadu V. State of Maharashtra (2000)
Court held that sec 432 & 433 of Cr. P.C. were not violative of Art. 14 of the constitution.
Beneficial Provision : Accused can take advantage of the beneficial provisions of the ex post facto
law. The rule of beneficial construction requires that ex previous law should be applied to mitigate the
rigorous (reducing the sentence) of the previous law on the same subject.
Case : Ratanlal V. State of Punjab, (1963)
2. Protection Against Double Jeopardy
Art. 20 (2) says that no person shall be prosecuted and punished for the same offence more than
once. This clause embodies the common law rule of nemo debet bis vexari which means that no man
should be put twice in peril for the same offence.
The protection under clause (2) of Art 20 is narrower than that given in America and the British
laws. Under the American and the British Constitution the protection against the double jeopardy is given
for the second prosecution for the same offence irrespective of whether an accused was acquitted or
convicted in the first trial. But under Art 20 (2) the protection against double punishment is given only
when the accused has not only been prosecuted but also punished and is sought to be prosecuted
second time for the same offence.

Law (Sample Theory)
Case : Maqbool Hussain V. st. of Bombay.

Court held that the sea custom Authorities were not a court or judicial tribunal and the adjudging
of confiscation under the Sea Custom Act did not constitute a judgment of judicial character necessary
to take the plea of double jeopardy. Hence the prosecution under the foreign exchange Regulation Act
is not based.
3. Prohibition against self incrimination
Article 20 (3) provides that no person accused of any offence shall be compelled to be a witness
against himself. Thus this article embodies the general principles of English & American jurisprudence
that no one shall be compelled to give testimony which may expose him to prosecution for crime.
Explaining the scope of this clause in M.P. Sharma V. Satish Chandra. (1954) The supreme
court observed that this right embodies the following essentials :
(i) It is a right pertaining to a person who is accused of an offence.
(ii) It is a protection against 'compulsion to be a witness'
(iii) It is a protection against such compulsion relating to his giving evidence "against himself"
Case : State V. M. Krishna Mohan. (2008)
Supreme court has held that taking of specimen finger print and handwriting from accused is not
prohibited under Art. 20 (3) as being "witness against himself".
Case : Nandini Satpathy V. P.L. Dani (1977)
Supreme court has considerably widened the scope of Cl.(3) of Article 20. The court has held
that the prohibitive scope of Art. 20 (3) goes back to the stage of police interrogation not commencing
in court only.
Case : Selvi V. state of Karnataka (2010)
In this case the accused had challenged the validity of certain scientific techniques namely
Narcoanalysis, Polygraphy and Brain Finger Printing (BEAP) tests without these consent as violative of
Art 20 (3). The state argued that it was desirable that crime should be efficiently investigated particularly
sex crimes as ordinary methods were not helpful in these cases. A three judge Bench of the supreme
court unanimously held that these tests do not fall within the scope of expression such other tests in
explanation of sec. 53 of Criminal Procedure Code.
Protection of Life And Personal Liberty. [Article 21]
Art. 21 of the Indian constitution guarantees the fundamental right and Personal liberty by laying
down. No person shall be deprived of his life or personal liberty in accordance with according to procedure
established by law. The article lays down that an individual can be deprived of his life or personal liberty
only under a law passed by a competent legislature conferring authority for the deprivation of either or
both and by laying down a procedure for such deprivation.
Prior to Maneka Gandhi's decision Art. 21 guaranteed the right to life & personal liberty to citizens
only against the arbitrary action of the executive and not from legislative action. The state could interfere
with the liberty of citizen as it could support its action by law. But after Maneka Gandhi's decision Art 21
now protects the right to life & personal liberty of citizen not only from executive action from the legislative
action also.
Essential Elements
1. Right to Life
Right to life not only guarantees against taking away of life, but has a wider application. Right to
life means to live with human dignity.
(i) Munn V. Illinois : J. field observed that, by the term life as here used, something more
is meant than mere animal existence.

Law (Sample Theory)
(ii) Francis Coralie V. U.T. of Delhi : J. Bhagwati observed that we think that the right to life
includes the right to live with human dignity.
(iii) Bandhua Mukti Morcha V. U.O.I (J. Bhagwati) : It is the fundamental right of everyone
in this country to live with human dignity free from exploitation.
(iv) Vincent V. U.O.I (1987) : Ban on injurious drugs.
(v) Vikram Deo singh Tomar V. State of Bihar (1988) : Seeking human condition in a case
homes for female.
(vi) Olga Jellis V. Bombay Municipal Corp. (1985) : Right to livelihood.
(vii) J. Damodhar Rao. V. S.O. Municipal Corp. (1987) : Right to unpolluted environment and
preservation and protection of natures gift.
(viii) D.K. Yadav V. J.M.A Industries (1993) : Right to life includes right to livelihood.
2. Right to Personal Liberty
(i) Prior to Maneka Gandhi Case : The meaning of the words personal liberty came up for
consideration of the supreme court for the first time in A.K. Gopalan V. U.O.I (1950), In that case the
petitioner was detained under preventive Detention Act. 1950. The petitioner changed the validity of his
detention, that it was violative of his right to freedom of movement under Art 19(1) (d) which is the very
essence of personal liberty guaranteed by Art. 21 of the constitution.
The Supreme court held that the personal liberty in Art. 21 means nothing more than the liberty
of the physical body i.e. freedom from arrest and detention without the authority of law. The court further
said the word liberty is a very comprehensive word and if interpreted it is capable of including the rights
mentioned in Art.19, but by qualifying the word liberty with personal the important of the word personal
liberty is narrowed down to the meaning given in English law to the expression liberty to the person as
defined by prof. Dicey. The majority said that Article 19 & 21 deal with different aspects of Liberty. Art.
21 is a guarantee against deprivation of personal liberty while Art. 19 affords protection against unreasonable
restrictions on the right of movement.
In Gopalan the supreme court interpreted the law as state made law and rejected the plea that
by the term law in Art 21. meant not the state made law that jus naturale or the principles of natural
justice. Fazal Ali J. however in his dissenting judgment held that the Act was liable to be challenged
as violating the provisions of Art. 19. He gave a wide and comprehensive meaning to the words personal
liberty as consisting of freedom of movement & locomotion. Therefore any law which deprives a person
of his personal liberty must satisfy the requirements of Art 19 & 21 both.
But this restrictive interpretation of the expression personal liberty in Gopalan's case has not been
followed by the supreme court in its later decision. In Kharak Singh V. State of U.P. (1963) the S.C.
held that the personal liberty is not only limited to bodily restraint or confinement to prisons only but is
used as a compendious term including within itself all the varieties of rights which go to make up the
personal liberty of a man other than those dealt within Art. 19 (1).
(ii) After Maneka Gandhi Case : In Maneka Gandhi V. Union of India (1978) the Supreme
court has not only overruled Gopalan's case but has widened the scope of the words personal liberty
considerably. Bhagwati J. observed : "The expression personal liberty in Art 21 is of widest amplitude and
it covers a variety of rights which go to constitute the personal liberty of man and some of them have
raised to the status of distinct fundamental rights and given additional protection under Art. 19"
The court said that the provisions relating to fundamental rights should be interpreted widely. The
attempt of the court should be to expand the reach & ambit of the fundamental Rights rather than to
attenuate their meaning & content by a process of judicial construction. The court lays down great stress
on the ground on the procedural safeguards. The procedure must satisfy the requirement of natural
justice i.e. It must be just, fair & reasonable.

Law (Sample Theory)
(iii) Procedure Established by Law : The expression procedure established by law means
procedure laid down by statute or procedure prescribed by the law of the state.
(a) There must be a law justifying interference with the person's life or personal liberty.
(b) The law should be valid law, and
(c) The procedure laid down by the law should have been strictly followed.
The executive in the absence of any procedure prescribed by the law, sustaining the deprivation
of personal liberty shall act in violation of Art 21 if it interferes with the life or personal liberty of the
individual.
In A.K. Gopalan V. State of Madras (1950) the court held that the expression procedure
'established by law' means procedure enacted by law, made by the state, and the word 'law' in Art 21
doesn't mean natural law based on principles of natural justice. That in effect means that Art. 21 gives
protection only against the executive and not against the legislature.
The interpretation was taken to its logical conclusion in A.D.M Jabalpur V. Shivakant Shukla.
(1976) where S.C. held that Art 21 was the sole repository to the right to life and personal liberty against
its illegal deprivation by the executive and in case enforcement of Art. 21 was suspended by a presidential
order, under Art . 359 the court could not enquire whether the executive action depriving a person of his
life or personal liberty was authorised by law. The court held that Art. 19 has no application to laws
depriving a person of his life and personal liberty enacted under Art 21 of the constitution. It was further
held that Art. 19 and 21 dealt with different subjects.
This argument of exclusiveness of FR's expounded in Gopalan case was finally rejected in R.C.
Cooper V. U.O.I (1970)
In Maneka Gandhi case (1978), the S.C has overruled the A.K. Gopalan case decision and has
held that the mere preparation of some kind of procedure is not enough, to comply with the mandate of
Art. 21. The procedure prescribed by law has to be fair, just, reasonable and not fanciful, oppressive or
arbitrary otherwise it should not be a procedure at all and all the requirements of Art. 21 could not be
satisfied.
A procedure to be fair or just must embody the principle of natural justice. Natural justice is
intended to invest law with fairness and to secure justice. Krishna Iyyer J. said "Law should be reasonable
law and not enacted place of law".
By accepting the concept of natural justice as one of the essential components of law. The court
has imported the American concept of "due process of law" into our constitution. While J. Bhagwati in
Maneka Gandhi case established the requirement of reasonableness of procedure in Art 21. through
Art 14 some of the judges in Maneka Gandhi case and in other subsequent cases have read it in Art 21
it self and particularly in the words 'law' as natural law (which is incorporating the concept of PNJ) leading
to the conversion of "procedure established by law" into "due process of law" in the American sense.
Thus in Maneka Gandhi, J. Chandrachud said that the procedure in Art 21 had to be fair, just
and reasonable not fanciful, oppressive or arbitrary.
In Sunil Batra V. Delhi Administration (1978), J, Krishana Iyyer said that true, our constitution
has no 'due process' clause but after R.C. cooper & Maneka Gandhi cases the consequence is the
same.
In Bachhan singh V. St. of Punjab (1980) J. Sarkaria rephrased Art 21 in the following words
- No person shall be deprived of his life or personal liberty except according to fair, just and reasonable
procedure established by law.
In Mithu V. State of Punjab (1983), for the first time a substantive law, sec 303 of IPC was
invalidated under Art 21.

Law (Sample Theory)
Rights under Art 21

1. Right to Shelter :
 Chameli V. State of U.P (1996)
2. Right to Privacy :
 R. Rajagopal V. St of T.N (Auto shankar case)
 State of Maharashtra V. Madhulkar Narain (Right of privacy available to a woman
of easy virtue.)
 Mr. 'X' V. Hospital Z (Right to privacy is not an absolute right)
 Surjit singh Thind V. kanwaljit kaur (Virginity test is violation of Art 21)
 M. Bhuvaneshwari V. Nagaphanender Rayla (2008) [tapping conversation of wife
is violation of right to privacy.]
 PUDR V. U.O.I [Telephone tapping is an invasion on right to privacy.]
(Imp.) Justice K.S. Puttuswamy V. U.O.I (2015) [Ques before court was whether Aadhar
card is a violation of right to privacy.]
3. Right to health & Medical Assistance :
 Parmanand Katara V. U.O.I
 Vincent Parikulangara V. U.O.I
 Pashchim Bang Khet Samiti V. st of W.B.
 Consumer Education & Research Centre V. U.O.I
 Kirloskar Brother Ltd. V. Employee's state Insurance Corporation.
 State of Punjab V. Mohinder singh Chawla
 Occupational health & safety Association V. U.O.I.
4. Right to Sleep : Ramlila Maidan V. Home Secretary U.O.I (2012) [J. Swatanter Kumar
J. Dr. B.S. Chauhan]
5. Right to Die :
 State of Maharastra V. Maruty Sripati Dubal [Ques. of right to die was discussed
first time in this case. Bombay H.C held that right to life under Art 21 includes right
to die.]
 Chenna Jagadeeswar V. State of A.P. (1988) [Andhra Pradesh H.C held that right
to die is not a fundamental right]
 P. Rathinam V. U.O.I (1994) [Supreme Court held person has right to die and
declared sec 309 of IPC as unconstitutional.]
 Gyan Kaur V. state of Punjab [5 Judges Bench] [S.C. held that right to life doesn't
include right to die sec. 309 of IPC is constitutional.]
 Aruna Ramchandra Shanbaug V. U.O.I (2011) [Quest. of passive Euthanasia was
discussed]
 NGO Common Cause Case (2018) [Supreme Court of India has held that right to
die with dignity is a fundamental right. The Bench also held that passive euthanasia
and a living will also legally valid]
6. Right to get pollution free water & air : Subhash Kumar V. State of Bihar.
7. Protection of Ecology & Environmental Pollution :
 Rural Litigation & Entitlement Kendra V. State of U.P.
 Shriram food and fertilizer case [M.C. Mehta V.U.O.I (1986)]
 M.C. Mehta V. U.O.I (1988) (Ganga water Pollution case)

Law (Sample Theory)
 Vellore Citizen's Welfare forum V. U.O.I (1996) [Precautionary principle & Polluter
pay principle are essential features of sustainable development.]
8. Right to free legal aid :
 M.H. Hoskot V. State of Maharashtra.
 State of Maharashtra v. Manubhai Pragji Vashi
9. Right against Solitary Confinement : Sunil Batra V. Delhi Administration.
10. Right against handcuffing :
 Prem shankar V. Delhi Administration.
 Sunil Gupta V. State of M.P.
 Citizen of Democracy V. State of Assam.
11. Right to speedy trial :
 Hussainara Khatoon V. Home secretary, state of Bihar (1979)
 Raghubir singh V. state of Bihar (1986)
 Moses Wilson V. Kasturba (Speedy Justice - Delay violates Art 21)
12. Right to fair trial : Rattiram V. State of M.P. (2011)
13. Right to food : PUCL V. U.O.I (2000)
14. Ban on smoking in Public : Murli S. Deora V. U.O.I (2002)
15. Death sentence by public hanging is violation of Art 21. : Attorney General of India
V. Lachma Devi (1986)
16. Right to Electricity : M.K. Acharaya V. C.M.D, W.B.S.F Distribution Co. Ltd.
Safeguards Against Arbitrary Arrest & Detention (Article – 22)
Art.22 deals with two different matters
[ ]
Protection to persons arrested Persons detained under the law of
under the ordinary law of crimes preventive detention
[Art 22 (1) & (2)] [Art. 22 (3), (4), (5), (6) & (7)]
Article 22 is not a complete code because the procedure prescribed under the preventive detention
law must be reasonable, and just & fair under Art,. 14, 19 & 21.
[Maneka Gandhi V. U.O. I.]
Rights of arrested persons under ordinary laws
Cl. (1) & (2) of Art. 22 guarantee four rights on a person who is arrested for any offences under
an ordinary law :
(a) the right to be informed 'as soon as may be' of ground of arrest
Case. Joginder kumar V. State of U.P. (1994).
Supreme court has laid down the following guidelines to be followed in making arrest of a person.
(1) An arrested person being held in custody is entitled, if he so request to have one friend,
relative or other person who is known to him or likely to take an interest in his welfare told
as far as is practicable that he has been arrested and where he is being detained.
(2) Police officer shall inform the arrested person when he is brought to police station of this
right.
(3) An entry shall be required to be made in the police diary as to who was informed of the
arrest.

Law (Sample Theory)
(b) Right to consult and to be represented by a lawyer of his own choice

Prior to the Maneka Gandhi's decision in India the view of the court was that it was not bound
to provide the help of a lawyer unless a request was made by him, but as a result of the ruling of the
supreme court in Maneka Gandhi's case and a series of cases following that case that the courts will
be bound to provide the assistance of a lawyer to a person arrested under an-ordinary law also. In State
of M.P.V. Home Shobharam (1996) and Hussainara Khatoon V. Home Secretary, Bihar, S.C. has held that
it is the constitutional right of every accused.
(c) Right to be produced before a magistrate within 24 hours
If the arrested person is not produced before the nearest magistrate within a period of 24 hrs.
the arrest would become illegal and unconstitutional.
This right is available to a person arrested under a warrant issued by the speaker of legislative
assembly for committing contempt of the house Gunapati K. Reddy V. Nafisul Hassan (1954).
Art. 22 Clause 3 :
Clause 3 provides two exceptions : The F.R's guaranteed to arrested persons by cl. (1) & (2)
do not apply :
(a) to enemy aliens
(b) to persons arrested or detained under any law providing for preventive detention.
Preventive Detention Laws : Clause (4) to (7) guarantee the following safeguards to a person
arrested under preventive detention law :
(a) Review by Advisory Council (Cl.4)
(b) Communication of grounds of detention to the detinue (Cl.5.)
(c) Detinue's right of representation. (Cl. 5)
(a) Review by an Advisory Board : Clause (4) of Art. 22 has been amended by the constitution
th
(44 Amendment Act, 1978, but the Amendment has not yet been brought into force.
Cl. (4) States that no law providing for preventive detention shall authorise the detention of a
person for a longer period than 3 months unless an Advisory Board constituted of persons who are, or
have been, or are qualified to be high court judges has reported before the expiration of the said period
of 3 months that there is, in its opinion, sufficient cause for such detention. if the Advisory Board reports
that the detention is not justified, the government is duty-bound to revoke the detention order. If the
Advisory Board reports that the detention is justified, then only the detaining, authorities determine the
period of detention. If is no business of Advisory Board to express any opinion as to how much longer
than 3 months the detinue should be kept in detention.
The confirmation of the opinion of the Advisory Board to continue the detention beyond 3 months
must be within 3 months from the date of detention in conformity with the mandate of cl.(4) of Art. 22.
But even where the Advisory Board reports that the detention is justified, there is a protection against,
indefinite continuation of the detention cl. (4) (b) lays down that the detention can't exceed in any case
beyond the maximum period prescribed by a law of parliament for that class of cases.
In cases the opinion of the board is not obtained within 3 months of detention, the detention
becomes illegal and the detinue is entitled to be released.
In A.K. Gopalan V. State of Madras (1950), the majority held that it was enough if parliament under
Art. 12. (7) (a), prescribed, either the circumstances or the classes of cases in which a person might
be detained for a period. Longer than 3 months without reference to an Advisory Board. This meant that
clause. (4) & (7) of Art. 22 provide for two powers which are alternative or independent.
(i) to make a law providing a longer detention with the provision of an Advisory Board, and
(ii) to make a law providing for a longer detention without and Advisory Board.
This view was rejected by the Supreme Court in Shambhu Nath Sarkar V. state of W.B. (1973)

Law (Sample Theory)
In state of W.B. V. Ashok Dey (1972), it was argued that since Cl. (7) authorises only Parliament
to make a law for preventive detention for a period more than 3 months a state legislature is not
authorised to make a law in this regard. The S.C. held that since preventive detention is a subject in the
concurrent list, a state legislature is competent to make a law subject to such limitations as have been
specified in Art 22.
(b) Grounds of Detention & Representation Cl. (5) of Art. 22 :
1. Right to be communicated, the ground on which the order of detention has been made
against him and this communication has to be made at the earliest as per the words, "as
soon as may be" and
2. The right to be afforded the earliest opportunity of making a representation against the
order.
Such a communication should be intelligible, i.e., it, can be understood by the detinue, thus,
where the detinue did not know sufficient English to understand the grounds communicated to him, it
was held that there was not sufficient compliance with the requirement laid down in the constitution
[Hari Kishan V. state of Maharashtra (1962)]
The grounds for making the order are the reasons or conclusion of fact from facts on which the
order is based, these grounds should exist all the time the order was passed. The grounds are conclusion
of facts and not a completely detailed recital of all facts. No part of such grounds can be held back nor
can new grounds be added there to. If any ground is revoked by the detaining authority subsequently,
it will under the order invalid.
In Shiban lal Saxena V. state of U.P. Supreme court held that the detinue should be furnished with
particulars of the grounds of his detention, sufficient to enable him to make a representation which on
being considered may give him relief. The detinue should be supplied the documents on which the
detention is based. (R.A. kawat V. U.O.I)
(c) Procedure of Advisory Boards : Under Article 22(7)(C), Parliament has power to prescribe
the procedure to be followed by an Advisory Board in an enquiry under sub clause (a) and clause 4. In
A.K. Roy V. U.O.I. (1982). It has been held that an Advisory Board is not a judicial or quasi-judicial body
and therefore it is not bound to follow the procedure requires for such bodies.
Right Against Exploitation [ARTICLE 23-24]
Prohibition of Traffic in Human Beings & Forced Labours [Art 23] : Art 23 prohibits traffic
in human being & beggar 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) how ever 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 them.
 Article 23 protects the individual not only against the state but also private citizens.
 This Article is available to both citizen as well as non citizens
'Traffic in human beings' means selling and buying men and women like goods and includes
immoral traffic in women & children for immoral or other purposes.
Slavery is not expressly mentioned in Art 23, it is included in the expression traffic in human being
[Dubas Goala V.U.O.I]
Begar and other 'other forms of forced labour' are prohibited by this Article Begar means involuntary
work without payment. This clause doesn't prohibit forced labour as a punishment for a criminal offence.
In People's Union for Democratic Rights V. U. O. I (1982) the Supreme Court held that the scope
of Art. 23 is wide and unlimited and strikes at "traffic in human beings" and "begar and other forms of
forced labour" wherever they are found. J. P. N. Bhagwati said that a person who provides labour or

Law (Sample Theory)
services to another for remuneration which is less than minimum wage amount to forced labour under
Art. 23.
Above decision has been followed Sanjit Roy state of Rajasthan. In Deena V. U. O. I. (1983) it
was held that labour taken from prisoners without paying proper remuneration was forced labour and
violative of Art 23 of the Constitution. The prisoners are entitled to payment of reasonable wages for the
work taken from them and the court is under duty to enforce their claim.
In Bandhua Mukti Morcha V. U. O. I (1984) : Supreme Court directed Government to examine
whether bonded labour system exists & as well as to take appropriate steps to eradicate that system.
Compulsory Service for public purposes : Art 23 (2) is an exception to the above general rule.
Under this clause the state is empowered to impose compulsory service for public purposes. But in
imposing such compulsory service the state can't take any discrimination on ground only of religion,
race, caste, or class or any of them.
Prohibition of employment of children in factories etc (Art 24) : Art. 24 prohibits employment
of children below 14 years of age in factories and hazardous employment. Art. 39 of the constitution also
imposes upon the state an obligation to ensure that the health and strength of workers, men and women,
and the tender age of the children are not abused and that citizens are not forced by economic necessary
to enter avocations unsuited to their age or strength.
In People's union Democratic Rights V. U. O. I. (1983) : Court that held the construction work
is hazardous employment and therefore no child below 14 years can be employed.
 This Article however doesn't prohibit their employment in any innocent or harmless job or
work.
In M.C. Mehta V. state of Tamil Nadu. the supreme court has held that children below the age of
14 years can't be employed in any hazardous industry, mines or other works and has laid down exhaustive
guidelines how the state authorities should protect economic, social & humanitarian rights of millions of
children, working illegally in public and private sections.
Right to Freedom of Religion (ARTICLE 25-28) : India is a secular state, it is implicit in the
preamble of the constitution. The constitution (42nd Amd) has inserted the word 'secular' in the preamble.
Secular means that in matters of religion it is neutral. Secularism is a basic feature of the Constitution.
(S.R. Bommai V. U. O. I).
The Indian constitution embodies the positive concept of secularism and has not accepted the
American doctrine of secularism i.e. the concept electing "a wall of separation between religion & state."
Sanskrit Language not Anti-Secular
Case : Santosh kumar V. Secy Ministry of Human Resources Development (1995)
Case : Aruna Roy V. U, O. I. (2002) : In this case court held that study of religions in school
education is not against the secular philosophy of the constitution. Secularism means developing,
understanding and respect of different religious.
Freedom of Religion in India (Art 25)
Under Art 25 (1) a person has a two fold freedom :
(a) freedom of conscience,
(b) freedom to profess, practise and propagate religion.
 Freedom of Conscience : It is an absolute inner freedom of the citizen to mould
his own relation with God in whatever manner he likes.
 To profess a religion : to declare freely and openly one's faith and belief.
 To practice religion : to person the prescribed religious duties, rites, and rituals
and to exhibit his religious beliefs and ideas by such acts as prescribed by religious
order in which he believes.

Law (Sample Theory)
Restrictions on freedom of Religion [ARTICLE 25 (2)]

1. Religious liberty subject to public order, morality and health.
2. Regulation of economic, fundamental, political and seculars activities associated with
religious practices.
3. Social welfare and social reforms.
 Right of Sikhs to wear and carry kripans : The right of Sikhs to wear and
kripans is recognised as a religious practice in Explanation 1 of Article 25
 Art 25 Explanation 25 : The reference to Hindus shall be constructed as including
a reference to persons professing the Sikhs, Jainism or Buddhist religion and
reference to Hindu religious institutions shall be constructed accordingly.
Cases Under Article 25 :
1. National Anthem Case (1984) : Supreme court held that no person can be
[Bijoe Emmanual V. state Kerela] compelled to sing the National Anthem. If he
has genuine, conscientious religious objection.
2. N. Aditya V. travancore Devaswom : Non-Brahmins can be appointed as pujari in
Board. (2016) temple.
3.  Ismail Faruqui V. U. O. I (1994) : State can in exercise of its sovereign power
 Gulam Kadar Ahmadbhai Menon to acquire places of worship like mosques
V. state Municipal corporation (1998)
churches: temples under Art 300 A.
4. Church of God in India V. KKRMC : Noise pollution in the name of religion not
welfare Association (2000). allowed.
5. Water Karamilki V. state of : Religious freedom includes cremation ground.
Meghalaya (2010)
6. Rev Stanislaus V. state of M.P. : Forced conversion is not allowed.
(1997)
7. Anand Marg Case
(Acharya Jagdishwaranand : Prohibition of tandava dance in procession
Avadhutu V. Commissioner of by Anand Marg in the interest of public
Police, Calcutta) order and morality was not violative of the
rights under Art. 25. & 26 of the const.
8. Javed V. state of Haryana (2003) : Two children norm for elective post is not
violative of Art. 25.
9. Mohd. Hanif Quareshi V. state of : Sacrifice of cow on Bakrid day was not an
Bihar (1958) essential part of religion & hence could be
prohibited by state.
Freedom to Manage Religious Affairs (Article 26)
Subject to public order, morality & health every religious denomination of any section of it shall
have the following rights :
(a) to establish and maintain institutions for religious & charitable purposes.
(b) to manage its own affairs in matters of religion.
(c) to own and acquire movable and immovable property
(d) to administer such property in accordance with law.

Law (Sample Theory)
The right conferred by Art. 26 all subject to the limitation as prescribed under Art. 26 of the
constitution and not subject to any other provision of Part III of the constitution (Subramanian Swamy V.
state of Tamil Nadu, 2015)
Freedom from Taxes for promotion of any particular religion (Article 27)
No person shall be compelled to pay any tax for the promotion or maintenance of any particular
religion or religious denomination. It is to be note that what this Article prohibits is of tax not of fee.
Prohibition of Religious Instruction in State-Aided Institution (Article 28)
No religious instruction shall be imparted in any educational institution wholly maintained out of
state funds. But this clause shall not apply to an educational institution which is administered by the state
but has been established under any endowment or trust which requires that religious instruction shall be
imparted in such institution.
Art. 28 mentions four types of educational institutions :
(a) Institutions wholly maintained by the state.
(b) Institutions recognised by the state
(c) Institutions that are receiving aid out of the state fund.
(d) Institutions that are administered by the state but are established under any trust or
endowment.
In Institution of (a) type no religious instructions can be imported in (b) and (c) type Institutions
religious Institutions may be imported only with the consent of the individuals. In the (d) type Institution,
there is no restrictions on religious instructions.
Cultural & Educational Rights [Article 29-30]
Art. 29 (1) of the constitution gives protection to every section of Indian citizens residing in Indian
Territory having a distinct language, script, culture by guaranteeing their right to conserve the same. As
held by Shah J. in Jagdev Singh Sidhanti V. pratap singh Dutta (1965) the right to conserve with respect
to Article 29 (1) includes the right to agitate for the same.
 Unlike Art. 19 (1), Art. 29 (1) is not subject to reasonable restrictions. The right under
Article 29 (1) is absolute.
Art. 29(2) prohibits the denial of admission into educational Institutions maintained by the state or
receiving aid out of state fund, on grounds only of religion, race, caste, language or any of them. Art. 29
is quite general & wide in terms and applies to all citizens whether they belong to majority or minority
groups.
In State of Madras V. Champkam Dorairaian, and order of Madras Government had fixed the
proportion of students of each community that could be admitted into the State Medical & Engineering
colleges. The order was challenged on the ground that it denied admissions to a person only on the
ground of religion or caste. The petitioners in this case were denied admission only because they were
Brahmins. The Supreme Court held the order invalid for being violative of Art. 29 (2)
After this case, Article 15(4) was amended by the constitution (1st Amendment) Act, 1951.
State of Bombay V. Bombay Educational Society (1954). In this case the Supreme Court struck
down an order of the Bombay Government banning admission of those whose language was not English
into schools having English as a medium of instruction because it denied admission solely on the ground
of language. The order, the court said, would not be valid, even if the object for making it was the
promotion or advancement of national.

Law (Sample Theory)
Distinction between Art 29 (2) and Art 15(1)

Article 15 (1) Article 29 (2)
Protects all citizens against the State The protection extends against the state or
anybody else who denies the right conferred by
it
It protects all citizens against discrimination It is a protection against a particular species of
generally wrong
It deals with all kind of discrimination It deals with discrimination only with respect to
admission into educational institutions
maintained or aided by the State
Ground of discrimination is place of birth or Ground of discrimination is language
sex
Right of Minorities to establish & manage Educational Institutions (Article 30)
It guarantees all linguistic and religious minorities the 'right to establish' and 'the right to administer'
educational institutions of their own choice.
Two types of minorities : religious and linguistic
In D.A.V. college, Bhartiya V. state or Punjab (1971), the court held that the right of the minority
to establish and administer educational institution of their choice includes the right to have a choice of
medium of instructions also. The right under Art. 30 (1) is available to both the pre-constitution & post
constitution institutions.
Art 30 (2) : It 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.
Case : Bramchari Sideshwar V. State of West Bengal (1995) [Ram Krishna Mission Case]
(Judges-J. Kuldeep Singh, J.N. Venkatacharya J.S. Saghir Ahmed)
In this case Supreme Court held that the Ram Krishna Mission established by Swami Vivekanand
to propagate Vedanta Values as expounded by RamKrishna is not a minority religion separate and
distinct from Hindu Religion, but a religious sect or denomination of Hindu religion and therefore not
entitled to claim the fundamental right under Art. 30 (1).
Relationship between Art. 29(1) & 30(1) : The interrelation of Articles 29(1) & 30(1) was
elaborately examined by the Supreme Court in the case of St. Xavier College V. State of Gujarat
(1974). In that case the validity of sections 33 A, 40, 41, 51 A, 52 A of the Gujarat University Act, 1949
as amended by Act of 1973 were questioned by the petitioners who were running. St. Xavier College of
Arts and commerce in Ahmedabad. On Behalf of the state, it was contended that the protection to
minorities guaranteed by Art 30(1) was not available to this college because it was not founded for the
conservation of language script or culture, as mentioned in Article 29 of the constitution.
The court held that the object of Art. 30 is to enable children of minorities to go out in the world
fully equipped. It will be wrong to read Art. 30 (1) as restricting the right to minorities to establish and
administer educational institutions of their choice only to cases where such institution are concerned with
language, script, or culture of the minorities.
Art. 29 (1) Art. 30 (1)

1 Extends to all sections of citizens and not 1 Only religious and linguistic minorities.
only those sections who have distinct
language, culture and script.
2 A general right to conserve their distinct 2 Only the right to ‘establish’ and
language, culture, script ‘administer’ educational institutions.

Law (Sample Theory)
Saving of Certain Laws (Art 31 A, 31 B, & 31 C)

44th Amendment (1978) : Right to property & Art. 31, under which right to property was a
fundamental right was omitted by 44th Amendment. The 44th amendment inserted right to property as
a constitutional right. It inserted a new chapter IV Right to property in Past XII of the constitution.
Art. 31 A : Saving of laws providing for acquisitions of estates etc.
Art. 31 A was introduced into the constitutional with retrospective. Effect from the date of
commencement of the constitution. Which provided that no law providing for acquisition of any 'estate'
or any right therein extinguishment or modification of any such rights, would be deemed to be void on
the ground that it was inconsistent with or takes away or abridges any of rights conferred by Article 14
or 19 of the constitutions.
Art. 31 A was again amended by the 4th Amendment (1955) which further extended the scope of
the word 'estate' which now includes any jagir, inam or maufi or other similar grant and in the state of
Madras and Kerala Janman right.
The object of Art 31 A is to facilities agrarian reforms.
Art. 31 B : Validation of certain Acts & Regulations : Art 31 B was added by the 1 Amendment.
It provides that none of the Acts and regulations mentioned in the Ninth schedule to the constitution, shall
be deemed to be void on the ground that they are inconsistent with any of the rights conferred by past
III of the constitution. However, the Legislature is competent to amend and repeal these Acts. But the
validity of the amended and repealed Act, if not saved under Art. 31 A can be examined by the court on
merits.
In woman Rao V. U. O. I (1981), the court held that the amendment made to Acts which are
already placed in the ninth Schedule are not automatically immunized legal challenge and hence their
validity can be challenged even after their inclusion in the 9th schedule. The protection of Art 31 B is only
available to original Acts included in the 9th schedule.
Article 31 C : Saving of laws giving effect to certain directive principles.
This Article was added by 25th Amendment of the constitution. It empowers parliament as well as
state Legislatures to enact laws towards securing directive principles specified in Art 29 (b) and (c) of
the constitution. Such laws can't be challenged on the ground that they infringe Art. 14 and 19 of the
constitution. Art 31 C thus gives the directive principles in Art. 39 (b) and (c) primary over the fundamental
rights guaranteed by Art. 14 or 19 or 31 of the constitution.
The declaration clause of Art. 31 C thus barred the judicial review of such laws completely. In
Kesavanand Bharati V. State of Kerala. (1973) the majority struck down the declaration that it would
not be called requestion in any court as unconstitutional on the ground that it was destructive of the basic
features of the constitution, that is, the judicial review but held the first part of the clause valid that any
law enacted by parliament for giving effect to the directive principles contained in clauses (b) and (c) of
Art. 39. could not be declared void on the ground that it violated any of the rights conferred by Art. 14,
19 or 31.
The second stage in the history of Art. 31 C arose when the famous 42nd Amendment of the
constitution was passed by Parliament in 1976. Art. 31 C was amended which further widened the scope
of Art 31 C. So as to cover all directive principles. It substituted for the words "directives contained in
Art 39 (b) & (c)" the following words, "all or any of the principles laid down in part IV". 25th Amendment
gave primary to directives contained in Art. 39. (b) & (c) only over the fundamental rights guaranteed by
Art 14, 19 or 31, the 42nd Amendment gave precedence to all directive principles over the fundamental
rights guaranteed by Art 14, 19 & 31 of the constitution.
In Minerva Mills Ltd. V. U. O. I. (1980). The supreme court by 4:1 majority (Bhagwati J.
dissenting) struck down Art.31 C as amended by 42nd Amd, as unconstitutional on the ground that it was
destructive of the basic features of the constitution.

Law (Sample Theory)
In woman Rao V. U. O. I., (1981) the S.C. reiterated Art 31C in its original form prior to 42nd
Amendment was valid and all the amendments to the constitution made prior to the decision in Kesavanand
Bharti case by which the 9th schedule was amended and several Acts and Regulations were included
were valid but amendment made on or after decision (1973) in the 9th schedule would be open to
challenge on the ground that they were beyond amending power of parliament for damaging the basic
structure of the constitution.
In Sanjeev coke Mfg Co V. Bharat coking Coal Ltd. (1983), a five judge Bench of the court
consisting of Bhagwati, Chinnappa Reddy, Venkataramiah, Baharul Islam and Amrendra Nath Sen JJ.
Unanimously held since the validity of sec 4 of 42 Amendment which amendment Art 31 C was not
directly at issue but was only an academic issue in Minerva Mills case, therefore, the determination of
that question in that case was uncalled to bites and since validity of Art 31 C was upheld in Kesavananda
Bharti's Case when its protection was confined to laws enacted to further the directives under Art. 39
(b) & (c), "the dialectics, the logic and the rationale involved in upholding the validity of Art 31 C" should
lead to same conclusion that Art 31 C with it extended protection is also constitutionally valid
9th Schedule laws not beyond judicial review
In Ir Coelho (Dead) By Lrs vs The State Of Tamil Nadu (2007), A 9 Judge constitution Bench
heated by chief Justice Y.K Sabharwal, held-Any law placed in the 9th schedule after April 24, 1973 when
Kesavananda Bharati's judgement was delivered would be open to challenge.
Right to constitutional Remedies [ARTICLE 32-35]
Article 32 :
 Provision of constitutional Remedy is the very soul of the constitution and the very heart
of it – Dr. Ambedkar.
It is true that a declaration of fundamental rights is meaningless unless there is an effective
machinery for the enforcement of the rights. Art. 32 is itself a fundamental right. Art. 226 also empowers
all the High Courts to issue the writs for the enforcement of fundamental rights.
Art. 32 (1) : It guarantees the right to move the supreme court by 'appropriate proceedings' for
the enforcement of the fundamental rights conferred by part III of the constitution.
Under Art. 32 (1) the supreme court's power to enforce fundamental right is widest. There is no
limitation in regard to the kind of proceedings envisaged in Art. 32 (1) except that the proceeding must
be appropriate and this requirement must be judged in the right of the purpose for which the proceeding
is to be taken, namely enforcement of fundamental rights. It is not obligatory for the court to follow
adversary system. It is clear from Art 32 (1) that whenever there is violation of a fundamental right, any
person can move the court for an appropriate remedy.
Art. 32 (2) : It confers power on the S.C to issue appropriate directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto, and certiorari
for the enforcement of any of the rights conferred by part III of the constitution. Thus the writs besides
these five writs can also be issued. A similar power is widened by the High Court but the High Courts
have power to issue writs not only for the enforcement of fundamental rights but for any other purpose
also.
Art 32 (3) : Parliament may be law empower any other court to exercise within the local limits
of its jurisdiction all or of the powers exercisable by the Supreme Court under (1. (2)).
Art 32 (4) : The right guaranteed by Art 32 shall not be suspended except as otherwise provided
for the constitution. Art. 32 thus provides for an expeditious & in expensive remedy for the protection of
fundamental rights from legislative and executive interference.

Law (Sample Theory)
Power of Parliament to enlarge writ jurisdiction of the Supreme Court

The parliament under Art 139, may be law confer of the Supreme Court power to issue directions,
orders, or writs of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them,
for any purposes other than those mentioned in Cl.(2) of Sec. 32.
Art 32 and 226 : Judicial Review : Basic features of constitution can't be curtailed by Act of
parliament and constitutional provisions
Case : centred for DIL V. U. O. I (2011)
State of W.B. V. committee for protection of Democratic Rights W. B. (2010)
Article 33 : It empowers parliament to modify the application of fundamental Rights to the Armed
forces or forces charged with maintenance of public order, etc. in the interest of discharge of duties and
maintenance of discipline. Though the appellate jurisdiction of courts is excluded in cases of court
martial, the writ jurisdiction remains (unless taken away by law under Art 33).
Article 34 : Parliament may by law indemnify any person for anything done in contravention of
fundamental rights for maintenance of order during the operation of Martial law.
Article 35 : It lays down that the power to make laws to give effect to certain specified fundamental
rights shall vest only in the parliament and not in state legislative.

Sample Theory For Fundamental Rights - UGC NET LAW UNIT-2

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2.2 FUNDAMENTAL RIGHTS

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Three meaning of Rule of law

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Balaji V. State of Mysore (1963) Caste of a person cannot be sole

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Carry Forward Rule [Clause 4]

Dissenting Judges – T.K. Thomnsen, kuldip singh, R.M.

(a) Freedom of speech & Expression

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Protection in Respect of Conviction for Offences [Article - 20]

Clause 1 Clause 2 Clause 3

Ex Post Facto Law Double Jeopardy Prohibition against

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Case : Maqbool Hussain V. st. of Bombay.

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Rights under Art 21

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(b) Right to consult and to be represented by a lawyer of his own choice

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Restrictions on freedom of Religion [ARTICLE 25 (2)]

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Distinction between Art 29 (2) and Art 15(1)

Art. 29 (1) Art. 30 (1)

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Saving of Certain Laws (Art 31 A, 31 B, & 31 C)

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Power of Parliament to enlarge writ jurisdiction of the Supreme Court

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