Indian Polity (Part-1) for G.S.-II_28f1a264-6d4d-498e-b7a4-a6cfa1574962.pdf

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INDIAN
POLITY
Mains examination
GS 2 Mains Part 1

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INDIAN POLITY for G.S.-II MAINS
PART-1: Topics 1 to 10
Index
1. Historical Background 2-5
2. The Preamble 6-13
3. The Union & its Territory 14-15
4. Citizenship 16-17
5. Fundamental Rights 18-35
6. Directive Principles of State Policy 36-40
7. Fundamental Duties 41-42
8. The Union Executive 43-56
9. The Union Legislature 57-78
10. The Union Judiciary 79-85

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1. HISTORICAL BACKGROUND
 Before 1947, India was divided into two main entities - The British India which consisted of 11
provinces and the Princely states ruled by Indian princes under Subsidiary Alliance Policy. The
two entities merged together to form the Indian Union
 The historical underpinnings and evolution of the India Constitution can be traced to many
regulations and acts passed before Indian Independence.
 Indian democracy is a Parliamentary form of democracy where the executive is responsible to
the Parliament. All these systems owe their legacy to the British administration.
1. Regulating Act of 1773
i. Changes in the constitution of the Court of Directors and subjection of their actions to the
British Government.
 Government of Bengal to be carried on by a Governor General of Fort William and his
Council of 4 members (Warren Hastings first Governor General of Fort William)
ii. Establishment of a Supreme Court at Calcutta,with a Chief Justice and three judges to
administer justice over all British subjects of Bengal Presidency.
iii. Prohibition of receiving all presents and bribes by the servants of the Company.
2. Pitt's India Act of 1784
i. Establishment of a Board of Control, consisting of 6 members to supervise and control the
Government of India.
ii. Giving to the Court of Directors the right to make all appointments in India and to recall.
iii. Reduction of the number of the members of the Council of the Governor General to 3 from
4 in order to make him more powerful and efficient.
iv. Clear cut subordination of the Bombay and Madras Presidencies to the Governor General
Council in all questions of diplomacy, war and revenue.
3. Charter Act of 1813
i. Throwing open the India trade to all British subjects, though the company's monopoly of
trade in tea and trade with China was not disturbed.
ii. Providing an annual sum of Rs. 1,00,000 for the spread of education.
iii. It required the company's servants to undergo some training in England before entering
service.
4. Charter Act of 1833:
i. Completion of the introduction of free trade in India by abolishing the company's monopoly
of trade in tea and trade with China.
 Renaming the Governor General of Fort William as the Governor General of India (William
Bentinck was the first Governor General of India as well as the Governor of Bengal
Presidency).

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ii. Inclusion of a Law Member in the Council of the Governor General (Macaulay the first Law
Member).
iii. Abolition of the legislative decentralisation and giving the governor generalin council the
power to make laws for all British India.
5. Charter Act of 1853
i. Appointment of a separate Lieutenant Governor for Bengal and making Dalhousie the first
real Governor General of India
ii. Depriving the company of its right to appoint and recall officials in India, and introduction of
the system of direct recruitment to the I.C.S. through a competitive exam
iii. Inclusion of additional members to the Governor General's council, which was to act as the
Legislative Council (total members 12).
6. Government of India Act of 1858
i. Abolition of the company's rule and beginning of the rule by the British Crown.
ii. Appointment of a Secretary of State for India (who would be a member of the British
Cabinet) who would rule India with the aid of a Council, viz. India Council, consisting of 15
members. (Sir Charles Wood was made the first Secretary of State for India).
iii. Making the Governor General of India the Viceroy as well (Lord Canning first Viceroy as well
as Governor General of India) and increased control of British Home Government over the
Viceroy due to the establishment of direct telegraph link.
7. Indian Councils Act of 1861
i. Enlargement of the legislative wing of the Viceroy's council (from now onwards known as
the Imperial Legislative Council).
ii. Introduction of the Portfolio System (based on Lord Canning's rules of business) by which
each member of the Viceroy's Executive Council was put in charge of a department.
iii. Establishment of Legislative Councils in various provinces like Madras, Bombay and Bengal.
8. Indian Councils Act of 1892
i. Introduction of indirect elections for the non-official members of the Imperial and Provincial
Legislative Councils. Retention of official majority at both levels.
ii. The Councils at both levels were to have the power of discussing the budget (but not of
voting) and of addressing questions to the executives.
9. Indian Councils Act of 1909 or the Morley Minto Reforms
i. Introduction of an element of direct elections to the Legislative Councils and separate
electorate for the Muslims
ii. Enlargement of the Provincial Legislative Councils and removal of official majority in them.
iii. Retention of official majority in the Imperial Legislative Council.
iv. Increase in the deliberative functions of the Councils at both levels.

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10. Government of India Act of 1919 or the Montague-Chelmsford Reforms
i. Introduction of 'Dyarchy' in the provinces
Reserved Subjects Transferred Subjects
Eg: police, jails, land revenue,
irrigation, forests, etc.
Eg: education, local self-
government, public health and
sanitation, agriculture, industries,
etc.
To be administered by the
Governor and his Executive
Council
To be looked after by the
Governor and his ministers
ii. Relaxation of central control over the provinces through 'Devolution Rules' which
categorised the subjects of administration into two groups, viz. Central and Provincial.
iii. Making the Central Legislature bicameral and more representative by removing the official
majority and increasing the non-official directly elected majority.
iv. The salaries of the Secretary of State for India and his assistants to be paid out of the British
revenues (hitherto they were paid out of Indian revenues).
v. Appointment of a High Commissioner of India at London, who was responsible to Indian
Government and paid by it. His duties to procure stores for Indian government, to supply
trade information and promote commerce, and to look after the education of Indian
students in England.
11. Government of India Act of 1935
i. Provision for the establishment of an All India Federation to be based on a union of the
provinces of British India and the Princely States (It did not come into existence since the
Princely States did not give their consent for the union).
ii. Division of powers into three lists: Federal, Provincial and Concurrent and Residuary Powers
with the Governor General.
iii. Provincial Autonomy was ensured and Provincial Legislatures were made bicameral, for the
first time, in 6 provinces (Bengal, Madras, Bombay, Uttar Pradesh, Bihar and Assam).
iv. Extension of the principle of separate electorates to Sikhs, Europeans, Indian Christians and
Anglo Indians.
v. 'Discretionary Powers' of the Governor General and the Governors.
vi. Establishment of a Federal Court at Delhi with a Chief Justice and not more than 6 judges.
12. Indian Independence Act ,1947
i. It declared India as an Independent and Sovereign State and established responsible
Governments at both the Centre and the Provinces.
ii. Designated the Gov. Gen. of India and the provincial Governors as the Constitutional
(nominal heads).
iii. It assigned dual functions (Constituent and Legislative) to the Constituent Assembly and
declared this dominion legislature as a sovereign body.

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POINTS TO BE NOTED
 Laws made before Charter Act of 1833 were called Regulations and those made after are called
Acts.
 Lord Warren Hastings created the office of District Collector in 1772, but judicial powers were
separated from District collector later by Cornwallis.
 From the executives, the Indian administration developed into a responsible government
answerable to the legislature and people. The development of portfolio system and budget
points to the separation of power.
 Lord Mayo’s resolution on financial decentralization visualized the development of local self-
government institutions in India (1870).
 1882: Lord Ripon’s resolution was hailed as the ‘Magna Carta’ of local self government. He is
regarded as the ‘Father of local self-government in India’.
 1921: Railway Budget was separated from the General Budget.
 From 1773 to 1858, the British tried for the centralization of power. It was from the 1861
Councils act they shifted towards devolution of power with provinces.
 The Executive Council provided by the 1919 Act continued to advise the Viceroy till 1947. The
Council of Ministers owes its legacy to the executive council.
 The Legislative Council and Assembly developed into Rajyasabha and Loksabha after
independence.
*****

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2. PREAMBLE
INTRODUCTION
 The Preamble to the Constitution of India records the aims and aspirations of the people of
India who sacrificed everything for the attainment of country’s freedom. Chief Jusitce Subba Rao
in GolakNath v/s State of Punjab had held that “The preamble to an Act sets out the main
objectives which the legislation is intended to achieve”.
 The objectives before the Constituent Assembly were to Constitute India into a “sovereign
democratic republic” and to secure its citizens “justice liberty, equality and fraternity”. The
utimate aim of the makers of the Constitution as to have a welfare state and an egalitarian
society .
 The preamble was adopted by the Constituent Assembly after the draft Constitution had been
approved. The basic idea behind it that it should be in conformity with the provisions of the
constitution and express in a few words the philosophy of the constitution.
 It may be recalled that after the transfer of power, the constituent Assembly became sovereign,
which is reflected in the use of words “give to ourselves this constitution” in the preamble. It
also implied that the preamble emanated from the people of India and sovereignty lies with
them.
 Unlike the Constitution of Australia, Canada or U.S.A., the constitution of India has an elaborate
preamble. The purpose of the preamble is to clarify who has made the constitution, what is its
source, what is the ultimate sanction behind it, what is the nature of the polity which is sought
to be established by the constitution.
HISTORY OF THE PREAMBLE
 The Preamble to Indian constitution is based on “Objective Resolution” introduced by
Jawaharlal Nehru on December 13, 1947 and it was adopted by constituent assembly on 22
January 1947.
 The drafting committee of the assembly felt that the Preamble should be restricted to defining
the essential features of the new state and its basic socio-political objectives and that the other
matters dealt with Resolution could be more appropriately provided for in the substantive parts
of the Constitution.
 The committee adopted the expression ‘Sovereign Democratic Republic’ in place of ‘Sovereign
Independent Republic’ as used in the “Objective Resolution,” for it thought the independence
was implied in the word Sovereign.
MEANING AND CONCEPT

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 A preamble may also be used to introduce a particular section or group of sections. According
to Chambers Twentieth Century Dictionary, a preamble means preface, introduction, especially
that of an act of Parliament, giving its reasons and purpose - a prelude.
 Initially, the Preamble was drafted by Sh. B. N. Rau in his memorandum of May 30, 1947 and
was later reproduced in the Draft of October 7, 1947.
IS PREAMBLE A PART OF THE CONSTITUTION?
 It has been highly a matter of arguments and discussions in past that whether Preamble should
be treated as a part of constitution or not. The vexed question was dealt with in two leading
cases on the subject:
o Beruberi Case
o Kesavananda Bharati case
1. Berubari case
i. It was the Presidential Reference “under Article 143(1) of the Constitution of India on the
implementation of the Indo-Pakistan Agreement Relating to Beruberi Union and Exchange of
Enclaves which came up for consideration by a bench consisting of eight judges headed by
the Chief Justice B.P. Singh.
ii. Justice Gajendragadkar delivered the unanimous opinion of the Court.
iii. The court ruled out that the Preamble to the Constitution, containing the declaration made
by the people of India in exercise of their sovereign will, no doubt it is “a key to open the
mind of the makers”.
iv. It may show the general purposes for which they made the several provisions in the
Constitution but nevertheless the Preamble is not a part of the Constitution.
2. Kesavananda Bharati
i. This case has created history. For the first time, a bench of 13 judges assembled and sat in its
original jurisdiction hearing the writ petition.
ii. Thirteen judges placed on record 11 separate opinions. To the extent necessary for the
purpose of the Preamble, it can be safely concluded that the majority in Kesavananda
Bharati case leans in favor of holding:
o That the Preamble to the Constitution of India is a part of the Constitution;
o That the Preamble is not a source of power or a source of limitations or prohibitions;
o The Preamble has a significant role to play in the interpretation of statutes and also in
the interpretation of provisions of the Constitution.
iii. Kesavanada Bharati case is a milestone and also a turning point in the constitutional history
of India. It held that the Preamble is a part of the Constitution and, therefore, is amendable
under Article 368.
OBJECT, PURPOSE AND SCOPE OF PREAMBLE
 The proper function of preamble is to explain and recite certain facts which are necessary
before the enactment contained in an act of Parliament could be understood. A preamble may

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be used for other reasons, such as, to limit the scope of certain expressions or to explain facts
or introduce definitions.
 In a nutshell, a court may look into the object and policy of the Act as recited in the Preamble
when a doubt arises in its mind as to whether the narrower or the more liberal interpretation
ought to be placed on the language which is capable of bearing both meanings.
 The Court observed, “The edifice of our constitution is based upon the basic element in the
Preamble. If any of these elements are removed the structure will not survive and it will not be
the same constitution and will not be able to maintain its identity.”
 The Supreme Court traced the history of the drafting and ultimate adoption of the Preamble. It
held that the Preamble is a part of the Constitution and, therefore, is amendable under Article
368. It can be concluded that Preamble is an introductory part of our Constitution.
AMENDMENT TO THE PREAMBLE
 A majority of the full bench held that the objectives specified in the preamble contain the basic
structure of our constitution, which cannot be amended in exercise of the power under Article
368 of the constitution.
 It was in the exercise of this amending power that the Constitutional (42nd
amendment) Act
1976 amended the preamble inserting therein, the terms socialist, secular and integrity.
 In the 1995 case of Union Government v. LIC of India also, the Supreme Court has once again
held that the Preamble is an integral part of the Constitution.
 The Preamble serves the following purposes:
a) It indicates the source from which the Constitution comes, viz., the people of India.
b) It contains the enacting clause which brings into force, the Constitution which makes it an
act of the people, for the people and by the people.
c) It declares the rights and freedoms which the people of India intended to provide to all
citizens and the basic type of government and polity which was to be established.
CONTENTS OF THE PREAMBLE
 Preamble is part of our constitution. The contents of Preamble play an important role in
interpretation of our constitution.
PREAMBLE
“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, economic 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;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

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1. We, the People of India:-
i. These words declares in unambiguous terms that the Constitution has been adopted,
enacted and given to themselves by the people of India.
ii. It emphasizes the sovereignty of the people and the fact that all powers of government flow
from the people.
iii. Jawahar Lal Nehru in the constituent assembly stated that the word ‘People’ indicated that
the constitution was not created by the States, nor by the people of the several States but
by the people of India in their aggregate capacity.
iv. The words “we the people of India” echo in the opening words in the preamble to the
constitutions of the United States and of Ireland.
2. Sovereign:-
i. Sovereignty denotes supreme and ultimate power. It may be real or normal, legal or
political, individual or pluralistic. In republican form of governments, sovereignty is shifted
to the elected representatives of the people.
ii. According to D.D Basu, the word ‘sovereign’ is taken from Article 5 of the constitution of
Ireland. ‘Sovereign or supreme power is that which is absolute and uncontrolled within its
own sphere’.
iii. It has two aspects- external and internal. External sovereignty means the independence of a
state in her conduct with other states in the comity of nations.
iv. It means that it can acquire any foreign territory and also cede any part of the Indian
territory, subject to limitations (if any) imposed by the constitution.
v. On the other hand, internal sovereignty refers to the relationship between the states and
the individuals within its territory. It relates to internal and domestic affairs, and is divided
into four organs, namely, the executive, the legislature, the judiciary and the
administrative.
vi. Pandit Nehru declared that India will continue - “her full membership of the Commonwealth
of Nations and her acceptance of the King as the symbol of the free association of the
independent nations and as such the Head of the Commonwealth”.
vii. Her membership of the Commonwealth of Nations and the United Nations Organization do
not affect her sovereignty to any extent. It is merely a voluntary association of India and it is
open to India to cut off this association at her will.
3. Socialist:-
i. The term ‘socialist’ literally means a political-economic system which advocates state’s
ownership of the means of production, distribution and exchange.
ii. This term has not been defined in the constitution. But, it does not mean total exclusion of
private enterprise and complete state ownership of material resources of the nation.
iii. D.D. Basu regards that Supreme Court has gone a step further toward social justice. A broad
spectrum of Indian jurists and authors admit the relevance of socialism in India.
iv. Swarnsingh, the chief architect of the 42nd
Amendment Act, 1976 explained that the word
‘socialism’ is short aimed at a ‘mixed economy’.

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v. Mrs. Indira Gandhi, the then Prime Minister, further explained that the term was used
simply to indicate that the goal of the state in India was to secure a ‘better life for the
people’ or ‘equality of opportunity’. She said that socialism like democracy was
interpretable differently in different countries.
4. Secular:-
i. The word secular has no Indian origin. It traces its origin from West in context of Christian
religion. Unlike in the West, in India secularism was never born out of the conflict between
the church or the temple and the State.
ii. It was rooted in India’s own past history and culture. It explains that the state does not
recognize any religion as a state religion and that it treats all religions equally, and with
equal respect, without, in any manner, interfering with their individual rights of religion,
faith or worship.
iii. In S.R Bommai v. Union of India, a nine judge bench of the apex court observed that the
concept of “Secularism” was very much embedded in our constitutional philosophy. What
was implicit earlier had been made explicit by the constitution (42nd
amendment) in 1976.
iv. It does not mean that it is an irreligious or atheistic state. It neither promotes nor practices
any particular religion, nor it interferes with any religious practice. The constitution ensures
equal freedom to all religions.
v. In the positive sense it was the cornerstone of an egalitarian and forward looking society
which our constitution endeavored to establish.
5. Democratic:-
i. The term Democracy is derived from Greek words ‘demos’ which means people and ‘kratos’
which means authority. It thus means government by the people.
ii. Democracy may properly be defined as that form of government in which the administration
of the mass of adult popolutaion has some direct or indirect share.
iii. The basic principle of democracy in a society governed by the rule of Law is not only to
respect the will of the majority, but also to prevent dictatorship of the majority.
iv. Democracy may be a direct or indirect democracy. In a direct democracy, every citizen must
exercise the power of the government.
v. The people as a whole not only carry on the government, but can even change the
constitution by their direct vote.
vi. In an indirect democracy, the people elect their representatives who carry on the
administration of the government directly. It is also known as representative democracy. In
India, constitution provides for a Parliamentary Representative Democracy.
vii. Free and fair elections are the most important features of democracy. Thus democracy
implies that all three powers of the government i.e. the executive, the legislature and the
judiciary should be separate, yet mutually independent.
6. Republic:-
i. A republic means a state in which the supreme power rests in the people and their elected
representatives, as opposed to one governed by the king or a similar ruler.

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ii. The word ‘republic’ is derived from res publica, meaning public property or commonwealth.
iii. The constitution of India envisions the Indian government as a ‘republican form of
government’, in which, the ultimate power resides in the body of the people exercised via
universal adult suffrage.
iv. The president of India who is the executive head of the state is elected by the people
(though indirectly) who holds office for a term of five years.
v. All citizens are equal in the eyes of law, there is no privileged class and all public offices are
open for all the citizens without any distinction on basis of race, caste, sex or creed.
7. Justice:-
i. The preamble of the constitution of India professes to secure to all its citizens political,
economic and social justice.
ii. Social justice means the abolition of all sorts of inequities which may result from the
inequalities of wealth, opportunity, status, race, religion, caste, title and the like.
iii. The expression ‘economic justice’ means equal pay for equal work, that every person should
get his just dues for his labour irrespective of his caste, sex or social status.
iv. Political justice means the absence of any unreasonable or arbitrary distinction among men
in political matters. The constitution has adopted the system of universal adult suffrage, to
secure it.
v. The attainment of the common good as distinguished from the good of individuals is the
essence of justice. Justice is considered to be the primary goal of a welfare state.
8. Liberty:-
i. The preamble of constitution of India professes to secure liberty of belief, thought,
expression, faith and worship which are essential to the development of the individuals and
the nation.
ii. Liberty or freedom signifies absence of external impediments of motion. Liberty is the
power of doing what is allowed by law. Liberty in the preamble of constitution of India does
not mean mere absence of restraint of domination.
iii. In an ordered society, the liberty of no individual can be absolute or unfettered. It must be
subject to social control, in order to protect the collective interests of the aggregate of the
individuals who constitute that society.
9. Equality:-
i. Guaranteeing of certain rights to each individual is meaningless unless each individual is
assured of equality of status and opportunity for the development of what is best in him.
ii. Rights carry no meaning, if they cannot be enjoyed equally by all members of the
community.
iii. One of the main tasks of the constitution makers was to ensure equality of status and
opportunity for all and to provide basis for ultimately establishing an egalitarian society.
iv. They proceeded to achieve these objectives by incorporating a set of fundamental
principles into the constitution.

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v. Equality of status and opportunity is secured to the people of India by abolishing all
distinctions and discriminations by the state between citizens on the ground of religion,
race, caste sex and by throwing open ‘public places’, by abolishing untouchablity and titles,
by securing equality for opportunity in the matters relating to employment.
vi. The principle of equality of law means not the same law should apply to everyone, but that a
law should deal alike with all in one class; that these should be equality of treatment under
equal circumstances.
vii. Equality is one of the magnificent cornerstones of Indian democracy. An equality status
permeates the basic structure of the constitution.
10. Fraternity:-
i. Fraternity means the spirit of brotherhood, a feeling that all people are children of the same
soil, the same motherland.
ii. The term was added to the preamble by the drafting committee of the constituent
assembly, “as the committee felt the need for fraternal concord and the goodwill in India
was never greater than by then in this particular aim of the new constitution should be
emphasised by special mention in the preamble”.
iii. Fraternity is the cementing factor of the inherent diversities. A democratic system will
function in a healthy manner only if there is a spirit of brotherhood, oneness among the
people of the land.
iv. Peaceful co-existence, live and let live others, mutual understanding, feeling for inter-se
cooperation, attitude of adjustment, sacrifice, to be useful to others, solidarity for defence
of all and other good human qualities are the promotion for the concept of fraternity.
v. The expression ‘to promote among them all’ promotes, more particularly the word ‘all’-not
only among under privileged classes but also among the entire people of India.
vi. ‘Do hereby adopt, enact’ etc. has been borrowed from the last line of the preamble of the
Irish constitution.
vii. In a country like ours with so many disruptive forces of regionalism, communalism and
linguism, it is necessary to emphasis and re-emphasise that the unity and integrity of India
can be preserved only by a spirit of brotherhood.
viii. India has one citizenship and every citizen should feel that he is Indian first irrespective of
other basis.
11. Dignity of the individual:-
i. Dignity of the individuals is to be maintained for the promotion of fraternity. This dignity is
assured by laying down a number of directives for the state to direct its policies towards,
inter alia, securing to all citizens, the right to an adequate means of livelihood, just and
humane conditions of work, a decent standard of life.
ii. The constitution of India seeks to achieve ‘dignity of individual’ by guaranteeing equal
fundamental rights to each individual, so that he can his enforce minimal rights, if invaded
by anybody in the court of law. Dignity of individual in a nation is the dignity of the nation
itself.

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iii. It is to be noted that our Supreme Court has read the preamble with Article 21 to come to
the conclusion that the right to dignity is a fundamental right.
PREAMBLE AS INTERPRETOR OF LEGISLATION AND STATUTES
 The Constitution of India starts with a preamble which contains the spirit of the constitution.
Every legislation framed is in conformity with the spirit of the preamble and thus the
constitutionality and objects of the statutes are tested.
 It contains the recitals showing the reason for enactment of any legislation and prevents the
legislation to fall in the arms of ambiguity.
 In Kashi Prasad v/s State of U.P., the court held that even though the preamble cannot be used
to defeat the provisions of the legislation itself, but it can be used as a vital source in making the
interpretation of the legislation.
 General rules of interpretation of the constitution:
i. If the words are clear and unambiguous, they must be given full effect.
ii. The constitution must be read as a whole.
iii. Principles of harmonious construction must be applied.
iv. The constitution must be interpreted in a broad and liberal sense.
v. The court has to infer the spirit of the constitution from the language.
vi. Internal and external aids may be used while interpreting.
vii. The Constitution prevails over other statutes.
CONCLUSION
 The Preamble highlights some of the fundamental values and guiding principles on which the
constitution is based.
 It is a guiding light having interpretational value. It plays a pivotal role in case of ambiguity. The
Preamble of the Constitution of India is one of the best of its kind ever drafted. Both in ideas and
expression it is a unique one.
 It embodies the spirit of the constitution to build up an independent nation which will ensure
the triumph of justice, liberty, equality and fraternity.
*****

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3. UNION AND ITS TERRITORY
 ARTICLE-1:
i. India, that is Bharat shall be a Union of States. Two things are worth noting-
ii. The country has 2 names - because there was no unanimity with regard to the name in the
constituent assembly.
iii. India is described as Union rather than a federation because of two reasons:
o union is not a result of an agreement between states.
o states have no right to secede from the Union.
iv. the term territory of India is wider than Union of India because Union includes only states
but the former includes state, union territories and any territory that may be acquired at any
time.
v. Example of acquired territories are- Dadar and Nagar Haveli, Daman and Diu, Puducherry
and Sikkim.
 ARTICLE-2:
i. empowers the Parliament to admit into the Union of India, or establish new states on such
terms and conditions as it thinks fit.
o to admit means admission of states already in existence
o to establish means admission of states which were not in existence
 ARTICLE-3:
i. authorises Parliament to form new states, increase or diminish area of a state, alter its
boundaries or change its name.
ii. any such bill can be introduced with the prior consent of the President meaning thereby it is
to be a government bill and not a private member bill.
iii. President must refer the bill to state legislatures concerned to ascertain their views.
iv. However, views tendered by the state legislature is not binding on the President.

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 ARTICLE-4:
i. laws made under Articles 2 and 3 are not to be considered as amendment to the
constitution. As such, they will be passed by simple majority.
ii. Also as a result there will be necessary changes in Schedule 1 and Schedule 4 which will also
be amended by simple majority.
iii. However, it must be noted that if both schedules are amended separately and not by virtue
of article 2 and 3, it will be an amendment to the constitution.
 Hence, it can be said that constitution guarantees the integrity of Union but not integrity of
states. India is also described as indestructible union of destructible states while USA is
described as indestructible union of indestructible states.
 Also in 1969, Supreme Court made it clear that settlement of boundary dispute does not require
amendment to the constitution.
 Immediately after Independence, there rose demands for linguistic provinces, roots of which
were dated back to Nagpur session (1926) of Indian National Congress where congress provincial
committees were organised on linguistic basis and promise was made regarding linguistic based
provinces when Independence was achieved.
 However, the experience of partition made national leaders reluctant to do any reorganization
on identity basis as it would threaten integrity of the nation.
DHAR COMMISSION AND JVP COMMITTEE
 However, with increased demands, government was forced to set up a commission (1948) to
study the feasibility of linguistic reorganization of states under the chairmanship of SK Dhar.
But, the commission rejected the linguistic factor and proposed administrative convenience as
the basis for reorganization.
 This resulted in resentment and government was again forced to set up JVP Committee
(Jawaharlal Nehru, Vallabhbhai Patel and Pattabhi Sitaramayya) which too rejected language as
the basis of reorganization of states.
 The resentment rose with the death of Potti Sriramulu, a congress leader of Andhra region after
a 56 day hunger strike for the cause of creating Andhra Pradesh out of Madras Province. As a
result, government was forced to create Andhra state, intensifying demands from other parts of
the country.
FAZL ALI COMMISSION
 Government appointed States Reorganisation Commission also known as Fazl Ali Commission
with Justice Fazl Ali as its chairman and KM Pannikar and HN Kunzru being other two members
 Commission identified 4 major factors to be taken into account while reorganizing states:
o Preserving unity and security of the country.
o Linguistic and cultural homogeneity
o Financial and economic and administrative considerations.
o Planning and promotion of the welfare of the people.
 The commission recommended creation of 16 states and 3 centrally administered territories.

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 However, 14 states and 6 UTs (Union Territories) were created on November 1, 1956 by states
reorganization act and 7th
Constitutional Amendment Act. The four fold classification was done
away with.
Timeline for the creation of new states
4. CITIZENSHIP (PART-II)
INTRODUCTION
 Citizens enjoy all civil and political rights. Aliens are citizens of some other state. It is the
President who declare that India is at war with a particular state.
 Aliens do not enjoy fundamental rights under Articles 15, 16 19, 29 and 30. They can neither
vote in election nor can contest the same.
 They cannot hold public offices like that of President, Vice President, Judges of Supreme Court
and High Curts, Governors, Attorney General and Advocate General.
 India does not differentiate between a citizen by birth and that by naturalization. Constitution of
India only identifies who shall be the citizens of India at its commencement.
 Constitution empowers the Parliament under article 11 to make elaborate provisions regarding
acquisition and loss of citizenship after commencement of the constitution.
 As a result, Parliament enacted Citizenship Act 1955 which has been amended six times in 1986,
1992, 2003, 2005, 2015 and 2019.
WAYS TO ACQUIRE
 According to citizenship Act 1955, there are 5 ways of acquiring Indian citizenship.
By Birth- A person born outside India:-
i. Between 26th
January 1950 and 10th
December 1992 and father is
citizen of India at the time of birth
ii. Between 10th
Jan 1992 and 3rd
Dec 2004 and either of his parents
is a citizen of India.
iii. After 3rd
Dec 2004 and birth is registered at an Indian consulate
with one year of birth and either of parents is a citizen of India.
By Descent – A person born outside India:-
1960 - Bombay was divided into Maharashtra and Gujarat on linguistic basis (Marathi
speaking and Gujarati speaking)
1963 - Nagaland was created out of Assam to fulfil aspirations of Naga people.
1966 - Haryana created out of Punjab on the demand of separate Sikh homeland by Akali
Dal under Tara Singh.
1971 - Himachal Pradesh was made a state earlier it was a Union Territory.
1972 - Manipur and Tripura made state from UT. Meghalaya earlier sub- state was made
full-fledged state.
1975 - Sikkim 35th Amendment- made an associate state, 36th Amendment - full fledged
state. Earlier it become a protectorate of India in 1947 and was ruled by Chogyals.
1987 - Mizoram Made state from UT Arunachal Pradesh - made state from UT Goa- was UT
since 1961, as UT of Goa, Daman and Diu.
2000 - Chhattisgarh, Uttrakhand, Jharkhand
2014 - Telangana.

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i. Between 26th
January 1950 and 10th
December 1992 and father is
citizen of India at the time of birth
ii. Between 10th
Jan 1992 and 3rd
Dec 2004 and either of his parents
is a citizen of India.
iii. After 3rd
Dec 2004 and birth is registered at an Indian consulate
with one year of birth and either of parents is a citizen of India.
By Registration- The central Govt.:-
i. may register any person as a citizen of India if he is ordinarily
resident of India for seven years,
ii. minor child of person who are citizens of India married to citizen
of India and
iii. is an ordinarily resident for more than seven years etc. as a citizen
of India.
By Naturalisation- A person may apply for Indian citizenship on the ground that
i. he has naturalized in years in India.
ii. he must not be an illegal migrant
iii. Government can also grant citizenship to a person who has
rendered distinguished service to the science, philosophy, art,
literature, world peace or human progress.
By Incorporation
of Territory-
If a foreign territory becomes part of India, Government of India specifies
who among the people of the territory shall be citizen of India.
LOSS OF CITIZENSHIP
 According to Citizenship Act 1955, there are three ways of losing Indian citizenship:-
By Renunciation any citizen can renounce citizenship by making a declaration.
By Termination Indian citizenship is terminated when an Indian citizen voluntarily
acquires citizenship of other country.
By Deprivation If the citizenship is acquired by fraud, citizen shows disloyalty to
constitution, citizen
unlawfully trades or communicate with enemy, is ordinarily resident
outside India for seven years continuously, is imprisoned for two
years within 5 years of registration or naturalization, his citizenship is
compulsarily terminated.
SINGLE CITIZENSHIP
 Indian Polity though federal in character, adopts single citizenship. There is no citizenship of
respective states but only citizenship of Union.
 This was done to protect the unity and integrity of the Union as single citizenship promotes
single identity of citizens. Given the experience of partition, single citizenship was essential for
national integration.
 However, there are certain exceptions to the same as:-
o State can provide for residence as a qualification for certain employment for a certain period
o State may offer concession in fees for education to its residents.

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o Freedoms of movement and residence can be curtailed in the interest of Scheduled Tribe.
 CITIZENSHIP AMENDMENT ACT, 2019
1. The act was introduced to make illegal migrants who belonged to six Non-Muslim communities
i.e. Hindus, Sikhs, Buddhist, Jaina, Parsis and Christians from Afghanistan, Bangladesh and
Pakistan eligible for citizenship of India provided they entered before 31 Dec. 2014.
2. Bluntly put, if people from these religious communities hailing from Pakistan, Bangladesh and
Afghanistan apply for citizenship, they will not be deported for not having documents, and will
be granted citizenship.
3. The 1955 Act required a person applying for citizenship to have resided in India for 11 of the
previous 14 years. The 2019 amendment relaxes this requirement from 11 years to five years.
4. The 2019 amendment Act does not apply to tribal areas of Tripura, Mizoram, Assam and
Meghalaya because of being included in the Sixth Schedule of the Constitution.
5. Also, areas that fall under the Inner Line Permit notified under the Bengal Eastern Frontier
Regulation, 1873, will also be outside the Act’s purview. This keeps almost entire Arunachal
Pradesh, Mizoram and Nagaland out of the ambit of the Act.
*****
5. FUNDAMENTAL RIGHTS
INTRODUCTION
 Fundamental Rights are enshrined in Part- III of the constitution under Articles 12 to 35. These
are basic rights of an individual and is known as cornerstone of Indian democracy.
 These are necessary for an individual in order to enable him realize his full potential. These
rights
are inspired by the Bill of Rights incorporated in the constitution of United States of America.
 They are limitations on the power of the government and prevents establishment of despotic
rule in the country by promoting the concept of limited government and establishing rule of
law. Fundamental Rights promote the ideal of political democracy.
NATURE OF FUNDAMENTAL RIGHTS
 They are justiciable in nature - can be enforced in a court of Law.
 They are negative obligations on the state- they impose restrictions on state.
 They are enjoyed by all individuals - however, certain are enjoyed only by citizens and not by
foreigners.
 They are qualified and not absolute - except article 17 which is an absolute right.
 Most of them are enforced against state - except those under article 17, 23, 24 and 19(1)(d)
which can be enforced against individuals also.
REASONABLE RESTRICTIONS ON FUNDAMENTAL RIGHTS

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 Majority of the rights guaranteed under the Constitution are not absolute. Since rights of one
enshrines a duty on others to respect those rights, it bounds the state to allow the individuals to
freely express themselves, these freedom cannot be left unfettered.
 As a results, reasonable restrictions can be imposed by the states, which includes the following:-
o In the interest of sovereignity, security and territorial integrity of India.
o For the maintenance of friendly relations with foreign state.
o In the interest of public order, morality and decency.
o In relation to contempt of court, defamation or incitement to an offence.
o For the promotion of well being of backward classes of citizens.
OTHER RIGHTS
1. LEGAL RIGHTS
a. They available to individuals can be classified as constitutional and extra-constitutional
rights.
b. The former relates to right incorporated in the constitution or rights that flow out of the
constitution.
c. While latter relates to rights that flow through laws other than the constitution.
2. CONSTITUTIONAL RIGHTS
a. It can further be classified as fundamental right and other constitutional rights. Rights
which are outside Part-III of the constitution are as follows.
o Article 265 - Right not to be taxed without authority of law.
o Article 300A - Right to Property- Earlier a fundamental right under article 31 but made a
simple constitutional right by 44th
amendment act.
o Article 301 - Right to freedom of interstate trade and commerce.
o Article 326 - Right to Adult franchise.
3. STATUTORY RIGHTS
a. They are provide by a statute (Law) made by Parliament, Like labour rights, Righty to adopt
children, Right to enforce contract etc.
b. Apart from legal rights there are certain traditional rights available to citizens like father’s
authority over son.
c. However, such rights do not enjoy any legal backing but are enforced via moral standards.
Article 12: Definition of State
i. The state in this Part 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.
ii. Even a private body or an agency working as an instrument of state falls within the meaning
of the state.
 Article 13: (Judicial Review)

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 It declares that all laws that are inconsistent with or in derogation of any of the fundamental
rights shall be void to the extent of such inconsistency.
 To the extent of such inconsistency means that only that portion of Law that abridges or takes
away one or more of the fundamental rights shall be declared null and void, while other parts or
provisions shall be declared lawful or constitutional.
 Article 13 raised a question that whether Fundamental Rights are unamendable? The question
was settled after a long drawn struggle between Parliament and Government on one side and
Supreme Court on the other.
Shankari Prasad v/s Union of India 1951
i. Right to property was a major hindrance for the government to implement land reforms.
Hence, Parliament enacted first Constitutional Amendment Act 1951 which curtailed the
scope of Right to Property under article 31.
ii. When the same was challenged before the Supreme Court, it ruled that Parliament enjoys
two types of legislative powers,
o ordinary legislative power
o constituent legislative power.
iii. While exercising constituent legislative power, Parliament acts as constituent assembly. It
exercises its constituent legislative power under the provisions of article 368.
iv. The Supreme Court ruled that while law made by Parliament in its exercise of ordinary
legislative power comes under meaning of law under article 13, those made by it in exercise
of constituent legislative power do not come under meaning of law under article 13.
Keshwananda Bharti v/s State of Kerala 1973
i. The Supreme Court declared that an amending power of Parliament is limited to the extent
of not destroying the basic structure of the Constitution.
ii. Supreme Court defined basic structure as those provisions of the constitution without which
constitution would lose its basic character.
iii. However, in its subsequent judgements it gave the following as part of basic structure.
BASIC STRUCTURE
 Supremacy of the constitution
 Sovereign, Democratic and Republican nature of
Indian Polity
 Secularism
 Separation of Powers
 Federal Character
 Parliamentary form of government
 Welfare State
 Unity and integrity of the nation
 Harmony and balance between fundamental
rights and DPSP.
 Fundamental Rights under article 14, 15, 19 and
21
 Rule of Law
 Judicial Review
 Independent Judiciary
 Free and fair elections
 Power of Supreme Court under article 32, 136, 141
and 142.

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RIGHT TO EQUALITY (Article 14 to 18)
Article 14
1. Article 14 guarantees every individual:
o equality before law (British origin) and
o equal protection of Laws (American origin)
2. Equality before law connotes that:
o Absence of any privilege in favour of any person.
o Equal subjection of all persons to the ordinary law of the land.
o No person is above the law.
3. Thus, under equality before law all individuals irrespective of their economic and social standing
shall be treated equally in the eye of Law.
4. The concept of equality before law is an element of ‘Rule of Law’ propounded by A V Dicey, the
British Jurist. It is defined as:
o Absence of Arbitrary Power - no man can be punished except for a breach of law.
o Constitution is the result of rights of the individual and is Supreme Law of the land.
o No one is above law as the famous saying goes ‘Whosoever high you may be, law is always
above you.’
5. There are certain exceptions to equality before law under article 361, President and Governor
enjoys certain immunities.
o They shall not be answerable to any court for the exercise and performance of the powers
and duties of office.
o No criminal proceedings can be instituted against them during their term of office.
o No civil proceedings can be instituted against them before the expiry of 2 months notice
served to them.
o Visiting head of states, heads of government, other officials and foreign diplomats who are
posted in the country do not come under local courts in exercise of their official duties.
o A member of Parliament under Article 105 and that of state legislatures shall not be liable to
any proceedings in any court in respect of anything said or any vote given by him in
Parliament /state legislature or any committee thereof.
6. The Equal Protection of Laws guarantees:
o Equality of treatment under equal circumstances.
o Similar application of the same laws to all persons who are similarly situated.
o The like should be treated alike without any discrimination.
7. Equal protection of Laws is necessary because equality of treatment in unequal circumstances
amounts to inequality. It only guarantees equality among equals. Thus, it allows state to
reasonably classify citizens based on social and educational backwardness and hence is a
positive concept.

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Article 15
1. Prohibits states from discriminating against any citizen on grounds only of religion, race, caste,
sex or place of birth.
2. It also provides that no citizen be subject to any disability or restriction on similar grounds with
regard to access to public places, use of bathing ghats, tanks, well, roads etc.
3. Article 15 (3) state that nothing in article 15 shall prevent state from making any special
provision for women and children. As a result, sex here is a ground for positive discrimination
because women in general are socially and educationally backward.
4. Article 15(5) was introduced by 93rd
Constitutional Amendment Act, 2005 which confers power
on the state to make special provisions in favour of socially and economically backward classes,
regarding admission to educational institutions including private educational institutions.
i. Thereafter, central government reserved 27% of seats in favour of Other Backward Classes
in higher education institutions.
ii. However, research institutions like BARC, IISC, Tata Institute of Fundamental Research are
not included in it.
Transgender Persons (Protection of Rights) Act, 2019
i. It defines a transgender person as one who is partly female or male or a combination of female
or male, or neither female nor male. In addition, the person’s gender must not match the gender
assigned at birth.
ii. Transgenders too are excluded and marginalized section of society and therefore, state can
make special provisions for them because transgender as a whole is a reasonable classification.
iii. Supreme Court in National Legal Service Authority v/s Union of India case acknowledged them
as third gender who have basic human rights like rights granted under the constitution of India.
Article 16
1. States that there shall be equality of opportunity in matters relating to public employment or
appointment to any office under the state.
2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or
any of them, be ineligible for, or discriminated against in respect of, any employment or office
under the state.
3. This article is confined to the citizens and aims to create equality of opportunity and
employment in offices under the state. Article 16 also restricts state on two other grounds
namely dissent and residence. However, state can specify qualifications on other grounds.
4. Article 16(3) provides an exception to the above rule and confers power on Parliament to
provide ‘residence’ as qualification for certain classes of employment under the state. For
example, Parliament enacted such law in state of Hyderabad extending ‘Mulk Rules’ for 10 more
years where local residents alone were made eligible for employment in class III & IV posts.
5. Article 16(4) is another exception as it confers power on the state to provide reservation in
favour of Backward classes of citizens in public employment if in the opinion of the state the
backward classes are not adequately represented in the employment under the state.

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6. Supreme Court upheld the constitutional validity of reservation in favour of other Backward of
by state in Indra Sawhney vs Union of India 1992 case and state that any reservation policy of
the government shall be constitutionally valid if following conditions are satisfied.
i. It must be based on social and educational backwardness
ii. Backward classes are not adequately represented in public employment in the pinion of the
state
iii. Overall reservation must not breach 50% mark so that efficiency of administration is
maintained.
iv. Those coming in creamy layer must be excluded from benefits of reservation.
7. Thus, there is no provision for reservation on economic grounds. Reservation policy is
implemented to correct historical wrongs done on a section of society and take them out of
backwardness by providing them equal opportunities as they are not similarly placed or are
disadvantageously placed as compared o others.
8. Jat Reservation - Central Government in response to Jat agitation decided to include Jats in
central OBC list-going against the recommendation of National Commission on Backward
Classes (NCBC).
i. NCBC held that Jats were not socially and educationally backward and as such must not be
included in OBC list.
ii. Supreme Court in Ram Singh v/s Union of India 2015 held inclusion of Jats under the central
OBC list as unconstitutional and void.
iii. The court held that caste may be a distinguishing factor for identification of backwardness
but cannot be the sole consideration.
iv. Supreme Court stated that not only new social groups like transgenders be considered for
inclusion but social group that have progressed must be identified and removed.
v. Similarly, Bombay High Court also held that inclusion of Maratha Community under the
state OBC list was unconstitutional as they were not socially and educationally backward.
9. Reservation in Promotion - Supreme Court in Indira Sawhney v/s Union of India 1992 held that
reservation in promotion was unconstitutional and void as the state was empowered to provide
reservation only at entry level, but not subsequently.
i. Parliament enacted 77th
Constitutional Amendment Act, 1995 which added article 16(4A)
ii. It confers the power on state to provide reservation in promotion in favour of Scheduled
Caste and Scheduled tribes because according to Government and Parliament, these classes
were not adequately represented at the decision making level of the Governement.
10. Carry Forward Policy- Article 16 (4B) provides that vacancies under reserved category if go
unfulfilled in a year will carry forward to next year and if in this process 50% line is breached, it
shall not be considered unconstitutional. This clause was inserted through 81st
Constitutional
Amendment Act 2002.
Article 17- Abolition of Untouchability
1. It provides that Untouchability is abolished and its practice in any form is forbidden. The
enforcement of any disability rising out of untouchability shall be an offence punishable in
accordance with law.

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2. This is the only fundamental right which do not have an exception and is absolute. According to
the Protection of Civil Rights Act, 1955, preaching or justifying untouchabity, insulting on same
ground, subjecting a person to any form of disability like refusing admission to public places is a
crime punishable by law.
3. Later other acts like Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act-1989
and Prohibition of Employment as Manual Scavengers and their rehabilitation Act-2013 were
passed which are instrumental in fighting untouchability.
Article-18 - Abolition of Titles:
1. It states that:
i. No title, not being a military and academic distinction shall be conferred by the state
ii. No citizen of India shall accept any title from any foreign state.
iii. No person who is not a citizen of India shall, while he holds any office of profit or trust under
the state, accept without the consent of the President any title from any foreign state.
iv. No person holding any office of profit or trust under the state, without the consent of the
President, accept any present, emolument or office of any kind from or under any foreign
state
v. Constitutionality of Awards like Padma Awards and Bharat Ratna was challenged before the
court. The Supreme Court ruled that Award is different from a title and is conferred upon
an individual for meritorious service rendered by him to the society or the country.
vi. It is conferred without any distinction based on religion, race, caste, sex, place of birth etc.
Awards cannot be used as a prefix or suffix to the name, otherwise it is liable to be
forfeited.
RIGHT TO FREEDOM : (ARTICLES 19-22)
Article-19
1. It grants protection of certain rights regarding freedom of speech etc. Article 19(1) confers six
fundamental rights on the citizens. These rights are collectively called democratic rights as they
are essential for health functioning of democracy.
2. Article 19(1)(a) confers on all citizen right to freedom of speech and expression which according
to Supreme Court is an inalienable adjunct of Right to life.
i. Right to freedom of speech and expression means right to express one’s own views and
opinion, freely and openly i.e. without fear or favour and without any constraints imposed
by the state.
ii. Views and opinions are to be expressed through a medium of one’s own choice like verbal,
written, printing, painting, gestures, signs, symbols etc.
iii. According to the Supreme Court, waving of National Flag or hoisting it is a form of
expression i.e. expression of patriotism.
iv. Right to freedom of speech and expression also includes right to remain silent as silence is
also a form of expression.
v. It also imparts Right to freedom of press implicitly as Right to freedom of speech and
expression also includes right to express other’s views and opinions.

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vi. Apart from this it also includes the right to have access to information because access to
information is necessary to formulate views and opinions.
vii. Supreme Court in PUCL (People’s Union for Civil Liberation v/s Union of India 2013 case
held that Right to freedom of speech entitles citizen to elect or reject all candidates during
elections and they are entitled to negative vote.
viii. Hence, Election Commission was directed to include NOTA (None of the Above) option in
EVMs (Electronic Voting Machine).
ix. Earlier Supreme Court in Maneka Gandhi Vs Union of India 1978 case held that right to
freedom of speech and expression is not limited by the geographical or political borders of
the country. A citizen continues to enjoy this right even while travelling abroad.
3. Article 19 (1)(b) confers on all citizens Right to assemble peacefully and without arms. The right
to assemble should be for peaceful purposes.
i. It includes right to hold public meetings, demonstration and take out procession. This
freedom can be exercised only on public land.
ii. This right does not include right to strike. Under section 144 of criminal Procedure code
1973, a magistrate can restrain an assembly if there is a danger to life, health, safety or
danger of riots etc.
4. Article 19(1)(c) confers Right to form Association, Unions or Cooperations on the citizens.
i. However, it does not confer right to strike and lockouts etc. In CPM VS Bharat Kumar 1998
case, Supreme Court held that all forms of bandhs are illegal because it threatens to shut
down society totally and has an element of coercion.
ii. Furthermore, it may deprive people from a right to livelihood, and freedom of movement.
5. Article 19(1)(d) confers on every citizen the Right to move freely throughout the territory of
India. The purpose is to promote national feeling.
i. The expression throughout the territory of India means that no part shall be made
inaccessible to a citizen subject to reasonable restrictions like requirement of special
government permission in tribal areas or border areas, Inner line Permit in some areas of
some states.
ii. Also, Supreme Court held that freedom of movement of prostitutes can be restricted on
grounds of public health.
iii. Freedom of movement can be both internal and external i.e. travel out of country and come
back.
6. Article 19(1)(e) confers on all citizens right to reside and settle in any part of the territory of
India. Right to reside means to live in any part of the country on a temporary basis while right to
settle means to do so on a permanent basis. Reasonable restrictions can be placed on same
grounds.
7. Article 19(1)(g) confers on all citizens the right to practice any profession or to carry on any
occupation, trade or business.
i. A citizen can choose a source of livelihood of his choice. There is no right to carry on
business that is dangerous or immoral.
ii. This article confers right to start a business, choose or not to choose a business and a right
to close a business.
iii. This right has subject to two conditions:-

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o State may prescribe, required professional and technical qualification for carrying out any
occupation, trade or business.
o The state may exclude, completely or partially, the citizens or other entities from carrying on
any trade, business, industry or service, where the state or a corporation owned or
controlled by state is involved.
8. Article 19 (2) imposes reasonable restrictions on fundamental rights on grounds of :
i. Integrity, sovereignity and security of India.
ii. Friendly relation with foreign state.
iii. Public order, decency or morality.
iv. Contempt of Court, deformation or incitement to an offence.
9. Article 19(3) and (5) safeguards existing laws from unconstitutionality in so far as it imposes and
confers power on state to impose reasonable restrictions for maintenance of public order or for
protection of Interest of Scheduled Tribes.
Article 20 - Protection in Respect of Conviction for offences
1. No person shall be convicted of any offence except for violation of a 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.
i. In other words, a criminal legislation cannot be given a retrospective effect. A person can be
convicted only if the act done by him was a criminal offence at the time of conviction.
ii. Also he cannot be given a sentence of the quantum more than that what law prescribes as
maximum punishment at the time of commitment of an offence.
iii. For example, the Juvenile accused in Nirbhaya Case was given 3 year sentence despite being
the most brutal among all accused because maximum punishment that can be inflicted upon
juveniles under Juvenile Justice Act at the time of offence was 3 years.
2. No Double Jeopardy- No person shall be prosecuted and punished for the same offence more
than once.
i. It prohibits only criminal courts and criminal tribunals and do not prohibits civil courts and
nonjudicial bodies.
ii. If a criminal offence also gives rise to civil liability then filing civil suit in court of Law along
with criminal trial do not amount to double jeopardy.
3. No Self- incrimination-
i. No person accused of any offence shall be compelled to be a witness against himself.
Prosecution has to establish the guilt of accused beyond reasonable doubt independently.
ii. However, it does not provide any protection to accused if he is compelled by the police or
any other investigating authority to provide specimen signatures, fingerprints, DNA sample
etc. as a part of investigation because result of these scientific processes would not change
depending upon willingness or unwillingness of accused.
4. After 44th Constitutional Amendment Act 1978, enforcement of Article 20 cannot be
suspended even when proclamation of emergency is in operation.

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Article 21- Protection of Life and Personal Liberty
No person shall be deprived of his life or personal liberty except according to procedure established
by Law.
1. Supreme Court in AK Gopalan Case 1950 held that protection under article 21 is available only
against arbitrary action of executive and not legislature. This was a narrow interpretation by
Supreme Court.
2. However, In Menaka Gandhi Vs Union of India 1978 case, the court over-ruled its earlier
judgement and interpreted the constitution to include the doctrine of Due Process of Law as it
stated that the Principles of Natural Justice are incorporated in the constitution as such that they
cannot be separated from it.
3. Principles of Natural Justice –
i. Following three principles constitutes the Principles of Natural Justice
o No man shall be punished unheard.
o No man shall be judge of his own case.
o An authority shall act bonafide and without any bias.
ii. They are universal principles and apply automatically where decisions are made.
iii. The objective of the principles to eliminate the chances of arbitrariness in decision making
practice. They are inherent under article 14 and 21 and are one of the pillars on which
constitution has been build.
iv. They are also included under the basic structure of the constitution.
 Euthanasia- Right to Die with Dignity:- Section 309 of Indian Penal Code (IPC) criminalises
attempt to suicide.
i. Supreme Court in Rathinm Vs Union of India, 1994 case held that right to life under article
21 also confers fundamental right to die and held section 309 of IPC as unconstitutional and
Difference between Procedure Established by law
and Due Process of Law
The doctrine of procedure established by law originated in English Constitution. It
means according to usage and practice as per the statute.
It confers limited process in hands of judiciary. Under this doctrine, if a person is
arrested and detained and he has to be deprived of his life and liberty by the state
and if this action of the state is challenged before a court of law.
The court will apply following 3 tests.
 Whether there exists any Law that authorizes the state to do so?
 Whether law is enacted by a competent authority?
 Whether established procedure is followed while enacting the law?
The court will order release of the person if state fails in any of the test. However, it
would not go into question of reasonableness and fairness of law which is followed
in Due Process of Law.
Due process of Law applies the above 3 tests and reasonableness as the fourthtest.
It originated in American constitution and hence it can be easily understood that it
offers wide powers in hands of judiciary because US follows strict Separation of
Powers.

P a g e | 28
void, only to reverse its judgement in Gyan Kaur Vs State of Punjab 1996 reinstating it as
constitutionally valid.
ii. Euthanasia or mercy killing means termination of a very sick person’s life in order to relieve
him off his sufferings. No law regulates Euthanasia in India. However, in some countries like
Netherland, Denmark, Switzerland, it is a legal practice.
iii. Euthanasia in all forms was illegal in India until Supreme Court in Aruna ShanbaugVs Union
of India 2011 case held that passive euthanasia may be allowed to be practiced on a case
by case basis. It can be done only when relatives of patient give consent and a team of
expert doctors certifies the case. Active euthanasia is still illegal.
iv. Passive euthanasia means withdrawing life support system and allow for natural death.
While Active Euthanasia means administration of lethal drug to patient to advance his death.
v. Supreme Court also recommended Parliament to repeal section 309 of IPC on the ground
that law is anachronistic and does not deserves a place in a civilized legal system. Mental
Health Care Bill has been passed by Parliament which ecriminalizes Sec. 309 of IPC.
4. Living Will - NGO Common Cause has filed a PIL before Supreme Court and argued that Right to
Life also confers the Fundamental Right to die with dignity.
i. Therefore, even individual has the right to give advance consent in a living will to practice
passive euthanasia on him if he ever goes to a permanent vegetative state.
ii. Experts are of the view that Active Euthanasia must not be allowed in any case because it is
prone to misuse by family members and relatives in cases of property, inheritance,
jealousy,enemity etc.
5. Santhara - Santhara is a religious practice among the Jains in which a person undertakes a fast
unto death by refusing to take water and food.
i. A person when feels that life has served its purpose decides to abandon the body and break
away from the cycle of rebirth. Their death is not to be mourned.
ii. It, according to Jains, is not suicide because one do so after due consideration knowing the
consequence of his action.
iii. Suicide on the other hand is committed by an individual who has lost his emotional balance.
iv. It is argued by those who oppose Santhara that it is a breach of Fundamental Right under
article 21. Whereas supporters of Santhara says that it is age old cultural practice and they
have right to conserve it under article 29.
v. Rajasthan High Court in Nikhil Soni V/s Union of India 2015 case held it to be
unconstitutional and void. However an appeal to Supreme Court stayed the decision.
6. Defamation - It is a ground on which reasonable restriction to freedom of speech and expression
can be placed under article 19 (2).
i. Section 499 and 500 of Indian Penal Code (IPC) make defamation a criminal office. This
criminal nature of defamation was challenged in Supreme Court and it was argued that it be
made a complete civil liability and criminal nature be withdrawn as unconstitutional and
void.

P a g e | 29
ii. However, Supreme Court in Subramaniam Swamy V/s Union of India 2016 ruled that every
person enjoys a Right to Reputation under article 21 which is part of right to life and hence,
freedom of speech and expression is limited by other’s right to reputation.
 Right to Privacy - Supreme Court in August 2017 in Justice (Retd.) K S Puttaswamy Vs Union of
India 2017 case unanimously by majority of 9-0 held that Right to Privacy is a part of Right to life
under article 21.
i. This judgement of Supreme Court brought an end to its vacillating stand of Supreme Court
on the status of Right to privacy over years.
ii. The court in an earlier case had held that Right to Privacy was not fundamental right.
However, in a number of subsequent judgements, division benches of Supreme Court held
that Right to Privacy was a fundamental right.
iii. This created debates, which is put to rest in the recent judgement.
Article 21- A: Right to Education
1. It states that 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 provide. Supreme Court said that
article 21 confers right to primary education.
2. The right to Education was inserted in the constitution by means of 86th
Constitutional
Amendment 2002.
3. In order to give effect to Right to Education under article 21 A, Parliament passed Right of
Children to free and Compulsory Education Act-2009 which have following key provisions.
i. All children from 6-14 years age shall be provided free and compulsory education in age
appropriate neighborhood without any discrimination.
ii. Private schools shall admit minimum 25% of total students from neighborhood belonging to
weaker sections of society.
iii. Fee will be compensated by the government.
iv. Teacher-student ratio is fixed at 1:25
v. No detention of child upto class 8
vi. Strict norms are fixed for infrastructure.
vii. National commission for Protection of Child Rights is nodal agency for Right to Education.
Article 22 - Protection Against Arrest and Detention
1. No person who is arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest nor shall to be denied the right to consult, and to be defended
by, a legal practitioner of his choice.
2. Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty four hours of such arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate and no such person shall be
detained beyond the said period without the authority of a Magistrate.
3. These safeguards are not available to an alien or a person arrested or detained under a
preventive detention law. Detention are of two types:-
o Punitive Detention: to punish a person for an offence committed by him after trial and
conviction in a court.

P a g e | 30
o Preventive Detention: detention of a person without trial and conviction by a court in order
to prevent him from committing an offence in near future.
4. However, there are certain protections under Preventive Detention too:
i. Detention cannot exceed three months unless an advisory board consisting of Judges of High
Courts reports sufficient cause for extended detention.
ii. Grounds of detention should be communicated to the detenu can be denied if doing so is
against public interest.
iii. The detenu should be afforded an opportunity to make a representation against the
detention order.
5. Article 22 also confers power on Parliament to make law for preventive detention regarding:
i. Extending the period of 3 months.
ii. Providing for maximum period of detention
iii. Procedure to be followed by advisory board in an inquiry.
6. 44th
Constitutional Amendment,1978 reduced the period of detention without obtaining the
opinion of an advisory board from three to two months. However, this provision has not yet
been brought into force, hence original period of three months continue.
7. Both Parliament and state legislatures can make laws for Preventive Detention. No democratic
country in the world has made Preventive Detention an integral part of constitution as India has
done.
8. National Crime Records Bureau (NCRB) data provides that almost 68% of inmates are
undertrials.
i. They languish in prison because either they do not have access to legal aid, opinion or
knowledge or are unable to fulfil the bail conditions due to poverty.
ii. Steps like providing them free legal aid and speedy disposal of cases are necessary in order
to provide them justice as many of them are imprisoned without trial.
RIGHT AGAINST EXPLOITATION (Articles 23-24)
Article 23
1. It states that Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in accordance
with law.
i. Traffic in human beings means indulging in slavery, servitude, forcing people into immortal
activities etc. According to United Nations, slavery are of two types - conventional slavery
and modern slavery.
ii. Modern slavery in the form of forced marriages, child marriages, paying wages less than
what is fixed as minimum wage by law, is not prohibited world over whereas conventional
slavery is servitude means bondage of any kind including political and intellectual bondage
where people may be forced to go on exit.
iii. Parliament has enacted Immoral Trafficking (Prevention) Act-1956 to control immoral
activities.
iv. Begar means forced labour with or without payment of wages. Parliament enacted the
Bonded Labour System (Abolition) Act- 1956, which prescribe punishment of all forms of
forced labour.

P a g e | 31
v. Forced labour dosen’t include merely physical or legal force but also compulsions arising out
of economic reasons.
vi. Persons convicted with regressive imprisonment may be forced to work which is not
violative of article 23 provided they are paid reasonable wages. But persons arrested under
preventive detention law cannot be asked to do manual work.
2. Under Article 23 (2) state can impose compulsory service for public purposes, and in imposing
such service it shall not make any discrimination on any grounds Hence, state can compel
individuals for relief work in the form of cyclone and earthquake relief work. Similarly, citizens
can be compelled to provide service by joining armed forces to defend the country.
Article 24
1. It provides that no child below the age of fourteen years shall be employed to work in any
factory or mine or engaged in any other hazardous employment.
2. Child Labour (Prohibition and Regulation) Act-1986 amended in 2016 provides that
employment of children below 14 years in all occupations except where child helps his family
and that too out of school hours.
3. It also prohibits employment of adolescent (14-18 years of age) in all hazardous occupations.
The act prescribes penalty and even imprisonment for its violation.
RIGHT TO FREEDOM OF RELIGION (Articles 25-28)
Article 25
1. It confers on all individuals, right to freedom of conscience (inner freedom) and the right to
freely profess, practice and propogate any religion (outer freedom).
2. While state in no manner can interfere with the former it is prohibited to do with the later
subject to reasonable restrictions like state is permitted to regulate or restrict any economic,
financial, political or other secular activity associated with religious practice.
3. Further, these rights are subject to public order, morality and health and other provisions
relating to fundamental rights.
i. Right to Profess means that all individuals have the right to declare their religious beliefs
and faith openly and freely.
ii. Right to Practice means all individuals can perform religious worship, rituals, ceremonies
etc.
iii. Right to Propagate means transmission and dissemination of one’s religious beliefs to
others. However, it does not include a right to convert another person to one’s own religion.
 Supreme Court in Rev. Fr. Stanislaus V/s State of Madhya Pradesh, 1977 held that any
conversion in order to be valid must be voluntary and cannot be through coercion or unlawful
means and held the anti-conversion law of Madhya Pradesh as constitutionally valid.
Article 26
1. It states that, subject to public order, morality and health, every religious denomination or any
section there shall have the right:
i. to establish and maintain institutions for religious and charitable purposes.

P a g e | 32
ii. to manage its own affairs in matters of religion
iii. to own and acquire movable and immovable property
iv. to administer such property in accordance with law.
2. Article 26 thus protect collective freedom of religion but it is not subject to other provisions
relating to the Fundamental Rights.
Article 27
1. It states that no person shall be compelled to pay any taxes, the proceeds of which are
specifically appropriated in payment of expenses for the promotion or maintenance of any
particular religion or religious denomination.
2. Thus, Article 27 prohibits state from favouring any particular religion over the other. It lays
down principle of Secularism of state.
3. However, Article 27 do not prohibits the state to favour all religions without any discrimination
like subsidies were given to Hazpilgrims and also state exchequer spends a significant amount in
organizing Amarnath and Mansarovar Yatras.
Article 28
1. No religious instruction is to be provided in the educational institution wholly maintained by
state funding and even though religious instruction can be imparted in educational institutions
recognized by or receiving aid from the state, no person attending such institutions shall be
compelled to receive that religious instruction.
2. Religious instructions can be made compulsory in an educational institution which is
administered by the state but has been established under any endowment or trust which
requires that religious instructions shall be imparted in such institution.
CULTURAL AND EDUCATIONAL RIGHTS- (Articles 29 & 30)
Article 29
1. It protects the interest of minorities and provides that-
i. Any section of the citizens residing in the territory of India or any part thereof having a
distinct language, scripts or culture of its own shall have the right to conserve the same.
ii. 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.
2. It protects rights of both religious minorities as well as linguistic minorities. It promotes unity in
diversity. It seeks to promote national integration not by assimilation but- by integration of
various communities into the national mainstream.
Article 30
1. It states that all minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.

P a g e | 33
2. The state shall not, in granting aid to educational institution discriminate against any educational
institution on the ground that it is under the management of a minority whether based on
religion or language.
3. 44th
Constitutional Amendment Act of 1978 provided that the compensation fixed by the state
for the compulsory acquisition of any property of a minority educational institution should be
adequate enough so that the minority educational institution is able to re-establish and
administer itself.
4. Minority status of a community is recognized by the government both at the national and state
level. Like centre has recognized 6 groups as religious minorities namely Muslims, Christians,
Sikhs, Buddhist, Parsis and Jains. Similarly, it can follows its own fee structure provided it do not
charge capitation fee.
5. Also, reservation policy of state in favour of backward classes and provisions of Right of Children
to free and compulsory Education Act for weaker sections of society do not apply to unaided
Minority Educational institutions.
PRESENT POSITION OF RIGHT TO PROPERTY
 Originally, the right to property was one of the seven fundamental rights under Part III of the
Constitution. It was dealt by Article 19(1)(f) and Article 31.
i. Article 19(1)(f) guaranteed to every citizen the right to acquire, hold and dispose of
property.
ii. Article 31, on the other hand, guaranteed to every person, whether citizen or non-citizen,
right against deprivation of his property.
iii. It empowered the State to acquire or requisition the property of a person on two conditions:
o it should be for public purpose,
o it should provide for payment of compensation (amount) to the owner.
iv. It has caused confrontations between the Supreme Court and the Parliament. It has led to a
number of Constitutional amendments and Articles 31A, 31B and 31C have been added and
modified from time to time to nullify the effect of Supreme Court judgements and to protect
certain laws from being challenged on the grounds of contravention of Fundamental Rights.
 Therefore, the 44th
Amendment Act of 1978 abolished the right to property as a Fundamental
Right and inserted a new Article 300 A in Part XII under the heading ‘Right to Property’. Thus,
the right to property still remains a legal right or a constitutional right. It is not a part of the basic
structure of the constitution.
 Though the Fundamental Right to Property under Part III has been abolished, it still carries two
provisions which provide for the guaranteed right to compensation in case of acquisition or
requisition of the private property by the state.
 These two cases where compensation has to be paid are:
i. When the State acquires the property of a minority educational institution
ii. When the State acquires the land held by a person under his personal cultivation and the
land is within the statutory ceiling limits.

P a g e | 34
 Article 31A saves certain laws from being declared void on the ground of violation of
Fundamental Rights guaranteed by Articles 14 and 19. Five categories of law are provided
protection by this article:
i. Amalgamation of corporations.
ii. Acquisition of estates and related rights by the state.
iii. Taking over the management of properties by state
iv. Extinguishment of rights or modification directors or of shareholders of corporations.
v. Extinguishment or modification of mining leases.
 A state law must receive President’s assent in order to be immunized under this article. Any act
providing for land acquisition under this article must provide for payment of compensation at
market value to the individual if land is under statuory ceiling limit. This article was added by 1st
Constitutional Amendment Act, 1951.
 Article 31B was also introduced by 1st
Amendment Act, 1951 which also introduced Ninth
Schedule to the constitution. It saves acts and regulation in the Ninth Schedule from being
challenged and invalidated on the ground of contravention on any of the fundamental rights.
 Article 31C was inserted by 25th
Constitutional Amendment Act, 1971 and contain following two
provisions.
i. No Law that seeks to implement the socialistic directive principles specified in article 39 (b)
and (c) shall be void on the ground of contravention of the Fundamental Rights conferred by
article 14 and 19.
ii. No Law containing a declaration that it is for giving effect to such policy shall be questioned
in any court on the ground that it does not give effect to such a policy.
iii. However, this provision was rendered unconstitutional by Supreme Court in Keshwananda
Bharti judgement, because it took away Judicial Review which is a part of basic structure of
the constitution.
RIGHT TO CONSTITUTIONAL REMEDIES (Articles -32)
1. Article 32 confers the following rights to all individuals:
i. To move to Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this part is guaranteed.
ii. The Supreme Court shall have the powers to issue directions or orders or writs
2. The right guaranteed by this article shall not be suspended except as otherwise provided for by
this constitution. Thus, Article 32 is remedial in nature and is the soul of the constitution, an
article without which the whole constitution will be a nullity.
3. It is a part of basic structure of the constitution and by virtue of this article, Supreme Court is the
‘Guardian of the Constitution’. The fundamental Rights can also be enforced by High Courts
under Article 226.
WRITS
 These are borrowed from English Law where they are known as ‘prerogative writs’ as they were
issued on prerogative of the King.

P a g e | 35
 While Supreme Court can issue writs only for enforcement of Fundamental Rights, High Courts
can issue writs not only for the enforcement of Fundamental Rights but also ordinary legal
rights. Writs are of following five types:
WRITS
Habeas Corpus It is an order issued by the Court to a person who has detained another
person, to produces the body of the later before it. If detention is found
illegal court will set detained person free.
Mandamus It is a command issued by the court to a public official asking him to
perform his official duties that he has failed or refused to perform.
However, it cannot be issued against a private individual or body, to
enforce a departmental instruction not having statutory force.
Prohibition It is issued only against judicial and quasi-judicial bodies where a higher
court forbids lower court or tribunal from exceeding jurisdiction or
usurping jurisdiction that it does not poses.
Certiorari It is both preventive as well as curative where a higher court issues it to a
lower court or tribunal either to transfer a case pending with the latter to
itself or to squash the order of the latter in the case.
Quo-Warranto It is issued by the court to enquire into the legality of claim of a person to
a public office. It can be issued against statutory or constitutional office
of permanent character but not in case of ministerial office and private
office. It can be sought by any interested person and not necessarily an
aggrieved individual like other four writs.
ARMED FORCES AND FUNDAMENTAL RIGHTS
Article 33
1. It empowers Parliament to restrict or abrogate the Fundamental rights of the members of
armed forces, para-military forces, police forces, intelligence agencies and analogous forces in
order to ensure proper discharge of their duties and the maintenance of discipline among
them.
2. Any such law made by Parliament cannot be challenged in any court on the ground of
contravention of any of the fundamental rights.
3. Hence, curbs like that on right to freedom of speech and expression, right to form associations
and unions, right to communicate with the press, right to attend public meetings or
demonstrations have been imposed by Parliament.
4. These provisions apply to non-combatant employees of armed forces like barbers carpenters
etc. Parliament can also exclude the court-martials from writ jurisdiction of higher courts.
MARTIAL LAW AND FUNDAMENTAL RIGHTS
Article-34
1. It provides that Parliament may by law indemnify 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.

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