Political Science International Relations NOTES

(Lecture - 9)
by Vaibhav Mishra

2. Making of the Indian Constitution Legacies of the British rule; different social and political
perspectives.

3. Salient Features of the Indian Constitution The Preamble, Fundamental Rights and Duties,
Directive Principles; Parliamentary System and Amendment Procedures; Judicial Review and
Basic Structure doctrine.

4. (a) Principal Organs of the Union Government: Envisaged role and actual working of the
Executive, Legislature and Supreme Court. (b) Principal Organs of the State Government
Envisaged role and actual working of the Executive, Legislature and High Courts.

Property Rights in India

31A. Saving of laws providing for acquisition of estates, etc

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31A. Saving of laws providing for acquisition of estates, etc.
NOTES
The Constitution (Forty-fourth Amendment) Act, 1978, constitutes a watershed in the evolution of
the Fundamental Right to Property in India. Truly speaking, this Amendment signifies demise of
the Fundamental Right to Property.

Before 1978, there existed mainly two Articles to protect private property, viz., Arts. 19(1)(f) and 31.
Both these constitutional provisions were repealed by this Constitutional Amendment, and, thus,
left private property defenseless against legislative onslaught.

It may not be out of place to mention that the natural law jurists regarded protection to property,
along with life and liberty of a person, as being of paramount necessity in a free society. It is for
this reason that the U.S. Constitution in the V Amendment ordains "No person can be deprived
of his life, liberty or property without due process of law". In India, on the other hand, the
policy-makers under the impact of the socialist philosophy started devaluing the institution of
private property almost from the very day the Constitution came into force.

In Independent India, no Fundamental Right has caused so much trouble, and has given rise to
so much litigation between the government and the citizen, as the right to property. While the
Supreme Court has sought to expand the scope and ambit of many Fundamental Rights,
including the right to property, this right has been progressively curtailed through constitutional
amendments.

Although, originally, the Constitution contained adequate provisions to protect private property,
and although the Supreme Court sought to interpret these constitutional provisions liberally in
favour of the protection to the institution of property, the fact remains that the right to property
has practically ceased to exist in India.

Some of the locusclassicus cases in Indian Constitutional Law have arisen in the area of property
rights. The reason for such a development is that the Central and State Governments have
enacted massive legislation to regulate property rights.

First, the government undertook to reconstruct the agrarian economy, inter alia, by trying to
confer rights of property on the tiller, abolition of zamindaris, giving security of tenure to tenants,
fixing a ceiling on personal holding of agricultural land and redistributing the surplus land among
the landless.

Secondly, in the area of urban property, measures have been initiated to provide housing to
the people, clearance of the slums and town planning, control rents, acquire property and impose
a ceiling on urban land ownership, etc.

Thirdly, the government has undertaken regulation of private enterprise and nationalization
of some commercial undertakings.

These various legislative measures have been undertaken to effectuate some of the Directive
Principles of State Policy as well as to usher in the accepted goal of establishing a socialist pattern
of society in India.

After 1978, in the area of property relations, we are left with only four constitutional provisions,
viz., Arts. 31A, 31B, 31C and 300A.

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Arts. 31A, 31B, 31C although included in the Chapter on Fundamental Rights, can hardly be
characterised as amounting to Fundamental Rights to property in the real sense, for, these three NOTES
constitutional provisions, in effect, do not confer any rights, but instead seek to impose
drastic restrictions on the right to property. The purport of these three provisions is to confer
immunity on various types of laws curtailing property rights. Article 300A does confer some
semblance of protection on private property, but this constitutional provision does not enjoy the
status of a Fundamental Right.

Abolition of zamindari came first and foremost in the economic programme of the Congress Party
which was in power at the Centre and in almost all the States. But payment of compensation
posed a particularly difficult problem as it appeared to be beyond the financial resources of the
country to pay the just equivalent of the interests to be affected by such a programme.

To ensure that agrarian reform legislation did not run into heavy weather , the constitution-
framers had provided for an in-built safeguard in the constitutional provisions relating to property,
viz., the use of the word 'compensation' in Art. 31(2) without any adjective like 'just' or
'reasonable'. It was thought that this would ensure that compensation need not necessarily be
adequate or equal to the property interests affected. In course of time, however, this provision
proved to be inadequate to immunize land legislation from challenge in the courts. The
word 'compensation' by itself standing alone came to be interpreted by the Supreme Court as
meaning 'just compensation’.

Legislation pertaining to land also came to be challenged under other constitutional provisions,
especially, Arts. 14 and 19(1)(f). Some land legislation was declared invalid by the High Courts,e.g.,
the Bihar Land Reforms Act, 1950, was held bad under Art. 14, for it classified the zamindars, for
the purpose of payment of compensation, in a discriminatory manner.

As a result of these judicial pronouncements, the Central Government got apprehensive that
the whole zamindari abolition programme would be endangered.

In enacting the first Constitutional Amendment, Parliament had an extremely limited vision.
While the original Art. 31A smoothened the process of zamindari abolition, it did not immunize
legislation dealing with other aspects of agrarian economy, e.g., fixation of ceiling on
agricultural holdings in the hands of one person so as to prevent large holdings; the
development of village panchayats for effective village planning and management; the
consolidation of fragmented holdings.

In course of time, it was also felt that protection be extended to some types of industrial law as
well, such as, temporarily taking over management of industrial concerns. Hence, the scope of
Art. 31A was extended by the Constitution (Fourth Amendment) Act, 1955, by adding a few
more categories of 'deprivation' of property which were to be immune from an attack
under Arts. 14, 19 and 31. These categories of laws exempted under Arts. 31A from challenge
now extended from the area of agricultural land reform to that of industry and mining.

Article 31A is still a part of the Constitution, although with the repeal of Arts. 19(1)(f) and 31,
much of the rationale underlying Art. 31A has disappeared.

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Article 31B: Validation of Certain Laws
NOTES

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 NOTES

Article 31B: Validation of Certain Laws

Article 31B along with the Ninth Schedule was added to the Constitution by the
Constitution (First Amendment) Act, 1951. Article 31B provides that the Acts and Regulations
mentioned in the Ninth Schedule shall not be deemed to be void, or ever to have become void,
in spite of any adverse judicial pronouncement, on the ground that they are inconsistent with,
or that they take away or abridge, any of the Fundamental Rights.

The provision thus immunizes the various pieces of legislation included in the Ninth
Schedule from an attack on the ground of their non-conformity with any of the
Fundamental Rights. No Act mentioned in the Ninth Schedule can be invalidated on the ground
of its violation of any other Fundamental Right. Not only this, Art. 31B is retrospective in

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nature. When a statute declared unconstitutional by a Court is later included in the Ninth
Schedule, it is to be considered as having been in that Schedule from its inception. NOTES
The Act cannot then be deemed to be void, or ever to have become void, on the ground of its
inconsistency with any Fundamental Right. In short, the judicial decision is nullified when the
statute is included in the Schedule. Article 31B contains a device for saving laws from challenge
on the ground of violation of Fundamental Rights. The scope of Art. 31B is wider than Art. 31A in
so far as any law included in the Ninth Schedule is immunized from all Fundamental Rights
whether or not the law falls under any of the categories in Art. 31A. Art. 31B is thus not controlled
by Art. 31A.

The protection of Art. 31B extends to the Act in question as it stands on the date on which it was
included in the Ninth Schedule. This means that when an Act is included in the Schedule, all the
amendments made therein till the date of its inclusion in the Schedule are protected. It is not
necessary to separately mention these amendments in the Schedule.

Novel, innovative, and drastic technique of constitutional amendment

To immunize statutory amendments by extending the effect of the Ninth Schedule would
be tantamount to giving to the Legislature a power to amend the Constitution by ordinary
procedure.

Article 31B represents a novel, innovative, and drastic technique of constitutional amendment.
Legislative enactments are incorporated into the Constitution and immunized against all
attack on the ground of breach of any of the Fundamental Rights. A blanket protection is thus
given to the statutes mentioned in the Ninth Schedule howsoever violative of the Fundamental
Rights they may be. Even an Act declared unconstitutional is revived by inclusion in the Ninth
Schedule.

Such a technique of constitutional amendment is open to serious objections.

The State enactments immunized by inclusion in the Ninth Schedule are not critically examined by
any one as to the principles and policies underlying them. The proper technique of constitutional
amendment should be to lay down broad

principles and then leave it to the courts to work out their implications and apply them to concrete
situations. On this view of the matter, Art. 31B appears to be an unjustifiable technique of
constitutional amendment.

It could plausibly be assumed that Art. 31B was meant to protect legislation dealing with property
rights and not any other type of legislation. But, in practice, Art. 31B has been used to invoke
protection for many laws not concerned with property rights at all. Art. 31B is thus being
used beyond the socioeconomic purposes which was its only justification.

Waman Rao v. Union of India

In Waman Rao v. Union of India, the Supreme Court ruled by majority that all amendments to
the Constitution made before 24th April, 1973 (the date on which Kesavananda was decided),
and by which the Ninth Schedule was amended from time to time by the inclusion of various Acts
and Regulations therein were valid and constitutional. But amendments made on or after
24th April, 1973, which amended the IX Schedule by including various Acts or Regulations

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therein were "open to challenge on the ground that they, or any one or more of them, are
beyond the constituent power of the Parliament since they damage the basic and essential NOTES
features of the Constitution or its basic structure".

According to Bhagwati, J., also "all constitutional amendments made after the decision in
Kesavananda Bharti's case would have to be treated by reference to the basic structure doctrine."
Bhagwati, J., added further that "in every case where a constitutional amendment includes a
statute or statutes in the Ninth Schedule, its constitutional validity would have to be considered by
reference to the basic structure doctrine and such constitutional amendment would be liable to be
declared invalid to the extent to which it damages or destroys the basic structure of the
Constitution by according protection against violation of any particular Fundamental Right.

Dilution of judicial review

All said and done, it seems necessary to reconsider the question of the validity of Art. 31B,
especially, after the Supreme Court's pronouncement in L. Chandra Kumar v. Union of India,
where the Court has unequivocally asserted in relation to Art. 323B "We, therefore, hold that the
power of judicial review over legislative action vested in the High Courts under Art. 226 and
in this Court under Art. 32 of the Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High
Courts and the Supreme Court to test the Constitutional validity of legislation can never be ousted
or excluded.”

One may raise the question:

• How is Art. 31B compatible with the above assertion of the Supreme Court?

• Can an Act which infringes, a basic feature of the Constitution be validated by including it in
Schedule IX? In substance, it amounts to validating an Amendment of the Constitution which
infringes the basic feature of the Constitution, something which the constituent power in India
cannot achieve.

The IR Coelho v. State of Tamil Nadu (2007)

• The basic structure is the very essence of the Indian Constitution any law amendment
found inconsistent with Part 3 of the Indian Constitution even if it is in the Ninth Schedule
would be struck down by the process of judicial review.

• Every constitutional amendment has to be judged on its own merits. The ‘effect and impact’
test should be considered while determining if any law is damaging or destroying the
basic structure. Effect and Impact test means that what part of the Constitution is being
amended will not be considered for checking its validity; rather the consequences of the
amendment on the Constitution will be a determinative factor.

• All the amendments made to the Constitution after 24th April 1973 have to go through a
test if it is in accordance with the essential features of the Constitution as reflected in Article
21 read with Article 14 and Article 19.

• Judicial review is a part of the basic structure and any law cannot be shielded from it.

• The validity of the Ninth Schedule has already been upheld by this court and it will not be
open to challenges on the principles declared in the judgment. However, any law added in
the Ninth Schedule after 24th April 1973 violative of Article 21 read with Article 19 Article 14
and the principles underlying thereunder can be challenged.

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31C. Saving of laws giving effect to certain directive principles
NOTES

3. Ins. by the Constitution (Twenty-fifth Amendment) Act, 1971, s. 3 (w.e.f. 20-4-1972).

4. Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 4, for “the principles
specified in clause (b) or clause (c) of article 39” (w.e.f. 3-1-1977). Section 4 has been declared
invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs Union of India and
Others, AIR 1980 SC 1789.

5. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 8, for “article 14, article 19
or article 31” (w.e.f. 20-6-1979).

6. The words in italics struck down by the Supreme Court in Kesavananda Bharati vs. State
of Kerala, AIR 1973, SC 1461.

In 1976, Art. 31C was amended, its scope further expanded, and it was sought to be made
much more drastic, through the Forty-second Amendment. The first part of Art. 31C now said
that no law giving effect to any of the Directive Principles would be deemed to be void on the
ground of its inconsistency with Arts. 14 and 19. Thus, the 42nd Amendment gave primacy to all
the Directive Principles, and not only to Arts. 39(b) and 39(c), over Arts. 14 and 19.

The scope of Art. 31C was thus made much wider than what it was before 1976 when it referred
only to Arts. 39(b) and 39(c). Now Art. 31C referred to all the Directive Principles. It will, thus, be
seen that while before 1971, Fundamental Rights had precedence over the Directive Principles,
after 1976, this scenario has undergone a drastic change as all Directive Principles came to have
precedence over Arts. 14 and 19.

This change was sought to be justified on the ground that the rights of the community must
prevail over the rights of the individual. In response to this argument, it must be asserted that
the idea underlying the concept of Fundamental Rights is that there are certain inherent rights
in an individual which the society cannot take away. To give precedence to the society over
the individual all through could lead to a totalitarian regime in the country. More has been said on
this point later in the Chapter on Directive Principles.

In the new expanded form giving precedence to all Directive Principles over the
Fundamental Rights could Art. 31C be regarded as constitutionally valid?

In Minerva Mills, the extended version of Art. 31C was struck down by the Supreme Court. The
Court ruled that the extension of the shield of Art. 31C to all the Directive Principles was
beyond the amending power of Parliament under Art. 368, because by giving primacy to all

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Directive Principles over the Fundamental Rights in Arts. 14 and 19, the basic or essential feature
of the Constitution, viz., judicial review has been destroyed. NOTES
In Waman Rao v. Union of India, also the Supreme Court maintained that Art. 31C, as it stood prior
to the 42nd Amendment made in 1976, was valid as its constitutionality had been upheld in
Kesavananda.

It may, however, be noted that the declaration made in the law as envisaged in Art. 31C is not
conclusive. The Court can go behind the declaration and ascertain whether the law in
question gives effect to the policy underlying the Directive Principle concerned. "It is settled
proposition of law that notwithstanding the declaration by the Legislature that the Act has been
made to implement the Directive Principles specified in Art. 39, it would be open to the Court to
ignore such a declaration in a given case and examine the constitutional validity of the Act. The
declaration cannot act as a cloak to protect the law bearing no relationship with the objectives
contained in Article 39 of the Constitution".85

The Forty-Fourth Amendment of the Constitution in 1978 transformed the right to property from
the category of Fundamental Rights by repealing Art. 31, and converted it into an ordinary
constitutional right by enacting Art. 300A instead. Art. 300A merely says: "No person shall be
deprived of his property save by authority of law".

Though Art. 300A is not a Fundamental Right, nevertheless, it does not make much of a difference
except that a writ petition is not maintainable under Art. 32 in the Supreme Court to vindicate the
right under Art. 300A. A person challenging violation of Art. 300A must go to a High Court under
Art. 226 with his writ petition.

The constitutional right to property under Art. 300A is not a basic feature or structure of the
Constitution. After the Forty-fourth Amendment of the Constitution right to property is a human
right and a constitutional right but not a Fundamental Right. The Court further held that control of
property short of deprivation does not entail payment of compensation.

Article 32

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Article 32
NOTES
A right without a remedy does not have much substance.

Right to remedies for the enforcement of FR.

Right to get FR protected is itself an FR.

Dr B R Ambedkar called it as “Heart and Soul of the constitution”

SC has designated it as “Basic Feature of constitution”. The Supreme Court has figuratively
characterised this role of the judiciary as that of a "sentinel on the qui vive”.

Provisions:

• Right to move the SC for the enforcement of FR is guaranteed.

• SC shall have powers to issue writs.

• Only parliament can empower any other court to issue writs.

• Article 32 can’t be suspended except provided for in the constitution (National Emergency)

Hence Article 32 provides guaranteed effective, expeditious, inexpensive and summary remedy for
protection of FR.

Violation of FR is a sin-quo-non for exercise of this right.

Article 32(1) guarantees the right to move the Supreme Court, by appropriate proceedings, for
the enforcement of the Fundamental Rights enumerated in the Constitution. Art. 32(2) empowers
the Supreme Court to issue appropriate orders or directions, or writs including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be
appropriate, for the enforcement of the petitioner's Fundamental Rights.

Article 32(3) empowers Parliament by law to empower any other Court to exercise within the limits
of its territorial jurisdiction all or any of the powers exercisable by the Supreme Court under Art.
32(2). This can however be done without prejudice to the Supreme Court's powers under Arts.
32(1) and (2). According to Art. 32(4), the right guaranteed by Art. 32 "shall not be suspended
except as otherwise provided for by the Constitution."

Article 32(1) guarantees the right to move the Supreme Court, by appropriate proceedings, for the
enforcement of the Fundamental Rights enumerated in the Constitution. Art. 32(2) empowers the
Supreme Court to issue appropriate orders or directions, or writs including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be
appropriate, for the enforcement of the petitioner's Fundamental Rights.

Article 32(3) empowers Parliament by law to empower any other Court to exercise within the limits
of its territorial jurisdiction all or any of the powers exercisable by the Supreme Court under Art.
32(2). This can however be done without prejudice to the Supreme Court's powers under Arts.
32(1) and (2). According to Art. 32(4), the right guaranteed by Art. 32 "shall not be suspended
except as otherwise provided for by the Constitution." As discussed later in this Chapter, Art. 359
provides, during an emergency, for the suspension of the right to move any Court for the
enforcement of the Fundamental Rights by a presidential order.

Right of access to the Supreme Court under Art. 32 is a Fundamental Right itself. Art. 32(1)
provides a very important safeguard for the protection of the Fundamental Rights of the citizens of

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India. Article 32 provides a guaranteed, quick and summary remedy for enforcing the
Fundamental Rights because a person can go straight to the Supreme Court without having to NOTES
undergo the dilatory process of proceeding from the lower to the higher Court as he has to do in
other ordinary litigation. The Supreme Court has thus been constituted into the protector and
guarantor of the Fundamental Rights.

Genesis of PIL: Procedure Under Art. 32

Genesis of PIL: Enabling article for PIL

Genesis of PIL Procedure under Art. 32

In Bandhua Mukti Morcha, the Apex Court has clarified that procedurally, under Art. 32, it is not
bound to follow the ordinary adversary procedure and may adopt such procedure as may be
effective for the enforcement of the Fundamental Rights.

• When a writ petition was moved on behalf of some workmen that they were being held in
bondage, the Court appointed two persons as commissioners to make report on the
petitioners' condition. It was argued that their report had no evidentiary value since what was
stated therein was based only on ex parte evidence which had not been tested by cross-
examination. The Court held the argument not well-founded and rejected it, as it was based
upon a total misconception of the true nature of a proceeding under Art. 32.

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• Article 32(1) does not say by what proceedings the Supreme Court may be moved for the
enforcement of the Fundamental Rights. The only limitation is that the proceedings must be NOTES
'appropriate' for the enforcement of a Fundamental Right.

"The Constitution-makers deliberately did not lay down any particular form of proceeding
for enforcement of a Fundamental Right nor did they stipulate that such proceeding should
conform to any rigid pattern or straight jacket formula," the reason being that they realised that
the people were poor and illiterate and insistence on any rigid formula would be self-
defeating. Article 32(2) confers power on the Court in its widest terms. "It is not confined to
issuing the high prerogative writs", but "it is much wider and includes within its matrix power to
issue any directions, orders or writs which may be appropriate for enforcement of the
Fundamental Right in question".

The Constitution is silent as to the procedure to be followed by the Court in exercising its power
under Art. 32(2) because the Constitution-makers were anxious not to allow any procedural
technicalities to stand in the way of enforcement of Fundamental Rights and they never intended
to fetter the Court's discretion to evolve a procedure appropriate in the circumstances of a given
case to enable it to exercise its power to enforce a Fundamental Right.

Whatever procedure is necessary to fulfil that purpose is permissible to the Court. It is not at all
obligatory for the Court to follow adversarial procedure. No such restriction ought to be
imposed on the Court. In such a system a poor person is always at a disadvantage against a rich
person. When the poor come to the Court for enforcement of their Fundamental Rights, it is
necessary to depart from the adversarial procedure and evolve a new procedure so as to enable
such people to bring the necessary material before the Court so as to secure enforcement of their
rights.

In the words of Bhagwati, J: "We have therefore to abandon the laissez faire approach in the
judicial process particularly where it involves a question of enforcement of Fundamental
Rights and forge new tools, devise new methods and adopt new strategies for purpose of
making Fundamental Rights meaningful for the large masses of people. ... If we want the
Fundamental Rights to become a living reality and the Supreme Court to become a real sentinel on
the qui vive, we must free ourselves from the shackles of outdated and outmoded assumptions
and bring to bear on the subject fresh outlook and original unconventional thinking.”

Accordingly, the Court has accepted even a letter addressed to the Court as an "appropriate"
proceeding and has taken congnizance of the matter raised therein. The letter need not be in
any particular form. The poor cannot produce relevant material before the Court in support of
their case. Even when a case is brought on their behalf by a citizen acting pro bono publico , it
would be almost impossible for him to gather the relevant material and place it before the Court.
If the Court adopts a passive attitude and declines to intervene in the absence of relevant
materials, "the Fundamental Rights would remain merely a teasing illusion so far as the poor
and disadvantaged sections of the community are concerned.”

That is why the Court appoints commissioners to gather facts and data in regard to a complaint of
breach of a Fundamental Right made on behalf of the weaker sections of the society. The
commissioners' report furnishes prima facie evidence of the facts and data. The Court appoints as
commissioners such persons as would carry out the assignment objectively and impartially
without any predilection or prejudice. Any party can dispute the facts or data stated in the

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commissioners' report. It is entirely for the Court to consider what weight ought to be attached to
the facts mentioned in the report. The High Courts can also follow a similar procedure in exercise NOTES
of their jurisdiction under Art. 226

While the basic purpose underlying Art. 32 is to empower the Supreme Court to give relief to an
aggrieved person whose Fundamental Right has been infringed, the Court has used Art. 32 for a
much wider purpose than that, viz., to lay down general guidelines having the effect of law
to fill the vacuum till such time the legislature steps in to fill in the gap by making the necessary
law.

The Court derives such a power by reading Art. 32 with Art. 142 and Art. 141. Art. 144 mandates
all authorities to act in aid of the Court orders.

• The Court has stated in Visakha, that it is the duty of the executive to fill the vacuum by
executive orders because its field is coterminous with that of the legislature. And where even
the executive does not act, the judiciary must step in, in exercise of its constitutional
obligation under the abovementioned constitutional provisions to provide a solution till the
legislature acts to perform its role by enacting a proper legislation to cover the field. In the
instant case, to deal with the problem of sexual harassment of women at work place, the
Court issued guidelines to be observed' in all work places until suitable legislation is enacted to
occupy the field.

• In Union of India v. Association for Democratic Reforms, the Supreme Court issued certain
directions to the Election Commission. Justifying this, the Supreme Court observed

• "....It is not possible for this Court to give any directions for amending the Act or the
statutory Rules. It is for Parliament to amend the Act and the Rules. It is also established
law that no direction can be given, which would be contrary to the Act and the Rules.

However, it is equally settled that in case when the Act or Rules are silent on a particular subject
and the authority implementing the same has constitutional or statutory power to implement it,
the Court can necessarily issue directions or orders on the said subject to fill the vacuum or void
till the suitable law is enacted.

Writs
• Habeus corpus "To have the body of"

o Examine cause and legality of detention

o Bullwark of liberty

• Mandamus

o We command

o To public official asking him to perform duties

• Prohibition

o To forbid

o To lower court

o To prevent exceeding jurisdiction

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• Certiorari

o To be certified
NOTES

o To transfer cases to itself

• Quo Warranto

o With what warrant?

o Enquiring about the legality of the claim of a person to a public office.

Article 33

Article 34

Constituent Assembly Debate

Article 34 of the Constitution was one of the few provisions that were not part of the Draft
Constitution 1948. It was introduced and debated in the Assembly towards the end of the

constitution-making process on 14 and 16 November 1949. The Article restricted fundamental

rights during the operation of martial law by giving officers of the state certain powers.

Two substantive amendments were moved to oppose the Article. The first wanted the delete
the Draft Article as it was an open invitation to officers of the state to indulge in excesses during
martial law. The second wanted to remove ‘any person’ from the text arguing that there was
no need to extend the immunity provided the Article to individuals who were not officers of
the state.

Both amendments were countered. First, it was explained that a military officer, to successfully
engage with a situation of ‘insurrection or rebellion or the overthrow of the state’, required the
ability to pass orders and prescribe procedures for cases where his/her orders were violated.

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These powers were barred by Article 20 and 21, as the military officer was not a law-making
person and the procedure that he/she prescribes would not come under ‘procedures accordingly NOTES
to law’. The Draft Article, therefore, was indispensable for the military or any officer of the state to
discharge his/her duties effectively during martial law.

Further, it was clarified that is some cases, the onus might shift on a civilian who might not be
an officer of the state to act in ways to deal with a martial law situation. In these cases, the
civilian’s actions must come under the ambit of the Draft Article.

At the end of the debate, the Assembly adopted Article 34 with no amendment.

AFSPA

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 NOTES

AFSPA provisions:
The ‘special powers’ under Section 4 are:

(a) Power to use force, including opening fire, even to the extent of causing death if prohibitory
orders banning assembly of five or more persons or carrying arms and weapons etc are in
force in the disturbed area;

(b) Power to destroy structures used as hide-outs, training camps or as a place from which attacks
are or likely to be launched etc;

(c) Power to arrest without warrant and to use force for the purpose;

(d) Power to enter and search premises without warrant to make arrest or recovery of hostages,
arms and ammunition and stolen property etc.

Section 5 of AFSPA requires that persons arrested by the Armed Forces be handed over to the
nearest Police Station “with the least possible delay” along with a report of “circumstances
occasioning the arrest”.

Section 6 gives members of the Armed Forces discharging duties under the Act immunity from
prosecution and other legal proceedings except with the previous sanction of the Union
Government.

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AFSPA Constitutional validity Naga People’s Movement of Human Rights
NOTES
Vs Union of India.
The five-judge bench of the Apex Court arrived at, inter alia, the following conclusions after taking
into consideration various arguments:

1. Parliament was competent to enact AFSPA in exercise of the legislative power conferred on
it under Entry 2 of List I (pertaining to naval, military and air forces and also any other armed
forces of the Union) and Article 248 of the Constitution read with Entry 97 of List I (pertaining
to residuary powers of legislation).

 After the insertion of Entry 2A in List I by the Forty-Second Amendment to the

Constitution, the legislative power flows from Entry 2A of List I (pertaining to deployment
of any armed force of the Union or any other force subject to the control of the Union in
any state in aid of the civil power etc).

 It is not a law in respect of maintenance of public order falling under Entry 1 of List II.

2. While AFSPA is not a law under Entry 1 of List II, the expression “in aid of the civil power” in
Entry 2 A of List I and Entry 1 of List II, implies that deployment of the armed forces of the
Union shall be for the purpose of enabling the civil power in the State to deal with the
situation affecting maintenance of public order which has necessitated the deployment of the
armed forces in the State. It does not displace the civil power of the state by the armed forces
of the Union.

3. AFSPA is not a colourable legislation or a fraud on the Constitution. It is not a measure

intended to achieve the same result as contemplated by a Proclamation of Emergency under
Article 352 or a proclamation under Article 356 of the Constitution.

4. A declaration under Section 3 has to be for a limited duration subject to periodic review
before the expiry of six months.

5. The conferment of power to make a declaration under Section 3 of AFSPA on the Central
Government is not violative of the federal scheme as envisaged by the Constitution.
Further, a similar conferment on the Governor of the State cannot be regarded as delegation
of the power of the Central Government.

6. Although a declaration under Section 3 can be made by the Central Government suo motu
without consulting the concerned State Government, it is desirable that the State
Government should be consulted by the Central Government while making the
declaration. viii.The powers conferred under Clauses (a) to (d) of Sections 4 and 5 of AFSPA on
the officers of the armed forces, including a Non-Commissioned Officer are not arbitrary and
unreasonable and are not violative of the provisions of Articles 14, 19 or 21 of the
Constitution.

17
 NOTES

AFSPA’s Challenges:
• The AFSPA is a successor albeit with cosmetic changes to the Armed Forces [Special Powers]
Ordinance of 1942, which was enacted by the British to quell the Quit India Movement.

• Very often, the state takes the easier recourse of adopting a law-and-order approach to
addressing the insurgencies. They declare an area as ‘disturbed’, thereby enhancing military
and paramilitary presence, and in doing so further antagonise the local population, already
caught between the combined and competing might of state and non-state forces.

• Allegations of misuse by security forces over the years.

o In 2016, the Supreme Court had directed the federal agency, Central Bureau of
Investigation (CBI), to probe the alleged role of the Army and Assam Rifles troops in 1,528
extrajudicial killings committed between 2000 and 2012 in Manipur, another insurgency-
hit state.

o The apex court clearly said that armed forces personnel committing crimes did not enjoy
absolute immunity.

o In connection with the Mon killings in December 2020, the Nagaland police filed a First
Information Report (FIR) against the Indian Army’s elite 21 Para Special Forces. The Army
termed it a case of mistaken identity and ordered a Court of Inquiry.

• The unreasonably prolonged deployment of the army and the enforcement of the AFSPA
has not resulted in the resolution of insurgencies in the Northeast. It only shows the continued
failure of the political process in the affected states.

• Counter-insurgency operations is different from conventional military operations as the

former involves handling own citizens with equal rights.

• In counter-insurgency operations, it is believed that one innocent civilian’s death creates 10

new insurgents.

• The insurgent leaders lose no chance to demonise the security forces and establish their
role and legitimacy in the fight against perceived ‘oppression’.

Justice Verma committee (on offenses against women in conflict areas) said AFSPA legitimizes
impunity for sexual violence E.g. Kunan Poshpora incident; Thangjam Manorama case in Manipur.

Justice Santosh Hegde Committee to investigate fake encounters in Manipur described it as a

“symbol of oppression”.

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Justice Jeevan Reddy Committee recommended removal of absolute immunity under AFSPA.
NOTES
AFSPA’s Justifications
• Administrative failures have time and again contributed to insurgencies in the past.

• Once they have erupted, the local functionaries and the police forces have proved inadequate
in coping with them. As a result, the states are simply forced to turn to central paramilitary
forces or the army for protection of life and property.

• Having undertaken concerted counterinsurgency operations over time, the affected states
have simply failed to make capital out of the “peace dividend” delivered by the security
forces. This has often resulted in their extended presence with no signs at all of return to
normalcy.

• Consequentially, the security forces have a right to seek legal provisions to undertake
operations for three fundamental reasons. One, a soldier unlike a policeman is not
empowered by the law to use force. Next, while operating in far flung areas, it is simply not
possible to requisition the support of magistrates every now and then. Lastly, their
employment is an instrument of `last resort` when all other options have been exhausted.

• Insurgent leaders step in when the state fails; though they cannot replace the state, they
often function in lieu of legitimate power through fear and coercion. Even when the insurgent
forces have lost their appeal and legitimacy, having no real vision and purpose, beset by
internal power struggles, they continue to pose threat to peace, because the state fails to
address the governance deficits.

• The annulment of the Act, as being debated by sections of the civil society, could prove
disastrous at the central and the state government levels. Three issues merit attention:

o Firstly, it would dilute the capacity of an important instrument of the state – the
armed forces - to tackle the security challenges faced by the country.

o Secondly, it would motivate the insurgent leadership, field cadres and their over
ground supporters to engage in reckless damage to public life and property. It may well
result in a security situation which slides beyond redemption, necessitating major political
compromise.

o Thirdly, the annulment of the law and the resultant lack of security cover would
adversely affect the governance and development capacities in the insurgency affected
states, and the eventual redress of local grievances.

o Even the mere dilution of the Act could have serious repercussions at the tactical
level. It could result in loss of morale and reluctance amongst the security forces to
undertake operations fearing litigation, thereby leading to a slow tempo of operations.

AFSPA’s Way Forward

• Adherence to Human rights:

o It needs to be emphasized that human rights compliance and operational effectiveness

are not contrarian requirements. In fact, adherence to human rights norms and principles
strengthens the counter insurgency capability of a force.

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• Robust safeguards:

o Protection for the armed forces must be accompanied by provisions that ensure
NOTES
responsibility and accountability, within the parameters of law. It is for this reason that
robust safeguards need to be incorporated in the existing or any new law. Supreme
Court’s judgement should be followed in letter and spirit –

• Every death caused by the armed forces in a disturbed area, be it of a common person or a
criminal, should be thoroughly enquired into

o Even if enquiry finds the victim an enemy, a probe should look into whether excessive or
retaliatory force was used.

• No concept of absolute immunity for Army personnel who commits a crime.

Legislation to Effectuate Certain Fundamental Rights

Article 35 embodies the following three principles: Art. 35(a)(i) confers on Parliament, and not
the State Legislatures, power to make laws with respect to any matter which under Arts. 16(3),
32(3), 33 and 34 may be provided for by law made by Parliament. The matters mentioned herein
are:

1. Art. 16(3): prescribing residence within a State as qualification for employment in the State;

2. Art. 32(3): empowering courts other than the Supreme Court and the High Courts to issue
writs and orders to enforce Fundamental Rights;

3. Art. 33: providing for abrogation of, or restriction on, Fundamental Rights of members of
armed forces and the police in the interests of discipline and efficiency of forces;48

20
4. Art. 34: passing an Act of Indemnity after operation of martial law in any area.49

Each of the provisions mentioned above itself confers a similar power on Parliament. Art 35(a)(i),
NOTES
therefore, does not contain any additional power for Parliament but only states much more
explicitly that the State Legislatures are not entitled to pass any such law.

Art. 35(a)(ii) confers on Parliament, and not the State Legislatures, power to make laws for
prescribing punishments for those acts which are declared offences under the Fundamental
Rights. Such matters are:

1. Art. 17: prescribing punishment for enforcement of any disability arising out of
untouchability;50

2. Art. 23(1): prescribing punishment for traffic in human beings and imposition of begar and
other forms of forced labour.

Powers conferred on Parliament by clauses (a)(i) and (a)(ii) of Art. 35 are "notwithstanding anything
in the Constitution". Parliament can, therefore, make a law exclusively with respect to any of the
matters mentioned above, even though the matter might fall in the sphere of the State
Legislatures according to the scheme of distribution of legislative powers. Legislative power
in this area is given exclusively to Parliament and is specifically denied to the State Legislatures.
The object of this is that Fundamental Rights both as to their nature, and as to the punishment
involved in their infringement, may be uniform throughout India. Uniformity can be achieved and
maintained only when the power is exercised by Parliament and not by State Legislatures.

Accordingly, Parliament has enacted several laws to effectuate several Fundamental Rights. For
example, to implement the principles underlying Art. 23(1), Parliament has enacted the
Suppression of Immoral Traffic in Women and Girls Act, 1956, with the object of inhibiting or
abolishing the immoral traffic in women and girls.

(3) Art. 35(b) lays down that any law existing on the date of the commencement of the Constitution
and dealing with any of the matters mentioned in Arts. 35(a)(i) and (ii), as mentioned above, is to
remain in force (even though made by a State Legislature) until altered, repealed or abrogated by
Parliament.

Significance:

• Bedrock of democratic framework in India

• Provide necessary conditions for material and moral protection of people

• Serves as a bulwark of individual liberty

• Facilitates establishment of rule of law.

• Protects interests of monitories and weaker sections

• Strengthens secular fabric in India

• Checks absoluteness/arbitrariness of authority

• Lays down foundation stone of social justice and equality

• Ensures dignity and respect of individuals

• Facilitates participation of people in political and administration

21
Criticisms of FR
NOTES
• Excessive limitations

• J R kapoor: chapter should be renamed as "Limitations on Fundamental Rights”

• No Socio Economic Rights - Unlike USSR and China

• Vagueness

o Public order

o Morality

o Reasonable restrictions

o Minorities

• Amendable- No Permanency

• Suspension during emergency

o (Except Article 20/21)

• Remedies are expensive

• Preventive detention

o Takes away the spirit of constitution

o No other democratic country has this or even similar provision

Criticism of Fundamental Rights

The Fundamental Rights enshrined in Part III of the Constitution have met with a wide and varied
criticism. The arguments of the critics are:

1. Excessive Limitations: They are subjected to innumerable exceptions, restrictions,

qualifications and explanations. Hence, the critics remarked that the Constitution grants
Fundamental Rights with one hand and takes them away with the other. Jaspat Roy Kapoor
went to the extent of saying that the chapter dealing with the fundamental rights should be
renamed as ‘Limitaions on Fundamental Rights’ or ‘Fundamental Rights and Limitations
Thereon’.

2. No Social and Economic Rights: The list is not comprehensive as it mainly consists of political
rights. It makes no provision for important social and economic rights like right to social
security, right to work, right to employment, right to rest and leisure and so on. These rights
are made available to the citizens of advanced democratic countries. Also, the socialistic
constitutions of erstwhile USSR or China provided for such rights.

3. No Clarity: They are stated in a vague, indefinite and ambiguous manner. The various phrases
and words used in the chapter like ‘public order’, ‘minorities’, ‘reasonable restriction’, ‘public
interest’ and so on are not clearly defined. The language used to describe them is very
complicated and beyond the comprehension of the common man. It is alleged that the
Constitution was made by the lawyers for the lawyers.

Sir Ivor Jennings called the Constitution of India a ‘paradise for lawyers’.

22
4. No Permanency: They are not sacrosanct or immutable as the Parliament can curtail or
abolish them, as for example, the abolition of the fundamental right to property in 1978. NOTES
Hence, they can become a play tool in the hands of politicians having majority support in the
Parliament. The judicially innovated ‘doctrine of basic structure’ is the only limitation on the
authority of Parliament to curtail or abolish the fundamental right.

5. Suspension during Emergency: The suspension of their enforcement during the operation of
National Emergency (except Articles 20 and 21) is another blot on the efficacy of these rights.
This provision cuts at the roots of democratic system in the country by placing the rights of the
millions of innocent people in continuous jeopardy. According to the critics, the Fundamental
Rights should be enjoyable in all situations–Emergency or no Emergency.

6. Expensive Remedy: The judiciary has been made responsible for defending and protecting
these rights against the interference of the legislatures and executives. However, the judicial
process is too expensive and hinders the common man from getting his rights enforced
through the courts. Hence, the critics say that the rights benefit mainly the rich section of the
Indian Society.

7. Preventive Detention: The critics assert that the provision for preventive detention (Article 22)
takes away the spirit and substance of the chapter on fundamental rights. It confers arbitrary
powers on the State and negates individual liberty. It justifies the criticism that the
Constitution of India deals more with the rights of the State against the individual than with
the rights of the individual against the State. Notably, no democratic country in the world has
made preventive detention as an integral part of their Constitutions as has been made in
India.

8. No Consistent Philosophy: According to some critics, the chapter on fundamental rights is not
the product of any philosophical principle. Sir Ivor Jennings expressed this view when he said
that the Fundamental Rights proclaimed by the Indian Constitution are based on no consistent
phi-losophy. The critics say that this creates difficulty for the Supreme Court and the high
courts in interpreting the fundamental rights.

The Directive Principles as Markers Of Reasonableness

23