Module I

MODULE I- FUNDAMENTAL RIGHTS AND DPSP

INTRODUCTION

Fundamental Rights are contained in Part III of the Constitution, which is also described as
the Magna Carta of India. Dr. Ambedkar described Fundamental Rights as “the most
criticized part” of the Constitution. It has also been described as the very foundation and
cornerstone of the democratic way of life. Fundamental Rights are put on a higher pedestal
than other rights guaranteed by the Constitution because of the underlying idea that some
rights are so basic and sacrosanct that they need to be protected with special measures. They
represent the basic values, the very basic of the human rights, without which existence would
be rendered meaningless.

However, there are some circumstances in which these almost absolute rights are restricted to
achieve a higher object. Certain restrictions are placed upon the exercise of Fundamental
Rights in the form of reasonable restrictions provided for in the Constitution itself. Some
provisions of the Constitution provide for ‘suspension’ of Fundamental Rights during period
of emergency.

It is also an established proposition that the Fundamental Rights cannot be waived by an
individual. Principles of waiver or estoppels or other similar principles do not apply to
Fundamental Rights under the Constitution.

CLASSIFICATION OF FUNDAMENTAL RIGHTS

The Fundamental Rights are classified into six categories in the Constitution. The six groups
of Fundamental Rights are-

1. Right to Equality (Articles 14-18)
2. Right to Freedom (Articles 19-22)
3. Right against Exploitation (Articles 23-24)
4. Right to freedom of Religion (Articles 25-28)
5. Cultural and Educational Rights (Articles 29-30)
6. Right to Constitutional Remedies (Articles 32-36)

Article 12 defines State for the purposes of interpretation of Fundamental Rights as these
rights are available against the State and against private entities only under certain
circumstances. Article 13 deals with the justiciability aspect of the Fundamental Rights.

ARTICLE 12: DEFINITION OF STATE

The definition of State provided under Article 12 is applicable only to Part III of the
Constitution. It includes the Government of India, the Parliament, the State Governments,
State Legislatures and all local or other authorities. Only authorities in the territory of India or
under the control of the Government of India fall within the definition of State under this
Article. The definition given is inclusive and not exhaustive.

Most of the debate around the definition has revolved around the interpretation of the word
‘other authorities’ under Article 12. It has been accepted now that the rule of ejusdem generis
does not apply to the interpretation of ‘other authorities’ under Article 12 as there is no
common genus running through these named bodies in Article 12, nor do these bodies be
placed in one single category on any rational basis. This has led to a plethora of judicial
pronouncements deciding the ambit of ‘other authorities’ under Article 12.

The term ‘local authorities’ refer to authorities like municipalities, District Boards,
Panchayats, Port Trusts etc

In Electricity Board Rajasthan SEB v. Mohan Lal1 and Sukhdev Singh v. Bhagat Ram2, the
Court held that only authorities created by the Constitution or the Statutes can come under
‘other authorities’, though the authority may not necessarily be engaged in performing
governmental functions. In later decisions, however, a broad and liberal interpretation has
been given. The functionality plus State control test was applied in Som Prakash v. Union of
India case. Other important decisions on this point are R D Shetty v. International Airport
Authority of India3 and Ajay Hasia4 case.

Political parties are not covered within the definition of “the State”. There has been debate as
to whether Courts are included within the definition of the State or not. It has now been a
settled position that the judicial exercise of powers by the Court does not warrant it to be
included under Article 12 as no process of Court could be said to infringe Fundamental


1 AIR 1967 SC 1857.
2 (1975) 1 SCC 421.
3 (1979) 3 SCC 489.
4 (1981) 1 SCC 722.

Rights. However, in the exercise of non-judicial functions such as administrative or
legislative, the Courts fall within the definition of the State. Important cases in this regard are
Roopa Hurra case5 and A R Antulay v. R. S. Nayak6.

The settled position now is that the Court, through its various pronouncements have
developed liberal tests to determine the ambit of ‘other authorities’. The seven-judge bench in
th Pradeep Biswas case noticed the socio-economic policy and thought fit to expand the term
‘other authorities’ to include bodies other than statutory authorities.

ARTICLE 13: LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS

Article 13(1): applies to existing laws on the date of commencement of the Constitution. For
such existing laws to become void for being inconsistent with or in derogation of
Fundamental Rights, there has to be a judicial pronouncement of the same. Without a judicial
decision pronouncing them void, these laws will continue to stay in force. For interpreting
clause (1), following rules of interpretation have to be taken into account-

1. No retrospective effect: 13(1) is prospective in nature. The prospective nature of
Article 13(1) was enunciated in the case of Keshavan Menon v. State of Bombay7.
Such laws are considered to exist for past acts, transactions, etc. and for enforcing all
rights and liabilities accrued before the date of Constitution.

2. Doctrine of Severability or Separability: This rule does not make the entire
provision/Act void. If the offending part could be meaningfully severed from the non-
offending part, this doctrine allows for the offending part alone to be rendered
inoperative while leaving the other parts unaffected. Severability is the question of
substance and not of form. The leading cases explaining this doctrine are RMDC v.
Union of India8 AND State of Bombay v. F. N Balsara9.

3. Doctrine of Eclipse: It is an accepted proposition that an existing law inconsistent
with a Fundamental Right becomes inoperative but is not dead altogether. According
to this doctrine, the law is only eclipsed or dormant and not completely dead and


5 AIR 2002 SC 1771.
6 (1988) 2 SCC 602.
7 AIR 1951 SC 128.
8 AIR 1957 SC 628.
9 AIR 1951 SC 318.

therefore could be revived if there is a subsequent amendment which lifts the defect in
such laws. Leading case on this doctrine is that of Bhikaji Narain v. State of MP10

Article 13(2): Future laws: This clause deals with laws that are enacted after the
commencement of the Constitution and renders them void for being inconsistent with the
Fundamental Rights. There has been debate as to whether a post-constitutional law could be
revived or falls within the interpretation of the doctrine of eclipse the same way as pre-
constitutional laws under 13(1). Earlier, in Deep Chand case11 and Mahendra Lal Jain case12,
the Court held that the doctrine of eclipse only applies to the pre-constitutional laws as the
post-constitutional laws made in derogation of Fundamental Rights are void ab initio. But,
later in Ambica Mills case13, the Court held that post-constitutional laws made in derogation
of Fundamental Rights are not a nullity for all purposes and they can still be made operative
against non-citizens to whom such Fundamental Rights are inapplicable. This position further
stands altered with the case of Dulare Lodh v. Additional District Judge case14, which applied
the doctrine of eclipse to post-constitutional laws even against citizens. In light of the above
judicial development, it is still not a settled position whether doctrine of eclipse applies to
post-constitutional laws or not due to non-availability of a larger-bench decision to establish
such a claim.

It is also a understood proposition that Fundamental Rights cannot be waived by an
individual as was laid down in the judicial pronouncement of Basheshar Nath v. CIT15. There
is also a presumption in favour of the constitutionality of a law that has been enacted by a
competent legislature. Any one challenging the validity of laws under clause (1) or (2) have
to rebut the presumption of constitutionality of such statutes.

Article 13(3): definition of laws: 13(3)(a) and 13(3)(b) lay down the definition of law and
laws in force. However, judicial decision are not law within this provision.

Article 13(4): constitutional amendments: This clause has been added by the twenty-fourth
constitutional amendment, 1971. This, in effect, exempted constitutional amendments from
the ambit of Fundamental Rights. A plethora of cases (to be discussed under Article 368) lay
down the correct position of law with respect to the proposition whether constitutional


10 AIR 1955 SC 781.
11 AIR 1959 SC 648.
12 AIR 1963 SC 1019.
13 AIR 1974 SC 1300.
14 AIR 1984 SC 1260.
15 AIR 1959 SC 149.

amendments could infringe Fundamental Rights or not. It is now settled, that even if a
constitutional amendment is not law within the definition under Article 13, it does not exempt
it from being invalidated if it violates the basic structure of the Constitution.

RIGHT TO EQUALITY (ARTICLES 14-18)

ARTICLE 14: EQUALITY BEFORE LAW

Article 14 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. It is applicable to citizens as well as
non-citizens. It also includes a company or an association within its ambit. Article 14
embodies the general idea of equality whereas the succeeding Articles 15, 16, 17 and 18 lay
down specific applications of the principle laid down under Article 14.

The Article embodies a negative concept and a positive concept of equality in its principle in
Article 14. Equality before law being a somewhat negative concept implying the absence of
any special privilege in favour of any individual and Equal protection of laws being a more
positive concept implying equality of treatment in equal circumstances.

However, there are some exceptions to the rule under Article 14. For eg., Article 361
provides that the President and Governors shall not be answerable to any court for the
exercise and performance of the powers and duties of office. Foreign diplomats are also
immune from the jurisdiction of the Courts.

Article 14 is based on the wider principle of equity which effectively implies that the
principle under Article 14 does not mean that same laws should apply to all persons alike.
The understanding is that same laws cannot be applied to persons without understanding their
placement in the society. Article 14, therefore, permits classification but prohibits class
legislations.

Article 14 permits reasonable classification for achieving specific ends. For a reasonable
classification, the following two conditions must be fulfilled-

1. It must be found on an intelligible differentia
2. The differentia must have some nexus or a reasonable relation to the object sought to

be achieved.

Some general principles regarding the interpretation of Article 14 are-

A law may be constitutional even though it relates to a single individual, on account
of some special circumstances.
There is always a presumption in favour of the constitutionality of a stature, however,
such presumption is open for rebuttal.
The classification made by a legislature may not be scientifically perfect.
Mathematical nicety and perfect equality are not warranted.

While the traditional concept of equality is based on the doctrine of classification, the new
concept is based on the doctrine of arbitrariness. Arbitrariness is held to be the antithesis of
equality. Maneka Gandi case and E P Royappa case are the leading cases on evolving a
newer concept of equality which provides a dynamic dimension to the concept of equality
envisioned under Article 14. New developments in equality also focus on increased emphasis
on positive equality or affirmative action by the State.

ARTICLE 15: NON-DISCRIMINATION ON CERTAIN GROUNDS

Article 15 is an extension of the principle of equality embedded in Article 14. When a law
comes within the prohibitions of Article 15, it cannot be saved by taking recourse to Article
14 by applying the principle of reasonable classification. It is important to note that Article 15
is available only to the citizens and not all persons.

Article 15(1): the State shall not discriminate against any citizen on grounds only of religion,
caste, sex, place of birth or any of them.

Article 15(2): clause (2) provides that no citizen shall, on grounds only of religion, race,
caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction
and condition with regard to- 1) access to shops, public restaurants, hotels and places of
public entertainment or 2) the use of wells, tanks, bathing ghats, roads and places of public
resort, maintained wholly or partly out of State funds or dedicated to the use of the general
public.

Article 15(3): this clause allows the State to make special provisions for women and children.
It is one of the instances of equitable principles that govern the ambit of the concept of
equality.

Article 15(4): This clause has been added by the first constitutional amendment, 1951 in
response to the ruling in the Champakam Dorairajan case16. It permits the State for making
any provisions for the advancement of any socially and educationally backward class of
citizens (SEBCs) or for Scheduled Castes and Scheduled Tribes.

The scope of clause (4) was discussed in the case of M R Balaji v. State of Mysore17. The
court observed that 15(4) is an enabling provision and the backwardness test for 15(4) has to
be done by taking into account social and educational backwardness also, in addition to
considerations of caste. It is also important to note that backwardness is to be determined for
a State or Union territory only and not based on considerations for the whole country.

Most of the debate surrounding 15(4) and 16(4) revolve around developing tests for
determining backwardness and fixing the quantum of reservation. After the Mandal case, the
reservation is set on a maximum ceiling of 50% with the provisions for creamy layer of
backward classes.

Article 15(5): this clause has been added by the ninety-third amendment act of 2005. This
specifically focuses on making laws for providing reservations in educational institutions to
SEBCs and SCs and STs. This amendment neutralised the decision in P.A Inamdar18 and
T.M.A. Pai Foundation case19 which gave more liberty to private educational institutions. The
decision in Ashok Thakur v. Union of India (2008) upheld the constitutional validity of
Article 15(5).

ARTICLE 16: EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC
EMPLOYMENT

Article 16 is also an extension of the principle enunciated in Article 14 and applies to the
specific cases of public employment and appointment. It is also only applicable to the citizens
of India like Article 15.

Article 16(1): There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State. It does not guarantee appointment
or employment, but guarantees equality of opportunity. The principles of equal pay for equal


16 AIR 1951 SC 226.
17 AIR 1963 SC 649.
18 (2005) 6 SCC 537.
19 (2002) 8 SCC 481.

work also embodied in the understanding of Article 16(1). However, independent contractors
are not employees of the State and cannot claim the rights conferred under this clause.

Article 16(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. The scope of 16(1) is wider than 16(2).

Article 16(3): This clause allows the Parliament to make laws for imposing any requirement
of residence prior to the employment or appointment of a particular post in a State. It will not
be held to be a violation of Article 16(1) and 16(2).

Article 16(4): this clause permits States to make provisions for reservations in appointments
or posts in favour of any backward class of citizens which is not adequately represented in the
services under the State.

The applicability of 16(4) depends on two conditions being fulfilled-

1. Only applicable to backward classes, this is substantially different than SEBCs under
Article 15(4) and has to be interpreted accordingly.

2. The backward class must be inadequately represented in the services to the
satisfaction of the States. This claim also has to be balanced in light of Article 335 to
maintain the efficiency of administration.

Case laws on 16(4): the first case that came into consideration under Article 16(4) was T
Devadasan v. Union of India20 which invalidated the concept of carry forward rule in its
application to 16(4). However, this case has been overruled by the Mandal case and also by a
subsequent constitutional amendment adding Article 16(4B). The carry forward rule is valid
as long as the actual reservation does not exceed the set 50 percent limit as clarified by th
Mandal case, which also stands substantially altered after subsequent constitutional
amendments.

The scope and extent of 16(4) has been examined in the landmark decision of Indira Sawhney
v. Union of India21, also known as the Mandal case. The three major findings of the Mandal
case are-

1. The creamy layer among the OBCs is not included for the purposes of reservation.


20 AIR 1964 SC 179.
21 AIR 1993 SC 477.

2. Reservation is to be confined only to initial appointments and not promotions and
total reservation shall not exceed 50%.

3. 16(4) permits classification of backward class into backward and more backward
classes. A backward class cannot be identified only and exclusively with reference to
economic criteria.

The Mandal case upheld the carry forward rule as long as it does not exceed the set 50%
ceiling limit. A Justice Ram Nandan Committee was formed to identify the ‘creamy layer’
among the SEBCs.

Article 16(4A): Reservation in promotions: the clause added by the seventy-seventh
amendment, 1995 provides for reservation in promotions with consequential seniority in the
favour of SCs and STs. This in effect, negated the finding in the Mandal case to the extent of
its application to promotion in reservations.

Article 16(4B): Backlog vacancies: this clause was added by the eighty-first amendment,
2000 which approves the carry-forward rule on and over the existing 50% ceiling limit for
reservation and over-ruled the Mandal case decision to that extent.

Marriage and status of SC/ST: In the cases of Sandhya Thakur v. Vimla Devi Kushwaha22
and M C Vasala v. State of Kerala23, it has been held that a general class candidate cannot
become or be considered to be of a reserved category by marriage or adoption. The caste has
to be determined by the status on the birth of the individual and cannot be acquired for the
purposes of seeking reservation.

ARTICLE 17: ABOLITION OF UNTOUCHABILITY

Article 17 abolishes untouchability and forbids its practice in any form. The Protection of
Civil Rights Act, 1955 is the legislation made for furthering the object of Article 17.
According to Article 35, Parliament alone is given the power to make laws for prescribing
punishment under this Article.

ARTICLE 18: ABOLITION OF TITLES

Article 18 prohibits the State to confer titles on any body whether citizen or non-citizen.
Military and Academic titles are exempt from this provision.


22 (2005) 2 SCC 731.
23 AIR 2006 Ker 1.

RIGHT TO FREEDOM (ARTICLES 19-22)

ARTICLE 19: RIGHT TO FREEDOM

Article 19 guarantees the following six freedoms to the citizens of India alone-

1. Freedom of speech and expression
2. Freedom of assembly
3. Freedom to form association
4. Freedom to movement
5. Freedom to residence and settlement
6. Freedom of profession, occupation, trade or business

It is only available to the citizens of India. These rights are not absolute in nature and can be
reasonable restricted to achieve a higher objective. For a law restricting the exercise of rights
given under Article 19(1), it has to fulfil two conditions-

1. It has to fall under the restrictions mentioned under Article 19(2)-19(6).
2. It has to be reasonable.

The restrictions should strive to set a balance between the individual rights and the social
control imposed in Article 19(2)-19(6). The restrictions have to be reasonable and can only
be imposed by a valid “law” and not by an executive order. The restrictions should be
proportional and the reasonability is expected in both substantive and procedural laws. The
reasonability of a restriction is validated by the Court and not the Legislature.

Article 19(1)(a): Freedom of speech and expression: this right is subject to the restrictions
mentioned under Article 19(2). This includes right to press and people’s right to know.
Freedom to press has been established in the leading cases of Benett Coleman’s case24, Sakal
Paper’s case25 and Express Newspaper’s case26.

A few important propositions wrt 19(1)(a) are-

An advertisement of commercial nature is not protected under Article 19(1)(a).


24 AIR 1973 SC 106.
25 AIR 1962 SC 305.
26 AIR 1958 SC 578.

Right to strike is not included in the right to freedom of speech and expression. In T K
Rangarajan v. State of TN27, the Court held that there is no fundamental right to strike
available to a government servant.
Lawyers also have no right to go on a strike as held in the case of Harish Uppal v.
Union of India28.
Pre-censorship of films do not violate the right under 19(10(a) was held in the case of
K A Abbas v. union of India29.

Article 19(1)(b): Freedom to assemble: this right secures to all citizens the right to assemble
peacefully and without arms. Restrictions can be imposed under Article 19(3) on the exercise
of this right.

Article 19(1)(c): Freedom of association: this guarantees to all the citizens the righ to form
associations and unions for pursuing lawful purposes. They are subject to restrictions in
Article 19(4).

Article 19(1)(d) and (e): Freedom of movement and residence. Restrictions on these rights
could be imposed under Article 19(5).

Article 19(1)(f) which guaranteed the right to property has been repealed by the forty fourth
constitutional amendment and now the right to property is only a constitutional right under
Article 300-A.

Article 19(1)(g): Freedom of profession and trade: all citizens have the right to practice any
profession or to carry on any occupation, trade or business. Reasonable restrictions could be
imposed on this right on the grounds mentioned under Article 19(6). In B.R Enterprise v.
State of UP30, the Court held that right to sale of lottery tickets is not a fundamental right
under 19(1)(g).

ARTICLE 20: PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES

Article 20 only applies to criminal cases and not civil cases. This article cannot be suspended
even during emergency under Article 359.


27 AIR 2003 SC 3032.
28 AIR 2003 SC 739.
29 AIR 1971 SC 481.
30 AIR 1999 SC 1867.

Article 20(1): Ex-post facto law: No person shall be convicted if any offence except for
violation of law in force at the time of commission of the act charged as an offence, nor be
subjected to a penalty greater than which might have been inflicted under the law in force at
the time of commission of the offence. Lesser penalty, however, could be made applicable to
a person if the law subsequently changes.

Article 20(2): Double jeopardy: No person shall be prosecuted and punished for the same
offence more than once. This principle is also recognized under Section 26 of the General
Clauses Act and Section 300 Cr.PC.

Article 20(3): Protection against self incrimination: confined only to an accused and not other
persons. A person cannot be forced to be a witness but may be required to furnish evidence.
The two concepts of being a witness and furnishing evidence are different.

In Selvi v State of Karnataka, the administration of narco analysis test was in question. The
Court held that this is not the same as providing DNA evidence or fingerprints etc. A narco-
analysis if administered without the consent of the accuses, is inadmissible and violative of
Article 20(3).

ARTICLE 21: PROTECTION OF LIFE AND PERSONAL LIBERTY

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

After the Maneka Gandhi case, Article 21 is now protected not only from executive action
but also legislative action. The right guaranteed under this article is available to citizens as
well as non-citizens.

A K Gopalan v. State of Madras31 gave a restrictive definition of personal liberty. However,
subsequent decisions in Maneka Gandhi v. Union of India32 and Francis Coralie33 case have
given wider meaning to the term ‘personal liberty’.

However, procedure established by law is different than due process of law. The Court dealt
with this difference in detail in the Maneka Gandhi case. Due process of law is a term of US
Constitutional jurisprudence and does not find mention in the Indian Constitution. While


31 AIR 1950 SC 27.
32 AIR 1978 SC 597.
33 AIR 1981 SC 746.

deciding the scope of both the phrases, the SC has said that though in India, there is no due
process of law, the concept of procedure established by law is wide enough to cover the same
meaning as the latter is based on principles of natural justice as well. The procedure
established by law in India has to be just, fair and reasonable.

Some of the implied Fundamental Rights under Article 21 are-

Rights of convicts: Sunil Batra Case
Right to speedy trail: Hussainara Khatoon case and M H Hoskot case
Right to travel abroad: Maneka Gandhi case
Right to privacy: K S Puttaswamy v. Union of India
Right to clean environment: MC Mehta v UOI
Right to livelihood: Olga Tellis case
Right to education: Mohini Jain and Unnikrishnan case
Right to legal aid: Sheela Barse v. UOI
Right to safe workplace: Vishakha Case, Apparel Export case
Compensatory jurisprudence: Rudul Shah case
Rights of undertrials: D K Basu case, Nandini Satpathy case.

Article 21 is an ever expanding article which has been developed by the courts to include
variety of freedoms under its ambit. Article 21 has to be read in consonance with articles 14
and 19 and the concept of reasonability is also imported in the interpretation of Article 21.
The articles 14, 19 and 21, together form a golden triangle (as held in the Maneka Gandhi
case).

ARTICLE 21-A: RIGHT TO EDUCATION

This article was introduced by the 86th Amendment, 2002. The court in the case of
Unnikrishnana v. State of AP34 recognised the fundamental right of every child for free and
compulsory education upto the age of 14 years.

ARTICLE 22: PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN
CASES

This article has been amended by the 44th amendment and is yet to brought into force. The
overall scheme of amended Article 22 can be stated as follows:


34 (1993) 1 SCC 645.

It provides for a minimum procedural requirement and is to be read as a supplement
to Article 21.
The rights of the persons arrested are discussed in the cases of Joginder Kumar v.
State of UP and D K Basu v State of WB.
No person shall be detained in custody without being informed the reason of his arrest
The arrested person shall have the right to consult and be represented by the lawyer of
his choice.
Every such arrested person shall be presented before the nearest Magistrate within
24hours of his arrest.
The above mentioned rights are not available to enemy aliens and to persons arrested
or detained under any law providing for preventive detention.
Preventive detention- Clause (4) to (7), eg. MISA, COFEPOSA, TADA, NSA etc.-
review by advisory board, composition and procedure of advisory board, grounds of
detention and representation.

The leading case on preventive detention is the case of A K Roy v. UOI35

RIGHT AGAINST EXPLOITATION (ARTICLES 23-24)

ARTICLE 23: PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED
LABOUR

The leading case on this point is PUDR v. UOI (Asiad Workers Case)36

ARTICLE 24: PROHIBITION ON EMPLOYMENT OF CHILDREN IN FACTORIES

Employment of children below the age of 14 years is prohibited in any factory, mine or other
hazardous occupation under this article. The leading cases on this point are MC Mehta v State
of TN and Asiad Workers Case.

RIGHT TO FREEDOM OF RELIGION (ARTICLES 25-28)

The case of S R Bommai v. Union of India held that secularism is the basic feature of the
Constitution.


35 (1982) 1 SCC 271.
36 (1982) 3 SCC 235.

In M Ismail Faruqi v. Union of India (Ayodhya Case), it was held that the concept of
secularism is one facet of equality.

ARTICLE 25: FREEDOM OF CONSCIENCE AND FREE PROFESSION,
PRACTICE AND PROPOGATION OF RELIGION

All persons are provided with the right to freedom of conscience and religion subject to the
restrictions of public order, morality and health and other provisions of Part III; eg.
untouchability, devdasis, etc. The right to propagate one’s religion does not give a right to
convert another person to one’s own religion.

In Bijoe Emanuel v. State of Kerala (National Anthem Case)- there is no legal obligation for
a citizen to sing national anthem if it is in conflict with his religion as long as proper respect
is paid to the national anthem (read with Article 19(1)(a)).

Freedom to practice only extends to those activities which are the ‘essence of religion’, it
does not cover secular, political or commercial activities.

In Anand Marga Case (Acharya Jagdishwaranand v. Commissioner), the ‘Tandav dance’ at
public places was held not to be essential religious practice.

The test of Essential Religious Practice (ERP) has been developed by the courts in the Shirur
Mutt case in which the court held that only those practices would be protected under Article
25 and 26 that are essential to the religion. What is an essential religious practice has been a
matter of debate in a plethora of cases before the courts.

The test to determine whether a part or practice is essential to a religion is to find out whether
nature of the religion will be changed without that part or practice.

ARTICLE 26: FREEDOM TO MANAGE RELIGIOUS AFFAIRS

Rights guaranteed under Article 25 are individual rights whereas under Article 26 is the right
of an ‘organized body’.

‘Religious denomination’ under 26 should satisfy-

1. Collection on individuals who have common faith
2. Common organization
3. Designated by a distinct name

Under Article 26 (b), the court determines whether a particular practice is essential or not.
The rights under this article are also subject to 25 (2) (b). In Saifuddin v. State of Bombay,
the court held that essential religious practice is to be determined by the courts with reference
to doctrines of that particular religion.
ARTICLE 27: FREEDOM NOT TO PAY TAXES FOR RELIGIOUS
PURPOSES/PROMOTION
ARTICLE 28: FREEDOM NOT TO ATTEND RELIGIOUS INSTRUCTIONS
In Aruna Roy v. Union of India (The TextBook Case), it was held that education about
religions does not violate Article 28.
CULTURAL AND EDUCATIONAL RIGHTS (ARTICLES 29-30)
ARTICLE 29: PROTECTION OF INTERESTS OF MINORITIES
Article 29 (1): applies to a minority community and the right to conserve their language,
script or culture.
Article 29 (2): applies to all citizens to be read with article 15.
ARTICLE 30: RIGHTS OF MINORITIES TO ESTABLISH AND ADMINISTER
EDUCATIONAL INSTITUTIONS
Right to two kinds of minorities are protected under this article i.e religious and linguistic
minorities alone.

- Right to establish and right to administer
Right to administer is not an absolute right. (Re Kerala Education Bill Case)
St. Stephens College v. University of Delhi- a minority institution cannot prescribe
qualifications for admission but can prescribe procedure for admission of students.
(reservation of 50% of seats in aided institutions to the management’s discretion).
St. Xaviers College case- article 20 and 30 create two separate rights [ Article 29 (1): confers
right even on majority, language script or culture; Article 30 (1): religious or linguistic
minorities, minorities only].

T M A Pai v. State of Karnataka- 11 judge decision- minority communities have a right to
establish and administer unaided educational institutions, while who receive State aid could
be subject to govt. rules and regulations- no rigid 50 % quota.

Islamic Academy of Education v. State of Karnataka- 5 judge bench clarified TMA Pai.

P A Inamdar v. State of Maharashtra- each minority institution is entitled to have its own fee
structure subject to no profiteering and capitation fees. The State cannot insist on private
education institutions receiving no State aid to implement reservation.
ARTICLE 31-A: added by 1st Amendment, seeks to protect land acquisition laws from
Fundamental Rights.
ARTICLE 31-B: added by 1st Amendment, provides for ninth schedule wherein las kept
cannot be invalidated on account of infringing Fundamental Rights, this is now subject to the
basic structure doctrine.
ARTICLE 31-C: added by 25th Amendment, gives effect to certain directive principles even
though they might infringe some Fundamental Rights.

In Waman Rao v. Union of India, the amendments in IXth schedule made before
Keshavanand were held to be beyond challenge.

RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32)

Every person whose Fundamental rights are infringed can move to the Supreme Court for
their enforcement directly through appropriate proceedings. This is known as the right to
constitutional remedies because merely providing rights without looking into their proper
implementation would render those rights devoid of meaning.

The SC has the power to issue writs, directions or order under this article. It has also been
held in the case of Daryao v. State of UP that doctrine of res judiciata applies to such
proceedings with the exception of habeus corpus writ.

DIRECTIVE PRINCIPLES OF STATE POLICY UNDER THE INDIAN
CONSTITUTION

INTRODUCTION

Part V of the Constitution of India deals with Directive Principles of State Policy
(hereinafter ‘DPSP’) under Articles 36-51. It lays down certain ideals and objectives
to be achieved by the State in accordance with the fundamentals of the Preamble.
DPSP should necessarily be made the basis of all executive and legal action
undertaken in the governance of the country.
DPSP are non-justiciable, meaning that they cannot be enforced by any Court
(Article 37). It merely casts a duty on the State to apply these principles.
The DPSP have been adopted from the Constitution of Ireland.
Additional Info: Rights are divided into two categories-
1. Political and Civil Rights: Guaranteed under Fundamental Rights (hereinafter
‘FRs’) in the COI as within the reach of an individual
2. Social and Economic Rights: Guaranteed under DPSP in the COI as beyond
individuals reach

SUPREMACY OF DPSP OVER FRs

25th Amendment, 1971
It introduced Article 31C to give primacy to DPSP contained in Articles 39(b) and
39(c) over FRs in Article 14, 19 and 31.
42nd Amendment, 1976
It widened Article 31C and provided for supremacy for all DPSP. This amendment
was struck down in Minerva Mills v. UOI. The Court restored Article 31C to its
original status as inserted by the 25th Amendment.

IMPORTANT CASE LAWS AND THEIR FINDINGS

Charu Khurana v. Union of India (2015): DPSP have been regarded as the soul of
the Constitution.
State of Madras v. Champakam Dorairajan (1951): DPSP have to conform and run
subsidiary to the chapter on Fundamental Rights (1st important case on relationship
between DPSP and FRs).
In re Kerala Education Bill (1958): Courts should attempt harmonious construction
b/w DPSP and FRs.

Minerva Mills v UOI (1980): Constitution founded on bed rock of balance between
Part III and Part IV. There is no conflict between DPSP and FRs, both are
complementary to each other.
State of Gujarat v. Mirzapur Moti Quereshi Kassab Jamet (2006): SC held that
when there is a question of testing the constitutional validity or for testing the
reasonableness of any restriction on the exercise of FRs, the DPSP and Fundamental
duties should be taken into account.
DIRECTIVE PRINCIPLES

ARTICLE 36 defines State to have the same meaning as it has under Part III of the COI.
ARTICLE 38: Social order for promoting welfare of the people.

38(1): Social order securing social, economic and political justice to promote welfare
of people.
38(2): inserted by 44th Amendment, 1978 to minimise inequalities in various fields.
(an extension of 38(1))

ARTICLE 39: Certain principles of policy to be followed by the State.
39(a): adequate means of livelihood [Right to livelihood declared to be a part of right
to life under Article 21 in the case of Olga Tellis v. BMC (1986)].
39(b): ownership of material resources for the common good [includes resources both
publicly and privately held, includes Nationalisation].
39(c): preventing concentration of wealth
39(d): equal pay for equal work
In Kishori Mohanlal Bakshi v. UOI (1962), the Court said that it was not capable of
being enforced in a Court of law. However, in Randhir Singh v. UOI (1982), the
Court read it with Article 14 and 16 for its implementation.

ARTICLE 39A: Equal justice and free legal aid- Inserted by 42nd Amendment, 1976 (also
flows from Article 14 and 21).

ARTICLE 40: Village Panchayats- 73rd and 74th Amendment, 1992 are major steps taken in
implementation of this directive principle.
ARTICLE 41: Right to work, education and seek public assistance (subject to economic
capacity and development of the State)
ARTICLE 42: Just and humane conditions of work+ maternity relief
ARTICLE 43: Living wages (different than minimum and fair wages)
ARTICLE 43A: Participation of workers in management of Industry: introduced by 42nd
Amendment, 1976
ARTICLE 44: Uniform Civil Code- Sarla Mudgal v. UOI (1995): emphasised the need for
a uniform civil code (obiter dicta).

[Other cases on UCC- AWAG v. UOI, Pannalal Bansilal v. State of A.P, John
Vallamattom v. UOI.]

ARTICLE 45: Free and compulsory education for children- until the age of six years.
In Unni Krishnan v. State of A.P., SC held directive in Article 45 as a fundamental
right forming part of right to life under Article 21 [Muhiram Saikia Committee was
set up to examine the proposal laid down in the Unni Krishnan case]- Unni Krishnan
case resulted in the 86th Amendment, 2002 introduced Article 21-A and replaced
Article 45 to its current form.

ARTICLE 46: Educational and economic interests of the weaker sections [ Weaker sections
is not defined under the COI- Mandal case laid down that the term ‘weaker sections’ is wider
than ‘backward class’, ‘SEBC’, or ‘SC and STs’.]
ARTICLE 47: Level of nutrition, standard of living and public health: this article has been
relied on by the Courts while determining the reasonableness of restrictions under Article
19(1)(g).

ARTICLE 48: Organisation of agriculture and animal husbandry

In M H Quareshi v. State of Bihar (1958), the SC was faced with the constitutional
validity of cattle slaughter laws and whether they infringed Article 14, 19(1)(g) and
25 of the Constitution of India. The Court held that the DPSP should conform to and
run as subsidiary to the FRs of the Constitution of India. The Court upheld that a total
ban on the slaughter of cows of all ages and calves is reasonable and in “consonance
with the directive principles laid down in Art. 48.” However, other such animals
which have become useless cannot be banned under the DPSP of Article 48.
However, in State of Guj. v. Mizapur Moti Kureshi Kasab, SC partially overturned
the M H Quereshi case. It allowed for a total ban on slaughter of cows, bulls and
bullocks of any age. (Court read Articles 48-A and 51-A(g) to strengthen the
protection.).

ARTICLE 48A: Protection and improvement of environment and wildlife- inserted by 42nd
Amendment, 1976- The Environment (Protection) Act, 1986 and the Wild life (Protection)
Act as amendment in 1986 are steps to implement the directive under Article 48A.- 48A shall
be read with Article 51A(g).

ARTICLE 49: Protection of Monuments- Parliament enacted the Ancient, Historical
monuments and Archaeological Sites and Remains (Declaration of National Importance) Act,
1951 under this directive.

ARTICLE 50: Separation of Judiciary from Executive- object is to provide for the
independence of judiciary.

ARTICLE 51: Promotion of International peace and security- foster respect for International
law and treaty obligations.

INTERPRETATION OF DPSPs

Earlier, Courts adopted literal interpretation in case of conflicts between DPSP and FRs
(Champakam Dorairajan case). Later, the principle of harmonious construction was
adopted (In Re, Kerala Education Bill). Then, the DPSP were used to act as permissible
reasonable restriction on the FRs (Mohd. Hanif Queresh v. State of Bihar). Courts have now
adopted the dynamic approach and have played an active role towards implementing DPSP.

A few cases on this prinicpile are- Maneka Gandhi, Olga Tellis [39(a)], Sanjeev Coal Mfg.
Co. v. Bharat Coaking Coal Ltd. [39 (b) and (c)], Bandhua Mukti Morcha [39 (e) and (f)].
Articles 355 and 365 of the Constitution of India can be applied for enforcing implementation
of DPSP.