The Constitution of India. Simplified.

Kamal & Co.   April 27, 2017

   Penned by Mr. K.R.Bulchandani Advocate and Solicitor. M/s Kamal & Co., Mumbai. 

FEATURES

On attainment of independence on 15.08.1947, we the people of India gave to ourselves on 26.11.1949, the Constitution, known as the Constitution of India. India is a democratic republic declared on 26.01.1950.

The features of the Constitution of India can be summarized as under:

1. Preamble:

Preamble to the Constitution sets out the features of the Constitution. Preamble reads as under:

“We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:

JUSTICE, social, economical and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation.”

Based on above fundamentals, Constituent Assembly adopted, enacted and gave to citizens of India the Indian Constitution.

[Words “Socialist Secular” and “integrity” were inserted by Constitution (42^nd Amendment) Act, 1976, with effect from 03.01.1977.]

Objects and scope:

Preamble contains the objects which the Constitution makers intended to be realized. Preamble is the basic structure of our Constitution, unlike Preamble in an ordinary statute. In the case of His Holiness Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461, it is observed that the Preamble of our Constitution should be interpreted as a part of the Constitution. Preamble can be invoked to determine the ambit of Fundamental Rights and Directive Principles of State Policy to uphold the ideals of Socialism, Secularism and Democracy.

The importance of Constitution has been well set out by Supreme Court in heap of case law. In Ashok Tanwar v. State of H.P. (2005) 2 SCC 104, Supreme Court has stated that Constitution unlike other statutes is meant to be durable instrument to serve through a longer number of years, i.e., ages without frequent revision. It is intended to serve the needs of the day when it was enacted and also to meet the needs of the changing conditions of the future. The Constitution is a permanent document framed by the people and has been accepted by the people to govern them for all times to come.

Sovereign:

Sovereignty means independent authority of State, the independent India. Sovereignty is both external and internal. External sovereignty means it is not subject to the control of any other State or external power. Internal sovereignty means State has power to legislate on any subject, subject to federal division of legislative powers and within limitations of the provisions of the Constitution including fundamental rights granted to Indian citizens. Power to legislate, thus originates from the Constitution. Sovereign State is obligated to protect the rights of the citizens of India.

Socialist:

Social justice is integral to treating all citizens equal by protecting tribals and weaker section of society from social injustice. Social justice involves removal of economic inequalities. Social justice would also mean legal justice by providing cheap, expeditious and effective justice to all sections of the society irrespective of social, economic or financial status. Doctrine of equality is the thesis of social justice.

Secular:

India has citizens of diverse religions and faith. To prevent the minority from being exploited, the protectors of the Constitution thought it fit to uphold principle of equality, making India explicitly a secular State. Word “Secular” was therefore inserted by 42^nd Amendment to the Constitution in the Preamble with effect from 03.01.1977. Articles 15(1) and 16(2) of the Constitution therefore provide that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Thus, citizens of any religion have a fundamental right not to be discriminated against one and another in any manner and for any purpose whatsoever. All persons shall be equally entitled to the freedom of conscience and the right freely to profess, practice and propagate religion [Smt. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299].

Thus, a Sovereign Socialist Secular Democratic Republic State secures for its citizens, social, economic and political justice, liberty of thought, expression, belief, faith and worship; equality of status and opportunity. State is therefore to promote and assure among all fraternity the dignity of the individual and the unity and the integrity of the nation by protecting backward classes and religion minorities. Such unity and integrity of India can be preserved only by a spirit of brotherhood [Raghunathrao Ganpatrao v. Union of India (1994) Supp (1) SCC 191]

      2. The Union and its territories [Part-I – Arts.1 to 4]:

India, that is Bharat, shall be a Union of States. The States and the territories called as Union territories thereof are specified in the First Schedule, Parts-I and II respectively. The territory of India shall comprise of (a) the territory of States specified in Part-I of First Schedule; (b) the Union territories specified in Part-II of First Schedule; and (c) such other territories as may be acquired [Art.1]. What is therefore provided by the Constitution is a Federal Structure with Union of States and Union Territories.

Union shall have Executive and Parliament. There would be also Union Judiciary.

Executive [Arts.52 to 78]:

Executive shall be headed by President of India with powers as set out in Article 53. The provisions of the President are set out in Part-A of Second Schedule. There shall be Vice President of India who would act as President during absence of President and discharge President’s functions in case of contingencies. The executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India. However, such executive power shall not extend to any State to matters with respect to which the Legislature of the State has also power to make laws.

There shall be Council of Ministers to aid and advice the President, with the Prime Minister at the head to aid and advice the President, who shall, in the exercise of his functions, act in accordance with such advice. The provisions as regards the Ministers of the Union are as set out in Part-B of Second Schedule.

The Prime Minister shall be appointed by the President. Other Ministers shall be appointed by the President on the advice of the Prime Minister. All executive action of the Government of India shall be expressed to be taken in the name of the President. The President shall make rules for the more convenient transaction of the business of the Government of India and for the allocation among Ministers of the said business. All executive action of the Government of India shall be expressed to be taken in the name of the President.

It shall be the duty of the Prime Minister to communicate to the President all decisions of the Council of the Ministers, to furnish information relating to the administration of the affairs of the union and the proposals for the legislation as the President may call for.

The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney General of India, who shall advice to the Government of India on such legal matters and perform such other duties of a legal character as may from time to time be referred to and assigned to him by the President and discharge the functions conferred on him under the Constitution or any other law in force.

There shall be Comptroller and Auditor General of India under Article 148, appointed by the President by warrant, who shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by law made by Parliament. The provisions applicable to Comptroller and Auditor General of India are as set out in Articles 148 to 151, 377 and Part-E to Second Schedule.

Parliament [Arts.79 to 121]:

There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People. Parliament may by law admit into the Union, or establish, new States, alter areas, boundaries or names of existing States on such terms and conditions as it thinks fit [Arts.2 & 3]. Parliament shall allocate seats in the Council of States for each State or Union Territory as specified in the Fourth Schedule [Arts.4(1) & 80(2)].

The House of People shall continue for 5 years as provided in Article 83(2) while Council of States shall not be subject to dissolution, but one third of its members shall retire on the expiry of every second year as provided in Article 83(1).

The composition of the Council of States shall be as provided in Article 80 and composition of the House of the People shall be as provided in Article 81. Vice President shall be ex-officio Chairman of the Council of States. The Council of States shall choose a member of the Council to be Deputy Chairman. The House of the People shall choose two members of the House to be respectively Speaker and Deputy Speaker. The provisions as to the Speaker and Deputy Speaker, and the Chairman and Deputy Chairman are as set out in Part-C of Second Schedule. Each House of Parliament shall have separate secretarial staff. The conduct of business shall commence and be conducted as provided in Articles 99 and 100. The Legislative procedure shall be conducted as provided in Articles 107 to 122. When Parliament is not in session and circumstances necessitate, President may at any time promulgate Ordinance. Courts shall not inquire into proceedings of Parliament on account of any alleged irregularity of procedure.

The Union judiciary [Arts.124 to 147]:

There shall be a Supreme Court of India consisting of Chief Justice of India and such number of Judges as may be prescribed by Parliament. Every Judge shall be appointed by the President by warrant. The appointments, salaries of Supreme Court Judges shall be as provided in Articles 125 to 129 and as set out in Part-D of Second Schedule. Supreme Court shall sit in Delhi and exercise original jurisdiction and appellate jurisdiction in civil and criminal matters. Supreme Court may grant special leave to appeal from any judgement, decree or order in any cause or matter passed by any court or tribunal. The law declared by Supreme Court shall be binding on all courts within the territory of India. Under Article 32, Supreme Court shall have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari whichever may be appropriate for the enforcement of any of the fundamental rights under Part-III. [This is discussed further under ‘Writs’]

In recent judgement of the Constitution Bench of the Apex Court in the case of Supreme Court Advocates-on-Record-Association v. Union of India (2016) 5 SCC 1, it is held that primacy of judiciary in appointment of judges is integral part of independence of the judiciary.

3. The States:

Every State with the Union shall have the Executive, State Legislature, High Court and other courts within the State. State shall not include the State of Jammu & Kashmir. The list of States within the Union of India are as set out in Part-I of First Schedule. At present there are 29 States in India.

Executive [Art.153 to 167]:

There shall be a Governor of each State, whose appointment, powers, functions, conditions of service, etc. shall be as provided in Articles 154 to 161 and Article 213 and as set out in Part-A of Second Schedule. The executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. However, where in any matter State and Parliament have power to make laws, the executive power of the State shall be subject to the executive power expressly made by Parliament upon the Union as conferred by Parliament [See – ‘Regulation of laws made by Parliament and State Legislatures’ discussed below].

There shall be Council of Ministers with the Chief Minister at the head to aid and advice the Governor. The Chief Minister shall be appointed by the Governor. Other Ministers shall be appointed by the Governor on the advice of the Chief Minister. The provisions as to Ministers of State are as set out in Part-B of Second Schedule.

The Governor of each State shall appoint a person who is qualified to be appointed as a Judge of a High Court to be Advocate General of the State who shall advice to the Government of the State upon such legal matters and perform such other duties of a legal character as may from time to time be referred to and assigned to him by the Governor and discharge the functions conferred on him under the Constitution or any other law in force. The conduct of Government business in the name of the Governor shall be conducted as provided in Articles 166 and 167.

Legislature [Arts.168 to 212]:

For every State there shall be a Legislature. In the States of Andhra Pradesh, Bihar, Madhya Pradesh, Maharashtra, Karnataka and Uttar Pradesh, the Legislature shall consist of Governor and two Houses. In other States the Legislature shall consist of Governor and one House. Where there are two House, one shall be known as Legislative Council and the other as Legislative Assembly. Where there is only one House, it shall be known as Legislative Assembly.

The composition of Legislative Assembly shall be as provided in Article 170 and that of Legislative Council shall be as provided in Article 171. The duration of State Legislatures shall continue for 5 years as provided under Article 172(1), while Legislature Council shall not be subject to dissolution, but one third of its members shall retire on expiration of every second year as provided in Article 172(2). The qualifications, powers, privileges, immunities, sessions, etc. of the State Legislatures shall be as provided in Articles 173 to 177 and Articles 190 to 195. Every Legislature Assembly of a State shall choose two members of the Assembly to be respectively Speaker and Deputy Speaker, governed by Articles 178 to 181 and Part-C of Second Schedule. The Legislative Council of every State having such Council shall choose two members of the Council to be respectively Chairman and Deputy Chairman governed by Articles 182 to 186 and Part-C of Second Schedule.

Each House of the Legislature of a State shall have a separate secretarial staff and its business procedure and financial matters shall be conducted as provided in Articles 188 and 189 and Articles 196 to 211. Courts shall not inquire into proceedings of the Legislature on the ground of any irregularity of procedure.

Judiciary [Arts.214 to 237]:

There shall be a High Court for each State which shall be a court of record. Every High Court shall consist of a Chief Justice and such other Judges as the President may appoint from time to time. The appointments, conditions of office, restrictions, salaries, etc. of Judges shall be as provided in Articles 217 to 225 and in Part-D of Second Schedule.

Every High Court shall have power, throughout the territory over which it exercises jurisdiction, to issue to any person or authority or Government, directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them, for the enforcement of any of the fundamental rights under Part-III and for any other purpose under Article 226 [This is discussed further under ‘Writs’]. High Court has power of superintendence over all courts and tribunals throughout the territory over which High Court has jurisdiction. Parliament may by law extend the jurisdiction of a High Court or exclude the jurisdiction of a High Court from any Union territory.

There shall be subordinate courts in each State. Appointments, validation of appointments, judgements, etc. are regulated as provided in Articles 233 to 237.

4. The Union territories [Arts.239 to 241]:

The List of Union territories is as set out in Part-II of First Schedule. At present there are 7 Union territories, being Delhi, the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli, Daman and Diu, Pondicherry and Chandigarh.

Every Union territory shall be administered by the President through an administrator appointed by the President. President may appoint Governor of a State as the administrator of an adjoining Union territory. Such Governor shall exercise his functions as such administrator independently of his Council of Ministers. Parliament may by law create a body, to function as a Legislature for the Union territory or a Council of Ministers or both, with such constitution, powers and functions as specified in law. Parliament has made special provisions with respect to Delhi under Articles 239AA and 239BB. The President may make regulations for the peace, progress and good government of certain Union territories.

Parliament may, by law, constitute High Court for a Union territory or declare any court in any such territory to be a High Court for all or any of the purposes of this Constitution.

5. Separation of powers between Legislature, Executive & Judiciary:

In the case of State of U.P. v. Sanjay Kumar (2012) 8 SCC 537, the separation of powers between the Legislature, executive and the judiciary constitutes one of the basic features of the Constitution. There is distinct and rigid separation of powers under the Indian Constitution. The concept of separation of powers is inherent in the polity of the Constitution. This doctrine creates a system of checks and balances by reason of which, powers are so distributed that none of the three organs set up can become so pre-dominant, so as to disable the others from exercising and discharging the powers and functions entrusted to them. The scrupulously discharged duties of all guardians of the Constitution include among them, the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what falls properly within the domain of other constitutional organs.

The importance of separation powers of the three organs under the Constitution has been highlighted by Apex Court in its recent judgement in Supreme Court Advocates-on-Record-Association v. Union of India (2016) 5 SCC 1. Apex Court has held that separation of powers or distribution of powers is the tectonic structure of the Constitution. Various checks and balances are provided only for maintaining a proper equilibrium amongst the structures and that is the supreme beauty of our Constitution. Under our constitutional scheme, one branch does not interfere impermissibly with the constitutionally assigned powers and functions of another branch. The permissible areas of interference are the checks and balances. But there are certain exclusive areas for each branch which are its “core functions”. There shall be no interference with powers central of each branch.

6. Regulation of laws made by Parliament and State Legislatures:

Articles 245 to 255 lay down law on legislative relations and Articles 256 to 261 lay down law on administrative relations. With distribution of legislative powers and providing for provision in case of inconsistency between laws made by Parliament and laws made by the Legislatures of a State under Article 254 clearly demonstrate the powers of Parliament and State, though Parliament has supremacy in respect of laws where both Parliament and States are empowered to make a law on any subject. Article 263 provides for coordination between States.

In Bharat Coking Coal Ltd. v. State of Bihar (1990) 4 SCC 557, Apex Court has elucidated the law on this in para 19 of the judgement as under:

“Article 162 prescribes the extent of executive power of the State, it lays down that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. Thus, the executive power of the State Government is co-extensive with the legislative powers of the State Legislature. If the State Legislature has power to enact laws on a matter enumerated in the State List or in the Concurrent List, the State has executive power to deal with those matters subject to other provisions of the Constitution. If a subject matter falls within the legislative competence of State Legislature, the exercise of executive power by the State Government is not confined, as even in the absence of a law being made, the State Government is competent to deal with the subject matter in exercise of its executive power.”

“The proviso to Article 162 itself contains limitation on the exercise of the executive power of the State. It lays down that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of State shall be subject to limitation of the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authority thereof.”

The Union is a Federal Union with distribution of powers of which Judiciary is the interpreter.

Seventh Schedule to Constitution, List-I, sets out Union List. Article 246(1) provides that Parliament shall have exclusive power to make laws with respect to any matters enumerated in List-I in the Seventh Schedule (Union List).

List-II to Seventh Schedule sets out State List. Article 246(3) provides that Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List-II in the Seventh Schedule (State List).

List-III to Seventh Schedule sets out Concurrent List. Article 246(2) provides that subject to powers of Parliament to enact law on any of the matter enumerated in List-I of Seventh Schedule for the whole or any part of the territory of India, the Parliament and the Legislature of any State shall also have power to make laws with respect to any of the matters enumerated in List-III in the Seventh Schedule (Concurrent List).

The Parliament has full and exclusive power to legislate with respect to matters in List-I and has also power to legislate with respect to matters in List-III, whereas the State Legislatures, on the other hand, have exclusive power to legislate with respect to matters in List-II, minus matters falling in List-I and List-III and have concurrent power with respect to matters in List-III [State of Kerala v. Mar Appraem Kuri Co. Ltd. (2012) 7 SCC 106]. However, if Parliament and State Legislature both have power to make law in a matter, the executive power of the State shall be subject to the law made by the Parliament or restricted by the executive power of the Union expressly conferred on it by the Constitution or any law made by Parliament [Bharat Coking Coal Ltd. v. State of Bihar (1990) 4 SCC 557].

Article 246(4) provides the supremacy of Parliament to make laws with respect to any matter for any part of the territory of India not included in a State, notwithstanding that such matter is a matter enumerated in the State List.

7. Citizenship [Part-II – Arts.5 to 11]:

Every person who has his domicile in the territory of India and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India [Art.5]. If a person voluntarily acquires the citizenship of any foreign State he shall not be a citizen of India [Art.9]. There is only one domicile of the country. There is no separate domicile for a State [Pradeep v. Union of India AIR 1984 SC 1420]. A person may be a resident of any State or Union Territory.

8. Fundamental rights [Part-III – Arts.12 to 35]:

State (includes Government and Parliament of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India) shall not make any law which takes away or abridges the fundamental rights. Any such law made in contravention of fundamental rights shall be void [Arts.12 & 13].

Following are the fundamental rights guaranteed to every citizen of State by the Indian Constitution:

(i) Right to equality [Arts.14 to 18].

(ii) Right to freedom [Arts.19 to 22].

(iii) Right against exploitation [Arts.23 & 24].

(iv) Right to freedom of religion [Arts.25 to 28].

(v) Cultural and educational rights [Arts.29 to 31]. (Art.31 is repealed)

(vi) Saving of certain laws [Arts.31-A to 31-D]. (Art.31D is repealed)

(vii) Right to constitutional remedies [Art.32].

(All above rights are discussed under ‘Fundamental Rights’ below)

Right to property and other rights: Right to property is now a constitutional right under Article 300A and no more a fundamental right since 20.06.1979, in view of Article 19(f) being omitted by Constitution (Forty-fourth Amendment) Act, 1978. To hold property is a constitutional right in terms of Article 300A. It is also a human right. Right to hold property, therefore cannot be taken away except in accordance with the provisions of a statute [Lachhman Dass v. Jagat  Ram (2007) 10 SCC 448]. Other rights provided elsewhere in the Constitution are constitutional rights save and except fundamental rights provided under Articles 14 to 30 and 32.

Right to property is now considered to be not only a constitutional or a statutory right but also a human right, though it is not a basic feature of Constitution or a fundamental right. Even after right to property ceased to be a fundamental right, taking possession of or acquiring property of a citizen can take place only in accordance with “law” as per mandate of Art. 300-A i.e. such deprivation can be only by resorting to a procedure prescribed by a statute. – The same cannot be done by way of executive fiat or order or administrative caprice [Tukaram Kana Joshi v. MIDC (2013) 1 SCC 353].

9. Directive principles [Part-IV – Arts.36 to 51]:

Directive principles of State Policy are provided in Arts.36 to 51 to supplement fundamental rights and to secure a social order for the promotion of a welfare State and welfare of the people [Art.38(1)]. To implement the directives, Parliament may amend fundamental rights so long as basic structure and features of the Constitution are not disturbed. The provisions contained in Part-IV shall not be enforceable by any court but Directive principles laid down are nevertheless fundamental in the governance of the country and have to be given effect to by the State in making laws [Art.37]. Directive Principles and Fundamental rights supplement each other in aiming at the same goal or bringing about a social revolution and the establishment of a welfare State, which is envisaged in the Preamble [Ranjan Dwivedi v. Union of India AIR 1983 SC 624]. State shall strive to minimize inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different locations [Art.38(2)]. The following certain principles of Policy to be followed by the State as provided in Article 39 are —

(a) that the citizen, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

State shall —

(a) secure equal justice and free legal aid [Art.39A];

(b) take steps to organise village panchayats [Art.40];

(c) secure right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want [Art.41];

(d) make provision for just and humane conditions of work and maternity relief [Art.42];

(e)  secure for all workers a living wage, conditions of work ensuring a decent standard of life, etc. [Art.43];

(f)  take steps to secure participation of workers in management of industries [Art.43A];

(g)  endeavour to secure uniform civil code for the citizens [Art.44];

(h)  endeavour to provide early childhood care and education for all children until they complete the age of six years [Art.45];

(i)  promote educational and economic interests of scheduled castes, scheduled tribes and other weaker sections [Art.46];

(j)  to raise the level of nutrition and the standard of living and to improve public health [Art.47];

(k)  endeavour to organise agriculture and animal husbandry on modern and scientific lines [Art.48];

(l)  endeavour to protect and improve the environment and safeguard forests and wild life [Art.48A];

(m)  to protect every monument or place or object of artistic or historic interest declared to be of national importance [Art.49];

(n)  take steps to separate judiciary from executive in the public services of the State [Art.50];

(o)  endeavour to promote (i) international peace and security; (ii) maintain just and honourable relations between nations; (iii) foster respect for international law and treat obligations in the dealings of organized people with one another; and (iv) encourage settlement of international disputes by arbitration  [Art.51].

The social objective of equal justice under Article 39A and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid [Ranjan Dwivedi v. Union of India AIR 1983 SC 624]. State cannot be permitted to deny fundamental right to speedy trial to the accused on ground that State does not have adequate financial resources to incur necessary expenditure needed for improving administrative and judicial apparatus to ensure speedy trial [Brij Mohan Lal v. Union of India  (2012) 6 SCC 502]

10. Fundamental duties [Part-IVA – Art.51-A]:

Consequential fundamental duties are provided under Art.51-A. It shall be the duty of every citizen of India —

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g)  to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h)  to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i)  to safeguard public property and to abjure violence;

(j)  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;

(k)  who is a parent or guardian to provide opportunities for education to his child or ward between the age of six and fourteen years.

11. Other features:

(a) The Panchayats [Part-IX – Arts.243 to 243O];

(b)  The Municipalities [Part-IXA – Arts.243P to 243ZG];

(c)  The Scheduled and Tribal Areas for their administration and control as provided in Fifth Schedule and for administration of tribal areas in the States of Assam, Meghalaya, Tripura and Mizoram as provided in Sixth Schedule [Part-X – Arts.244 & 244A];

(d)   Finance, Property, Contracts and Suits [Part-XII – Arts.264 to 290A];

(e)  Borrowing by Government of India and by States [Part-XII – Arts.292 & 293];

(f)  Property, Contracts, Rights, Liabilities, Obligations and Suits [Part-XII – Arts.294 to 300];

(g)  Trade, Commerce and intercourse within the territory of India [Part-XIII – Arts.301 to 307];

(h)   Services under the Union and the States and Public Service Commissions [Part-XIV – Arts.308 to 323];

(i)    Tribunals [Part-XIVA – Arts.323A & 323B];

(j)    Elections [Part-XV – Arts.324 to 329];

(k)   Special provisions relating to certain classes (Scheduled Castes and Scheduled Tribes) [Part-XVI – Arts.330 to342];

(l)    Official Language of the Union, Regional Languages and Special Directives [Part-XVII – Arts.343 to 351];

(m)   Emergency provisions [Part-XVIII – Arts.352 to 360];

(n)    Amendment of the Constitution [Part-XX – Art.368].

12. Amendment of the Constitution:

Article 368 of the Constitution empowers Parliament to amend the Constitution and procedure therefor. Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of the Constitution by introduction of a Bill for the purpose in either House of Parliament. When the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill. The Constitution shall thereupon stand amended in accordance with the terms of the Bill. Changes in certain provisions of the Constitution like Articles 54, 55, 73, 162 or 241 or Chapter IV of Part-V, Chapter V of Part-VI or Chapter I of Part-XI or any of the Lists in the Seventh Schedule or the representation of States in Parliament or Article 368 itself, shall require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

Amendment of Constitution or any statute is imperative to keep pace with times, development and change in social conditions. Flexibility in any legalization is a must for otherwise there is always a fear of revolt and may head to stagnation in growth. However, for amendment of Constitution there is a strict regimen.

The issue of the scope of powers for amendment of the Constitution by the Parliament under Article 368 has been decided by the Apex Court in the case of His Holiness Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 overruling I.C. Golaknath v. State of Punjab AIR 1967 SC 1643. It is held that while fundamental rights cannot be abrogated, reasonable abridgements of fundamental rights can be effected in the public interest. Parliament can adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished while maintaining the freedom and dignity of every citizen. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:

(a) Supremacy of the Constitution;

(b)  Republican and Democratic form of Government;

(c)  Secular Character of the Constitution;

(d)  Separation of Powers between the Legislature, the Executive and the Judiciary;

(e)  Federal Character of the Constitution.

The above structure is built on the basic foundation, that is, the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.

The Parliament in its wisdom introduced section 55 of the Constitution (Forty-second Amendment) Act, 1976 inserting sub-sections (4) and (5) in Article 368 providing Parliament to be supreme and above the Constitution as under:

“(4)    No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of Section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.

(5)     For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”

The amendments were considered by the Apex Court in the case of Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789. Both the above sub-sections in Article 368 were declared as unconstitutional and void on the ground that it damages the basic structure of the Constitution and goes beyond the amending power of the Parliament.

Thus the supremacy of the Constitution, the fundamental rights and directive principles enshrined therein prevail. The basic features of the Constitution cannot be amended under Article 368. Nevertheless, since January, 1950 there have been so far about 100 amendments to the Constitution, amending many a Articles of the Constitution from time to time. But its basic structure has remained intact.

FUNDAMENTAL RIGHTS

Articles 14 to 30 and 32 in Part-III to the Constitution of India set out and confer the rights on the citizens of India and certain rights on all other persons also, like Articles 14, 20 to 28 and 30. Article 12 provides that State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 13 provides that the State shall not make any law which takes away or abridges the rights conferred by Part-III. Any law made in contravention of the rights conferred shall be void to the extent of the Constitution. Law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Laws in force include laws passed or made by the Legislature or other competent authority in the territory of India before the commencement of the Constitution, in so far as they are not inconsistent with the provisions of Part-III [Arts.12 & 13].

Law enacted must not be repugnant to Article 14. It must not violate the right to equality of the people of India and if such repugnancy prevails then, it shall stand void up to the level of such repugnancy under Article 13(2). Therefore, every law has to pass through the test of constitutionality, which is nothing but a formal name of the test of rationality [State of Uttar Pradesh v. Deepak Fertilizers & Petrochemical Corporation Ltd.  (2007) 10 SCC 342].

In Rustom Cawasjee Cooper v. Union of India (1970) 1 SCC 248, Supreme Court while considering that as to when a law violates fundamental rights, has held that  it is the effect of the law and of the action upon the right which attract the jurisdiction of the court to grant relief. The direct operation of the act upon the rights forms the real test.

In examining the validity of legislation, it is legitimate to consider whether the impugned legislation is a legislation directly in respect of the subject covered by any particular article of the Constitution, or touches the said article only incidentally or indirectly. If the test of direct effect and object which is sometimes described as the pith and substance test, is thus applied in considering the validity of legislation, it would not be inappropriate to apply the same test to judicial decisions to consider the validity of the legislation [Bachan Singh v. State of Punjab (1980) 2 SCC 684].

In the case of State of M.P. v. Rakesh Kohli (2012) 6 SCC 312, Apex Court has set out the principles that are to be followed for striking down of statute/enactment. These are: (i) presumption is always in favour of constitutionality of a law made by Parliament or a State Legislature, (ii) no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational unless some constitutional infirmity is established and found, (iii) court is not concerned with wisdom or unwisdom, justice or injustice of the law since Parliament and State Legislatures are supposed to be alive to the needs of people whom they represent and they are the best judge of the wants of the community, (iv) hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law, and (v) in the field of taxation, legislature enjoys greater latitude for classification.

Where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government [Ramana Dayaram Shetty v. The International Airport Authority of India AIR 1979 SC 1628]. The definition of State is not confined to a Government department and the Legislature, but extends to any action whether statutory or non-statutory, administrative action and judicial or quasi judicial action by any instrumentality or agency of Government or any public authority exercising statutory powers. Even a non-statutory authority exercising public functions may be a State. A private body performing State action may be State. In Ajay Hasia v. Khalid Mujib Sehravardi AIR 1981 SC 487 Supreme Court has laid down the tests for determining whether an entity is an instrumentality or agency of the State. Financial control by the Government, performance of public functions or Government activities, State control, monopoly status on corporation conferred by State, all or any one or combination of more than one of them is sufficient to determine the coverage as ‘State’ under Article 12.

Fundamental rights are not distinct and mutually exclusive rights [Maneka Gandhi v. Union of India (1978) 1 SCC 248]. Rights which are conferred and guaranteed against State, if breached, can be invoked by way of writ before Apex Court under Article 32, or before High Court under Articles 226, but not the violation of right by private individuals for which remedy in general law is available.

The following are the fundamental rights as provided in Part-III.

I. Right to equality:

1. Equality before law [Art.14]:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Equals have to be treated equally and unequals ought not to be treated equally [Motor General Traders v. State of Andhra Pradesh (1984) 1 SCC 222]. What the Constitution demands and expects is perfect equality between one section of the community and another in the matter of political and civil rights, equality of liberty and security in the enjoyment of the freedom of religion, worship and the pursuit of the ordinary applications of life. Enactment of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 creates equality before law of all persons including persons with disabilities. It is the right to equal treatment in similar circumstances. Discrimination is based on reasonable basis has been however upheld by the courts. The classification must not be arbitrary but must be rational to the object sought to be achieved and founded on intelligible differentia distinguishing those that are grouped together from others [R. Chitralekha v. State of Mysore AIR 1964 SC 1823; R.K. Garg v. Union of India (1981) 4 SCC 675; Atam Prakash v. State of Haryana AIR 1986 SC 859]. Any arbitrary or unreasonable action of State would be violative of Article 14.

Every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rule of law, the system which governs us. Article 14 applies also to matters of governmental policy. State action to escape wrath of Art.14 has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. State action must conform to norms which are rational, informed with reasons and guided by public interest [Natural Resources Allocation, In re, Special Reference No.1 of 2012 (2012) 10 SCC 1].  If the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness it would be unconstitutional. The requirement of Article 14 is the duty of the State to act fairly, justly and reasonably [Kumari Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212].

It is the duty of the State to act justly, fairly and transparently even where rules vest discretion in an authority. Rationality, reasonableness, objectivity and application of mind are prerequisites of proper decision making. Non-arbitrariness in governmental action is the core of our constitutional scheme and structure [Asha Sharma v. Chandigarh Admn. (2011) 10 SCC 86].

A valid classification is truly a valid discrimination based on a just objective. Result to be achieved by the just objective presupposes choice of some persons for differential consideration/treatment over others. Distinction should be based on classification founded on intelligible differentia which has a rational relationship with just objective sought to be achieved [Kallakkurichi Taluk Retired Officials Assn. v. State of T.N. (2013) 2 SCC 772; also see State of Rajasthan v. Shankar Lal Parmar (2011) 14 SCC 235]. The classification cannot be either based on no intelligible differentia, cannot be unreasonable or without a reasonable nexus with the object sought to be achieved [Rajbala v. State of Haryana (2016) 2 SCC 445].

Violation of principles of natural justice (audi alteram partem), would offend Article 14 [Cantonment Board, Dinapore v. Taramani Devi AIR 1992 SC 61]. Compliance of principles of natural justice must be observed unless expressly excluded. State contracts with private parties are covered under Article 14 as State has to act justly, fairly and reasonably even in commercial or contract field [Kumari Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212]. Unconscionable contracts entered into by the State would be covered by Article 14 [Central Inland Water Transport Corpn. v. Brojo Nath Ganguly (1986) 3 SCC 156]. Contractual decision must involve public law element [G.B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC 91].

Judicial notice is taken of fact that principles have now been extended even to contractual matters. Judicial review is wide enough to strike at the annul of any State action that is arbitrary, unguided whimsical, unfair and discriminatory.

Duty to act in a fair, reasonable, non-discriminatory and objective manner is a facet of the Rule of Law in a constitutional democracy like ours. An action that is arbitrary has no place in a polity governed by Rule of Law apart from being offensive of the equality clause guaranteed by Article 14 [State of Punjab v. Brijeshwar Singh Chahal (2016) 6 SCC 1].

2. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth [Art.15]:

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth or any of them. No citizen, on grounds only of religion, race, caste, sex or place of birth or any of them, shall be subject to any disability, liability, restriction or condition with regard to —

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b)  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.

The State, however, shall not be prevented from making any special provision for (i) women and children; or (ii) for the advancement of any socially and educationally backward classes of citizens; or (iii) for the Scheduled Castes and the Scheduled Tribes; or (iv) from making any special provision, by law, for the advancement of (a) any socially and educationally backward classes of citizens; or (b) for the Scheduled Castes; or (c) for the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions. Right of minorities to establish and administer educational institutions is provided in Article 30.

Article 15 is limited to citizens while Article 14 extends to all persons. While Article 14 provides for equality before law, Articles 15 and 16 protect the citizens against discrimination [State of Sikkim v. Surendra Prasad Sharma AIR 1994 SC 2342].

Article 15 provides the State to make special provision for women and children, socially and educationally backward classes of citizens, scheduled castes and scheduled tribes. There shall be no distinguishing one from the other unfavourably.

3. Equality of opportunity in matters of public employment [Art.16]:

There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. On grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, no citizen shall be ineligible or discriminated against in respect of any employment or office under the State. However, prior to such employment or appointment under the Government, or any local or other authority within a State or Union territory, Parliament shall not be prevented from making any law prescribing, in regard to a class or classes of employment or opportunity to an office, any requirement as to residence within that State or Union territory.

Nothing 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.

While Article 14 guarantees equality before law to all citizens, Articles 15 and 16 protect only the citizens. Articles 14, 15 and 16 are extensions of each other, equality before law, and equality in matter of public employment without any discrimination on grounds of religion, race, caste, sex or place of birth [State of Sikkim v. Surendra Prasad Sharma AIR 1994 SC 2342].

Reservations: The State shall also not be prevented from making any provision for the reservation or 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. The State may also make provision for reservation in the matters of promotion with consequential seniority to any class or classes of posts in the services under the State in favour of the Scheduled Castes or Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State. This Article prohibits discrimination amongst the citizens. Reservation in excess of 50% may be regarded as discriminatory [Triloki Nath Tiku v. State of Jammu & Kashmir AIR 1967 SC 1283]. State shall not be prevented from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for the reservation made as provided above, as a separate class of vacancies to be filled up, in any succeeding year or years. 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 50% reservation on total number of vacancies of that year.

Policy decision falls within exclusive domain of legislature/executive and cannot be subject-matter of judicial review, unless found to be arbitrary, unreasonable or fixed without keeping in mind the nature of service for which appointments are to be made, or found to have no rational nexus with the object(s) sought to be achieved by the statute [State of Gujarat v. Arvindkumar T. Tiwari (2012) 9 SCC 545].

This Article aims at empowerment of backward classes. It provides for employment or appointment to an office under the State. In the areas of high level of skill, intelligence and where intelligence is required, reservation is not permissible.  The relevancy and significance of merit cannot be ignored [Indra Sawhney v. Union of India AIR 1993 SC 477].

4. Abolition of untouchability [Art.17]:

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.

Practice of untouchability in any form is banned. In this regard Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Prevention of Civil Rights Act, 1955 have been enacted. However, social boycott based on conduct is not untouchability.

5. Abolition of titles [Art.18]:

No title, not being a military or academic distinction, shall be conferred by the State. No citizen of India shall accept any title from any foreign State. No person who is not a citizen of India, while he holds any office of profit or trust under the State, shall accept without the consent of the President any title from any foreign State. No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

This Article abolishes titles. But for military or academic distinction, this Article creates no right to receive any title either from the State and none from any foreign State not even present or emolument, if he holds office of profit under the State.

II. Right to freedom:

1. Protection of certain rights regarding freedom of speech, etc. [Art.19]:

All citizens shall have the right —

(a) to freedom of speech and expression;

(b)  to assemble peaceably and without arms;

(c)  to form associations or unions;

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

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

(f)  to acquire, hold and dispose of property; [this fundamental right to acquire, hold and dispose of property has been omitted by Constitution (Forty-fourth Amendment) Act, 1978 w.e.f. 20.06.1979 and instead clause 300A has been inserted to provide for persons not to be deprived of property save by authority of law as a Constitutional right]

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

Fundamental right of freedom of speech is inherently guaranteed to every citizen under Article 19(1)(a) [Alagaapuram R. Mohanraj v. Tamil Nadu Legislative Assembly (2016) 6 SCC 82].

When reasonable restrictions permissible: State is however, not prevented from imposing reasonable restrictions on the exercise of:

(i)    the right of freedom of speech and expression under clause (a) above, in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement of an offence;

(ii)   the right to assemble peaceably and without arms under clause (b) above, in the interests of the sovereignty and integrity of India, or public order;

(iii)  the right to form association or unions under clause (c) above, in the interests of the sovereignty and integrity of India, or public order or morality;

(iv)  right to move freely throughout the territory of India under clause (d) above, and to reside and settle in any part of the territory of India under clause (e) above, either in the interests of the general public or for the protection of the interests of any scheduled tribes;

(v)   right to practice any profession under clause (g) above, in the interests of the general public.

Nothing shall prevent the State from making any law relating to —

(a)   the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; or

(b)   the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service whether to the complete or partial exclusion of citizens or otherwise.

Once a right is said to be infringed under Article 19 then State has to prove that the restriction falls within limits of preamble as set out for each of the right listed in Article 19. While it is true that Article 19 guarantees the freedom to practice any profession, it is open to the State to make a law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right [C. Venkatachalam v. Ajitkumar C. Shah (2011) 9 SCC 707]. In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India (1985) 1 SCC 641, Apex Court has laid down the extent of restrictions to be imposed by State under Article 19. Also in Bishambhar Dayal Chandra Mohan v. State of U.P. (1982) 1 SCC 39, Apex has set out tests for determination of reasonable restrictions. The expression “reasonable restriction” signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. Broadly the test is a balance between social control and right of an individual. All depends upon the nature of right infringed and object or purpose sought to be achieved by restriction.

Associations of citizens cannot lay claim to rights not open to citizens, or claim freedom from restrictions to which the citizens composing it are subject [All India Bank Employees v. National Industrial Tribunal AIR 1962 SC 171].

2. Protection in respect of conviction for offences [Art.20]:

No person shall be convicted of an offence except for violation of 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. No person shall be prosecuted and punished for the same offence more than once. No person accused of any offence shall be compelled to be a witness against himself.

Double jeopardy: This Article protects conviction, but excludes violation of law, and protects levy of penalty greater than that which might have been inflicted under the law in force at the time of the commission of the act charged as an offence. This Article also prohibits repeated or successive conviction for same offence, that is, no person shall be subject to double jeopardy for same offence. Even a company or corporation is covered by this Article. This Article merely covers penal legislation providing protection against prosecution and penalty, restricting penalty that is provided in law in force. Prosecution would not include departmental proceedings.

3. Protection of life and personal liberty [Art.21]:

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

This Article covers every person and not merely a citizen. To live with human dignity is the basis of this Article and therefore with developed case law it covers wide ranges relating to protection of life. Protection of life covers right to food, water, clean environment, education, medical care, reasonable shelter, free legal aid, privacy, speedy and fair trial, natural justice and so on and so forth.

This fundamental right under Article 21 and the fundamental right under Article 20 cannot even be suspended on proclamation of emergency under Article 352 [Art.359].

4. Right to education [Art.21-A]:

This right was introduced by Constitution (Eighty-sixth Amendment) Act, 2002.

The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

In pursuance of this Article, Right to Education Act, 2009 has been enacted to further the right to free and compulsory education for the children belonging to weaker section and disadvantage group between the age from 6 to 14 and for education from class I to class VIII.

The Human Rights Conventions have imposed a duty on the Contracting States to set up institutions of higher education which would lead to the conclusion that the citizens thereof should be afforded an effective right of access to them. In a democratic society, a right to education is indispensable in the interpretation of right of development as a human right [Leyla Sahin v. Turkey (decided by European Court of Human Rights on 10.11.2005) and referred in Election Commission of India v. St. Mary’s School (2008) 2 SCC 390]. The right to development is also considered to be a basic human right under Articles 21 and 21A.

Sustainable development, includes preservation/protection of historical/archaeological/monumental wealth for future generations. The right to development includes the whole spectrum of civil, cultural, economic, political and social processes for the improvement of people’s well-being and realisation of their full potential [K. Guruprasad Rao v. State of Karnataka (2013) 8 SCC 418].

5. Protection against arrest and detention in certain cases [Art.22]:

Persons determined or arrested under a law either than under Preventive Detention Law: No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest nor shall be denied the right to consult and to be defended by a legal practitioner of his choice. Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. This right shall not be applicable to any person who for the time being is an enemy alien, or to any person who is arrested or detained under any law providing for preventive detention.

In Khudiram Das v. West Bengal AIR 1975 SC 550, the Supreme Court held that the constitutional imperatives enacted in Article 22(5) are two-fold: (i) The detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order has been made; (ii) the detaining authority must afford the detenu the earliest opportunity of making a representation against the detention order and that these two are the barest minimum safeguards which must be observed before an executive authority can preventively detain a person for otherwise detention is violative of Article 22 [also see Hasmukh S/o Bhagwanji M. Patel v. The State of Gujarat AIR 1981 SC 28]. Similarly he has a right to be defended by a legal practitioner of his choice with right to legal aid under Article 21 as Article 22 is an extension of right to protection of life and personal liability under Article 21.

Preventive detention: Preventive detention of a person shall not be longer than three months unless an Advisory Board has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention or such person is detained in accordance with the provisions of any law made by Parliament.

In case of preventive detention, the authority making such order, (i) shall communicate, as soon as may be, to such person the grounds on which the order has been made, and shall (ii) afford him the earliest opportunity of making a representation against the order [Shalini Soni (Smt.) v. Union of India (1980) 4 SCC 544]. The authority shall not be required to disclose facts which such authority considers to be against the public interest to disclose.

[The period of detention of three months was to be reduced to two months with other consequent changes by Constitution (Forty-fourth Amendment) Act, 1978, but this amendment has not yet been notified.]

Law as to preventive detention cannot conflict with right to protection of life and personal liberty under Article 21. Safeguards are therefore to be adhered to in preventive detention. Legislature is permitted to impose minimum possible curbs on the precious rights of a citizen under Article 21 by virtue of preventive detention. Article 22 provides for constitutional safeguards by allowing the detenu to make ‘effective representations’ and a real and meaningful opportunity to explain his case to the detaining authority [Kamla Kanhaiyalal Khushalani v. State of Maharashtra AIR 1981 SC 814]. In that sense, Article 21 supplements the requirements of preventive detention. The court has time and again given the expression ‘personal liberty’ its full significance and asserted how valuable, cherished sacrosanct and important the right of liberty given to an individual in the Constitution was and yet legislative power to enact preventive detention laws has been upheld in the larger interest of State security [Dropti Devi v. Union of India (2012) 7 SCC 499].

Advisory Board: Advisory Board shall consist of persons who are, or have been, or are qualified to be appointed as Judges of a High court. Advisory Board shall hold an inquiry in accordance with the procedure prescribed by Parliament.

Law made by Parliament:

Parliament may by law prescribe —

(a) the circumstances under which, and the class or classes of case in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board;

(b)  the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

(c)  the procedure to be followed by an Advisory Board in an inquiry.

III. Right against exploitation:

1. Prohibition of traffic in human beings and forced labour [Art.23]:

Traffic in human beings and beggar and other similar forms of forced labour are prohibited. However, State may impose compulsory service for public purposes. In imposing such service, the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Legislations enacted like Immoral Traffic (Prevention) Act, 1956 in women, girls and children and Bonded Labour System (Abolition) Act, 1976 relating to bonded labour are steps taken in pursuance of this Article.

2. Prohibition of employment of children in factories, etc. [Art.24]:

No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any hazardous employment.

The Child Labour (Prohibition & Regulation) Act, 1986 is the law enacted in furtherance of this Article.

IV. Right to freedom of religion:

1. Freedom of conscience and free profession, practice and propagation of religion [Art.25]:

All persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion, subject to public order, morality, health and other applicable provisions. However, State may make any law —

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b)  providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Hindus shall be construed as including the Sikh, Jaina or Buddhist religion.

The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

This Article and later Articles 26 to 28 promote Secularism, one of the pillars enshrined in the Preamble to the Constitution promoting India as a secular country.

Right to religious worship and right to communicate religious beliefs are included. However, the right is restricted to public order, morality, health and any other applicable provision of law. State is empowered to regulate this right as other secular activity.

2. Freedom to manage religious affairs [Art.26]:

Every religious denomination or any section thereof, subject to public order, morality and health, shall have the right —

(a) to establish and maintain institutions for religious and charitable purposes;

(b)  to manage its own affairs in matters of religion;

(c)  to own and acquire movable and immovable property; and

(d)  to administer such property in accordance with law.

This Article applies to institutions professing religion unlike provisions of Article 25 which applies to individuals.

3. Freedom as to payment of taxes for promotion of any particular religion [Art.27]:

No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

4. Freedom as to attendance at religious instruction or religious worship in certain educational institutions [Art.28]:

No religious instructions shall be provided in any educational institution wholly maintained out of State funds. However, this provision would not apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.

No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto, unless such person or, if such person is a minor, his guardian has given his consent thereto.

V. Cultural and educational rights:

1. Protection of interests of minorities [Art.29]:

Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

It is significant to note that though word ‘minorities’ appear in marginal note, the body of Article 29 has no reference to ‘minorities’ only. It therefore applies to any section of the citizens whether in minority or majority residing at any place in the State.

2. Right of minorities to establish and administer educational institutions [Art.30]:

All minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice. While making the law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, the State shall ensure that the amount fixed by or determined under any such law for the acquisition of such property, is such as would not restrict or abrogate the right so guaranteed. In granting aid to educational institutions, the State shall not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

This Article is confined to minorities. However, it is not restricted to language or religion, script or culture unlike Article 29. This Article confers right on minorities to establish and administer any educational institution.

Minorities belong to certain ethnic, religious or linguistic sect, who are permitted by Constitution to practice and profess their own religion, culture and language, subject to such laws as enacted by the State without discrimination.

VI. Right to constitutional remedies:

1. Remedies for enforcement of above rights [Art.32]:

The right to move the Supreme Court by appropriate proceedings for the enforcement of the above rights conferred by Part-III is guaranteed. Supreme Court shall have power to issue directions, or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the enforcement of any of the fundamental rights conferred by Part-III. Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court. This right guaranteed shall not be suspended except as otherwise provided for by this Constitution.

Only fundamental rights can be enforced under Article 32 before Supreme Court. High Courts have concurrent jurisdiction under Article 226 of the Constitution. However, Supreme Court will not interfere with the policy matters unless the action is unconstitutional or contrary to statutory provisions or arbitrary, irrational or in abuse of power [W.B. Housing Board v. Brijendra Prasad Gupta (1997) 6 SCC 207]. Compensation can be granted under public law by Supreme Court and by High Court in addition to private law remedy for tortuous action and punishment to wrongdoer under criminal law  [D.K. Basu v. State of West Bengal (1997) 1 SCC 416].

[Also see ‘Jurisdiction and Powers of Supreme Court to issue writs’ under ‘Writs’]

Saving of certain laws & powers of Parliament:

Saving of laws providing for acquisition of estates, etc. [Art.31-A]:

Notwithstanding laws declared void in so far as they are inconsistent with or in derogation of fundamental rights as provided in Article 13, no law providing for —

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights; or

(b)  the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property; or

(c)  the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations; or

(d)  the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers or corporations, or of any voting rights of shareholders thereof; or

(e)  the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence;

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 (equality before law) or Article 19 (protection of certain rights regarding freedom of speech, etc.). Any law therefore enacted for above purposes shall not be deemed to be void on account of violation of either Article 14 or Article 19 unless such enactment is unconscionable.

The above provisions shall apply on receipt of assent of the President, where such law is made by the Legislature of the State. In case of law made for the acquisition by the State of any estate wherein land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land or any building or structure standing thereon or appurtenant thereto, when such land is within the ceiling limit applicable to him under any law for the time being in force, unless the law relating to the acquisition of such land, building or structure provides for payment of compensation at a rate which shall not be less than the market value thereof. Thus, for, acquisition of any estate by State, compensation at market rate needs to be provided for otherwise such acquisition is deemed to be void and liable to be declared so.

2. Validation of certain Acts and Regulations [Art.31-B]:

Ninth Schedule sets out list of Acts and Regulations. None of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred herein, and notwithstanding any judgement, decree or order of any court or tribunal to the contrary. Each of the Acts and Regulations set out in the Ninth Schedule shall continue in force, subject to the power of any competent Legislature to repeal or amend it. This is without prejudice to the saving of laws provided under Article 31-A.

3. Saving of laws giving effect to certain Directive Principles [Art.31-C]:

No law giving effect to the policy of the State towards securing all or any of the directive principles set out in Articles 36 to 51 (Part-IV) (discussed above under ‘Features’) shall be deemed to be void on the ground that it is inconsistent with, or takes away any of the rights conferred by Article 14 (equality before law) or Article 19 (protection of certain rights regarding freedom of speech, etc.). No law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy, notwithstanding such laws being inconsistent with or in derogation of fundamental rights as provided in Article 13.

The above provisions shall apply on receipt of the assent of the President, where such law is made by the Legislature of the State. The fundamental right and directive principles supplement each other for welfarity of the State.

4. Power of Parliament to modify the rights conferred by this Part-III, in application to forces, etc. [Art.33]:

Parliament may, by law, determine to what extent any of the above rights shall be applicable to —

(a) the members of the Armed Forces; or

(b)  the members of the Forces charged with the maintenance of the public order; or

(c)  persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence; or

(d)  persons employed in, or in connection with, the telecommunication systems set up for the purposes of any of the above force, bureau or organization.

Parliament has the right to restrict or abrogate any of the above rights, so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

5. Restrictions on the rights conferred by this Part-III while martial law is in force in any area [Art.34]:

Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

6. Legislation to give effect to the provisions of this Part-III [Art.35]:

Parliament shall have power to make laws —

(a) with respect to a class or classes of employment or appointment to any office under the Government of, or any local or other authority within, a State or Union territory in regard to any requirement as to residence within the State or Union territory prior to such employment or appointment under Article 16(3);

(b)  empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court to issue directions or orders or writs for the enforcement of any of the rights conferred by Part-III under Article 32(3);

(c)  to modify the rights conferred by Part-III in their application to Armed Forces, bureau or organization relating to intelligence or counter intelligence or for persons employed in telecommunication systems under Article 33;

(d)  to put restrictions on the rights conferred by Part-III while martial law is in force in any area under Article 34; and

(e)  for prescribing punishment for those acts which are declared to be offences under Part-III and make laws for prescribing punishment for acts declared to be offences.

Legislature of State shall not have the above powers. Any law in force immediately before the commencement of this Constitution in the territory of India for which Parliament has power to make above laws under Article 35, subject to any adaptations and modifications that may be made, shall continue to be in force until altered or repealed or amended by Parliament.

Amendment of Constitution [Art.368]:

(See this under ‘Features’ above)

Directive Principles:

(Part-IV — Articles 36 to 51)

(See this under “Features” above)

Fundamental duties:

(Part-IVA — Article 51-A)

(See this under ‘Features’ above)

WRITS

Law as to issue of writs by Supreme Court and High Courts is laid down in Articles 32 and 226 of the Constitution:

Purpose of issue of writs:

Breach of fundamental rights or legal rights requires to be remedied. A citizen/any aggrieved person, as the case may be, suffering legal injury or who apprehends legal injury, has a fundamental right to move Supreme Court under Article 32 of the Constitution for breach of any fundamental right under Articles 14 to 30.

Concurrent right is vested with High Courts under Article 226 of the Constitution which is a wider right to issue writ for any other purpose. High Court can be approached by any citizen/aggrieved person, as the case may be, within whose jurisdiction the legal injury has occurred for remedy by issue of a writ depending upon the nature of legal injury caused both for breach of his fundamental right or any legal right whether under the Constitution or any statute against State, Government or any authority performing public or statutory function, provided in case of breach of any other legal right such a person has no alternative and efficacy remedy under the applicable statute. However, in case of breach of only legal right not including breach of any fundamental right, the powers of High Court are discretionary unlike under Article 32 or for breach of any fundamental right under Article 226, where Supreme Court and High Courts are bound to grant relief if breach or violation thereof is established.

Every authority is expected to act within the Constitution and applicable statute failing which his act is subject to judicial review by Supreme Court or High Court as the case may be. Basic principle of Constitution is maintenance of democracy, its objects enshrined in its Preamble and rule of law.

Jurisdiction and powers of Supreme Court to issue writs:

Parliament may by law confirm the Supreme Court power to issue directions, or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari or any of them for any purposes other than those mentioned in Article 32 [Art.139].

Article 32 of the Constitution of India guarantees the right to move the Supreme Court for enforcement of the fundamental rights. The Supreme Court has power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari in appropriate cases on the petition of the aggrieved party for breach or violation of any or more of his fundamental right. The power to enforce the rights is vested with Supreme Court by issue of writ, direction or order to the Union Government or the State or any statutory authority performing public function covered under Article 12 of the Constitution. Only a citizen can invoke his remedy for breach of fundamental right under Articles 15, 16, 19 or 29. Any other person can invoke other fundamental rights except under Articles 15, 16, 19 or 29.

Under Article 32(3) and Article 35(a)(i), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Article 32(2). Under Article 32, a citizen or a person, as the case may be, seeks enforcement of fundamental right guaranteed under Part-III, if impugned law is beyond the legislative competence or when guaranteed fundamental rights are breached.

Only an aggrieved person who suffers a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action can approach Supreme Court under Article 32. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress  [S.P. Gupta v. President of India (1981) Supp (1) SCC 87]. For maintaining petition under Article 32, petitioner must show infraction of any of the fundamental right guaranteed under Part-III [Alagaapuram R. Mohanraj v. Tamil Nadu Legislative Assembly (2016) 6 SCC 82].

In the case of Prem Chand Garg v. Excise Commissioner, U.P. AIR 1963 SC 996, Apex Court has held that the Constitution has guaranteed by Article 32(1) the right to move this Court for enforcement of fundamental rights. The right to move the Supreme Court for enforcement of the fundamental rights is itself made a fundamental right. Law which is repugnant to the effective exercise of the right to move the Supreme Court in enforcement of the rights under Part-III, therefore to the extent of inconsistency or contravention would be void.

In the case of Rashid Ahmed v. The Municipal Board, Kairana AIR 1950 SC 163, Supreme Court has held that there can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting, writs, but the powers given under article 32 are much wider and are not confined to issuing prerogative writs only. Where the petitioner’s fundamental rights have been infringed, he is entitled to have his grievance redressed.

Writ will be against the State or Government, Legislature, statutory bodies, local or other authorities and persons charged with public duties. Powers of Supreme Court under Article 32 have no territorial limitation. The jurisdiction of Supreme Court extends within territory of India and extends to authorities under the control of Government of India, but functioning outside territory of India.

Supreme Court shall, to the exclusion of any other court, have:

(i) original jurisdiction in any dispute —

(a)   between the Government of India and one or more States; or

(b)   between the Government of India and any State or States on one side and one or more other States on the other; or

(c)   between two or more States.

The dispute may involve any question (whatever of law or fact) on which the existence or extent of a legal right depends;

(ii)  appellate jurisdiction in appeal from any judgement, decree or final order of a High Court in the territory of India;

(a)   whether in civil or criminal proceeding on substantial question of law as to interpretation of Constitution certified by High Court under Article 134-A;

(b)   in civil matters, where party may urge that a substantial question of law as to interpretation of Constitution has been wrongly decided;

(c)   in criminal matters, where High Court on appeal has reversed an order of acquittal of the accused and sentenced him to death, or withdrawn the trial before itself and has convicted the accused and sentenced him to death;

(iii)  Parliament may by law provide for appeal to lie before Supreme Court from judgement, decree or final order of one judge of a High Court [Arts. 132 to 135].

Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer [Art.138]. Law declared by Supreme Court shall be binding on all courts within the territory of India [Art.141].

Article 142 provides that Supreme Court may pass such decree or order necessary for doing complete justice. Any decree or order so made shall be enforceable throughout the territory of India. Enforcement extends to matters in which orders though passed by Supreme Court are yet to be implemented, particularly when such orders are necessary for doing complete justice between parties. Supreme Court could not be said to have become functus officio after passing the order which was to be implemented [Supreme Court Bar Assn. v. B.D. Kaushik (2012) 6 SCC 152].

Review:

The Supreme Court shall have power to review any judgement pronounced or order made by it [Art.137]. In Kamlesh Verma v. Mayawati (2013) 8 SCC 320, Apex Court has summarised following principles as to when Review is maintainable —

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii)  Mistake or error apparent on the face of the record;

(iii)  Any other sufficient reason. The words “any other sufficient reason” has been interpreted in Chhajju Ram v. Neki AIR 1922 PC 112 and approved by Apex Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius (1955) 1 SCR 520, to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. JT 2013 (8) SC 275.

Review lies only on discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him, mistake or error apparent on the face of the record or any other sufficient reason, which means a reason sufficient on grounds, at least analogous to those specified in the Rule [Union of India v. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC 337].

Supreme Court may, in its discretion grant special leave to appeal from any judgement, decree, determination, sentence or order in any case or matter passed or made by any court or tribunal in the territory of India, except those constituted by or under any law relating to the Armed Forces [Art.136].

[See this under ‘Special Leave Appeals’ below]

Jurisdiction and powers of High Court to issue writs:

There shall be High Court in each State [Art.214]. High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself [Art.215]. The jurisdiction of, and the law administered in, any existing High Court and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of the court and to regulate the sittings of the court and of members thereof sitting alone or in division courts, shall be the same as immediately before the Constitution [Art.225].

Every High Court, under Article 226 of the Constitution shall have power, throughout the territory in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari or any of them for the enforcement of any of the fundamental rights conferred by Part-III and for any other purpose, when any fundamental right, or any legal right is infringed or on reasonable apprehension of fundamental right being infringed within its territorial jurisdiction. The power of the High Court in exercising its jurisdiction may also be exercised in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. The High Court has also the powers to issue interim orders. The powers vested in High Court under Article 226 shall not be in derogation of the power conferred on the Supreme Court under Article 32 [Art.226]. The jurisdiction conferred on High Court under Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of the statute and they need to be enforced as urgently and vigorously as fundamental rights [Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802]. But relief given by High Court may be disallowed by Supreme Court. High Court under Article 226 is not an appellate Court on the administrative decision taken by the authorities. It cannot interfere  in the absence of any illegality, want of jurisdiction or non-violation of any law or rules  [Pratibha Co-operative Housing Society Ltd. v. State of Maharashtra 1991 AIR SC 1453; G.B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC 91]. In Radhey Shyam v. Chhabi Nath 2015 (5) SCC 423, Supreme Court has held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 and that a writ of mandamus does not lie against a private person not discharging any public duty.

In the event of alternative statutory remedy available, High Court will generally not interfere under Article 226.

Other rights: Several rights are conferred by the Constitution or other statutory enactments or even flowing from customs or contract which can be summarised as under:

(i) fundamental rights under the Constitution;

(ii)  constitutional rights not having the status of fundamental rights;

(iii)  statutory rights;

(iv)  rights flowing from sub-ordinate legislation;

(v)  rights based on case law;

(vi)  customary rights;

(vii)  contractual rights;

(viii)  rights flowing from notifications and orders issued by Parliament or Legislature.

Power of superintendence: Every High Court shall have power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. However, High Court shall not have power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces [Art.227].

This power is vested in High Courts to ensure that all institutions exercise their powers and discharge their duties fairly and in accordance with law. High Court has both judicial and administrative powers. While exercising supervisory power, the High Court does not either sit in appeal or reviews the evidence or correct errors of fact or law. It only supervises that the authority has acted within framework of law, carries out its required duty in a legal manner. Power is restricted to judicial superintendence.

Under Article 227 while exercising superintendence over all courts and tribunals, High Court is in a revisional jurisdiction. No Letters Patent appeal lies for order passed by a single Judge in exercise of revisional jurisdiction. In the exercise of this jurisdiction the High Court can set aside or ignore the findings of fact of an inferior court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the court or tribunal who has come or in other words it is a finding which was perverse in law [Mani Nariman Daruwala Alias … vs Phiroz N. Bhatena AIR 1991 SC 1494].

Writ of Habeas Corpus:

This writ provides for relief against unlawful restraint on liberty. The court directs the person or authority who has detained another person to bring the detained person before the court so that court may decide validity, power and justification of such detention. Anyone can apply for this writ before Supreme Court under Article 32 and under Article 226 of High Court. Application can be accompanied by affidavit of any other person, may be a friend or a relative or any interested person, if the detained person is unable to make the affidavit.

A person who is illegally detained or imprisoned without legal proceedings is entitled to seek remedy of release by a writ of habeas corpus. Illegal detention is violative of fundamental rights under Articles 21 and 22. Even preventive detention has to pass the test of Article 22. Detention can be challenged on different grounds like, lack of authority, condition precedent for detention does not exist, malafide order, non-application of mind without any reasons or grounds that are vague, irrelevant, extraneous or non-existent, without supplying to the detenue grounds of detention or failure to refer the case of detenue to Advisory Board.

Writ of Mandamus:

By this writ, a person is compelled to do an act which in law or under statute he is duty bound to perform but he refrains or refuses to perform. Respondent is obliged to perform a public or statutory duty pertaining to his office in respect of which Petitioner has a right to claim performance of such a duty. Mandamus is effective remedy for enforcement of fundamental, constitutional and other legal rights.

Mandamus can be granted, where the Petitioner has a legal right to enforce performance of a legal duty against the Respondent. Only aggrieved party can apply. Application should be bonafide against Respondent who has refused to perform his statutory duty. Mandamus cannot be issued to resolve private dispute or for enforcement of the general law of the land or money claim. The right of applicant must be legally enforceable against statutory or quasi judicial authority or administrative authority performing public duty. No declaration of a right can be sought but only enforcement of a legal right of Applicant. Mandamus lies against Legislature, Government, courts and tribunals, statutory, quasi judicial and local bodies, public organization and educational institutions created by statute or aided by Government, banks, tax authorities and administrative authorities performing public duties.

Writ of Prohibition:

Writ of prohibition prohibits judicial or quasi judicial authority from exceeding its jurisdiction or when it exercises jurisdiction not vested in it. It prohibits the authority from continuing with a proceeding for want of jurisdiction or contrary to statute. This writ does not lie against an authority acting in administrative or executive capacity or against a private individual. If fundamental right is infringed by impugned action of authority, writ of prohibition can be issued.

Writ of Certiorari:

Writ of certiorari is a writ restraining the judicial or quasi judicial authority from acting illegally or beyond the limits of its jurisdiction. Writ of certiorari is supplementary to writ of prohibition as writ of certiorari can also be issued when authority acting judicially acts in excess of its legal authority. By writ of certiorari decision of authority is quashed where decree or order is passed without jurisdiction or contrary to statutory provisions or is violative of fundamental rights. When judicial or quasi judicial authority fails to comply with principles of natural justice or passes orders without reasons and contrary to records, is preserve, arbitrary, malafide and beyond powers, or error of law is apparent on face of record, such orders are liable to be quashed by writ of certiorari. Only the party whose rights are affected can apply under Article 32 or under Article 226 before Supreme Court or High Court respectively. There should be no alternative and effective remedy available to the aggrieved party under the statute breaching his legal right.

Writ of Quo-warranto:

When appointments are made to public offices or office of a public nature or an independent office of substantive character by executive action against statutory provisions, judicial remedy lies by application under Article 32 before Supreme Court or under Article 226 before High Court for writ of quo-warranto against such occupier of a public office. Quo-warranto writs are generally invokved in public offices like elections, etc. It must be a public office. The writ of quo-warranto gives the judiciary a weapon to control the executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the executive or by the reason of its apathy. Before a person can effectively claim a writ of quo warranto, he has to satisfy the court that the office in question is a public office and is held by a usurper without legal authority [University of Mysore v. C.D. Govinda Rao AIR 1965 SC 491].

SPECIAL LEAVE APPEALS

Special leave to appeal to Supreme Court:

Supreme Court may, in its discretion, grant Special Leave to Appeal (SLP) from any judgement, decree, determination, sentence or order in any cause of matter passed or made by any court or tribunal in the territory of India. However, this provision shall not apply to any judgement, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces [Art.136].

Right to file Special Appeal before Supreme Court under certain conditions only is different from ordinary appeals to Supreme Court under Articles 132 to 135. Right under Article 136 is therefore notwithstanding right of appeal under Articles 132 to 135.

Supreme Court has a right to grant to aggrieved party, from miscarriage of justice, right to file Special Leave Petition to appeal to Supreme Court against orders of courts and tribunals passed within territory of India. Supreme Court grants special leave against any judgement, decree or order made by any court or tribunal in any cause. It is a discretionary power of Supreme Court and no party can claim to file SLP as a matter of right. This power is extraordinary and exercised only in exceptional cases.

Power of Supreme Court to issue directions under Art.136 is similar to those issued under Art. 32. Supreme Court has powers under Article 32 to issue directions which may appear to be contrary to statute operating in the particular field. The ratio of issuing such directions under Article 32  can be aptly applied for deciding appeals arising out of petitions filed under Art.136 [K. Guruprasad Rao v. State of Karnataka (2013) 8 SCC 418].

By virtue of this Article, Supreme Court can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases, where special circumstances are shown to exist. In Pritam Singh v. The State AIR 1950 SC 169, Supreme Court indicated the nature of these limitations with regard to the exercise of its discretion under Article 136 by observing that Supreme Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against [also see Chandi Prasad Chokhani v. The State of Bihar AIR 1961 SC 1708].

Special Leave Petition can also be filed from interim or interlocutory orders of any court or tribunal provided it touches the conscience of the court that interim order is passed by any court or tribunal would cause grave injury of justice and irreparable loss and prejudice to the applicant. Ordinarily finding of fact is not entertained, save and except, where legal right infringed is of grave magnitude in interlocutory orders. Exercise of power by courts or tribunals in excess or without jurisdiction or failing to exercise jurisdiction vested in it is a good cause for granting special leave to appeal. Breach of principle of natural justice or findings are unreasonable and perverse resulting into miscarriage of justice are other good grounds for granting special leave to appeal.

NATURAL JUSTICE

Rule of law is to prevail. Following statutory law, authorities conducting themselves within statutory principles fairly and justly is one facet of rule of law. To do justice is primary base of respecting law. Justice by following dictum of statutory provisions or law being first important facet of law would shade away in obscurity, if principles of natural justice are not followed, which are not only primary but simple and elementary. By following these simple principles of natural justice, justice is then not only done but is seen to have been manifestly and undoubtedly done.

To prevent miscarriage of justice, natural justice has its roots in Constitutional and Administrative Law. Natural justice has no definition. It can only be practiced in the cause of justice. Its concept differs in even situation, in circumstances and in the facts of a case. It has different application concept, but has its roots in every civil society to uphold majesty of law. As customs is accepted and enforced so is also basic principles of natural justice inherently embodied in legal justice. Even if there are no specific words in the statute requiring the observance of rules of natural justice, yet justice at common law requires compliance of principles of natural justice, unless expressly excluded by statute, which would, in the absence of observance thereof, be open to judicial scrutiny. The rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of the land but supplement it [A.K. Kraipak v. Union of India AIR 1970 SC 150]. Every judicial or quasi judicial authority is bound by principles of natural justice. These principles are:

(i) a person will be given by way of notice an opportunity to show cause for any contemplated adverse action against such person under any law;

(ii)  a person will be given a far opportunity to file his say to such show cause;

(iii)  a person will be given a reasonable opportunity to be heard and to present his case;

(iv)  a person will have a right to support his case by any document admissible in evidence and meet any evidence against him, which material must be disclosed;

(v)  hearing with impartiality with authority having no bias, personal, pecuniary or official or any other interest in the cause he is adjudicating upon;

(vi)  order to be made by authority hearing or adjudicating any matter, as this power cannot be delegated.

No man can be a judge in his own cause is the hallmark of natural justice.

The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. This principle was laid down by this Court in the State of Orissa v. Dr. (Miss) Binapani Dei AIR 1967 SC 1269 in the following words:

“The rule that a part to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to Judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.”

In Maneka Gandhi v. Union of India (1978) 1 SCC 248 it is held that it is the duty of every authority to give an individual a reasonable opportunity to be heard even if there is no specific provision in a statute or rules made there under to show cause against action proposed to be taken. The compulsion of hearing before passing the order is implied in the maxim “audi alteram partem” which applies to courts, tribunals and all other judicial and quasi judicial authorities performing judicial or adjudicating functions. The compliance of principles of natural justice have been also extended to apply even to administrative action which involves civil consequences, punitive or damaging action as is held in Maneka Gandhi’s case (supra). “Audi alteram partem” means no man shall be condemned without being heard. Both sides must be heard before any order is passed. Giving of notice and hearing are too elements of maxim “audi alteram partem”.

Representations through a lawyer cannot be claimed as a right unless such a right is conferred by the statute [H.C. Sarin v. Union of India AIR 1976 SC 1686]. Principles of natural justice amongst other adjudication, apply to educational institutions, disciplinary proceedings, election disputes, taxation authorities whether it is direct or indirect taxation, labour law proceedings.

Article 311(2), providing for dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State, sets out that no person, who is a member of a civil service of the Union or on all-India service or a civil service of a State or holds a civil post under the Union or State, shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and is given a reasonable opportunity of being heard in respect of those charges. Thus Article 311 of Constitution incorporates the principles of natural justice.

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