CONSTITUTION LAW-I

3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW

UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
 Karnataka State law university 3 and 5 Years LLB.

ANIL KUMAR K T LLB COACH

Constitution Law-I
Most important questions (Pattern of 10 and 6 marks)
1. Define constitution? Explain the kinds of constitution.
2. Preamble meaning, importance, objectives and values enriched the
preamble.
3. Is the preamble is a part of the constitution explain?
4. Write a note on constitutionalism.
5. Explain Salient features of Indian constitution?
6. Explain the modes acquisition of citizenship.
7. Define state under article 12.
8. Explain pre constitution and post constitution laws.
9. Explain doctrine of severability and doctrine of eclipse.
10.Explain judicial review under article 13.
11.Explain general equality clause under article 14.
12.Explain judicial interpretation on equality.
13.Explain equal opportunity reservation under article 16.
14.Explain constitutional provisions on untouchability under article 17.
15. Write a note on freedom of speech and expression.
16.Write a note on freedom of assembly.
17. Explain freedom of association, freedom of movement and freedom of
residence.
18.Explain freedom of trade or business on reasonable restrictions.
19.Explain Expost facto law – double jeopardy.
20.Write a note on self-incrimination under article 20.
21.Explain the rights of arrested person.
22.Explain preventive detection laws under article 22.
23. Explain freedom of religion enriched Indian constitution.
24.Write a note on judicial interpretation.
25.Explain restrictions on freedom of religion.
26.Explain constitutional and educational rights of minorities.
27.Explain various kinds of writs?
 28.Explain directive principles of state policy and fundamental duties.
29.Explain inter relation between fundamental rights and directive
principles
30.Explain Fundamental Rights enriched in the Indian Constitution.

BY
ANIL KUMAR K T LLB COACH
1.Define constitution? Explain the kinds of constitution.

Introduction:

The basic principles and laws of a nation, state, or social group that
determine the powers and duties of the government and guarantee certain
rights to the people in it.

A written instrument embodying the rules of a political or social

organization.
Definition:
The Oxford English Dictionary defines a constitution as "a body of fundamental
principles or established precedents according to which a state or organisation
is governed". The Collins dictionary says a constitution consists of "the
fundamental principles on which a state is governed, especially when
considered as embodying the rights of subjects".

Types of Constitution

1. Written and unwritten constitution

An unwritten constitution is a type of constitution that is not contained in one

single document. This type of constitution is partially written and partly oral.
Like common law and customary law, an unwritten constitution grows from
many years of practical experience and from the political way of the people.

The British constitution is the best example of an unwritten constitution. It is

not in one document, but can be found in various sources, such as statutes,
conventions and judicial decisions.

A written constitution is usually rigid in nature because of its cumbersome

mode of amendment. Although it can actually be amended when found
necessary.

2. Flexible and Rigid Constitution

A flexible constitution is a constitution, which can be easily amended or

changed without a cumbersome procedure. This type of constitution may be
amended just like any statute, with a simple majority of vote of the members
of the parliament.
On the other hand, a rigid constitution is a type of constitution, which has a
cumbersome or long amendment procedures. The procedure for amending a
rigid constitution is different from the procedure for enacting and amending
the ordinary ordinary laws of the land.

The enactment or amendment of an ordinary law is usually by simple majority

vote in the relevant parliament that has authority to make or amend such law.

However, the procedure for amending a rigid constitution may include a two
third majority vote of members of the central government legislature, as well
as a two-third majority vote in two-third of the state legislatures in such
country, and sometimes ratification by the people in a referendum and so
forth.

3. Unitary and Federal Constitution

A unitary constitution one of the types of constitution which provides that

governmental powers should be concentrated on the single central
government, which does not share powers with other body in the country, but
delegates powers to regional, local government and other subordinate bodies.

Put in a different way, in a unitary constitution, all government powers are

concentrated in the central or national government as the only source of
authority from which powers emanates.

A country operating a unitary system of government usually adopts a unitary

constitution. The constitution though Supreme, is usually flexible and not rigid,
as the government has power to amend it as maybe necessary.

On the other hand, a federal system of government is an association of free

states where power is constitutionally shared to the federal, state and local
councils, and with each tier of government exercising its constitutionally
assigned powers and functions.

4. Democratic constitution

The word “democracy” is derived from a combination of two Greek words

“Demos” meaning people, and “kratia” meaning “rule” or “government“.
Democracy is a government of the people, who participate in government
either directly, or through representatives. A true democratic government
must be a government made up of the generality or representatives of the
people. It must also be a government formed and installed by the people.
5. Republican and Monarchical constitution

A republican constitution is a type of constitution that provides for the position

of an elected head of state for a fixed term of office who is usually known as
President.

To understand a Monarchical constitution, you must understand that a

monarchy is a government lead by a King, Queen, or Emperor.

A Monarchical constitution is actually a dynasty where the monarch is

succeeded by his or her child or other heir from generation to generation or
from one ruling house to another.

6. Presidential and parliamentary constitution

A presidential constitution is a type of constitution where all executive powers

are vested in a president who is the head of state and head of government.
The president may exercise the executive powers of government either directly
by himself or through the vice president, minister or other officers in the public
service of the country.

The powers of the president is to maintain the constitution and to apply all the
laws made by the parliament for the time being in force.

On the other hand, a parliamentary constitution is a type of constitution where

all the executive powers of the government are vested in a Prime Minister,
who is the head of government and the head of the majority party, but is not
the head of state.

2.Preamble meaning, importance, objectives and values enriched the

preamble.
Introduction:
A preamble is an introductory statement in a document that explains the
document’s philosophy and objectives.
In a Constitution, it presents the intention of its framers, the history behind
its creation, and the core values and principles of the nation.
The preamble basically gives idea of the following things/objects:

o Source of the Constitution

 o Nature of Indian State
o Statement of its objectives
o Date of its adoption
History of the Preamble to Indian Constitution

▪ The ideals behind the Preamble to India’s Constitution were laid

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

▪ It is indicated by the Preamble that the source of authority of the

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

▪ We, the people of India: It indicates the ultimate sovereignty of

the people of India. Sovereignty means the independent authority
of the State, not being subject to the control of any other State or
external power.
▪ Sovereign: The term means that India has its own independent
authority and it is not a dominion of any other external power. In
the country, the legislature has the power to make laws which are
subject to certain limitations.
▪ Socialist: The term means the achievement of socialist ends
through democratic means. It holds faith in a mixed economy
where both private and public sectors co-exist side by side.
 o It was added in the Preamble by 42nd Amendment, 1976.
▪ Secular: The term means that all the religions in India get equal
respect, protection and support from the state.

o It was incorporated in the Preamble by

42nd Constitutional Amendment, 1976.
▪ Democratic: The term implies that the Constitution of India has an
established form of Constitution which gets its authority from the
will of the people expressed in an election.
▪ Republic: The term indicates that the head of the state is elected by
the people. In India, the President of India is the elected head of the
state.
The factors which help in achieving this objective are:

o Justice: It is necessary to maintain order in society that is

promised through various provisions of Fundamental
Rights and Directive Principles of State Policy provided
by the Constitution of India. It comprises three elements,
which is social, economic, and political.

• Social Justice – Social justice means that the

Constitution wants to create a society without
discrimination on any grounds like caste,
creed, gender, religion, etc.
• Economic Justice – Economic Justice means
no discrimination can be caused by people on
the basis of their wealth, income, and
economic status. Every person must be paid
equally for an equal position and all people
must get opportunities to earn for their living.
• Political Justice – Political Justice means all
the people have an equal, free and fair right
without any discrimination to participate in
political opportunities.
o Equality: The term ‘Equality’ means no section of society
has any special privileges and all the people have given
 equal opportunities for everything without any
discriminations. Everyone is equal before the law.
o Liberty: The term ‘Liberty’ means freedom for the people
to choose their way of life, have political views and
behaviour in society. Liberty does not mean freedom to
do anything, a person can do anything but in the limit set
by the law.
o Fraternity: The term ‘Fraternity’ means a feeling of
brotherhood and an emotional attachment with the
country and all the people. Fraternity helps to promote
dignity and unity in the nation.
Importance of Objectives:
It provides a way of life. It includes fraternity, liberty, and equality as the
notion of a happy life and which can not be taken from each other.
o Liberty cannot be divorced from equality, equality
cannot be divorced from liberty. Nor can liberty and
equality be divorced from fraternity.
o Without equality, liberty would produce the supremacy
of the few over the many.
o Equality without liberty would kill individual initiative.
o Without fraternity, liberty would produce the supremacy
of the few over the many.
o Without fraternity, liberty and equality could not
become a natural course of things.
Status of Preamble

▪ The preamble being part of the Constitution is discussed several

times in the Supreme Court. It can be understood by reading the
following two cases.

o Berubari Case: It was used as a reference under Article

143(1) of the Constitution which was on the
implementation of the Indo-Pakistan Agreement related
to the Berubari Union and in exchanging the enclaves
which were decided for consideration by the bench
consisting of eight judges.
 o Through the Berubari case, the Court stated that
‘Preamble is the key to open the mind of the makers’ but
it can not be considered as part of the Constitution.
Therefore it is not enforceable in a court of law.
▪ Kesavananda Bharati Case: In this case, for the first time, a bench
of 13 judges was assembled to hear a writ petition. The Court held
that:

o The Preamble of the Constitution will now be

considered as part of the Constitution.
o The Preamble is not the supreme power or source of any
restriction or prohibition but it plays an important role in
the interpretation of statutes and provisions of the
Constitution.
o So, it can be concluded that preamble is part of the
introductory part of the Constitution.
▪ In the 1995 case of Union Government Vs LIC of India also, the
Supreme Court has once again held that Preamble is the integral
part of the Constitution but is not directly enforceable in a court of
justice in India.

3.Is the preamble is a part of the constitution explain?

Amendment of the Preamble

42nd Amendment Act, 1976: After the judgment of the Kesavanand Bharati
case, it was accepted that the preamble is part of the Constitution.

o As a part of the Constitution, preamble can be amended

under Article 368 of the Constitution, but the basic
structure of the preamble can not be amended.
o As of now, the preamble is only amended once through
the 42nd Amendment Act, 1976.
The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble
through 42nd Amendment Act, 1976.
 o ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’
and ‘Democratic’.
o ‘Unity of the Nation’ was changed to ‘Unity and Integrity
of the Nation’.

The preamble being part of the Constitution is discussed several times in the
Supreme Court. It can be understood by reading the following two cases.

o Berubari Case: It was used as a reference under Article

143(1) of the Constitution which was on the
implementation of the Indo-Pakistan Agreement related
to the Berubari Union and in exchanging the enclaves
which were decided for consideration by the bench
consisting of eight judges.
o Through the Berubari case, the Court stated that
‘Preamble is the key to open the mind of the makers’ but
it can not be considered as part of the Constitution.
Therefore it is not enforceable in a court of law.
▪ Kesavananda Bharati Case: In this case, for the first time, a bench
of 13 judges was assembled to hear a writ petition. The Court held
that:

o The Preamble of the Constitution will now be

considered as part of the Constitution.
o The Preamble is not the supreme power or source of any
restriction or prohibition but it plays an important role in
the interpretation of statutes and provisions of the
Constitution.
o So, it can be concluded that preamble is part of the
introductory part of the Constitution.
In the 1995 case of Union Government Vs LIC of India also, the Supreme
Court has once again held that Preamble is the integral part of the
Constitution but is not directly enforceable in a court of justice in India.

4.Write a note on constitutionalism.

Introduction:
The concept of constitutionalism is a mechanism that provides legitimacy to a
democratic government. It cannot and should not be confused with the legality
of the acts of the officials in a government setup. Constitutionalism is far more
important than having a written Constitution. With some exceptions most of
the countries have Constitutions but it in no way means that they practice
constitutionalism. Some of the basic principles developed over time that
embody the concept of constitutionalism are separation of powers, judicial
control and accountable government.

• In India, constitutionalism is considered to be a natural corollary to the

fundamental governance of the country.
• The Constitution of India with the aid of various legislations has
developed a detailed and robust mechanism to put into place
administrative mechanisms for the smooth functioning of the machinery
of governance.
• However, due to a variety of factors, the distance between the
government and the governed has been growing with every passing
year. The rich are getting richer and the poor have resigned to their
fates, areas which were backward sixty years ago remain as such.
The concept of constitutionalism has been recognised by the Supreme Court in
Rameshwar Prasad v. Union of India. The Court stated, “The constitutionalism
or constitutional system of Government abhors absolutism – it is premised on
the Rule of Law in which subjective satisfaction is substituted by objectivity
provided by the provisions of the Constitution itself.”
In IR Coehlo v. State of Tamil Nadu, the Court held that Constitutionalism is a
legal principle that requires control over the exercise of governmental power
to ensure that the democratic principles on which the government is formed
shall not be destroyed. Chandrachud, CJ, in Minerva Mills case observed, –
“The Constitution is a precious heritage and, therefore, you cannot destroy its
identity”.
5.Explain Salient features of Indian constitution?
Introduction:
Indian constitution, one of the utmost admired constitutions in the world was
enacted after ‘ransacking’ all the known constitutions of the world at that
time. This constitution that we have enacted has stood the test of times.
Though provisions were borrowed from other constitutions, the constitution of
India has several salient features that distinguish it from constitution of other
countries
Some of its salient features are mentioned below:
Lengthiest written constitution

• Constitution can be classified into written constitution such as that

of America or unwritten constitution such as that UK.
• The constitution of India is a written constitution which happens to
be the lengthiest written constitution in the world.
• It is comprehensive, elaborate and a detailed document
• The factors that have contributed to this phenomenon are:
geographical factors (vastness of country and diversity), Historical
factors (Influence of GoI, 1935), Single constitution for both centre
and state and dominance of legal luminaries

Drawn from various sources

• It has borrowed most of its provisions from the constitution of

various other countries as well as from the Government of India act,
1935. Ex: structural part from GoI, 1935, independence of judiciary
from USA, Fundamental Rights from USA etc
• Though it is borrowed, the Indian constitution-makers made sure
the borrowed features were made suitable to Indian conditions. Ex:
Though we borrowed cabinet form of governance from UK, the
cabinet is not all-supreme as in the case of UK.

Preamble of the constitution

• The Preamble consists of the ideals, objectives and basic principles

of the Constitution.
• The salient features of the Constitution have developed directly and
indirectly from these objectives which flow from the Preamble
• It asserts India to be a Sovereign Socialist Secular Democratic
Republic and a welfare state committed to secure justice, liberty
and equality for the people and for promoting fraternity, dignity the
individual, and unity and integrity of the nation.
• The Preamble is the nature of Indian state and the objectives it is
committed to secure for the people.
Democratic system

• The authority of the government rests upon the sovereignty of the

people. The people enjoy equal political rights.
• Free fair and regular elections are held for electing governments

India is a republic

• The Preamble declares India to be a Republic.

• India is not ruled by a monarch or a nominated head of state. India
has an elected head of state (President of India) who wields power
for a fixed term of 5 years.
• After every 5 years, the people of India indirectly elect their
President.

Union of states

• Article I of the Constitution declares, that “India that is Bharat is a

Union of States.”

Fundamental Rights and duties:

• The Constitution of India grants and guarantees Fundamental Rights

to its citizens.
• The constitution of India confirms the basic principle that every
individual is permitted to enjoy certain basic rights and part III of
the Constitution deals with those rights which are known as
fundamental right.
• The Six FR include- Right to Equality; Right to Freedom; Right
Against Exploitation; Right to Freedom of Religion; Cultural and
Educational Rights and Right to Constitutional Remedies (Art. 32).
• The fundamental rights are justiciable and are not absolute.
Reasonable constraints can be imposed keeping in view the
security-requirements of the state.
• A new part IV (A) after the Directive Principles of State Policy was
combined in the constitution by the 42nd Amendment, 1976 for
fundamental duties.

Directive Principles of State Policy:

 • A unique aspect of the Constitution is that it comprises of a chapter
in the Directive Principles of State Policy.
• These principles are in the nature of directives to the government
to implement them to maintain social and economic democracy in
the country.

Parliamentary System:

• The Constituent Assembly decided to espouse Parliamentary form

of government both for the Centre and the states.
• In Indian parliamentary system, distinction is made between
nominal and real executive head.
• The Council of Ministers is responsible before the Lok Sabha, The
lower house of union parliament. There are close relations between
executive and legislature.

Federal structure of government:

• A federal state is a state where a country is divided into smaller

regions and the government is functioning at two levels
• The Indian Constitution has envisaged a federal structure for India
considering the geographical vastness and the diversity of
languages, region, religions, castes, etc.
• Written Constitution, supremacy of the Constitution, division of
powers between Union and States, bicameral Legislature,
independent Judiciary, etc. are the features of Indian federation.
• Scholars describe India as a ‘Quasi-Federation’ (K.C. Wheare) or as
‘a federation with a unitary bias, or even as ‘a Unitarian federation.’

Universal adult franchise

• All men and women enjoy an equal right to vote. Each adult man
and woman above the age of 18 years has the right to vote.
• All registered voters get the opportunity to vote in elections.

Single integrated State with Single Citizenship:

• India is the single Independent and Sovereign integrated state.

• All citizens enjoy a common uniform citizenship.
 • They are entitled to equal rights and freedoms, and equal
protection of the state.

Integrated Judicial system

• The Constitution provides for a single integrated judicial system

common for the Union and the states.
• The Supreme Court of India works at the apex level, High Courts at
the state level and other courts work under the High Courts.

Independent Judiciary

• It is necessary to secure the philosophical foundations of the rule of

law and democracy
• Firstly, the Constitution makers created a separate Judiciary
independent of Legislature and Executive.
• Secondly, the Constitution has ensured complete independence of
Judiciary in the matters of administration and finances.

Amending the Constitution of India:

• Amending the Constitution of India is the procedure of making

modifications to the nation’s fundamental law or supreme law.
• The procedure of amendment in the constitution is laid down in
Part XX (Article 368) of the Constitution of India.
• This procedure guarantees the sanctity of the Constitution of India
and keeps a check on uninformed power of the Parliament of India.

Judicial Review:

• The judiciary has significant position in Indian Constitution and it is

also made independent of the legislature and the executive.
• The Supreme Court of India stands at the peak of single integrated
judicial system
• It operates as defender of fundamental rights of Indian citizens and
guardian of the Constitution.

Basic Structure doctrine:

 • The basic structure doctrine is an Indian judicial norm that the
Constitution of India has certain basic features that cannot be
changed or destroyed through amendments by the parliament.
• The basic features of the Constitution have not been openly defined
by the Judiciary.
• At least, 20 features have been described as “basic” or “essential”
by the Courts in numerous cases, and have been incorporated in the
basic structure.
• In Indira Gandhi v. Raj Narayan case and also in the Minerva Mills
case, it was witnessed that the claim of any particular feature of the
Constitution to be a “basic” feature would be determined by the
Court in each case that comes before it.

Secularism

• In no other country of the world so many religions co-exist as in

India. In view of such diversity the Constitution guarantees
complete freedom of religion to all.
• The citizens of our country are free to follow any religion and they
enjoy equal rights without any distinction of caste, creed, religion
or sex.
• The State does not discriminate against anyone on the ground of his
religion, nor can the State compel anybody to pay taxes for the
support of any particular religion.
• Everybody is equally entitled to freedom of conscience and the right
freely to profess, practice and propagate religion.
• The Constitution regards religion as a private affair of individuals
and prohibits the State from interfering with it. The Constitution
also grants various cultural rights to minorities.

Independent bodies

• Constitution has setup various independent bodies and vested them

with powers to ensure the constitutional provisions. Ex: Election
Commission, CAG, Finance Commission
• These institutions have been provided with security of tenure, fixed
service conditions etc to ensure that they are not susceptible to the
whims of either the legislature or the executive.

Emergency provisions
 • Indian constitution contains elaborate provisions to deal with those
challenges that pose a threat to the country’s security and unity (It
will be discussed in detail in upcoming chapters)

Three-tier government

• Through 73rd and 74 th amendment act, we have rural and urban

local bodies as an additional constitutional tier of the government
structure.
• This section fulfils the dream of Gandhi ji to see a self-functioning
villages in India

6.Explain the modes acquisition of citizenship.

Introduction:

The provisions governing citizenship of India are enshrined in the Citizenship

Act, 1955. The Constitution of India in Article 5 to 11, only talks about as to
who was citizen till 26 January 1950.

The Indian Constitution provides the power to the parliament under Article
11 to make laws and regulations about citizenship. This is the reason
parliament passed the Citizenship Act in 1955.

Citizenship Act, 1955, has been amended from time to time, like in 1986, 1987,
1992, 2003, 2005, 2015, 2016, and most recently in 2019.

5 ways of acquiring Indian citizenship are:

1. By Birth
2. By Acquisition or Incorporation of Territory
3. By Descent
4. By Registration
5. By Naturalization

1. By Birth

1. If a person is born in the territory of India, he shall be a citizen of India.

2. A person born on or after 26 January 1950 but before 1 July 1987,

irrespective of the citizenship of parents. It is called jus soli (right of soil).

3. A person born on or after 1 July 1987 but before 3 December 2004. Either of
the parents of the person born should be a citizen of India at the time of birth.
It is called jus sanguins (right of blood or descent).

Citizenship is granted to a person on the basis of the Indian nationality of any

of the parents, immaterial of the fact that at which place the child took birth.

4. A person born on or after 3 December 2004. Both the parents of the child
born should be a citizen of India at the time of birth.

5. A person shall not acquire citizenship of India if any of his parents is envoy
(foreign diplomat) or enemy alien or an illegal immigrant.

2. By Acquisition or Incorporation of Territory

1. If any territory or state becomes part of India, then the central government
shall declare it as part of the Union of India by issuing official Gazette.
2. Many territories such as Goa, Sikkim, Puducherry, Daman and Diu became
part of India, and their population became citizens of India.

3. By Descent

1. If a person is born outside India on or after 26 January 1950, but before 10

December 1992 will be considered as a citizen of India. But subject to the fact
that his father must be a citizen of India at the time of birth.

2. If a person born on or after 10 December 1992 but before 3 December 2004,

either of the parent (mother or father) must be having citizenship of India.

After the Citizenship Amendment Act, 2003, the government passed an order
stating that a child born shall not be Indian merely because of his descent. The
government mandated compulsory registration within one year of birth. Its
time can be extended by the government as per requirement.

4. By Registration

1. If a person is of Indian origin, who was ordinarily a resident of India for

seven years before making an application for registration.

2. If a person is married to a person of Indian citizenship and is ordinarily

residing in India for seven years before making the application for registration.

3. If a person is minor and parents are a citizen of India.

4. A person who or his parents were earlier citizens of India after
independence and is residing in India for a year before making the application
for registration.

5. If a person is registered as an overseas citizen of India (a foreigner of Indian

origin who is given a status to work and live in the territory of India) and is
residing for one year before making the application for registration.

5. By Naturalization

1. Citizenship is acquired by making an application to the central government.

2. For granting citizenship to a person, the criteria of the third schedule of this
act must be satisfied.

3. The person to whom citizenship certificate is to be granted must be of good

character, must have knowledge of any language given in the eighth schedule
of the Indian Constitution, must not be an illegal migrant, and must have
renounced the previous citizenship.

4. The person must have resided (lived) in India for 11 years in the previous 14
years and one year immediately before the time of making the application.

7.Define state under article 12.

Introduction:
Part III of the Indian Constitution deals with Fundamental Rights. Since
Fundamental Rights provide for the security of citizens’ sets of rights in relation
with speech, expression, religion, against exploitation, education, language,
culture, and constitutional remedies; the term ‘State’ has been used in a wider
context to include all such agencies, actions of whose can challenged in the
Supreme Court if they violate the any of these fundamental rights. And that
definition is given in Article 12 of the Indian Constitution.

Definition of ‘State’ under Article 12

Article 12 defines ‘State’ as:

1. Legislative and Executive Organs of the Union Government:

1. Indian Government
2. Indian Parliament – Lok Sabha, Rajya Sabha
2. Legislative and Executive organs of the State Government:
1. State Governments
2. State Legislature – Legislative Assembly, Legislative Council of
State
3. All local authorities
1. Municipalities – Municipal Corporations, Nagar Palika, Nagar
Panchayats
2. Panchayats – Zila Panchayats, Mandal Panchayats, Gram
Panchayats
3. District Boards
4. Improvement Trusts, etc.
4. Statutory and Non-Statutory Authorities
1. Statutory Authorities Examples:
1. National Human Rights Commission
2. National Commission for Women
3. National Law Commission
4. National Green Tribunal
5. National Consumer Disputes Redressal Commission
6. Armed Forces Tribunal
2. Non Statutory Authorities Examples
1. Central Bureau of Investigation
2. Central Vigilance Commission
3. Lokpal and Lokayuktas

Note:

• The definition in Article 12 is only for the purpose of application of the

provisions contained in Part III.
• Even if a party is not mentioned as ‘State’ under Article 12, in cases,
where such a party has a public duty to perform or where such a party’s
acts are supported by the State or public officials; a writ under Article
 226 may lie against it on non-constitutional grounds or grounds of
contravention of some provision of the Constitution outside Part III.

8.Explain pre constitution and post constitution laws.

Pre-constitutional laws
During India’s existence under the British reign, there were various laws and acts
passed by the British government. The Regulating Act of 1773 was seen as a
foundation stone laid by the East India Company to ensure its smooth
functioning in the Indian Sub-Continent. Further, the Indian Independence Act
marked the end of British rule in India which was given effect on 15 August 1947.

• Regulating Act of 1773

As already discussed above, this step was considered to be the first step by the
British to manage the affairs of the East India Company in India. The governor of
Bengal was designated as the governor general. Warren Hastings became the
first governor-general of Bengal. The executive council of governor-general was
established, which comprised of 4 members and there existed no separate
legislative council.

Supreme Court was established by the company at Fort William (Calcutta) as the
apex court in 1774. The act prohibited the servants of the company from
accepting bribes or indulging in any trade activities.

• Pitt’s India Act of 1784

This act mainly draws a distinction between the commercial and political acts of
the company. The court of directors was assigned the work to decide on the
commercial activities and the board of control had to authorise the political
affairs of the company. This act further reduced the strength of the council to 3
members. The act placed Indian Affairs directly under the control of the British
Government. The Company’s territory under India came to be known as “The
British possession in India”. Governor’s council was established in Bombay and
Madras.
 • Charter Act of 1813

The Charter Act of 1813 terminated the company’s monopoly which existed
over the Indian trade, after the passing of this act, trade with India was open to
all British subjects.

• Charter Act of 1833

The Governor-General of Bengal was upgraded to the post of Governor-General

of India. Lord William Bentick became the first Governor-General of India. The
Charter Act of 1833 was regarded as the first step towards centralisation in
British India. The act took away the legislative powers of Bombay and Madras
provinces and the central legislature was put in place. The Act brought an end
to East India Company as a commercial body and transformed it into a purely
administrative body.

• Charter Act of 1853

There was a separation brought in the Legislative and Executive powers of the
Governor-General’s council. 6 members comprised of the central legislative
council, out of which 4 were appointed by the provisional government of
Madras, Bombay, Bengal and Agra. It introduced open competition as a basis for
recruitment of civil servants. Indian Civil Service opened for all.

• Government of India Act 1858

This act replaced the rule of company by the rule of crown. The powers which
were embodied on the British Crown were to be exercised by the secretary of
state of India. The secretary of State was further assisted by 15 members. Lord
Canning became the first Viceroy of India.

• Government of India Act 1913

The act is popularly known as Montague-Chelmsford Reforms. The scheme of

dual governance- Dyarchy was introduced. Under the Dyarchy system, the
provisional subjects were divided into two parts – Reserved and Transferred.
The Governor was not responsible to the legislate council over the reserved
subjects. The act also introduced the Bicameral legislature at the centre. The
Legislative Assembly had a strength of 140 members and the Legislative
Council’s strength was 60 members. The act also introduced direct elections.

• Indian Independence Act of 1945

This is considered to be the last act which was laid down in India under the
British rule. It declared India as an independent and sovereign state. The act
established responsible governments both at Centre and States. It assigned dual
functions to the Constituent Assembly which were – Legislative and Constituent
functions.

Post-Constitutional laws
Post-constitutional laws are the ones which were brought into effect after the
enactment of the Constitution of India, 1950. All those acts which were given
effect after January 26, 1950 fall under the ambit of Post-Constitutional Laws.
There are laws which were brought into effect during the British era before the
formation of the constitution and are still being followed in the same manner,
like that of the- Indian Penal Code, Police Act, 1861 and even the Societies
Registration Act, 1860. These are few of the major acts which were enacted
before the formation of the constitution and are still in practice with required
amendments.

IPC – Indian Penal Code

The Indian Penal Code was drafted by the first law commission under the
leadership of Lord Macaulay. Over a period of time, IPC has been one of the
much-applauded legislative acts of India, even though it existed with several
defects. In order to overcome the loopholes which existed in the law and further
make it suitable with the changing aspects of the society, there have been
various amendments which have been brought in IPC which will be looked into.

• Amendment in IPC – Information Technology Act 2000

The IT Act was passed in the budget session in the year 2000 and signed by
president K R Narayan. The IT act was brought into effect with the advent
of internet technology. Even after its enactment, the IT act went through various
changes. In 2008 there was an expansion made in the definition of
‘Communication Device’ which included under its ambit mobile devices and
placed owners of IP addresses responsible for disturbing content.

The major change in this act was the inclusion of section 66 which
makes offensive messages illegal and also holds the owner of the server
responsible for the content.

• Criminal Law Amendment Act 2013 – Nirbhaya Act

The act came into force on April 3rd 2013, following the gang rape in Delhi. The
act made stalking and voyeurism liable to be punished with 7 years of
imprisonment. It regarded certain acts as offensive which were dealt with
separately and these offences included acid attack (Sec 326A), attempt to acid
attack (Sec 326B), sexual harassment (Sec 354A), act with intention to disrobe a
woman (Sec 354B), voyeurism (Sec 354C), and stalking (Sec 354D).

Many of the state governments even drafted bills making a convict liable of
raping a girl of 12 years or less than that to be awarded death punishment.

• Criminal Law Amendment Bill 2018

The bill amended certain sections of IPC to increase the minimum punishment
for rape of women from seven years to ten years. The gang-rape of girls who are
below the age of 12 years would contain imprisonment for a period of 20 years
and the same may even extend to the death sentence of the culprit.

The amendment made it mandatory for the investigation into the rape of a
minor child to be completed within 6 months and should not exceed the said
time limit.

9.Explain doctrine of severability and doctrine of eclipse.

Introduction:
The Doctrine of Eclipse states that any law which is inconsistent with
fundamental rights is not invalid. It is not totally dead but overshadowed by
the fundamental right. The inconsistency (conflict) can be removed by
constitutional amendment.

Doctrine of Eclipse
The Judiciary is the guardian of the rights provided for in the Constitution of
India. It is the job of the judiciary to restrain the actions of the Legislature and
the Executive where they are infringing upon these rights. When the
Constitution was adopted on January 26, 1950, with it came, the fundamental
rights that are guaranteed to the citizens.
There were several existing laws at the time when the Constitution was
adopted, some of which were in direct conflict with fundamental rights, so in
order to determine the validity of these laws the Supreme Court came up with
certain principles/doctrines, one of which was the Doctrine of Eclipse.

• This doctrine emanates directly from Article 13(1) of the Constitution

that is a part of the fundamental rights, which states, “all laws in force in
the territory of India immediately before the commencement of this
Constitution in so far as they are inconsistent with the provisions of this
Part, i.e. Part III, shall, to the extent of such inconsistency, be void.”
• The doctrine of eclipse envisages fundamental rights as prospective in
nature.
• It states that a pre-constitutional law inconsistent with the fundamental
rights is not a nullity or void ab initio but only remains unenforceable,
i.e., remains in a dormant state.
• They exist for all past transactions, i.e., for rights and liabilities that were
acquired before the Constitution came into being.
• These laws also remain applicable to individuals who have not been
given fundamental rights, for example, non-citizens.
• Therefore, the impugned law remains hidden behind the fundamental
rights and can become operative again if and when the fundamental
right it is inconsistent with is amended.

The Doctrine of Eclipse – Salient Features

• The doctrine only applies to pre-constitutional laws that were valid at

their inception.
• The doctrine is not applicable to post-constitutional laws since they are
invalid from the very inception because of being inconsistent with Part
III; the same was held by the Supreme Court in Deep Chand v. State of
Uttar Pradesh. However, non-citizens can’t take any advantage of the
rule as the violation doesn’t impact them.
• The impugned law must be violative of the fundamental rights, and then
only can it be hidden or eclipsed.
 • The law that turns out to be violative of Part III does not become a
nullity but just remains unenforceable & defective.
• If the fundamental right that is violated by the impugned law is amended
in the future, the law automatically becomes operative.
The judgments of Bhikaji and Deep Chand were upheld in the cases of
Mahendra Lal Jain v. State of Uttar Pradesh, State of Gujarat v. Ambica Mills,
Sagir Ahmed v. State of Uttar Pradesh and P. L. Mehra v. D. R. Khanna.
Conclusion
The Doctrine of Eclipse is one of the fairly subtle principles of the rule of law
that has helped the pre-constitutional laws from being wiped out altogether. It
is imperative to mention here that the applicability of this doctrine to post-
constitutional laws is still somewhat of a grey area. However, this doctrine has
been effective in harmonizing the pre-constitutional and post-constitutional
positions with respect to various laws, such harmonization has ensured the
triumph of constitutionalism in every sense of the word.
10.Explain judicial review under article 13.
Introduction:

Judicial Review
Judicial review is defined as the doctrine under which executive and legislative
actions are reviewed by the judiciary. Even though we have in India the
principle of separation of powers of the three arms of the State, namely, the
executive, the legislative and the judiciary, the judiciary is vested with the
power of review over actions of the other two arms.

1. Judicial review is considered a basic structure of the constitution (Indira

Gandhi vs Raj Narain Case).
2. Judicial review is the power of the courts to consider the
constitutionality of acts of organs of Government and declare it
unconstitutional if it violates or is inconsistent with the basic principles
of the Constitution.
3. This means that the power of the legislature to make laws is not
absolute and that the validity and constitutionality of such laws are
subject to review by the courts.
4. Judicial review is also called the interpretational and observer roles of
the Indian judiciary.
5. The Indian Constitution adopted the Judicial Review on lines of the
American Constitution.
 6. Suo Moto cases and the Public Interest Litigation (PIL), with the
discontinuation of the principle of Locus Standi, have allowed the
judiciary to intervene in many public issues, even when there is no
complaint from the aggrieved party.

Judicial Review and Constitution

According to Article 13(2), the Union or the States shall not make any law that
takes away or abridges any of the fundamental rights, and any law made in
contravention of the aforementioned mandate shall, to the extent of the
contravention, be void.

1. Judicial review is called upon to ensure and protect Fundamental

Rights which are guaranteed in Part III of the Constitution.
2. The power of the Supreme Court of India to enforce these Rights is
derived from Article 32 of the Constitution. This provides citizens the
right to directly approach the SC to seek remedies against the violation
of Fundamental Rights.

Judicial Review Classification

We can classify judicial review into three categories. They are:

1. Reviews of Legislative Actions: This review implies the power to ensure

that laws passed by the legislature are in compliance with the provisions
of the Constitution.
2. Review of Administrative Actions: This is a tool for enforcing
constitutional discipline over administrative agencies while exercising
their powers.
3. Review of Judicial Decisions: This is seen in the Golaknath case, bank
nationalisation case, Minerva Mills case, privy purse abolition case, etc.

Importance of Judicial Review

• It is essential for maintaining the supremacy of the Constitution.

• It prevents the tyranny of executives.
• It maintains the federal balance.
• It is essential for checking the possible misuse of power by the
legislature and executive.
• It is essential for securing the independence of the judiciary.
• It protects the rights of the people.
Examples of Judicial Review
IT Act Section 66(A)
In 2015, the SC struck down Section 66(A) of the amended Information
Technology Act, 2000. This provided the punishment for sending “offensive”
messages through a computer or any other communication device like a
mobile phone or a tablet. A conviction could fetch a maximum of three years in
jail and a fine. This was repealed by the SC on the grounds that this section fell
outside Article 19(2) of the Constitution, which relates to freedom of speech.
Golaknath Case (1967)
The questions, in this case, were whether the amendment is a law; and
whether Fundamental Rights can be amended or not. SC contented that
Fundamental Rights are not amenable to the Parliamentary restriction as
stated in Article 13, and that to amend the Fundamental rights a new
Constituent Assembly would be required. Also stated that Article 368 gives the
procedure to amend the Constitution but does not confer on Parliament the
power to amend the Constitution.
11.Explain general equality clause under article 14.
Introduction:
The Constitution of India codifies the fundamental rights- the basic human
rights of its citizens which are defined in Part III of the Constitution. One such
right is the right to equality which is protected under articles 14 to 18. Article
14 is the most significant of the lot. This deals with the general principles of
equality. All the situations not covered under 15 to18 are covered under this.
Types of equality to get an idea of what it is. It is also mentioned in our
Preamble. The types of equality are:

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

The Right to Equality is one of the Fundamental Rights enshrined in the

Constitution of India. It is very important to understand what this right entails
and includes. This topic is a basic topic in the polity and constitution
Article Brief description

Article The State shall not deny to any person equality before the law or the equal
14 protection of the laws within the territory of India, on grounds of religion,
race, caste, sex or place of birth

Article 14 of the constitution states that:

“The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”
This means that every person, who lives within territory of India, has the equal
right before the law. That equals will be treated equally.
This article constitutes of 2 parts, being:
1. Equality before law and
2. Equal protection of the laws.
Although both sound similar, they don’t mean the same. The word “Law” in
the former expression is used in a genuine sense – a philosophical sense,
whereas the word “Laws” in the latter expression denotes specific laws in
force.
Equality before the law talks about equal subjection of all citizens (rich or poor,
high or low, official or non-official) to the ordinary law of the land administered
by the ordinary law courts and is a negative concept as implies the absence of
any privilege in favor of any individual and equal subjection of all classes to the
ordinary law. Whereas, equal protection of the laws is a Positive Concept as it
implies equality of treatment in equal circumstances both in privileges
conferred and liabilities imposed. So, all the persons must be treated alike on
reasonable classification. Among equals law should be equal and equally
administered. The guarantee of equal protection applies against substantive as
well as procedural laws.
Exception:
The above right is not an absolute right. Hence, is subject to an exception –
reasonable classification.
Article 14 forbids class legislation but permits reasonable classification. The
two tests of classification are as follows:
1. Ineligible Differentia: The classification must be founded on an intelligible
differentia which distinguishes those that are grouped together from other.
Arbitrariness is an anti-thesis to the right top equality. Hence, there should be
no scope of arbitrariness in classification.
2. Rational Relation: That differentia must have a rational relation to the
object sought to be achieved by the Act. It is necessary is that there must be
nexus between the basis of classification and the object of the act which makes
the classification. It is only when there is no reasonable basis for a classification
that legislation making such classification may be declared discriminatory.
LANDMARK JUDGEMENTS:
In E.P Royappa v. State of Tamil Nadu & Another, it was held that Article 14 is
one of the pillars of the Indian Constitution and hence cannot be bound by a
narrow and inflexible interpretation. Article 14 should thus be given the widest
interpretation possible, which also includes reasonableness and arbitrariness
of certain provisions of the legislations.
In Maneka Gandhi v. Union of India, the Supreme Court clearly ruled out the
room for arbitrariness. ‘Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of reasonableness,
which logically as well as philosophically, is an essential element of equality or
non-arbitrariness, pervades Article 14 like a brooding omnipresence.’ Rule of
law which permeates the entire fabric of the Indian Constitution excludes
arbitrariness. Wherever we find arbitrariness or unreasonableness there is
denial there is denial of rule of law.
12.Explain judicial interpretation on equality.
Equality before Law is not absolute and has several exceptions

“Notwithstanding anything in clause (3), Parliament and subject to clause (1),

the Legislature of any State also, have power to make laws with respect to any
of the matters enumerated in List III in the Seventh Schedule”(here List III is
Concurrent List).
The validity of Special Courts which were established under the Special Courts
Act has been questioned in The Special Courts Bill v. Unknown case. It was
questioned whether the formation of special courts under this Act was not
violating Article 14 of the Indian Constitution. It was held that as there was
reasonability and logicality information of these special courts so these courts
are constitutionally valid.

No equality in illegality

There cannot be equality before the law for the person who is a wrongdoer. A
person who is doing illegal acts cannot ask for Right to Equality in front of a court
or the judicial system. The case of Baliram Prasad Singh v. State Of Bihar of Patna
High Court clearly explains that there cannot be equality for illegal acts as the
petitioner was himself at fault, therefore, he was made to compensate for his
illegal act.

On one hand, Equality before Law prohibits providing any special privilege to
any community or people. It does not talk about equal treatment in equal
circumstances. According to it, there must be a very ideal condition and the state
does not need to interfere in society by providing additional privileges in society.

On the other hand Right to Equality is not absolute and has several exceptions
to it. Accordingly, equals should be treated equally. Equality before Law has
several exceptions, for example, the Immunity provided to the President and
Governor. Reservation is also a typical example that defines that the Right to
Equality is not absolute and can be restricted (or rather used properly) according
to the need of the society.

In the very famous case of State of West Bengal v. Anwar Ali Sarkar, the question
of whether the Right to Equality is absolute or not was raised. Here Supreme
Court held that the Right to equality is not absolute. In this case, the State of
Bengal was found to use its power arbitrarily to refer any case to the Special
Court which was made by them. It was thus held that the Act of State of Bengal
violates the Right to Equality.

13.Explain equal opportunity reservation under article 16.

Introduction;

ARTICLE 16 OF THE INDIAN CONSTITUTION:

Article 16 of the Constitution of India, talks about the right of equal
opportunity in the matters of public employment. It states that:
1. There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State,
2. 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.
3. Nothing in this article shall prevent 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.
4. Nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in the
services under the State.
(4A) Nothing in this article shall prevent the State from making any provision
for reservation in matters of promotion, with consequential seniority, to any
class or classes of posts in the services under the State in favour of Scheduled
Castes and the Scheduled Tribes which in the opinion of State are not
adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled
vacancies of a year which are reserved for being filled up in that year in
accordance with any provision for reservation made under clause (4) or clause
(4A) as a separate class of vacancies to be filled up in any succeeding year or
years and such class of vacancies shall not be considered together with the
vacancies of the year in which they are being filled up for determining the
ceiling of fifty per cent, reservation on total number of vacancies of that year.
5. Nothing in this article shall affect the operation of any law which provides
that the incumbent of an office in connection with the affairs of any religious
or denominational institution or any member of the governing body thereof
shall be a person professing a particular religion or belonging to a particular
denomination.
B. OBJECT:
The Article guarantees equality of opportunity when it comes to public
employment. The first two clauses of the Article elucidate the fact that no
citizens of India shall face discrimination in respect of employment. These two
clauses lay the foundation for equal employment opportunity and eliminate
compartmentalization in the name of religion, race, caste, sex, place of birth,
or any other.
As one of the important constitutional provisions for deprived sections, Article
16 gives Parliament the power to make any law prescribing the requirements
“for a class or classes of employment or appointment to an office under the
Central Government or any local authority.” Clause 4 of the Article acts as a
guideline for the government for making any provision for the reservation of
appointments in favour of any backward class of citizens who are “not
adequately represented in the services under the State”.
Like Article 14, 15 and 17, this article and its provisions indicate the
government’s commitment to protect the interests of the SCs and STs.
C. CONSTITUTIONAL AMENDMENTS:
The 77th and 81st amendments are considered as technical amendments to
protect reservation to SC/ST employees in promotions and in filling backlog of
vacancies.”
It was through the 85th amendment of the Constitution that Article 16 (4A)
was inserted and amended to give state the power “to provide quota in
promotions with consequential seniority.” The clause 4A was inserted after the
Supreme Court observed that the reservation of appointments/posts under
Article 16(4) is restricted to initial appointment and it cannot extend to
reservation in the matter of promotion.
While upholding the insertion of clause 4A, the Supreme Court imposed a
condition – every time a government wants to exercise its power under Article
16(4A), “it must take up a specific exercise to demonstrate that the SCs/STs
were not adequately represented.”
As the Supreme Court verdict in M. Nagaraj v. Union of India made it
compulsory for the government to demonstrate the backwardness of SC/ST
beneficiaries every time reservations were provided for promotion, it took
another stand, which was heavily criticized for lacking constitutional merit. In
its judgment, the apex court had observed that individuals “in the ‘creamy
layer’ of OBCs” don’t have the right to be the beneficiaries of the reservation
policy. However, the court held that no such exclusion would be applicable for
SCs/STs.
14.Explain constitutional provisions on untouchability under article 17.
Introduction;
ARTICLE 17 OF THE INDIAN CONSTITUTION:
Untouchability is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of Untouchability shall be an offence
punishable in accordance with law.
Untouchability is neither defined in the Constitution nor in the Act. It refers to
a social practice which looks down upon certain depressed classes solely on
account of their birth and makes any discrimination against them on this
ground. Their physical touch was considered to pollute others. Such castes
which were called untouchables were not to draw water from the same wells,
or use the pond/tank which is being used by the higher castes. They were not
allowed to enter some temples and suffered many other disabilities.
Inclusion of this provision in the Constitution shows the importance attached
by the Constituent Assembly towards eradication of this evil practice. Article
17 is also a significant provision from the point of view of equality before law
(Article 14). It guarantees social justice and dignity of man, the twin privileges
which were denied to a vast section of the Indian society for centuries
together.
This right is directed against private persons. The nature of untouchability is
such that it is not possible to conceive where the State may practice
untouchability. In People’s Union for Democratic Rights v UOI, the Supreme
Court held that whenever a fundamental right contained in Arts. 17, 23 or 24
was being violated by a private individual, it would be the constitutional
obligation of the State to take necessary steps to interdict such violation and
ensure that such person should respect the right. Merely because the
aggrieved person could himself protect or enforce his invaded fundamental
rights, did not absolve the State from its constitutional obligations.
Article 35 read with Article 17 confer on the Parliament power to make laws
prescribing punishment for practicing untouchability. The Parliament enacted
the Untouchability (Offences) Act, 1955. In 1976, it was made more stringent
and was renamed ‘The Protection of Civil Rights Act, 1955. It defines ‘Civil
Right’ as ‘any right accruing to a person by reason of the abolition of
untouchability by Article 17 of the Constitution.’ All offences under the Act
have been made non-compoundable. The Act prescribes punishment (1-2
years imprisonment) for preventing any person from entering any place of
public worship or from worshipping or denying access to any shop, public
restaurants, hotels or places of public entertainment or refusing to admit
persons to hospitals and refusing to sell goods or render services to any
person. Also, insulting a member of Scheduled Caste on the ground of
untouchability or preaching untouchability or justifying it on historical,
philosophical, religious or other grounds is a crime.
To prevent the commission of offences or atrocities against the members of
the Scheduled Castes and Scheduled Tribes, the Parliament also enacted the
‘Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.’
The Act provides for special courts for the trial of offences under the Act and
for the relief and rehabilitation of the victims of such offences. Atrocities
committed against a Hindu SC or ST, who had converted to another religion,
can be prosecuted under the Act, if the victim is still suffering from social
disability. In State of Karnataka v Appa Balu Ingale, the Supreme Court
expressing its concern on the continuance of the practice of untouchability,
held that it was an indirect form of slavery and only extension of caste system

15.Write a note on freedom of speech and expression.

Article 19(1)(a)
According to Article 19(1)(a): All citizens shall have the right to freedom of
speech and expression.

• This implies that all citizens have the right to express their views and
opinions freely.
• This includes not only words of mouth, but also a speech by way of
writings, pictures, movies, banners, etc.
• The right to speech also includes the right not to speak.
• The Supreme Court of India has held that participation in sports is an
expression of one’s self and hence, is a form of freedom of speech.
 • In 2004, the SC held that hoisting the national flag is also a form of this
freedom.
• Freedom of the press is an inferred freedom under this Article.
• This right also includes the right to access information because this right
is meaningless when others are prevented from knowing/listening. It is
according to this interpretation that the Right to Information (RTI) is a
fundamental right.
• The SC has also ruled that freedom of speech is an inalienable right
adjunct to the right to life (Article 21). These two rights are not separate
but related.
• Restrictions on the freedom of speech of any citizen may be placed as
much by an action of the state as by its inaction. This means that the
failure of the State to guarantee this freedom to all classes of citizens
will be a violation of their fundamental rights.
• The right to freedom of speech and expression also includes the right to
communicate, print and advertise information.
• This right also includes commercial as well as artistic speech and
expression.

The Need to Protect Freedom of Speech

There are four justifications for freedom of speech. They are:

1. For the discovery of truth by open discussion.

2. It is an aspect of self-fulfilment and development.
3. To express beliefs and political attitudes.
4. To actively participate in a democracy.

Restriction on Freedom of Speech

Freedom of speech is not absolute. Article 19(2) imposes restrictions on the
right to freedom of speech and expression. The reasons for such restrictions
are in the interests of:

1. Security
2. Sovereignty and integrity of the country
3. Friendly relations with foreign countries
4. Public order
5. Decency or morality
6. Hate speech
7. Defamation
 8. Contempt of court

Safeguards for Freedom of Speech and Expression under Article 19(2)

The Constitution of India guarantees freedom of speech and expression to all
its citizens, however, these freedom are not absolute because Article 19 (2) of
the constitution provides a safeguard to this freedom under which reasonable
restrictions can be imposed on the exercise of this right for certain purposes.
Safeguards outlined are discussed below-
Article 19(2) of the Indian constitution allows the state to make laws that
restrict freedom of speech and expression so long as they impose any
restriction on the –

1. The state’s Security such as rebellion, waging war against the State,
insurrection and not ordinary breaches of public order and public safety.
2. Interest id Integrity and Sovereignty of India – this was added by the
16th constitutional amendment act under the tense situation prevailing
in different parts of the country. Its objective is to give appropriate
powers to impose restrictions against those individuals or organizations
who want to make secession from India or disintegration of India as
political purposes for fighting elections.
3. Contempt of court: Restriction can be imposed if the speech and
expression exceed the reasonable and fair limit and amounts to
contempt of court.
4. Friendly relations with foreign states: It was added by the First
Amendment Act, 1951 to prohibit unrestrained malicious propaganda
against a foreign-friendly state. This is because it may jeopardize the
maintenance of good relations between India and that state.
5. Defamation or incitement to an offense: A statement, which injures the
reputation of a man, amounts to defamation. Defamation consists in
exposing a man to hatred, ridicule, or contempt. The civil law in relating
to defamation is still uncodified in India and subject to certain
exceptions.
6. Decency or Morality – Article 19(2) inserts decency or morality as
grounds for restricting the freedom of speech and expression. Sections
292 to 294 of the Indian Penal Code gives instances of restrictions on
this freedom in the interest of decency or morality. The sections do not
permit the sale or distribution or exhibition of obscene words, etc. in
public places. However, the words decency or morality is very subjective
and there is no strict definition for them. Also, it varies with time and
place.
16.Write a note on freedom of assembly.
According to Article 19 (1) (b), all citizens have the freedom to congregate
peacefully and without armaments, which makes an important part of the
Fundamental Rights of a citizen.
Article 19 (1) (b)

According to Article 19(1), All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

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

(f) omitted

(g) to practice any profession, or to carry on any occupation, trade, or business.

• Here the freedom to assemble includes the ability to hold meetings and
parades.
• The gathering must be nonviolent and must not disrupt the public order.
If the assembly is rowdy or riotous, it is not protected under Article 19
(1) (b), and reasonable restrictions can be imposed in the interests of
India's sovereignty and integrity or public order under clause (3) of
Article 19.

Significance of Freedom of Assembly

• The right to assemble and meet, both publicly and privately, is

guaranteed under the right to freedom of assembly. Assemblies can
serve as venues for individuals to advocate for change and raise
awareness about topics that are important to them, whether it is human
rights, socio-economic rights, or any other topic.
• The right to assemble is a vital tool for citizens to communicate their
opinions to their leaders and other members of society. It encourages
public debate and variety, as well as is an effective vehicle for societal
transformation.
Conclusion

The right of citizens to peacefully protest and gather without the use of guns is
a cornerstone of India's democracy. While the government has a responsibility
to safeguard civilians from violent protests, certain fundamental values must
be kept in mind. One of the key ideas on which democracy survives and thrives
is the right to protest. However, when a protest turns violent, as it has in
several recent protests, the movement's aim is defeated. In a democratic
society, one must uphold one's rights while also fulfilling one's duties and
responsibilities.

17.Explain freedom of association, freedom of movement and freedom of

residence.
Introduction:
The Right to Freedom is one of the Fundamental Rights guaranteed by the
Constitution of India.

Right to Freedom of Association

Article 19(1)(c) of the Indian Constitution guarantees the right to form
associations and unions to all or any of its citizens. However, under clause (4)
of Article 19, the state may impose reasonable restrictions on this right in the
interest of public order, morality, or India's sovereignty and integrity.
Right to make an Association

• The right to form groups or unions is essentially a constitution for all

working people in our country.
• Union activity was not only outlawed by most Western nations until very
recently but it was also regarded as an anti-social and anti-state concern
in many countries.
• Working-class people had to go through a lot of trouble to get even the
most basic rights that were crucial to their existence as a distinct group
or class in social norms.
• It was only in the twentieth century, particularly after World War I, that
the state was forced to take considerable steps to ensure the legitimate
rights of the working class through labor and industrial legislation.
• Insisting on these rights as basic and enshrining them in the Constitution
was a far more bold move. Recognizing the current trend, India's
 Constitution has made the labor freedom to form associations a basic
right.
• The right to form groups or unions is frequently curtailed solely for the
sake of public order or ideals; there are rarely any associations or unions
formed for immoral or conspiratorial purposes.
• In the case of State of Madras vs. V.G. Rao, the Supreme Court
interpreted the extent of the appropriateness.
• "The freedom to form groups or unions has such a broad and diversified
scope for its practice, and its restriction is laden with potential religious,
political, and economic repercussions."
• The fact that the chief government has the authority to impose
restrictions on such rights without allowing the grounds for such
restrictions to be duly tested in both factual and legal aspects during a
judicial inquiry is a robust element that, in our opinion, must be taken
into account in judging the reasonableness of the restrictions imposed
on the exercise of the elemental right under Article 19 (1). (c)

Right to make Association

• It is a fundamental right guaranteed by Article 19(1) of the Indian

Constitution (c).
• It declares that every citizen has the right to form groups or unions for a
legal purpose.
• The freedom to establish associations refers to when a group of people
gets together voluntarily to join an organization with a common goal, a
legitimate purpose, and a shared set of interests.
• It is a set of Reasonable Restrictions, not an absolute right.

Freedom of Association – Restrictions

• The right to associate, like any other Fundamental Right protected by

Article 19, is not absolute and is susceptible to restriction in the public
interest.
• Article 19(4) expressly permits the state to enact legislation that
restricts, abridges, or abolishes any of the rights guaranteed by Article
19(1). (c).
• In the interests of India's sovereignty and integrity, public order, and
morality, Clause (4) permits the state to put reasonable restrictions on
the exercise of the right to form associations.
• Freedom to Move Freely Throughout the Territory of India:
o Article 19(1)(d) of the Indian Constitution entitles every citizen
to move freely throughout the territory of the country.
o This right is protected against only state action and not private
individuals.
o Moreover, it is available only to the citizens and to
shareholders of a company but not to foreigners or legal
persons like companies or corporations, etc.
o The freedom of movement has two dimensions, viz, internal
(right to move inside the country) and external (right to move
out of the country and right to come back to the country).
▪ Article 19 protects only the first dimension.
▪ The second dimension is dealt by Article 21 (Right to life
and personal liberty).
o Restrictions on this freedom can only be imposed on two
grounds which are mentioned in the Article 19(5) of the
constitution itself, namely, the interests of the general public
and the protection of interests of any scheduled tribe. For
example:
▪ The Supreme Court held that the freedom of movement
of prostitutes can be restricted on the grounds of public
health and in the interest of public morals.
▪ The entry of outsiders in tribal areas is restricted to
protect the distinctive culture, language, customs and
manners of scheduled tribes and to safeguard their
traditional vocation and properties against exploitation.
• Freedom to Reside and Settle in any part of the Territory of India:
o According to Article 19(1)(e) of the Constitution, every citizen
of India has the right "to reside and settle in any part of the
territory of India."
o The object of the clause is to remove internal barriers within
India or any of its parts.
o This right is also subject to reasonable restrictions mentioned
in clause (5) of Article 19.
 o Right to reside and the right to move freely throughout the
country are complementary and often go together.

18.Explain freedom of trade or business on reasonable restrictions.

Reasonable restrictions on freedom of profession, occupation, trade or

business

Article 19(6) provides that the fundamental right under Article 19(1)(g) can be
restricted in the following ways:

1. By imposing reasonable restrictions in the interest of the general

public.
2. By state monopoly: Sub-clause (ii) of Article 19(6) enables the state to
make laws for creating state monopolies either partially or completely
in respect of any trade or business or industry or service. The right of
a citizen to carry on trade is subordinated to the right of the state to
create a monopoly in its favour.
Also, Sub-clause (i) of Article 19(6) empowers the state to lay down, by law,
“the professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business”.

In State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005), the Supreme
Court has held that the expression ‘in the interest of general public’ in Article
19(6) is of wide import comprehending public order, public health, public
security, morals, economic welfare of the community and the objects
mentioned in Part IV of the Constitution.

Restrictions under Article 19(2) to 19(6)

The restrictions to be imposed on the fundamental freedoms under Article
19(2) to Article 19(6) must satisfy the following tests:

1. The restriction must be imposed by or under the authority of a law

duly enacted by the appropriate legislature. The law authorising the
restriction must be reasonable.
 2. The restriction imposed must be for the particular purpose or object
envisaged in the specific clauses, i.e., Article 19(2) to 19(6). There has
to be a reasonable nexus between the restriction imposed and the
objects mentioned in the respective clause.
3. The restriction must be reasonable.

19.Explain Expost facto law – double jeopardy.

Introduction:
The doctrine of double jeopardy is a legal defence that protects an
accused/defendant from being tried again for the same accusations and facts
after a lawful acquittal or conviction. Double jeopardy is a doctrine from
the Indian Constitution, specifically Article 20(2), which deals with and specifies
the meaning of the double jeopardy doctrine. It has been incorporated as a
part of our basic right by the founders of the Indian Constitution under Part III.
The criminal justice system works on the assumption of some principles where
no compromise is acceptable, such as the double jeopardy principle, in which
values are defended by the system.
In general, Article 20 of the Indian Constitution deals with the protection from
criminal convictions. There are three safeguards in place to keep an accused
person from being convicted, namely, ex post facto law.

Protection against a conviction

Article 20 of the Indian Constitution deals with protection in the case of a
conviction for a crime. It relates to the right to freedom, which is one of the
fundamental rights granted by the Indian Constitution. Articles 19, 20, 21A,
and 22 protect the right to liberty. Article 20 is a part of the right to freedom,
as it establishes three types of safeguards for accused criminals, which are as
follows:

Ex post facto law [Article 20(1)]

An ex post facto legislation is one that imposes punishments or convictions on

already committed offences and increases the punishment for such acts. This is
based on the Constitution of the United States of America. It also has a
retrospective effect. It means when a law enforces a penalty or punishment for
an act that was not subject to punishment at the time of the commission of the
offence, or enforces an extra penalty to what was prescribed at the time of the
commission of the offence, or when there is a change in the rule of evidence or
procedure that requires conviction.

Double jeopardy [Article 20(2)]

The doctrine of double jeopardy is a rule that states that no one should be put
twice in peril for the same offence. “No individual shall be arrested and
punished for the same offence more than once,” the Indian Constitution said in
article 20(2). The doctrine evolved from the Fifth Amendment of the United
States Constitution, however, there are differences between the United States
and England. In India, the scope of protection is restricted. The doctrine
existed in India prior to the Constitution of India, as evidenced by the General
Clauses Act of 1897, Sections 26 and 300 of the Criminal Procedure Code of
1973.

Grounds for applicability of the doctrine of double jeopardy

In legal terms, jeopardy refers to the danger that defendants in criminal cases
suffer, such as jail time or penalties. In three situations, double jeopardy has
been stated as a valid defence:

1. First and foremost, the individual must be charged with a crime. In

the General Clauses Act of 1897, the term ‘offence’ is defined. Any act
or omission that is criminal under the law in force at the time.
2. Before a court or a judicial tribunal, the investigation or proceeding
must have occurred.
3. In the prior process, the person must have been arrested and
punished.
4. The offence must be the same as the one for which he was previously
convicted and sentenced.

Case laws regarding the doctrine of double jeopardy

Maqbool Hussain v. State of Bombay, 1953

Facts of the case

In this case, the Petitioner, an Indian citizen, travelled from Jeddah to

Bombay’s Santa Cruz Airport. He didn’t indicate that he had taken 1250.361
grams of gold with him when he landed, but when he was searched, he was
discovered in violation of the Indian government’s notification. The gold was
seized by the Customs Authorities under Article 167, Clause (8) of the Sea
Customs Act VIII of 1878. The gold owner, however, had the option of paying a
fine of 12,000 rupees, which had to be paid within four months of the order’s
date. The Appellant received a copy of the order, but no one came forward to
claim the gold. The Supreme Court of India ordered that the plea be
considered by the Bank of the Constitution, together with Criminal Appeal ,
because the same issue was made in reference to “autrefois convict” or
“double jeopardy.”

Issues involved in the case

The question is whether the Sea Customs Act, 1878 and the order of Court or
the Judicial Tribunal can be used to support a plea of double jeopardy.

Judgement of the Court

The prosecution under the Foreign Regulation Act, 1947 was upheld because
the previous detention under the Sea Customs Act,1878 did not constitute a
judgement or order of a court or judicial tribunal to support the argument of
double jeopardy.

Kalawati v. State of Himachal Pradesh,1953

Facts of the case

In this case, the accused (plaintiff) murdered her spouse (defendant) in order
to protect her from the cruelty. The fact is that she was attempting to protect
herself from cruelty after being abused by her husband. In this instance, the
accused killed her husband in reaction to his harassment. She was acquitted
owing to a lack of evidence. However, the state eventually filed an appeal
against her at the Higher Court.
Issues involved in the case

The question is whether the right to appeal under Article 20(2) of the
Constitution violates this case.

Judgement of the Court

The Supreme Court decided that the appeal is a continuation of the prior trial
rather than a new trial for the same offence, and that the appeal against the
acquittal judgement would not be subject to Article 20(2) as there was no
penalty in the earlier trial. Thus, an appeal against an acquittal order in a
murder trial would not violate Article 20(2) of the Constitution.

20.Write a note on self-incrimination under article 20.

Introduction:

What is Self-Incrimination?
In legal terminology, self-incrimination is an act of exposing oneself generally
by making a statement “to an accusation or charge of crime; to involve oneself
or another [person] in a criminal prosecution of danger thereof”. In simpler
words, it is the act of implicating or exposing one’s own self to criminal
prosecution
Self-incrimination can be caused either through direct or indirect means. An
example of direct means include interrogation or indirectly when information
of a self-incrimination nature is disclosed voluntarily without any external
pressure.
As far as legal systems are concerned, accused criminals cannot be compelled
to incriminate themselves. However they can choose to speak to law
enforcement authorities, but at the same time they cannot be punished for
refusing to do so. It should be noted that while most countries have
jurisdictions regarding the right to remain silent and right to legal counsel, the
laws are not uniform across the world. For example the European Union has its
own set of laws regarding self incrimination as per EU guidelines.

Right Against Self Incrimination in India

In India, Article 20 (3) of the Constitution of India states that the defendant has
the right against self-incrimination. Though witnesses are not offered the same
protection.
The protection offered under Article 20 (3) are as follows:

• A defendant must be informed of their rights before meaning any

statements which can incriminate him/her.
• A defendant cannot be compelled to give any statements.

• In the event that a defendant has been pressured into giving a

statement that is self-incriminating, it would not be accepted in the
court of law.
The Code of Criminal Procedure (CPC) gives defendants the Right to Remain
Silent. It basically means that the defendant has the right to withhold
information which can be self-incriminating from the authorities.
In order to exercise their right to remain silent, the defendant must verbally
and clearly state that they are doing so. For example, a defendant can say, “I
am exercising my right to remain silent and will not be answering any further
questions.”
Article 20 (3) doest apply to those who made a willing confession without the
use of coercion and intimidation.
The Supreme Court widened the scope of this immunity by interpreting the
word ‘witness’ to include oral as well as documentary evidence so that no
person can be compelled to be a witness to support a prosecution against
himself.
This prohibition cannot be applied in cases where an object or document is
searched or seized from the possession of the accused. For the same reason,
the clause does not bar the medical examination of the accused or the
obtaining of thumb-impression or specimen signature from him/her.

Features of Article 20(3)

1.Protecton to a Person accused of an offence: Article 20(3) offers protection
to a person accused of an offence. In this case it refers to a person against
whom a formal accusation and charge has been made against. A formal charge
is made when an F.I.R. is lodged. Even a formal complaint will also do. Since
Article 20(30) will only come into force upon making a formal accusation, it
won’t be necessary for the trial or enquiry to begin.
This right to silence is not limited to the case for which the person is being
examined but further extends to other matters pending against him/her, which
may have the potential of incriminating him in other matters.
2. Compulsion to be a witness is prevented: Compulsion is duress and any
statement made under duress is not accepted in the court of law. Duress
means a physical act and cannot be a state of mind. Physical act includes,
beating, threatening, imprisonment of close ones. Under duress anyone can be
compelled to become a witness. Article 20(3) prevents the scope of such
compulsion. This was applied during the case of State (Delhi Administration) v.
Jagjit Singh.
The court held that if an accused has been granted pardon under section 306
of CPC he/she will cease to be an accused and instead will become a witness
for the prosecution.
3. Prevents Compulsion resulting in giving evidence against oneself: An
accused can be compelled to submit to investigation by giving thumb
impressions or specimens for writings or exposing the body for the purpose of
identification.
Compulsion is an essential ingredient but if a person makes a confession
without any inducement, threat or promise Article 20(3) does not apply. The
accused may waive his/her right against self-incrimination by voluntarily
making an oral statement or producing documentary evidence, incriminatory
in nature.

Conclusion
Article 20 (3) ensures that the Constitutional Right against Self Incrimination is
provided and grants the accused the right to remain silent over any issue that
will tend to incriminate him/her.
It also extends to the persons who are compelled to be a witness and makes
any and every evidence obtained as a result inadmissible in the court of law.
The law also say that the an accused cannot be tortured or be forced to give
confessions as a result. Methods like Narco-analysis, polygraph tests are
violative of article 20(30 and violate Right to Privacy. Such methods can only be
used under extraordinary circumstances.
21.Explain the rights of arrested person.
Introduction:
Rights an Arrested Person

There are different sets of laws which provide different sets of rights to a
person accused of an offence. The need for these rights comes along with the
progress of the stages of a criminal matter, being the pre-trial stage rights, trial
stage and post-trial stage rights. In general, the rights of an accused person
whether at pre- trial, trial or post- trial stage are as follows.

1. Right to be produced before the Magistrate without unnecessary delay

Every accused person has been vested with a right to be produced before the
Magistrate having jurisdiction or a police officer in charge of the police station
(Section 55 CrPC) within 24 hours without any unnecessary delay in accordance
with the conditions of the arrest. By the police officer executing a warrant of
arrest (Section 76 CrPC). Article 22(2) of our Constitution also provides a
similar right to the arrested person and non- execution of which will hold
police officers liable for wrongful detention.

2. Right to know about the accusations and offence under which the accused
has been charged for
An accused person, when arrested by the police must be informed about the
grounds of arrest Section 50 and 75 of CrPC governs this right. The accused
must know about all the offences that have been alleged against him, it is a
duty of an officer to declare complete particulars of the offence for which the
accused is being arrested. The person conducting the arrest is also obligated to
inform about the arrest to a nominated person.

3. Right against wrongful arrests

Any wrongful detainment of a person is against the law and every accused has
a right against such arrests and detentions. These rights are provided by the
Indian Constitution under Article 22 clause 2 and section 57 of the CrPC. Every
police officer will produce the arrested person before the Magistrate within 24
hours of arrest. A writ of Habeas Corpus can also be sought as a remedy by the
accused to challenge unlawful detention.

4. Right of privacy and protection against unlawful search

Our Indian Constitution clearly states that no person shall be deprived of their
personal life and liberty except in accordance with the procedure of law
under Article 21. Criminal law prescribes a procedure for the issue of a warrant
in order to conduct searches at a person’s residence. The accused person does
not lose this right even after his arrest.

5. Right against self-incrimination

Every such person who is engaged in a criminal proceeding provides a
statement that enlightens the facts of the case. If an accused person is
obligated to answer each question raised before him or her by any officer, the
accused has the right to not answer those questions that can go against him or
incriminate him, he cannot be forced to become a witness against him. Hence,
right against self-incrimination which is provided under Section 161(2) of CrPC
and Article 20 clause 3 of the Constitution governs right against self-
incrimination.

6. Right against Double Jeopardy

Any person who is being accused of an offence has the right not to be tried and
punished for the same offence more than once. If a person is accused of theft
and imposed with imprisonment and fine by the Court cannot be tried and
punished for the same offence subsequently.

7. Right to keep silence

This is an unrecognized right but the authority of this right is derived from CrPC
and Evidence Act. Whenever an accused person makes a statement or gives
confession in the court, the court has the duty to find that the statement or
confession made was voluntary or not. No arrested person can be forced or
compelled to speak anything in the court.

8. Right to be Examined by the medical practitioner

The accused person should be informed about his right to be examined
medically under Section 54 of CrPC in case he has any complaints of physical
torture.

9. Right against the ex-post-facto law

Retrospective effect means the introduction of a new law and its
implementation to take effect even before its introduction. In India, a person
has a right against this type of effect of law. Under the Indian Constitution Art.
20 clause 1 states; “No person shall be convicted of any offence except
for violation of the law in force at the time of the commission of the
act charged as an offence, nor be subjected to a penalty greater than that
which might have been inflicted under the law in force at the time of the
commission of the offence”

10. Right to bail

An accused person in India has a right to be granted bail and be released from
judicial custody except if they are accused of committing a non-bailable
offence. However, even in the latter case, bail may be granted.

11. Right to Legal Aid

Section 304 of CrPC enumerates that when a trial is conducted before the
Court of Session, and the accused is not represented by the legal practitioner,
or when it appears that the accused has no sufficient means to appoint a
pleader then, the court might appoint a pleader for his defence at the expense
of the State.

Right to free legal aid for the purpose of securing justice is provided under
Article 39A of Indian Constitution. This right has also been explicitly stated in
the case of Khatri (II) V. State of Bihar. in which the Court elaborated on the
right to provide free legal aid to the indigent accused person. The right of the
accused person cannot be denied even when the accused fails to apply for it.

Conclusion
Our Honourable Supreme Court had issued mandatory guidelines in the case of
DK Basu v. State of West Bengal that has to be followed by the arresting
authority while making arrest. An accused person is provided a natural right by
our Indian Constitution that is; right to be heard without bias which is inherent
in every person. No prejudice should hamper the right to justice of an accused.
This right is an implied right protected by Article 21 of the constitution. In
compliance with the legal system in India that enshrines “Innocent until proven
guilty”, an accused person is empowered to hold certain rights as an arrested
person that cannot be hindered whenever a police officer knocks on his door
to make an arrest.

22.Explain preventive detection laws under article 22.

Introduction:
Preventive detention is basically detention without trial in order to prevent a
person from committing a crime. This is an important concept in law and finds
frequent mention in the daily news

Preventive Detention – Meaning & Scope

The law and issue concerning and connected to Preventive Detention is an
issue of personal liberty and by default an issue pertaining to human rights.

• Preventive detention refers to taking into custody an individual who has

not committed a crime yet but the authorities believe him to be a threat
to law and order.
• The Supreme Court in Alijav v. District Magistrate, Dhanbad, stated that
while criminal proceedings relate to punishing of a person for an offence
committed by him, preventive detention does not relate to an offence.
 • In Ankul Chandra Pradhan v. Union of India, the Court stated that the
object of preventive detention is not to punish but prevent the detenue
from doing anything that is prejudicial to the security of the state.
• The power to make Preventive Detention laws in India comes from the
Constitution itself which empowers the Parliament to make such laws
for reasons connected with Defence, Foreign Affairs or the Security of
India. Parliament has exclusive legislative powers.
• The Union and the States have concurrent legislative powers for reasons
connected with the security of a State, the maintenance of public order
or the maintenance of supplies and services essential to the community.
• Such detention involves custody without any criminal trial, moreover
these laws need not follow the procedural guarantees which are
fundamental to the detention of an individual in the normal course.
• The Parliament has enacted several laws in this respect which in addition
to the notorious Preventive Detention Act include:
o The National Security Act, Section 13, 1980 (provides for
administrative detention for a period of up to one year)
o The Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (COFEPOSA) (provides for
administrative detention for a period of up to six months)
o The Prevention of Black-marketing and Maintenance of Supplies
of Essential Commodities Act, Section 13, 1980 (six months)
o The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, Section 10, 1988.

Supreme Court on Preventive Detention

Some cases in which the SC talked about preventive detention are discussed
below.

• The first case to come before the Supreme Court was AK Gopalan v.
State of Madras, in which the Court upheld the validity of the Preventive
Detention Act. Moreover, the Court also held that Article 22 of the
Constitution also provides exhaustive procedural safeguards with
respect to preventive detention. Therefore, the Court said that
fundamental rights were not violated by the impugned act because it
met all the procedural safeguards that are provided in Article 22(5).
CONCLUSION
Article 22 was in fact a measure to protect, rather than curtail, the right to
life and personal liberty. Mr Seervai discusses this in his Commentary, to
conclude that perhaps it would have made better sense to have the first two
clauses in Article 22 as part of Article 21, making a separate article for the
exclusions. Looking at what happened subsequently, a differently drafted
Article 21 might have led to a differently written judgment in the Maneka
Gandhi case.
23.Explain freedom of religion enriched Indian constitution.
Introduction:

Right to Freedom of Religion

The Constitution of India guarantees the right to freedom of religion to not only
individuals but also religious groups in India. This is enshrined in Articles 25 to
28.

Article 25 (Freedom of conscience and free profession, practice, and

propagation of religion)
Article 25 guarantees the freedom of conscience, the freedom to profess,
practice, and propagate religion to all citizens.

• The above-mentioned freedoms are subject to public order, health, and

morality.
• This article also gives a provision that the State can make laws:
o That regulates and restricts any financial, economic, political, or
other secular activity associated with any religious practice.
o That provides for the social welfare and reform or opening up of
Hindu religious institutions of a public character to all sections and
classes of Hindus. Under this provision, Hindus are construed as
including the people professing the Sikh, Jain, or Buddhist religions,
and Hindu institutions shall also be construed accordingly.
• People of the Sikh faith wearing & carrying the kirpan shall be considered
as included in the profession of the Sikh religion.

Article 26 (Freedom to manage religious affairs)

This Article provides that every religious denomination has the following rights,
subject to morality, health, and public order.
 1. The right to form and maintain institutions for religious and charitable
intents.
2. The right to manage its own affairs in the matter of religion.
3. The right to acquire the immovable and movable property.
4. The right to administer such property according to the law.

Article 27 (Freedom as to payment of taxes for promotion of any particular

religion)
According to Article 27 of the Constitution, there can be no taxes, the proceeds
of which are directly used for the promotion and/or maintenance of any
particular religion/religious denomination.

Article 28 (Freedom as to attendance at religious instruction or religious

worship in certain educational institutions)
This article permits educational institutions that are maintained by religious
groups to disseminate religious instruction.

• This provides that no religious instruction shall be provided in State-run

educational institutions.
• Educational institutions administered by the State but that were
established under any endowment or trust which requires that religious
instruction shall be imparted in such institutions are exempt from the
above clause (that no religious instruction shall be provided).
• Any person who attends any educational institution recognized by the
State or receiving State aid shall not be required to participate in any
religious instruction that may be imparted in such institution, or also
attend any religious worship in such institutions unless he/she has given
consent for the same. In the case of minors, the guardians should have
given consent for the same.

24.Write a note on judicial interpretation.

Introduction
The judiciary play a crucial role in interpreting the Constitution’s provisions.
The court serves as the sole interpreter, protector and caretaker of the
Constitutional’s supremacy. The judiciary must play a crucial role in
interpreting and enforcing the country’s human rights, which are codified in
the country’s fundamental law. As a result, it is important to understand the
judiciary’s approach to constitutional interpretation, and a judiciary must
formulate realistic wisdom after adopting an innovative and purposeful
approach to the interpretation of various constitutional rights.

Statement analysis
As a casual observer, many consider law to be the laws and regulations
enacted by the government. Judicial creativity can be viewed as the flexible
part of the law. As when required the laws are not been rigid and judgments
are delivered on the basis of the facts by the judges using their wisdom.

The courts in Kesavananda Bharati exercised their creativity to ensure that the
foundations of the constitution are preserved and that the ultimate goal of
democracy is preserved by creating a basic structure doctrine. The
constitutional rights, judicial review, and other aspects of our Constitution is
embodied in this doctrine.

Validity

At times the validity of the decisions might be questioned. When the society
revolts against the judiciary’s judgments, the issue of the judiciary’s legitimacy
arises, since it lacks common approval. That is why renowned legal scholars
have advised the judiciary to exercise extreme caution when ruling legislative
acts unconstitutional. The judicial override must only be used in situations
where there is “no space for reasonable doubt.”

Language of interpretation

The term “judicial interpretation” might refer to many different things. This
word applies to any idealisation of a normative concept to a norm-formulation
in its broadest sense. When interacting with legal words and language, this
sense of “interpretation” is making the use of the language in a particular
context.

The English language is technical jargon and interpretation becomes difficult.

Many legal interpretation issues occur as a result of a misalignment seen
between structure of our universal grammar and the objectives of a context
in rule of law.

In India, the concept of judicial creativity has been implied as the judges have
been delivering the judgments in the spirit of laws and interpreting them in
context of the facts. The judges are using their wisdom and natural sense of
justice and not just the literal meaning of the stated law. It is very important to
do so or else it would be difficult to make the right judgments. It’s been a while
where judges alter and introduce the law as and when they are required to
update the system by making it more efficient in current time.

For example:

“Article 21 – Protection of Life and Personal Liberty – Protection of life and

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

The Supreme Court of India’s judicial activism, a slew of privileges have been
held to be derived from Article 21. However, some of these orders can raise
serious concerns.

25.Explain restrictions on freedom of religion.

Introduction:
Restrictions on Freedom of Religion
The Supreme Court in In re, Noise Pollution case, has given certain directions to
be followed to control noise pollution in the name of religion:

• Firecrackers: A complete ban on sound-emitting firecrackers from 10

pm to 6 am.
• Loudspeakers: Restriction on the beating of drums, tom-tom, blowing
of trumpets, or any use of any sound amplifier between 10 pm to 6 am
except in public emergencies.
• Generally: A provision shall be made by the State to confiscate and
seize loudspeakers and such other sound amplifiers or equipment that
create noise beyond the limit prescribed.
 o These rights are subject to public order, morality, health and
other provisions relating to fundamental rights.
o The State is permitted to regulate or restrict any economic,
financial, political or other secular activity associated with
religious practice.

26.Explain constitutional and educational rights of minorities.

Introduction:

Cultural and Educational Rights

Fundamental Rights guarantee basic rights to the citizens of India. There are six
fundamental rights enshrined in the Constitution of India, and Articles 29 and
30 deals with the cultural and educational rights of Indian citizens.

1. This fundamental right intends to preserve the culture of minority

groups in India.
2. Indian society is a composite heterogeneous one and its diversity is one
of its strengths.
3. The Constitution guarantees these rights to minorities so that the
diversity of this country is preserved and provides avenues for all groups
including marginalized ones to protect, preserve, and propagate their
culture.

Article 29 – Protection of Interests of Minorities

This article is intended to protect the interests of minority groups.
Article 29(1): This provides any section of the citizens residing in India having a
distinct culture, language, or script, the right to conserve their culture,
language and script.
Article 29(2): The State shall not deny admission into educational institutes
maintained by it or those that receive aid from it to any person based only on
race, religion, caste, language, or any of them.
Aspirants can find a comprehensive List of Important Articles in the
Constitution of India in the given link.
Article 30 – Right of Minorities to Establish and Administer Educational
Institutions
This right is given to minorities to form and govern their own educational
institutions. Article 30 is also called the “Charter of Education Rights”.
Article 30(1): All religious and linguistic minorities have the right to establish
and administer educational institutions of their choice. (Read about Minority
Protection in India in the linked article.)
Article 30(2): The State shall not, when granting aid to educational institutions,
discriminate against any educational institution on the ground that it is under
the management of a minority, whether based on religion or language.
27.Explain various kinds of writs?
Introduction:

What is Writ?
Writs are a written order from the Supreme Court or High Court that commands
constitutional remedies for Indian Citizens against the violation of their
fundamental rights. Article 32 in the Indian Constitution deals with
constitutional remedies that an Indian citizen can seek from the Supreme Court
of India and High Court against the violation of his/her fundamental rights. The
same article gives the Supreme Court power to issue writs for the enforcement
of rights whereas the High Court has the same power under Article 226. The
writs- Habeas Corpus, Mandamus, Certiorari, Quo Warranto, and Prohibition

Types of Writs in India

The Supreme Court of India is the defender of the fundamental rights of the
citizens. For that, it has original and wide powers. It issues five kinds of writs for
enforcing the fundamental rights of the citizens. The five types of writs are:

1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto

Habeas Corpus
The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’ This
writ is used to enforce the fundamental right of individual liberty against
unlawful detention. Through Habeas Corpus, Supreme Court/High Court orders
one person who has arrested another person to bring the body of the latter
before the court.
Facts about Habeas Corpus in India:

• The Supreme Court or High Court can issue this writ against both private
and public authorities.
• Habeas Corpus can not be issued in the following cases:
o When detention is lawful

o When the proceeding is for contempt of a legislature or a court

o Detention is by a competent court

o Detention is outside the jurisdiction of the court

Mandamus
The literal meaning of this writ is ‘We command.’ This writ is used by the court
to order the public official who has failed to perform his duty or refused to do
his duty, to resume his work. Besides public officials, Mandamus can be issued
against any public body, a corporation, an inferior court, a tribunal, or
government for the same purpose.
Facts about Mandamus in India:

• Unlike Habeas Corpus, Mandamus cannot be issued against a private

individual
• Mandamus can not be issued in the following cases:
o To enforce departmental instruction that does not possess
statutory force
o To order someone to work when the kind of work is discretionary
and not mandatory
o To enforce a contractual obligation

o Mandamus can’t be issued against the Indian President or State

Governors
o Against the Chief Justice of a High Court acting in a judicial capacity

Prohibition
The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position
issues a Prohibition writ against a court that is lower in position to prevent the
latter from exceeding its jurisdiction or usurping a jurisdiction that it does not
possess. It directs inactivity.
Facts about Prohibition in India:

• Writ of Prohibition can only be issued against judicial and quasi-judicial

authorities.
• It can’t be issued against administrative authorities, legislative bodies and
private individuals or bodies.

Certiorari
The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be
informed.’ This writ is issued by a court higher in authority to a lower court or
tribunal ordering them either to transfer a case pending with them to itself or
quash their order in a case. It is issued on the grounds of an excess of jurisdiction
or lack of jurisdiction or error of law. It not only prevents but also cures for the
mistakes in the judiciary.
Facts about Certiorari in India:

• Pre-1991: The writ of Certiorari used to be issued only against judicial and
quasi-judicial authorities and not against administrative authorities
• Post-1991: The Supreme Court ruled that the certiorari can be issued even
against administrative authorities affecting the rights of individuals
• It cannot be issued against legislative bodies and private individuals or
bodies.

Quo-Warranto
The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or
warrant.’ Supreme Court or High Court issue this writ to prevent illegal
usurpation of a public office by a person. Through this writ, the court enquires
into the legality of a claim of a person to a public office
Facts about Quo-Warranto in India:

• Quo-Warranto can be issued only when the substantive public office of a

permanent character created by a statute or by the Constitution is
involved
• It can’t be issued against private or ministerial office
General Facts about Writs in India:

• Article 32 also empowers Parliament to authorize any other court to issue

these writs
• Before 1950, only the High Courts of Calcutta, Bombay and Madras had
the power to issue the writs
• Article 226 empowers all the High Courts of India to issue the writs

• Writs of India are borrowed from English law where they are known as
‘Prerogative writs’
28.Explain directive principles of state policy and fundamental duties.
Introduction:

Directive Principles of State Policy

These are included in Part IV of the Constitution. For the framing of certain Laws,
the Government requires certain guidelines. These are included in the Directive
Principles of State Policy. According to Article 37, they are not enforceable by the
courts under their respective jurisdiction. It just lays down the fundamental
principles and guidelines on which they are based are fundamental guidelines for
governance. The State needs to follow these principles while designing the laws.
Emphasis is on the Welfare of State Model.

The Fundamental Duties in the Life of an Indian

These are defined as the moral obligations of all citizens to help promote a spirit
of patriotism and to uphold the unity of India and concern the individuals and the
nation. Included in Part IVA of the Constitution, like the Directive Principles, they
are not enforceable by the law. According to the constitution, the let us have a
look at the following information on duties to be followed by every citizen of
India

• To abide by the Constitution and respect its ideals and institutions,

the National Flag and the National Anthem.
• To cherish and follow the noble ideals which inspired our national
struggle for freedom.
• To uphold and protect the sovereignty, unity, and integrity of India.
 • To defend the country and render national service for the nation’s
security when called upon to do so.
• To promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic,
social and regional or sectional diversities; to renounce practices
derogatory to the dignity of women.
• To value and preserve the rich heritage of our composite culture.
• To protect and improve the natural environment including forests,
lakes, rivers, wildlife and to have compassion for living creatures.
• To develop the scientific temper, humanism and the spirit of inquiry
and reform.
• To safeguard public property and to abjure violence.
• To strive towards excellence in all spheres of individual and collective
activity, so that the nation constantly rises to higher levels of
endeavour and achievement.
• Who is a parent or guardian, to provide opportunities for education
to his child, or as the case may be, ward between the age of six to
fourteen years.
• According to the 86th constitutional amendment in 2002, it is the
duty of the people of India to adapt to make India a safer place to
live, to be clean and make the surrounding clean and not to hurt
anybody physically and mentally.

29.Explain inter relation between fundamental rights and directive

principles.
Introduction:

Relationship between Fundamental Rights and Directive Principles of State

Policy.
The Relationship between Part III and Part IV is the one that is not a novice
one and was discussed by the Constitutional Advisor Sir B.N. Rau who
advocated the idea that the right of an individual on the basis of their nature
can be divided into:

• Justiciable Rights
• Non-justiciable Rights

The list of Justiciable Rights was engulfed in Part–III while the non-justiciable
one became the member of Part–IV of the Constitution. At times and again
these Directive Principles are used by the Judiciary to determine the
constitutional validity of any legislation when they are found to be in conflict
with the Fundamental Rights or Part–III of the Constitution.

The first case we are going to discuss in this light is of Sajjan Singh V. State of
Rajasthan of 1964 where the Obiter Dicta laid down by Justice Madhukar
becomes apposite, even the fundamental rights enshrined in Part III were
taken as unalterable, the much-needed dynamism may be according to him
achieved by a proper interpretation of the Fundamental Rights in light of the
Directive Principles. Further, he observed that the Part IV is fundamental in the
governance of the country and the provision relating to Part III must be
interpreted harmoniously with these principles”. As discussed above in the
case of Champakam Dorairajan (Supra) it was held by the Supreme Court that
the Fundamental Rights would be reduced to a “Mere rope of sand” if they
were to be override or superseded by the Directive Principles of State Policy.

Also, as we discussed earlier in this article while deliberating on the case of I.C.
Golaknath (Supra), Hon’ble Justice Subba Rao of the Apex Court accentuated
that the Fundamental Rights and the Directive Principles of State Policy
together form an integrated scheme which is elastic enough to respond to the
changing needs of the society. On a similar note in Bijoya Cotton Mills V. State
of West Bengal, the supreme court has two folded view regarding the same:

• In a case of conflict between the rights of an Individual and a law that

particularly aims at the implementation of socio-economic policies in
furtherance of the Directive Principles, the weight would be accorded
to the latter.
• Every Act or Legislation enacted in fulfilment of the Directive
Principles should be construed as the one professing in the public
interest or as a reasonable restriction to Part III of the Constitution.
30.Explain Fundamental Rights enriched in the Indian Constitution.
Introduction:
Constitution of India (Article 12 to Article 35) and are called and named
“Fundamental” because of two significant reasons:

• Firstly, these rights are guaranteed and protected by the Constitution

of the Country which is the fundamental law of the land.
• Secondly, they become fundamental in the sense that they are most
essential for the all-round material, intellectual, moral, and spiritual
development of an Individual.

1. Right to equality (Article 14-18) which entails in itself that everyone

stands equal before the law and equal treatment should be given to
everyone thereby implying a complete prohibition of discrimination
founded on the grounds of race, caste, creed, or gender.
2. Right to Freedom (Article 19-22): Each individual has the right to
freedom to form an association, to peacefully assemble, to practice
any profession, and carry on any trade, occupation, or
business. Contains one of the most significant right i.e. Right to Life
and Liberty (Article 21). protection and rights to an accused in respect
to arrest and detention for conviction of any offense under the penal
code of the country.
3. Right against Exploitation (Article 23 and 24): This Article entails in
themselves important and rights such as the prohibition of Child
Labor or Forced Labor and Human trafficking.
4. Right to Freedom of Religion (Article 25- Article 28): This specific
right in the Constitution is of utmost importance in a country like
India where there is a huge diversity of religion, this right provides the
citizens with the freedom to follow and practice any religion and most
importantly grants freedom of conscience to an Individual. The rights
under this head also specifically provide a clause concerning paying
taxes for religious purposes.
5. Cultural and Educational Rights (Article 29 and Article 30): These
rights entailed in Part III provides protection to different languages
and varieties of culture present in India and additionally protects the
 rights and culture of minorities, right to minorities to establish and
administer educational Institution, etc.
6. Right to seek Constitutional remedies: Article 32 as described by Dr.
Ambedkar the heart and soul of the Indian constitution, these
remedies are available to any individual whose fundamental right gest
violated, and these rights enshrined in the Constitution empowers the
Supreme Court of India to issue 5 types of writs.

BY
ANIL KUMAR K T LLB COACH