1.

PREAMBLE OF THE CONSTITUTION:-

The preamble of an Act sets out the purpose and object for which a statute is enacted. The Preamble
of the constitution declares :-
We the people of India having solemnly resolved to constitute of India into a sovereign, socialist,
secular democratic Republic and to secure to all its citizens. :- I) Liberty of thoughts, expression, belief,
faith and worship. II) Justice, social, economics and political. III) Equality of Status and opportunity
and to promote among them all.. IV) Fraternity assuring dignity of the individual and the unity an
integrity of the Nation.
I our constitution Assembly this twenty sixth day of November, 1949 do hereby adopt enact and give
to ourselves this constitution.

The Purpose of Preamble:- The Preamble to the constitution is a key to open the mind of the makers
for which they made several provisions in the constitution. In constitution preamble occupies an
important place &
The constitution should be interpreted in the light of the ideals mentioned in the preamble.
Keswanand Bharti v.State of Kerala 1973.

The Preamble to the constitution serves the following purposes:-

i) It discloses the source of the constitution.
ii) It lays down the date of the commencement of the constitution.
iii) It sets out the rights and freedoms which the people of India wished to secure for themselves.
iv) It declares the nature of the government which it wishes to establish in the country.
Preamble declares that people of India are the source of the constitution of India. The govt., derives
all its authority from the people of India. Administrators are elected by the People of India. The
nature of the govornment, which the preamble establishes is a sovereign, socialist, secular,
democratic republic. Sovereign because const., does not recognise the legal supremacy of any other
country. A democratic because govornment of the people, by the people and for the people. Secular
because it treats all the religions equally. It does not recognise any religion as a State Religion.
Socialist because it implies economic equality and equitable distribution of income. In such state
important means of production is controlled by the State. And republic because the Head of State is
not a hereditary Monarch, political sovereignty resides in the people and Head of State is President of
India who is elected by the people for a fixed term.

Objectives of the Constitution:- The objectives is to secure to its people, justice. Liberty, and
fraternity, the dignity of the individual and the unity and integrity of the nation. // In keswaanand
Bharti case it has been held that the preamble is the part of the constitution and therefore it can be
amended by the Parliament under its amending power under article 368 with the condition that it
should not exercise it amending power so as to destroy the basic features in the preamble. By 42nd
amendment of the constitution of India, Parliament did amend the Preamble inserting the words “
socialist secular” before” Democratic Republic and “ integrity”before of the nation. Spirit of these
amendments only expressly stated what was already present in the constitution impliedly, the
additions did not impair the basic features.In //Aruna Roy v. Union of India 2003 secularism has been
held to be knowledge of and respect for all religions and fostering feeling of respect for them.
 Question 2 :- “Article 14 permits classification, but prohibits class legislation.” Discuss this statement.
(Right to equality)
Classification and class legislation : The guarantee of equality before the law and equal protection of
the laws does not mean that all the laws must be universal in application to all persons irrespective of
differences in their nature and circumstances. Equal treatment with persons in unequal
circumstances amounts to inequality and hence article 14 permits classification of people difference
between those put in class is distinct from the others and bears a reasonable relations to the object
sought to be achieved by the legislature.// But article 14 does not permit class legislation which
means undue discrimination by conferring some advantages or privileges upon an arbitrarily selected
group of people though all of them are similarly circumstanced in relation to privilege conferred on
the selected class. In other words class legislation amounts to unequal treatment with equals and
hence void under article 14.// Equality is for equals i.e. to say those who are similarly circumstanced
are entitled to an equal treatment. The guarantee of equality does not imply that the same rules
should be made applicable to all persons in spite of differences in their circumstances and conditions.
Refer case Ramesh Prasad Singh v. State of Bihar l978. // In APBC Singh v. Jharkand state Vaishya
Federation 2006, the Jharkhand state had amalgamated Extremely backward class and backward class
into one group for the purpose of reservation in professional and educational institutions. The court
has held that the decision of the state govt., amalgamating the extremely Backward classes and
Backward classes is violative of Article 14 because two different classes have been treated similarly.
Merely showing that the Council of Ministers had applied their minds in order to arrive at the
decision is not tenable and such decision is arbitrary and unreasonable and is subject to judicial
review.// In a case of chiranjeet lal v.Union of India 1951, It was held that single individual may be
considered as a class in special circumstances. The SC ruled that a law may be constitutional even if it
applies to a single individual on account of some special circumstances or reasons applicable to him,
that individual may be treated as a class itself. Ordinarily a legislation pertaining to a single person
would not be valid unless it was possible for the court to discern the special circumstances
differentiating that particular person from the rest. If a classification is discernible in the Act, a
presumption arises in favour of its constitutionality, but the person affected may show that while
there are others having the same differentiating attribute as he, only he is covered by the Act and not
others and the Act will then be void.

3.What do you understand by reasonable classification in the context of “ Right of Equality”? Can a
single person be treated as a class?

What article 14 prohibits is class legislation. But it does not forbid reasonable classification. The
classification should not be arbitrary but must rest upon some real and substantial distinction having
some relationship which is reasonable to the things in respect of which the classification is sought to
be made. The classification can be based on the basis of geography or other objects or occupation.
Refer case: Shashi Mohan v. State of W.Bengal-1958.
In Menka Gandhi case v Union of India- 1978 SC emphasized on the content and reach of the great
equalising principle enunciated in Article 14. Warning against any attempt to truncate its all
embracing scope and meaning which might violate it activist magnitude, SC observed that equality is
a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional
and doctrinaire limits. The court reiterated the majority view in E.P.Royappa v.state of Tamil Nadu
1974 that Art. 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment. The principle of reasonableness which legally as well as philosophically is an essential
element of equality or non-arbitrariness pervades article 14 like a brooding omnipresence. In Ajay
Hasia v.Khalid Mujib 1981 SC struck down as constitutionally invalid, the allocation of as high a
percentage as 33 1/3 of the total marks for the oral interview for admission to the Engineering college
and declared it as infecting the admission procedure with the vice of arbitrariness. The court firmly
laid down ha “ what article 14 strikes at negation of equality” so ruled , the court said that not more
than 15% of the total marks should be allocated for the oral interview.//In the series of cases State
laws creating special Courts to deal with the problems of law and order have been questioned. A law
creating special courts can therefore be sustained only if it makes reasonable classification either of
the offences or of the cases or of the persons, triable by the special courts. Difficulties usually arise
when the law establishing these courts fails to do so itself and instead leaves it to the govt., to decide
this matter. In such situation the courts have held that the law would not be valid if it does not lay
down the policy or principle to regulate and control administrative discretion to decide which cases
offences or persons would be triable by these courts. In Bhagwanti v Union of India-1989 it has been
held that classification between marriage during service and after retirement for the purpose of giving
family pension is arbitrary and violative of Article 14. In state of UP v. Committee Management 2010
SC the respondents were running unaided school which was upgraded as High School and
Intermediate college in 1991-1999. After 30.6.84 Junior schools wee granted recognition covered by
the Grants-in-aid scheme but the court held that the action of the State creates class within class
which is arbitrary and violates Article 14 of the constitution. A distinction between two schools of the
same category was created while one category of schools continued to get the grants-in-aid benefit
inspite of upgradation of other junior High school were excluded from benefit.

3.A -CITIZENSHIP ( Article 5 -11)

At the commencement of this constitution every person who has his domicile in the territory of India
and i) who was born in the territory of India ii) either whose parents was born in the territory of India
iii) 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.According to the Federal principle, the
constitution of USA provides for dual citizenship i.e. the citizenship of the USA and the citizenship of
the state. Though the Indian constitution has adopted the federal principle of the American
constitution but it had opted for a single citizenship, that is the citizenship of India. There is no state
citizenship.
The citizenship Amendment Act 2003 has paved for conferring Indian Citizenship not only upon
the persons of Indian origin but citizens of certain other countries also. The amendment has obviously
reserved the idea of single citizenship and introduced a limited sort of double citizenship.

3-B- DOCTRINE OF SEVERABILITY (Article 13)

A :- Clause (1) of Article 13 provides : All laws in force in the territory of India immediately
before the commencement of this constitution in so far as they are inconsistent with the provisions of
this part, shall to the extent of such inconsistency be void. Clause (2) of Article 13 says that the state
shall not make any law which takes away or abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent of contravention be void. Clause 1 and 2 of
article 13 thus declare that laws inconsistent with or in contravention of the fundamental rights shall
be void to the extent of inconsistency or contravention as the case may be. It means that where only a
part of law is inconsistent with or contravenes the fundamental rights, it is only that part which shall
be void under article 13 and not the whole of the law. The courts apply the doctrine of severability or
separability to separate the valid portion of the law from the invalid portion.
In a case State Of West Bengal v .Committee for protection Democratic Rights, W.Bengal 2010 SC held
that, Any law that abrogates or abridges such right would be violative of the basic structure. Doctrine.
In some other cases Keshavaananda Bharti v/s State of Kerla 1973, Minerva Mills v/s Union of India
1980, Waman Rao v/s Union of India l981 and Srinivasa v/s State of Karnataka 1987, it was held by SC,
The basic features” of the constitution cannot be amended by exercising the power of amendment
under article 368.

3.C- DOCTRINE OF ECLIPSE :- Article 13 A law existing at the time of coming into force of the
constitution and inconsistent with a fundamental rights though becomes inoperative from the date of
the commencement of the constitution. It is not dead altogether. Though it is overshadowed by the
fundamental rights and remains dormant, it is not wiped out from the statute book It stands for all
the transactions and for enforcement of rights incurred during pre-constitution period. It this shadow
or eclipse is removed by the appropriate constitutional amendment the law revives. This question was
considered by the SC in Bhikaji Narain v. State of MP 1955 the court held that an existing (pre-
constitution) inconsistent law is not dead and can be revived by any subsequent amendment of the
constitution. In that case a law authorised the State Govt., to nationalize motor transport business.
This law became void on coming into force of the constitution in 1950 as it is violated article 18(1)(g)
in 1951. Art.19(b) was amended which authorised the state govt to nationalized motor transport
business. It was held that the amendment had removed the shadow and made the law enforceable.
All existing laws are continued to be valid till courts declares them to be in conflict with fundamental
right and therefore void. Thus the declaration of validity of the court is necessary.

3.D -Protection Against Self-Incrimination

It is a trite law in English & American Jurisprudence that no one should be compelled to give evidence
or be witness against himself. Article 20(3) of constitution provides,” no person accused of any
offence shall be compelled to be a witness against himself.” This means that no accused shall be
compelled to make confessions which might lead to his conviction.
i) It is the right pertaining to a person “accused of an offender”
The privilege under article 20(3) is confined only to an accused i.e. a person against whom there is a
formal accusation relating to commission of an offence, which in the normal course may result, in
prosecution (R.K.Dalmia v. Delhi Administration 1962) Where a custom Officer arrests a person and
informs him of the ground for the purpose of holding enquiry there is no formal accusation of an
offence. ( Veer Ibrahim v. State of Maharashtra, 1976)
ii) It is protection against compulsion to be witness.
The phrase used in Art.20(3) is “ to be witness” and not “appear as witness". Every possible volitional
act which furnishes evidence is testimony and testimonial compulsion connotes a coercion which
procures the positive volitional evidentiary acts of the person as opposed to the negative attitude of
silence or submission on his part. Case : M.P.Sharma v. Satish Chandra 1954. The interpretation of the
phrase,“ to be witness” given in above case is too wide and requires a qualification. Self incrimination
can only mean conveying information based upon personal knowledge of the person giving
information and cannot include merely mechanical process of providing documents in court.
iii) The Prohibition is only against the compulsion of the accused to give evidence against himself.
There is not constitutional disability against an accused being a witness on his own behalf. Case
Nandini Satpathi v. P.L.Dhani-1978, It is laid down that the phrase, compelled testimony” must be
read as evidence procured not merely by a physical threats or violence but also by phychic torture. In
case: Yusafali v. State of Maharashtra-1968.
3.E -.PROTECTION FROM EX-POST FACTO LAW
Article 20(1) of the constitution says, “ 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 he
subjected to a penalty greater than that which might have been inflicted under the law in force at the
time of commission of the offence.
Article 20(1) corresponds to the provisions against ex-post-facto laws of the American constitution.
Ex-post-facto-laws are laws which impose and enhanced penalties upon acts already done i.e.
retrospectively. This means that person can only be convicted of an offence if the act was charged
against him was an offence under the law in force at the date of commission of the act. However it
does not prohibit the imposition of civil liabilities retrospectively. So a tax can be imposed with effect
from a past date. This first part of art.20(1) simply means that if an act is not an offence at the date of
its commission, it cannot be made an offence at any date subsequent to its commission. The second
part of the clause provided that a person cannot 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. Case:
Shiv Bahadur singh v. State of U.P.-1958 : The prohibition :- it will be noted, extends not only to the
passing of ex-post-facto laws but also the conviction or the sentence under such laws. It was held that
penalty means penalty for the offence committed. In case : Venkataraman v. Union of India.1954: -
such a trial under a procedure different from what obtained at the time of the offence or by a court
different from that which had the competence at the time cannot ipso facto be held to be
unconstitutional. Protection of cause(1) or article 20 cannot be claimed in cases of preventive
detention.

3.F-PROTECTION FROM DOUBLE JEOPARDY

English and American laws bar second prosecution of an accused for the same offence whether he
was convicted or acquitted as a result of the first prosecution. No one should be vexed twice for the
same act. But art.20(2) of the constitution of India has adopted this principle to a rather narrower
extent as its protection against prosecution for which the accused has already been prosecuted and
punished. Art.20(2) provides “ No person shall be prosecuted for the same offence more than once.”
The constitutional protection against double jeopardy is available to the citizens and non citizens
of India. Thus the Indian provision enumerates only the principle of autrefois convict but not that of
autrefois acquit. In England and the USA both these rules operate and a second trial is barred even
when the accused was acquitted at the first trial for that offence.
In order to bring the case of a person within the prohibition of art.20(2) it must be shown that
he had been (i) Prosecuted before a court. (ii)Punished by it (iii) The punishment was for ,” the same
offence “ for which he is being prosecuted again.
Accordingly there can be no constitutional bar to a second prosecution and punishment for the
same offence unless the accused had already been punished in the first instance, in a case Kalawati v.
State of M.P.-1953. The word prosecution has no fixed meaning and is susceptible of both wider and
narrower meanings as laid down in Venkataraman v. Union of India 1954, but as used in art.20(2) it
embodies four essentials :
1. There must be a person accused of an offence.
2. The proceedings of the prosecution should have taken place before a court or judicial tribunal and
not the executive or administrative action.
Case : Maqbool Hussain v. State of Bombay 1953 & H.H.Advani v. State of Maharashtra 1971.
3. The proceeding should have been taken before the judicial tribunal or court in reference to the law
which creates offences. Case:Venkatraman v. Union of India.-1954 & Leo Roy v. Supdt. Of District Jail-
1958.
4. The person must have been not only prosecuted but also punished in the previous proceeding.
Likewise, clause (2) of article 20 does not apply when the person prosecuted and punished for the
second time and subsequent proceeding is a mere continuation of the previous proceedings, e.g. in
the case of an appeal against acquittal. Case: State of M.P. vs. Veereshwar-1957.
Similarly the conviction of the accused under section 304 IPC for the death of deceased does not
deprive the wife of the deceased to claim compensation. A decree of damages is not a punishment
and the rule of double jeopardy has no application, Case : Suba Singh v. Devender kaur,2011.

4. Question :- Discuss the importance of the speech and expression. (article 19) Does the constitution
permits its curtailment? If so on what ground and o what extent?
Examine the scope of freedom of speech and expression under the constitution of India. Is right to
information implies in Article 19(1)(a)?
Freedom of speech and expression is a fundamental right given under Art 19(1) A in the part III of the
constitution of India. Article 19 itself contains certain freedom for the individual. In a case LIC v/s
Manu Bhai D.Shah, the apex court held that,” That a speech is Gods- gifted to mankind. Through
speech a human being conveys thoughts, sentiments and feeling o others, freedom speech and
expression is thus a natural right which a human being acquires on birth. Art.19(2) imposes certain
reasonable restrictions on these freedom. As a general rule of law, all constitution of the world have
given certain freedoms to their individuals. The preamble of our constitution also gives the object of
the freedom of speech and expression.
Meaning :- Two things are following:-
i) right regarding freedom of speech
(ii) expression
Speech:- Means a speak. It means one has the freedom to speak. But this freedom is no absolute or
complete, no one can speak in such a manner which is injurious to others and on such a matter which
is prohibited by law itself.
Expression :- It means to express or propagate a thing. Expression may be done through written or
through other legal means. The communication of speech and expression is a must. So the freedom
of communication of speech and expression is also guaranteed under Art.19(1)A.
In National Anthem Case 1986 :- It was held that the right to speak aso incudes the right not to speak.
In this case, three students of Jehyesh’s school were expelled by the governing body of this school on
he ground of not speaking national anthem with other students. The challenged it in the court. The
SC held that the freedom of speech and expression also includes not speaking and not expressing. One
cannot be compelled to speak or express.
In other case l995 In the Election Petition of Maharashtra Chief Minister. In the Election of Manohar
Joshi was challenged on the ground of freedom of religion and freedom of speech and expression.
The petitioner argued that Mr.Manohar Joshi used some words like Hindu and Hinduism during this
election. These words are against the right of freedom or religion and also against provisions of
people representative Act. 1950. In other wards, to ask for vote in the name of religion is illegal. Bu in
this case SC held that to ask votes in the name of Hindu’s or Hinduism is not in the name of religion.
The word Hindu or Hinduism do not denote or represent religion. These words are used for particular
community residing in India. However, the statement of Balthakery chief of shiv sena, was held
against religion. So in this case two question of freedom of speech discussed Mr. Joshi was also
protected due to the freedom of speech and expression.
Art.19(1)(a) guarantees right to freedom of speech and expression to its citizens not only within India
but even outside it. If the state action sets up barriers to its citizens freedom of speech and expression
in any country of the world such action is violative of Article 19(1) (a) as such expression is within the
country. (Per Justice Bhagwati in Menka Gandhi v. Union of India l978)
Territorial Extent of the right :- The right of freedom & expression is available even out of India. Case:
Menka Gandhi v/s Union of India 1978. The govt argued that this right can be restricted on the
ground of out of the territory of India because this right is available only within India. It cannot be
enforced in the foreign countries. But in this case SC held that this right could not be restricted on the
ground of territorial extent. It includes the freedom of speech and expression even out of India.
FREEDOM OF PRESS :- The right of speech and expression includes the freedom of press. The idea of
the freedom can be expressed by the way of press. Pres is the fourth estate of the democracy the
fourth essential condition or the fourth piller of the democracy. So no restriction can be imposed on
the freedom of press. The word expression means no interference in there shall be the freedom of
press. The freedom of press shall not be violating to Art.19(1) A.
Case: Indian Express Newspaper v/s Union of India 1985:- Even imposing sales taxes on the sale of
newspaper has been held violative of Art.19(1) A. No sales Tax can be imposed on the newspaper
because the newspapers are the mode of expression or of the views of the public so there should be
no restriction on such freedom

5. What is the scope of the right to freedom of speech and expression? On what grounds can this right
be restricted?
1 Decency and morality : Any such speech expression which is against morality can be restricted
under this right. To show film is also a mode of freedom of speech and expression garb of film. Any
such thing or scene or speech which is injurious to the society will be prohibited under art. 19(2).
Morality means some ethical rules of the society and some form of the society by which the status of
the society is maintained.
1. Public Order: Any such speech which is dangerous to the unity of country can be restricted under ar.
19(2).
2. Contempt of Court:-Any-thing said against the interest of the court can be prohibited, if any one
interferes in courts business it is offence & Punishable.
3. Friendly relation with foreign states: Ist amendment 1951 friendly relation should be maintained
with other countries.
4. Defamation:- Any statement which gives injuries to man’s status under sec.499 IPC
5. Incitement for an offence:- Abetment or to provoke through speech It is an offence under section
107 IPC.
6. Sovereignty & Integrity of India: By 10th amendment so any such speech which can be dangerous to
he Unity & integrity of India can be restricted
So in this way these are the reasonable restrictions, which can be imposed on the right of freedom
and speech & expression.
6.Question :- Define the word ,” State” as used in context of Fundamental Rights In Part III of the
constitution .
OR
What does the word, State signify as defined in Article 12? Examine.
Answer: INTRODUCTION :- Article 12 OF the constitution defines the term State, It lays down, In this
part, unless the context otherwise requires, the 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.” Thus the term state
includes :-
1. The Government of India i.e. the executive of the Union.
2. The Parliament of India i.e. the legislature of the Union.
3. The government of each state i.e. Executive of states.
4. The legislature of each state i.e. Legislature of states.
5. All local or other authorities within the territory of India.
6. All local or other authorities under the control of the Govt., of India
Thus the term state includes Executive and the Legislative organs of the Union and States besides the
Local or other authorities within the territory of India or under the control of the Govt., of India.
Authorities = Means a person or body exercising power to command. In art.12 the word authority
means the person or body having the power to make laws orders, regulations, bye-laws, notifications
etc., which have the force of law and have the power to enforce those laws.
Local Authorities :-According to sub-section 3(1) of section 3 of the General Clauses Act 1897, local
authority means a Municipal Committee, District Board, Body of Commissioners or other authority
legally entitled to or entrusted by the government within the control or management of a municipal
or local fund.
Other Authorites :- It was the opinion of the Madras High Court that the term,’ other authorities’
under article 12 should be constructed ejusdem generis with the government or legislature and so
construed it can only mean authorities exercising governmental functions. Case :Madras University v.
Santa Bai 1954, This view of the Madras High Court has been rejected by the Appex Court. In
Ujjambai v. State of U.P.1962. The SC laid down that the doctrine of ejusdem generis cannot be
applied in the interpretation of the term, other authorities.
In Electricity Board v. Mohan Lal, 196 SC has observed that the term other authorities used under
Article 12 includes all the authorities created by the Constitution or Statute on whom powers as
conferred by law, whether or not they are engaged in performing governmental functions.
In later decisions the Supreme Court gave a wider and more liberal interpretation of the expression,
‘other authorities’.
In Ramanna Dayaram Shety v. The International Airport authority of India 1979:- The SC held that if a
body is an agency or instrumentality of government it is an authority within the meaning of Art. 12,
whether it is a statutory corporation, a government company or even a registered society. In this case
the SC laid down the following tests for determining whether or not a body is an agency or
instrumentality of the govt.
7.Question: What is right to life and personal liberty (Article 21)? How the new dimension Has been
given to it by Judiciary?
Introduction:- Personal liberty means freedom of person or body. The right of life means to live in
the world. These two things the right of life and personal liberty are the most important rights of a
person. No one has the right to take away the personal liberty of a person. The rights are protected
by the constitution itself under article 21. The concept of personal liberty borrowed from the
American constitution. Even at international level, there wee declarations which granted personal
liberty and right of life to human beings. Article 21, has been explained now a days very liberally by
the SC.
In a case P.N. Bhagwati on behalf of S. Court gave decision for the people of certain local of
Himachal Pradesh, for enforcing the right of personal liberty. In this trial village people were
prohibited during raing days bringing essential commodities, such as, food, clothes, shelter due to
water-course on the way. The court held govt., was liable for constructing a bridge on the water-
course.
Right of life and personal liberty:- Art.21 “ No person shall be deprived of the right of life a personal
liberty except according to the procedure established by law"
No Person: means that any person whether citizen or non-citizen
Deprived : means to take away or to finish or to arrogate a thing.
Right of Life : Life means to live in the world. For living in the world mainly three things Roti- Kapra
and Makan are necessary. These things are under the right of life.
Personal Liberty: It consisted two things i) Personal ii) Liberty. Personal means relating to person or
body. Liberty means freedom. So personal liberty means the freedom of the body or bodily freedom
in art. 19 there are certain freedoms, but art 21 contains certain other types of freedoms which are
particularly related with body. For exp. To eat, sleep and sit etc., according to one’s own choice.
In A.K. Gopalan v/s State of Madras:- This freedom was restricted to bodily freedom only but later on
in Kharak Singh case, Menka Gandhi case and in certain other cases, this concept of personal liberty
was applied very widely by the Supreme Court.
Case : A.K.Gopalan v/s State of Madras: 1950 : The meaning of term personal liberty was taken very
narrowly. The court held the term liberty is lin ked with the term personal so personal freedom is
only bodily freedom. In this case certain persons including the petitioner, A.K.Gopalan was aarrested
under the Preventive Detention Act 1950. It was held by s. Court that the arrest and the imprisonment
of the accused under this act is not against Art.21.
RIGHT TO TRAVEL TO ABROAD:- A case Satwant Singh v/s Delhii Pass Port Officer 1967 in this case
the passport of the petitioner was confiscated by the Passport authority of Delhi without giving any
reason. The petitioner challenged this action and argued that the travel to abroad also comes under
the right of personal liberty. The petitioner was some business in the foreign country so he used to go
to abroad from time to time. Supreme Court held that to travel to abroad also come under the right
of personal liberty.
Menka Gandhi v/s Union of India. 1978 in this case also the passport of the petitioner was confiscated
by the Passport authorities giving no reason for confiscation to the petitioner. The petitioner
challenged it on the ground of personal liberty. The passport authorities argued that there is a law for
this purpose, In this law, it is not necessary to give reason for impounding the passport. It is also not
in the interest of public to give reasons of impounding the passport.
But S. Court rejected all these arguments and said law should also be based on the principle of
natural justice. The procedure established by the law should be reasonable & According to natural
justice and the opposite party should be given opportunity of hearing. So this case changed the
concept of personal liberty dynamically.
Right of Livelihood :- A case People of democratic v/s Delhi Administration 1982 The workers of Asaid
Village 1982 were paid very minimum wages. A public interest litigation was filed for this purpose.
The petitioner said that reasonable wages are necessary for livelihood. Therefore outright of live
hood has been broken. This right comes under the right of personal liberty. The S. Court held that the
right of livelihood comes under the right of personal liberty under art. 21, but in another case Sadan
Singh v/s New Delhi Municipal Committee 1989 the S.C, held that right to carry on any trade or
business is not included in the concept of life and personal liberty. The petitioner who was doing he
business on the pavement of the roads of Delhi had claimed the refusal by the Municipal authorities
to them, to carry on business for their livelihood resulting in the violation of their right of livelihood
under art. 21 of the constitution. The court distinguished the ruling of the court in Ollga-Tell’s case
and held that it is not applicable in this case. In another case D.K.Yadav v/s J.N.A Industries-1993: In
this case SC held that the right of life under art.21, includes right of live-hood and therefore before
terminating the service of an employee a fair plea requires that a reasonable opportunity should be
given to him to explain his case.
RIGHT TO DIE : A case Marui Sripati Dubal v/s State of Maharashtra 1986 the Bombay High court held
in case that the right to die also comes under the right of personal liberty. So committing to suicide
should not be taken as an offence. It is a freedom of human beings to live or to die. Therefore section
309 of IPC is against Art. 21. In this case a police constable due to adverse family circumstances tried
to commit suicide. He was prosecuted for this act. The court held that he was not liable under section
309 of IPC. Another case of P.Rathanam and Nag Bhushan Patnaik v/s.Union of India 1944 : The S.
Court confirmed the decision of Bombay High Court and held that the right to live also includes the
right to die, so it is personal liberty of a person to finish his life. But still there is a controversy about
the mercy death. The view of some writers is that this death should be included under the right of
personal liberty.
Gian Kaur v/s State of Punjab 1996:- The S. Court held that ‘right to life’ under article 21 of the
constitution does not include, ‘right to die’, right to life is natural right embodied in art. 21 which
means to die a natural death and does not include the right to commit suicide which is a unnatural
extinction of life and inconsistent with the concept of right to life.

RIGHT OF EDUCATION: A CASE MISS MOHINI JAIN V/S STATE OF KARNATKA-1992 In this case the
petitioner could not get admission in the professional course due to high capitation fees. There are
some orders of the Govt., of Karnataka for taking capitation fees. This fee was Rs.60,000/-for the out
state candidates. The petitioner could not arrange this amount of money. She challenged it on the
ground that the right of education also come under the right of personal liberty. The S.C. held its
decision according to the petitioner’s argument. In Unikrishanan v/s State of Andhra Pradesh 1993
the court modified the scheme laid down in Mohini Jain case in relation to NRI students and held that
out of entire the seats only 5% seats can be filled up by NRI students, on the basis of merit, to be
judged by the management of the college concerned and not on the basis of entrance examination.
8.Question: Constitution of India Provides freedom of Religion or Secularism to all person.
Answer: Introdction : Right of freedom of religion is contained from Art. 25 to28 of constitution of
India, these articles are contained in the part III of the constitution. As part III is related with the
fundamental rights, Art 25(1) gives the conditions for the freedom of religion. Under Art.2(2)there are
certain restrictions on this freedom of religion. Art.26 is related the management of the religious
affairs and the maintenance of religious institution. Art.27 says that the income earned by the way of
religious activities shall not be taxable, Art.28 says that the Govt., shall not give any aid for the
religious activities. These four Articles give the ideas of secularism. The preamble of the constitution
also says that our constitution is secular. There is freedom of thought, expression, belief and faith.
That is why India is a secular state.
DEFINITION OF RELIGION: On the basis of religious concept a state may be divided into three
categories :-
i) Anti-Religious State : A state, which is anti religious. It means where there is no recognition to any
religion in the state. In other words, the persons of that state can not follow or adopt any religion.
ii) Religious State : A State, which has its own religion or where there is recognition of only one
religion. All people are bound to follow that one religion. For example Pakistan, and other Muslim
countries.
iii) Secular state :- A State, which is neither anti religious, nor religious. It means such a state has not
its own religion but it does not prohibit any person for adopting any religion. Modern Democratic
countries are mostly secular states. For example, America, England & India etc.
WHAT IS RELIGION : Now question is arises that what is religion? It is very difficult to difine in certain
words of term ‘religion’ because it is based upon faith and belief. It is a matter of inner conscience or
spiritual matter. Though in various cases the SC of India has said that,” Religion is a doctrine of belief.
Religion is related with the manners, living manners of getting peace in this world, including the
manners of talking, eating even types of dress. So religion is a variety of different things in the life of a
person, which are related with spiritual or inner conscience matters.
RIGHT TO FREEDOM OF RELIGION: According to article 25(1) there is guarantee to every person for the
freedom conscience and right to profess, practice and propagate the religion. The words of this article
give the right for the freedom of religion. Art. 25(1) gives the guarantee for the freedom of religion.
This article mainly contains the following two things:
i) Freedom of conscience.
ii) Right to profess, practice and propagate the religion.
Freedom of Conscience: Every person has the freedom of conscience. It means to think according to
one’s own will. Conscience is an internal matter upon which there is no control of any other person,
even a father cannot control his son for the purpose of religion. A person is free to adopt any religion
or he is free to adopt no religion. He may be antitheist or anti God. But it does not, mean that it is
violative of any provision of the constitution or of any law. He is free to follow any section or any
branch of religion.
RIGHT TO PROFESS, PRACTICE & PROPAGAE : Profess means to accept any thing. A person is free to
accept any religion and to declare it openly. There is no restriction on him for this purpose. Practice
Means o perform he religious activities. I mean one is free o follow the customs or ceremonies or
other activities of a religion. Propagate means o spread the religion it means one has the right to
expend or spread his religion. It means one has the freedom to make others as his followers in this
religion. For this purpose one has the right to express his thoughts or ideas about his religion but
propagation of this does not mean the conversion of the religion. Conversion is an interference in the
propagation of another religion. In a case, conversion is allowed.
1. Case : National Anthem’s case 1984, in this case the SC held that it is the freedom of Religion and
one cannot compel any other person for obeying he directions relating with another religion.” It is
also said that the right to speak also includes right of not to speak. So this order was held violative of
Art.2(1)being against the right of freedom of religion. Case: Ramesh v/s Union of India 1988, a PIL was
filed, SC rejected this agreement and held that it does not infringes the right of freedom of religion
under article 25(1), even said that by this serial the true picture of the partition of India comes in the
knowledge of the public which will be in the benefit of the public.

9. RESTRICTION OVER THE FREEDOM OF RELIGION:- Freedom of religion is neither right nor absolute
freedom. Some restrictions may be imposed on this right in the interest of public. The article 25(2) it
self lays down certain restrictions.
Restriction in the interest of public morality and health:-To maintain law & order is prime duty of the
government. The government may impose certain reasonable restriction on the religious activities. If
they are dangerous to the public. For example: to arrange route of the religious, procession, even the
force-able conversion is not in the interest of the public. Case: Gulam Abbas V/s State of UP 1984 : The
SC rejected this argument and held that to decide a dispute between two sections such acts petition
come under the reasonable restrictions.
* Recently in election of Maharashtra Chief Minister: During Dec., 1995 the election of Mr. Murli
Manohar Joshi was challenged on the ground of religion and freedom of speech & expression. The
petitioner argued that Mr.Joshi used some words like Hindu or Hinduism during his election speech.
SC held that o ask for votes in the name of Hindu or Hinduism do not denote or represent
religion. These words are used for a particular community residing in India. However the statement of
Bal Thakry chief of shiv-sena was held against religion. Mr joshi was protected due to the freedom of
religion and freedom of speech and expression.
1 Morality : To Practice or propagate any such activity in the name of religion which effects the
morality of persons shall be restricted. That is to practice or propagate prostitution in the name of
religion, is not valid.
2 Health :- In the shia act, there is a provision for slaughtering the cows in the public place because of
its effects on the health. So this is not reasonable even if to be related with religion.
3 Economic or secular of administrative activities : means monitory or financial matters. Some
reasonable restrictions may be imposed on the financial matters of the religious activities. There are
certain secular activities which have no link with the religion can be prohibited under section 25(2).
Case : SP Mittal v/s Union of India 1983. In this court held that certain reasonable restrictions could
be imposed in the administrative activities of any religion. In other case :State of W.Sbegal v/s
Ashutosh Lohri -1995, The SC held that the decision of the Mohd. Hanif & Qureshi v/s state of Bihar,
the slaughtering of cows no the essential elements of Muslim religion.
4 Social Welfare Reform : Certain restricitions may be imposed for the purpose of social reforms, for
example Sati Pratha which is considered as a religious activity under Hindu religion has been
prohibited by passing the sati pratha prevention act. Similarly in south Devdasi Pratha according to
this pratha the girls were sent to the temple for entertain of the guests in the temple under this
practice, there were incidents by which these girls were misused, so the restrictions in the name of
social reforms imposed on this pratha under section 25(2).
Article 26 Freedom to manage religious Affairs : Says that any denomination has the freedom to
manage the affairs of its religion. For this purpose, following rights have been given:
1. To establish and maintain institution for religious or charitable purposes.
2. To maintain the religious affair in these institutions.
3. To acquire and hold movable and immovable property for these institutions.
4. To dispose of such properties according to law.
Article 2 says that no tax can be imposed upon religious income. Even state can also not impose tax on
any person o property for the promotion of religion. However Private and govt. Aided educational
institutions can give such directions for the purpose of religion but in case of govt educational
institutions no religious directions or aid can be given by the state. There is complete freedom of
religion in India except certain restrictions as explained above. India is a secular state.
Article 25 to 28 are peculiar and most important articles which adjust all types of religious
communities castes in India that is why it is said that ,” There is unity in diversity in In

10. Q, Article 30 grants the following rights to minorities, whether religious or linguistic :

1. All minorities shall have the right to establish and administer educational institutions of their
choice.

2. The compensation amount fixed by the State for the compulsory acquisition of any property of a
minority educational institution shall not restrict or abrogate the right guaranteed to them.

3. This above provision was added by the 44thAmendment Act of 1978 to protect the right of
minorities in this regard.

4. The Act deleted the right to property as a Fundamental Right (Article31).

5. In granting aid, the State shall not discriminate against any educational institution managed by a
minority.
 Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and
does not extend to any section of citizens (as under Article 29).
 However, the term ‘minority’ has not been defined anywhere in the Constitution.
 The right under Article 30 also includes the right of a minority to impart education to its
children in its own language.

Minority educational institutions are of three types :

1. institutions that seek recognition as well as aid from the State;

2. institutions that seek only recognition from the State and not aid; and
3. institutions that neither seek recognition nor aid from the State.
 The institutions of 1st and 2nd type are subject to the regulatory power of the state with regard
to syllabus prescription, academic standards, discipline, sanitation, employment of teaching
staff and soon.
 The institutions of 3rdtype are free to administer their affairs but subject to operation of
general laws like contract law, labour law, industrial law, tax law, economic regulations, and
so on.
11.President Powers
The president is the head of the Indian state. He is the first citizen of India and acts as a symbol of
unity, integrity and solidarity of the nation.
Acc to article 53 of our constitution “the executive power of the union shall be vested in president “
Acc to article 74 “ there shall be a COM headed by PM to aid and advise the president who shall
exercise his functions in accordance with such advice”
He has wide powers which are given below
1. Executive powers
 All executive actions of GOI are taken in his name
 He appoints PM and other ministers and they hold office during his pleasure
 He appoints attorney general(AG), CAG,CEC and other election commissioners, chairman and
members of UPSC, Governors and so on
 He directly administers UTs through administrators appointed by him
 He appoints inter- state council to promote cooperation
 He can declare any area as scheduled area and has powers with respect to the administration
of scheduled areas and tribal areas.
2. Legislative powers
 He can summon or prorogue the Parliament and can dissolve the Lok Sabha.
 He can summon the joint sitting of both the houses of Parliament which is presided by the
speaker of the Lok Sabha
 He nominates 12 members to the Rajya Sabha from amongst persons having special
knowledge or practical experience in Literature ,science, art and social service
 He can nominate 2 members to Lok Sabha from Anglo Indian community
 He lays reports of CAG, UPSC, finance commission and others before the parliament
 He decides on questions as to disqualification of MPs in consultation with the EC
 He has veto powers under article 111(like absolute veto, suspensive veto and pocket veto)
1.He may give his assent to bill 2. Withold his assent to the bill 3.Return the bill
3. Financial powers
 Money bill can be introduced in the Parliament only with his prior recommendations
 He causes to be laid before the parliament the union budget
 He constitutes a finance commission after every 5yrs
4. Judicial powers
 Appoints the chief justice and the judges of supreme court and high courts
 Can seek advice from the Supreme Court on any question of law or fact but the advice
tendered by the supreme court is not binding on the president
 He can grant pardon,reprieve, respite,remit and commute the punishment of any person
5. Diplomatic powers
 International treaties and agreement are negotiated and concluded on behalf of the president
subject to the approval of parliament
 He represents India at international forums and sends and receives diplomats
6. Military powers
 He is the supreme commander of defence forces
 He appoints the chiefs of defence forces
 Can declare war or conclude peace subject to approval of parliament
7. Emergency powers
 Can declare national emergency under article 352
 Can declare president's rule in states under article 356
 Can declare financial emergency under article 360
12.Discuss the federal & Unitary features which are found in constitution of India Main Federal
Features of the Indian Constitution

The main federal features of the Indian Constitution are as follows:

1. Written Constitution:

The Indian Constitution is a written document containing 395 Articles and 12 schedules, and

therefore, fulfils this basic requirement of a federal government. In fact, the Indian Constitution is the

most elaborate Constitution of the world.

2. Supremacy of the Constitution:

India’s Constitution is also supreme and not the hand-made of either the Centre or of the States. If for

any reason any organ of the State dares to violate any provision of the Constitution, the courts of laws

are there to ensure that dignity of the Constitution is upheld at all costs.
3. Rigid Constitution:

The Indian Constitution is largely a rigid Constitution. All the provisions of the Constitution concerning

Union-State relations can be amended only by the joint actions of the State Legislatures and the

Union Parliament. Such provisions can be amended only if the amendment is passed by a two-thirds

majority of the members present and voting in the Parliament (which must also constitute the

absolute majority of the total membership) and ratified by at least one-half of the States.
4. Division of Powers:

In a federation, there should be clear division of powers so that the units and the centre are required

to enact and legislate within their sphere of activity and none violates its limits and tries to encroach

upon the functions of others. This requisite is evident in the Indian Constitution.

The Seventh Schedule contains three Legislative Lists which enumerate subjects of administration,

viz., Union, State and Concurrent Legislative Lists. The Union List consisted of 97 subjects, the more

important of which are defence, foreign affairs, railways, posts and telegraphs, currency, etc.
5. Independent Judiciary:

In India, the Constitution has provided for a Supreme Court and every effort has been made to see

that the judiciary in India is independent and supreme. The Supreme Court of India can declare a law

as unconstitutional or ultra Vires, if it contravenes any provisions of the Constitution. In order to

ensure the impartiality of the judiciary, our judges are not removable by the Executive and their

salaries cannot be curtailed by Parliament.

6. Bicameral Legislature:

A bicameral system is considered essential in a federation because it is in the Upper House alone that

the units can be given equal representation. The Constitution of India also provides for a bicameral

Legislature at the Centre consisting of Lok Sabha and Rajya Sabha.While the Lok Sabha consists of the

elected representatives of people, the Rajya Sabha mainly consists of representatives elected by the

State Legislative Assemblies. However, all the States have not been given equal representation in the

Rajya Sabha.
7. Dual Government Polity:

In a federal State, there are two governments—the national or federal government and the

government of each component unit. But in a unitary State there is only one government, namely the

national government. So, India, as a federal system, has a Central and State Government.

Unitary Features - Indian Constitution is Quasi-Federal Nature

In spite of its federal features mentioned above, the Indian Constitution is more unitary than federal,
which make it quasi-federal in nature and enable it to operate as a federal or a unitary constitution as
and when circumstances so require. Its unitary features of indian consitution are the following:
Power distribution favors the Constitution
First of all, the Centre has been given a long list of exclusive powers. There are, about 97 subjects in
Union List. Moreover, the Concurrent List contains 47 more subjects, in which the Union has
concurrent power of legislation with the States. But even the laws passed by the Centre override
those passed by the States. Moreover, the creams of powers are allocated to the Union.
 The Residuary Powers
Unlike the US or the Pakistan provinces the residuary powers has been given to the Union
Government in the Indian Constitution. This is definitely a source of strength for the Centre.
 Emergency Powers
It time of emergency, due to war or internal disturbance or caused by the failure of constitutional
machinery, the President can by proclamation transfer to Parliament all the legislative and executive
authority of the States. Thus, in times of emergency, India becomes a unitary state for all practical
purposes.
 Power to Transfer State Subjects
Even in normal times, The Centre can take over any State subject if the Council of States (Rajya Sabha)
approves of it by 2/3rd majority of its members present and voting on the ground that it is of national
interest.
  Appointment of Governors
The Governors of the States are appointed by the President on the advice of the Central Cabinet or
Prime Minister and are required to comply with any directions given by the Centre. In times of
emergency, they become mere agents of the Central Government. In US constitution the Governors
are appointed by the 'people of the States and can be removed only when impeached by the State
legislatures.
 States have no Constitution
Unlike the USA, the Indian States have no constitutions of their own. The Indian Constitution is the
only constitution for the whole country, the Centre, as well as, the states. Moreover, the states have
no power to amend it or to change their governmental machinery.
 Single System of Judiciary
The Indian judicial system is unitary. There is a single integrated judicial system for the whole country,
with the Indian Supreme. Court at the top. In a true federation there is a dual system one for the
federal laws and the other for the laws of each federating units: as is in the USA.
 Single Citizenship
The Unitary bias of the Indian Constitution has been made more prominent by providing single
citizenship. In other federations, there is often dual citizenship i.e. a person is both a citizen of the
federation as a whole as well as of the unit in which he dwells.
 13.Article 110 of the Indian Constitution deals with the definition of ‘Money Bill’. A bill deemed to be
money bill if it contains “only provisions dealing with imposition, abolition, remission, alteration or
regulation of any tax”. An Ordinary Bill can be introduced in any of the Houses of Parliament while
money bill can only be introduced in the Lok Sabha.
Difference between the ordinary bill and money bill is given below:

S.N. Money Bill Ordinary Bill

1.
It can be introduced in the Lok Sabha only not in the It can be introduced in either house of parliament.
Rajya Sabha

2. It can be intruded in the Lok Sabhaonly by a minister. It can be introduced either by a minister or by a private
member

3. It can be introduced only of the recommendation of Recommendation of president is not required.

the president.

4. It can’t be amended or rejected by the Rajya Sabha. It can be amended or rejected by the Rajya sabha.
The Rajya Sabha should return the bill with or
without recommendations, which may be rejected or
accepted by the Lok Sabha.

5. It can be detained by the Rajya Sabha for a maximum Rajya Sabha can detain it for a maximum of 6 months.
of 14 days only.

6. It requires the certification of Lok Sabha speaker If it is originated in the Lok Sabha, it does not require
when transmitted to Rajya Sabha. approval of speaker when transmitted to Rajya Sabha.

7. It is sent for approval of president even if it approved It is sent to the president only when it is passed by the
by the Lok Sabha only. There is no provision of joint both houses of parliament. In case of deadlock between
sitting of both houses in this regard. two houses, a joint sitting of both the houses can be
called by the president.

8. If this bill is defeated in the Lok Sabha, then the Its defeat in the Lok Sabha may lead to the resignation of
entire council of ministers has to resign. the government if it is introduced by a member.
14.EMERGENCY
There are three types of emergencies under the Indian Constitution namely-
· National Emergency
· Failure of constitutional machinery in states
· Financial Emergency
National Emergency
Article 352 of the Indian Constitution talks about the national emergency. National emergency is
imposed whereby there is a grave threat to the security of India or any of its territory due to war,
external aggression or armed rebellion. Such emergency shall be imposed by the president on the
basis of written request by the council of ministers headed by the Prime Minister. When they are
satisfied that they are satisfied that there is an eminent danger thereof.

Every proclamation is required to be laid before each House of Parliament, it will cease to operate
after one month from the date of its issue unless in the meantime it is approved by the parliament,
the proclamation may continue for a period of 6 months unless revoked by the president. For further
continuance of emergency the resolution has to be passed by either house of parliament by a majority
of not less than two-third members of the houses.

During the times of such emergency the executive, legislative and financial power rests with the
centre whereas the state legislature is not suspended. The union government under Art.250 of the
constitution gets the power to legislate in regards to subjects enumerated in the state list. Except
Art20 and 21 all the fundamental rights are suspended. Under Art.359 the president may suspend the
right to move to the courts for enforcement of fundamental rights during the time of emergency.

National emergency has been imposed thrice in the country- in 1962 at time of Chinese aggression, in
1971 during the indo-pak war, in 1975 on the grounds of internal disturbances.
Failure Of Constitutional Machinery In State
Article 256 talks about the failure of constitutional machinery in state also known as the President’s
rule. If the president on Governor’s report or otherwise is satisfied that the situation has arisen that
the government can’t be carried in accordance with the constitutional provisions then, he may issue
State emergency.

President can declare emergency either by the report of Governor or he himself is satisfied that the
situation is such that the emergency has to be imposed. But at times, President may declare
emergency when a report is not received from the governor. This was done by President
Venkataraman in 1991 in the state of Tamil Nadu even though he didn’t receive a report from the
governor.

After the 42th Amendment of the constitution the state emergency was made immune from judicial
review. But later in the 44th Amendment the legality of President’s rule could be challenged

The proclamation relating to state emergency shall be laid before each House of Parliament unless
both Houses approve it, the emergency shall cease to have effect after the expiry of a period of two
months. Further the duration of proclamation can be extended to 6 months each time by both Houses
of Parliament passing resolution approving its continuance. Beyond the period of an year the
proclamation can only be continued if the Election Commission certifies that it is not possible to hold
election in the state or that territory. The consequences of state emergency are-
· The president assumes all the executive power of the state himself. The state administration runs by
him or any person appointed by him generally the Governor.
· During such proclamation, the state assembly is either dissolved or suspended. But the MLA’s do not
lose their membership of the Assembly.
· Parliament makes laws regarding the state list. The parliament only passes the budget for the state.
· The High court of the state functions independently.
· President also proclaims ordinances in the state.

During the state emergency the Union government has absolute control over the state except the
judiciary.
If one looks at the past instances of state emergency in the country, three common grounds emerge
that have been invoked under Art.356- breakdown of law and order, political instability, corruption
and maladministration.

In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held that the presidential
proclamation dissolving state assembly in Bihar under Art.356 was unconstitutional on extraneous
and irrelevant ground. The court said that the state governor misled the centre in recommending
dissolution of state assembly.
In the historic case of S.R Bommai V. UOI, a full bench of the Karnataka High court produced different
opinion about the imposition of the President’s rule in Karnataka, while in other states the court held
that it was in violation of the constitution and would have restored the original position.
Financial Emergency
The president under Article 360 of the constitution has the power to declare financial emergency if he
is satisfied that the financial stability or the credit of India or any part of its territory is threatened. It
has to be laid before both the Houses of Parliament and ceases to operate at the expiration of two
months unless meanwhile approved by the resolution of Houses.

During the operation of financial emergency, the executive authority of the union extends to the
giving of directions to any state to observe certain specified canons or financial propriety and such
other directions that the President may find necessary. The directions may include reduction of
salaries or allowance of those serving a state, of all those in connection with the affairs of union
including judges of high court and Supreme Court. There has been no occasion of financial emergency
in India.
Conclusion
During the period of emergency for the execution of power there might be infringement of
Fundamental rights of individuals, which are judicially granted by the Constitution of India. The
validity of actions must be reviewed to deter political gains and give way to political interest. Despite
abuse of powers of the emergency provisions still have an important role to play in the conditions
prevailing in India, though it still remains a controversial issue in the country.
15.National emergency effects
1. Executive power of center extends to directing any State regarding the power is to be
executed.
2. Parliament reserves the right to make laws on any subject mentioned in state list.
3. Lok sabha can extend its tenure by a period of 1 year at a time.same is with state
assemblies.
4. Suspension of Fundamental rights continues till end of emergency refer art 19/20/21 and
amendments made in this regards.
Procedure of Revoking State Emergency
Any such Proclamation may be revoked or varied by a subsequent Proclamation.

A proclamation issued under Article 356(1) expires in any of the following modes:

a) After two months of its making if it is not presented for approval before both Houses of the
Parliament [Article 356(3)].

b) Even before two months, if the proclamation on presentation to the Houses of Parliament fails t get
approval from any House [Article 356(3)].

c) After 6 months from the date of the proclamation, in case no further resolution is passed by the
House of Parliament after the passage of the initial resolution approving the said proclamation
[Article 356(4)].

d) After the expiry of 6 months from the passage of the last resolutions of approval passed by the
House of Parliament subject to an over-all maximum limit of 3 years from the date of the
proclamation. Continuance of the proclamation beyond one year is subject to the fullfilment of the
conditions laid down in Article 356(5):

i) a National Emergency is already in operation; or if

ii) the Election Commission certifies that the election to the State Assembly cannot be held.

e) The date on which the President issues a proclamation of revocation [Article 356(2)].
16.DIRECTIVE PRINCIPLE OF STATE POLICY - Article 36 to 51 of the Constitution of India embodies the
Directive Principles of State policy and for these we are indebted to the Constitution of Ireland. The
objective is to establish a social and economic democracy in India. Article 37 reveals that:

1. The Directive Principles are not justiciable

2. They are Fundamental to the governance of the country
3. It shall be the duty of the State to apply these Directive Principles while formulating policies
or making laws for the governance of the State

Fundamental Rights vs Directive Principles - The directives differ from the fundamental rights in Part
III of the Constitution or the ordinary laws of the land, the following ways:

1. While the fundamental rights constitute limitations upon state action, the directive principles
are in the nature of instruments of instruction to the government of the day to achieve certain
ends by their actions.
2. Fundamental rights are justiciable, but the directive principles are non-justiciable.
3. The directives, however, require to be implanted by legislation, and so long as there is no law
carrying out the policy laid down in a Directives, neither the state nor individual can violate
any existing law or legal right under colour of following a Directives.
4. The fundamental rights lay down the negative obligation of the state. They are prohibitive in
character and are, in fact, in the nature of injunctions requiring the state not to do certain
things. Directive principles are, on the contrary, affirmative directions dealing with the
positive obligations of the state towards the citizens.
5. The main objective of fundamental rights is to establish political democracy, by guaranteeing
equality, liberty, religious freedom and cultural rights but the aim of directive principles of
state policy is to establish just social and economic order.
6. The court cannot declare any law as void on the ground that it contravenes the directives.
Relative Importance of DPs vis-a-vis FRs During the first sixteen years of the operation of the
Constitution, the directive principles were considered subordinate to the fundamental rights:
the courts struck down a number of laws enacted to implement directive principles on the
ground that they violated the fundamental rights. The conflict has its root in the fact that
fundamental rights are enforceable by the courts, while the directive principles are not so.

However, the government tried to overcome the problem by amending the Constitution. When
the Supreme Court laid down in the Golaknath Case that the fundamental rights cannot be
abridged to implement the directive principles, the Government tried to overcome the limitation
in 1971 through the 24th Amendment which gave Parliament the right to amend fundaments I
rights. In the same year, the 25th Amendment Act inserted Article 31c ensuring that certain laws
meant to implement Directives in clauses 39 (b) and 39 (c) will prevail even if these laws violate
the rights granted in Article 14 and 19. An attempt to enhance the scope of Article 3IC was made
by the 42nd Amendment Act which gave primacy to any or all the directive principles and
deprived the courts of the right to look into such cases.
17.ADVISORY JURISDICTION Article 143 of the Indian Constitution confers upon the Supreme Court
advisory jurisdiction. The President may seek the opinion of the Supreme Court on any question of
law or fact of public importance on which he thinks it expedient to obtain such an opinion. On such
reference from the President, the Supreme Court, after giving it such hearing as it deems fit, may
report to the President its opinion thereon. The opinion is only advisory, which the President is free to
follow or not to follow. (Keshav Singh’s Case, AIR 1965 SC 745). However, even if the opinion given in
the exercise of advisory jurisdiction may not be binding, it is entitled to great weight.

The first reference under Article 143 was made in the Delhi Laws case, (1951) SCR 747. In almost sixty
years, only twelve references have been made under Article 143 of the Constitution by the President
for the opinion of the Supreme Court: In re the Delhi Law Act, AIR 1951 SC 332

In August 2002, the then President Dr. Abdul Kalam sought advice of the Supreme Court under Article
143 in connection with the controversy between the Election Commission and the Government on
elections in Gujarat. The issues related to the limits on the powers of the Election Commission under
Article 324, the impact of Article 174 on the jurisdiction and powers of the Commission and whether
the Commission could recommend promulgation of President’s rule in a state.

The Supreme Court may decline to give its opinion under Article 143 in cases it does not consider
proper or not amenable to such exercise. It was, however, held by the Supreme Court in M. Ismail
Faruqui v. Union of India (AIR 1995 SC 605) that in that case, reasons must be indicated.

18. JUDICIAL INTERPRETATION - Article 143 is not part of administration of justice. It is part of an
advisory machinery designed to assist the President (the Executive). Article 143(1) is couched in broad
terms which provide that any question of law or fact may be referred by the President for the
consideration of the Supreme Court.

Article 143. Power of President to consult Supreme Court. – (1) If at any time it appears to the
President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of
such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he
may refer the question to that Court for consideration and the Court may, after such hearing as it
thinks fit, report to the President its opinion thereon.

(2) The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the
kind mentioned in the [said proviso] to the Supreme Court for opinion and the Supreme Court shall,
after such hearing as it thinks fit, report to the President its opinion thereon.

The Supreme Court has held in In re the Kerala Education Bill, 1957 that the use of the word “may” in
Article 143(1), in contradiction to the use of the word “shall” in Article 143(2) shows that whereas in a
reference under Article 143(2) the Supreme Court is under an obligation to answer the questions put
to it, under Article 143(1) it is discretionary for the Supreme Court to answer or not to answer the
questions put to it.

The President’s reference under Article 143(1) to the Supreme Court in In re The Special Courts
Bill1978(“the special courts reference) raised important questions of constitutional law. The facts
giving rise to the Special Courts Reference were briefly these:
When the former Prime Minister, Mrs. Indira Gandhi revoked the emergency after her defeat in the
1977 Parliamentary elections, the overwhelming demand arose in the country for the punishment of
Mrs. Gandhi, her son Sanjay and other guilty men. The investigations of the Shah Commission left no
doubt that there had been grave abuse of power during the emergency. Justice to countless victims of
the Emergency demanded that the guilty should be brought to trial. However, the ordinary process of
law are dilatory and Mrs. Gandhi’s party made no secret that the weapon of delay would be used to
prevent the “guilty men” from being brought to speedy trial. Consequently, a private member, Mr.
Ram Jethmalani, introduced in the House of the People (Lok Sabha) a Bill for the setting up of Special
Courts. On 1 August, 1978 the President acting under Article 143, referred the following questions for
the opinion of the Supreme Court.

1. (1) Whether the Bill or any of the provisions thereof, if enacted, would be constitutionally
invalid.
2. (2) The nature of the Supreme Court’s power under Article 143(1) and whether the law laid
down in the opinions is “the law laid down by the Supreme Court” under Article 141.

While dealing the above question, CHANDRACHUD C.J. said that the question whether the law laid
down in the opinions was “law declared by the Supreme Court” would require to be considered more
fully on a future occasion. He observed that:

“It would be strange that a decision given by this Court on a question of law in a dispute between two
private parties should be binding on all courts in this country but the advisory opinion should bind no
one at all, even if, as in the instant case, it is given after issuing notice to all interested parties, after
hearing everyone concerned.”

He was aware that Supreme Court decisions had held that it was not law within Article 141, but he
supported the need for future consideration.

Article 143 does not deal with ‘jurisdiction’ of Supreme Court but with the ‘power’ of the President. It
does not refer to any adjudication at all, but with consultation. There is to be no judgement, decree or
order; there is to be Opinion to be forwarded to the President in a report to him. The Supreme Court
itself would however remain free to re-examine and if necessary to overrule the view taken in an
opinion under Article 143(1). It was held in Cauvery Water Disputes Tribunal 1992, that the
jurisdiction under Article 143(1) cannot be used to reconsider any of its earlier decisions. This can be
done only under Article 137 of the Constitution.

REFERENCES MADE TO SUPREME COURTI - In the matter of Cauvery Dispute Tribunal (AIR 1992 SC
522), a tribunal was appointed by the central government to decide the question of waters of river
Cauvery which flows through the states of Karnataka and Tamil Nadu. The Tribunal gave an interim
order in June 1991 directing the State of Karnataka to release a particular quantity of water for the
state of Tamil Nadu. The Karnataka government resented the decision of the Tribunal and
promulgated an Ordinance empowering the government not to honor the interim Order of the
Tribunal.