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Siddharth S Jain
Preamble
Structure
Fundamental Rights
Concept of State
Fundamental Duties
Lists
Monopoly
The Judiciary
Types of Writs
Delegated Legislation
OBJECTIVE QUESTIONS
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Preamble
Structure
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Unitary
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- National Interest
- Emergency
- Dispute between 2 or more states
- To give effect to an international agreement
- Breakdown of constitutional machinery in a state
3. Under concurrent list, if any law is passed on a particular matter by union as well as state and if there is an
inconsistency between two laws then the union law shall prevail over the state law.
4. In India we have a single citizenship concept, unlike in the USA where there is a concept of dual citizenship.
Fundamental Rights
A man, by birth, has certain rights which are universal and inalienable i.e. he cannot be deprived of them. It is the
function of the State to recognize them and allow them of free play so that human liberty is preserved, human
personality is developed and an effective cultured, social and democratic life is preserved.
The aforesaid rights are recognized in the form of Fundamental Rights in part III of the Constitution of India as follows:
Right
Articles containing
Concept of State
The term state is defined in Article 12 of Constitution of India. As per this, unless the context otherwise provides, the
term state includes:
1. The Government & Parliament of India
2. The Government and Legislature of each state
3. All Local or other authorities:
- Within the territory of India
- Under the control of Government of India
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Further, the aforesaid provisions of Article 13(4) were challenged in the case of Keshawanand Bharati v. State of
Kerela, where Honble Supreme Court has dismissed the petition and upheld the validity of Article 13(4) and held that
fundamental rights can be affected by a constitutional amendment but the basic structure of constitution cannot
be amended.
Article 13 came up for judicial review number of times and the courts hence evolved doctrines (principles).
Doctrine of
Severability
Doctrine of Severability states that when a part of the statute is declared unconstitutional, then
the unconstitutional part is to be removed and the remaining valid portion will continue to valid.
The idea is to retain the Act or legislation in force by discarding / deleting only the void portion
and retaining the rest.
(Principle of
seperability of
part of a law)
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid.
It is not dead totally but overshadowed by the fundamental right. The inconsistency (conflict)
can be removed by constitutional amendment to the relevant fundamental right so that eclipse
vanishes and the entire law becomes valid.
Doctrine of
Eclipse
(Principle of
detachability of
part of a law)
Doctrine of Waiver says that Fundamental Rights are not absolute and are subject to certain
reasonable restrictions and hence an individual cannot chose to get his fundamental rights
waived, relinquished or abandoned.
Doctrine of
Waiver of
Rights
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Right to Freedom
Article 25: Freedom of conscience and free profession, practice and propagation of religion
Article 26: Freedom to manage religious affairs
Article 27: Freedom as to payment of taxes for promotion of any particular religion
Article 28: Freedom as to attendance at religious worship in certain educational institutions
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Right to Equality
Right to equality is one of the basic fundamental human rights afforded by the Constitution of India.
Equality before the Law
Article 14 of CoI provides:
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of
India.
The expression equality before law is a negative concept and it applies the absence of any special privilege in favor of
any individual, whatever be his rank or status, and the equal subjection of all classes to ordinary law.
The expression equal protection of the laws is a positive concept and it implies equality of treatment in equal
circumstances. In other words, same law should be applicable among equals. Now, in order to make sense of right to
equal treatment in similar circumstances, the law shall have to make a classification between persons who are equally
situated. Thus if there is a reasonable basis of clarification, the legislature would be entitled to treat different classes
differently.
In Ramkishan Dalmiya v. Justice Tendulkar Honble SC has summarized the rules w.r.t permissible classifications as
follows:
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It may be noted that, Article 14 applies to any person and is not limited to citizens alone. Thus, a corporation, which is
only an artificial person, but not a citizen, is also entitled to the benefit of this article.
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Abolition of Untouchability
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Abolition of Titles
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Right to Freedom
As per Artcle 19, All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions or co-operative societies;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(g) to practise any profession, or to carry on any occupation, trade or business.
It may be noted that aforesaid rights are not absolute and hence reasonable restrictions may be imposed on them.
Right to Freedom of Speech & Expression
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Maneka Gandhi v. Union of India
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Bijoe Emmanuel v. State of Kerela
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Narmada Bachao Andolan v. Union of India
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Permissible Restrictions:
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Article 20
Article 20 guarantees to all persons, whether citizens or non-citizens, the three rights. They are as follows:
1) Protection against ex-post facto laws:
Ex-post facto laws (from a thing done afterward) are laws, which punish what had been lawful when done. If a particular
act was not an offence according to the law at the time when the person did that act, then he cannot be convicted
under a law, which, with retrospective effect, declares that act as an offence. Even the penalty for the commission of an
offence cannot be increased with retrospective effect.
Thus, the meaning of the above two provisions is that so far as criminal law creates a new offence or increases the
penalty, it shall be applicable only to those offences which are committed after its coming into force and cannot cover
those offences which have already been committed in the past.
Exceptions
i) Protection under this Article is available only for offences and their punishments under criminal law and not for any
civil liability, where retrospective laws can be passed.
ii) Article 20 prohibits the conviction under ex-post facto law only in respect of substantive law but not in respect of
procedural law, as no one has vested right in procedure. [Shiv Bhadur Singh v. State of Vindhya Pradesh]
2) Protection against double jeopardy:
No person can be prosecuted and punished for the same offence more than once, however if a person has been let off
after prosecution, without being punished, he can be prosecuted again.
3) Protection against self-incrimination:
A person accused of any offence cannot be compelled to be a witness against himself. In other words, an accused
cannot be compelled to state anything, which goes against him.
Article 21
Article 21 of the constitution confers on every person the fundamental right to life and personal liberty. It says that no
person shall be deprived of his life or personal liberty except according to the procedure established by law.
Thus Article 21 seeks to prevent encroachment upon personal liberty by the executive except in accordance with law
and in conformity with the provisions of the law. The scope, application and effect of Article 21 may be well understood
through the following important judicial decisions.
In Philips Alfred Malvin v. Y. J- Gonsalvis, it was held that right to life includes those things which make life meaningful.
For instance, the right of a couple to adopt a son. In one of the leading cases, life has been interpreted as a decent life
in a democratic society.
In A. K. Gopalan v. State of Madras, a very narrow meaning was given to the expression personal liberty confining it to
the liberty of the persons i.e., of the body of a person. It was held that only if the persons physical movement is totally
restricted, then there was need for law and procedure, otherwise his personal liberty would be restricted in any Way
without violating Article 21.
That the expression Personal liberty is not limited to bodily restraint or to confinement to prison only is well illustrated by
Kharak Singh v. State of U.P. In this case, the question raised was of the validity of the police regulation authorizing the
police to conduct what are called domiciliary visits against bad characters and to have surveillance over them. The court
held that such visits were an invasion on the part of the police, of the sanctity of a mans house and intrusion into his
personal security and his right to sleep, and therefore violates personal liberty of the individual, unless authorized by a
valid law.
Industrial, Labour & General Laws
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In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi, it was held that right to travel abroad is included
within the expression personal liberty and therefore, no person can be deprived of his right to travel except according to
the procedure established by law. Since a passport is essential for the enjoyment of this right, the denial of a passport
amounts to deprivation of personal liberty. The view of this case was reiterated in Menaka Gandhi v. Union of India by
the Supreme Court.
At present, personal liberty includes various other liberties like right to bail, public interest, litigation, right to free legal
aid, right to speedy trial, etc. The expression procedure established by law means procedure laid down by statute or
prescribed by the law of the State.
Article 22
Article 22 lays down certain specific safeguards against arbitrary arrest and detention. These safeguards are:
i) A person who is arrested cannot be detained in custody, unless he has been informed of the grounds for such arrest,
ii) Such person shall have the right to consult and to be defended by lawyer of his choice.
Such person must be produced before the nearest Magistrate within 24 hours of arrest, excluding the time of journey,
and
iii) Such a person shall not be detained in custody beyond 24 hours without the authority of the Magistrate.
It may be noted that aforesaid safeguards are not available to :
i) Alien enemies, and
ii) Persons messed or detained under preventive detention law. (TADA, POTA)
The object of 'preventive detention' is to detain a person with the intention of preventing him from committing an
offence. It can be done without a charge being proven. The reasons can be varied, generally it is for defence purposes,
public order and security and continuance of supply of essentials.
In order to ensure that this provision is not used illegitimately, the following safeguards have been provided > No person can be detained beyond a period of three months unless this period has been enhanced by a parliamentary
law or an advisory board of people qualified to be high court judges has seen sufficient cause in detaining him beyond
that period.
> He has been intimated the grounds of his detention.
> He was given a fair chance of presenting his defence.
RIGHT AGAINST EXPLOITATION [ARTICLES 23 & 24]
Introduction
Articles 23 and 24 guarantee certain rights to weaker sections of the society to prevent their exploitation by
unscrupulous individuals or even by the State. Article 23 imposes a complete ban on traffic in human beings and forced
labour. Article 24 prohibits employment of children in factories, etc.
Article 23
Article 23 provides that traffic in human beings and begar and other similar forms of forced labour are prohibited and
any contravention of this provision shall be an offence punishable in accordance with law
Traffic in human beings means to deal in men and women like goods such as to sell or let or otherwise dispose off
them. It includes not only slavery but also traffic in Women or the crippled for immoral or other purposes.
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Begar is a system where a person is compelled to render involuntary and free service. Even if there is payment of
wages, a person cannot be compelled to work against his will.
Article 24
Article 24 provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged
in any other hazardous employment.
Various laws like The Factories Act, 1948, The Employment of Children Act, 1938, The Child Labour (Prohibition and
Regulation) Act, 1986 are some of the legislations, which protect employment of child labour.
RIGHT TO FREEDOM OF RELIGION [ARTICLES 25 TO 281]
Article 25
It guarantees to every person freedom of conscience and the right to profess, practice and propagate any religion freely.
Article 26
It guarantees to every religious denomination the following rights:
i) The right to establish and maintain institutions for religious and charitable purposes.
ii) The right to manage its own affairs in matters of religion.
iii) Right to own and acquire movable and immovable property.
iv) Right to administer that property in accordance with law.
Article 27
It provides that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in
payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28
It provides that no religious instructions shall be provided in any educational institution wholly maintained out of State
funds. However, this prohibition shall not apply to any educational institution which is administered by the State but has
been established under any endowment or trust which requires that religious instructions shall be imparted in such
institution.
CULTURAL AND EDUCATIONAL RIGHTS [ARTICLES 29 & 301]
Article 29
It provides the following :
i) Any section of the citizens residing in the territory of India having distinct language, script or culture of its own shall
have the right to conserve the same, and
ii) No citizen shall be denied admission into any educational institution maintained by the State on grounds only of
religion, race, caste, language or any of them.
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Article 30
It provides the following:
i) All minorities, whether based on religion or language, shall have the right to establish and administer educational
institutions of their choice, and
ii) The State shall not, in granting aid to educational institutions, discriminate any educational institution on the ground
that it is under the management of the minority, whether based on religion or language.
RIGHT TO CONSTITUTIONAL REMEDIES [ARTICLE 32]
- Article 32 guarantees the enforcement of fundamental rights.
- Article 32 makes it a fundamental right that a person, whose fundamental right is violated, has a right to move the
Supreme Court for the enforcement of his fundamental rights. Thus, a person need not first exhaust the other remedies
and then go to the Supreme Court.
- On the other hand, he can directly raise the matter before the highest court of the land and the Supreme Court may
pass the appropriate orders and writs for the enforcement of the right, the violation of which has been alleged.
Ubi jus ibi remedium means where there is a right there is a remedy. A right without a remedy is useless. The
fundamental rights guaranteed by the Constitution are protected by adequate remedial measures. The Constitution of
India provides such remedial measures to all citizen of violation of any fundamental rights. Such remedies are available
in the nature of 1) Habeas corpus: Legal right to appear before a Judge
2) Mandamus: Command to follow order
3) Prohibition: Command to forbid action
4) Certiorari: A command ordering a lower court to deliver its record in a case so that the higher court may review it.
5) Quo Warranto: A legal proceeding during which an individual's right to hold an office is challenged.
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FUNDAMENTAL DUTIES
Rights and duties go hand in hand Thus, Article 51A of Constitution of India imposes the number of Fundamental duties
on every citizen of India. However, they are not enforceable in the court of law.
Following are some of the important fundamental duties:
1. To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem.
2. To uphold and protect the sovereignty, unity and integrity of India.
3. To defend the country and render National service when called upon to do so.
4. To promote harmony and spirit of common brotherhood amongst all the people of India transacting religious,
linguistic and regional or sectional diversities.
5. To renounce practices derogatory to the dignity of women.
6. To value and preserve the rich heritage of our composite culture.
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Writs
Writs are extra ordinary remedies in cases where there is either no remedy available under the ordinary law or the
remedy available is inadequate.
Articles 32 and 226 of our Constitution empower anyone, whose rights are violated, to seek writs. Under Article 32, the
Supreme Court can be moved for enforcement of fundamental rights only. However, under Article 226, High Court can
be moved for enforcement of any right including fundamental rights.
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It should be noted that it should not be discretionary duty of the authority, which is challenged. It should be a
compulsory one; the applicant too should have a legal right to enforce such performance. It may further be noted that
this writ cannot be issued against President or the Governor.
Writ of Certiorari
If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the affected party can move this writ
for a direction against such lower court or tribunal to ignore such decisions based on wrong jurisdiction. The writ of
certiorari is issued to sub-ordinate judicial or quasi-judicial body by Supreme Court or High Court when they act:
a) Without or in excess of jurisdiction,
b) In violation of the prescribed procedure,
c) In contravention of principles of natural justice,
d) Resulting in an error of law apparent on the face of record.
The writs of prohibition and certiorari are of the same nature, the only difference being that the writ of prohibition is
issued at an earlier stage, before the order is made and the writ of certiorari is available on a later stage i.e., after the
order has been passed.
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When a legislative power is given with respect to any subject, the legislatures have the power to make laws on such
subject and also any matter incidental to such subject. This is called giving plenary of powers. For example, when a
power is given on tax matter, the legislatures have the power to make law for imposition of tax, refund of tax, and also
not to impose and collect tax.
Delegated Legislation
Delegated legislation means law making by authorities other than legislatures (i.e., Executive and Judiciary) on the basis
of power given by the legislatures. It is a process, which proceeds from any authority other than the sovereign power
and is, therefore, dependent for its continued existence and validity on some superior or supreme authority.
When any law is enacted, it becomes necessary to delegate powers for carrying out the policy laid down in the law.
Generally, ancillary and subsidiary powers are delegated and the legislative functions are retained in the hands of the
legislatures. The delegated is authorizer to make rules only on subsidiary and ancillary matters within the authority given.
A rigid legislative procedure is not feasible for execution of the legislative schemes. In each law there are clauses which
empowers others to make rules for 'removal of difficulties, in executing the policy.
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