UNIT-2 NOTES1

SUBJECT- CONSTITUTION
Meaning of State: - (Art.12) The state includes: -
• The Government and parliament of India
• The Government and legislature of each of the states.
• All local and other authorities:
o Within the territory of India
o Under the control of the Government of India
All the fundamental rights are available against the state with a few exceptions.
Some case law: -
• Electricity is a board within the meaning of Article 12.
• University
• Income- Tax department
• Corporation when deemed to be state? (Ajay hasia vs. Khalid Mujib)
o If the entire share capital is held by government.
o Financial assistance is provided by the government to meet the entire
expenditure.
o When corporation enjoys a monopoly status.
o When the state is having deep and pervasive control over the affairs of the
corporation.
o If the corporation is discharging public function.
• Corporation acting as an agency instrumentality of the government. (RD Shetty vs. IAA).
• Stock Exchange is not a state because it is independent from the government control.
(Satish nayak vs. Cochin Stock Exchange Ltd.)

FUNDAMENTAL RIGHT

Introduction: - The aim of Fundamental Rights is that certain elementary rights such as
right to life, liberty, freedom of speech and freedom of faith and so on should be
regarded as inviolable under all circumstances and that the shifting majority in
legislatures of the country should not have a free hand in interfering with fundamental
rights. Fundamental right is called the Magna Carta of India.

Rights To Equality
a. Equality before law-Art 14.
b. Prohibition of discrimination on the grounds of religion race, caste, sex or place of

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SRISHTI SINGHAL- BA, LL. B, LL.M-CONSTITUTIONAL AND ADMINISTRATIVE LAW)
Assistant Professor
College Of Law
IIMT University, Meerut U.P, India

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 Birth Art 15.
c. Equality of opportunity in matters of public employment, Art 16.
d. Abolition of untouchability Art 17
e. Abolition of titles, Art 18.
ARTICLE-14 RIGHT TO EQUALITY
Equality before Law: -
Art.14 – says that “the State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.”
Analysis: - Art 14 uses two expressions: -
(1) “Equality before the law; and
(2) Equal Protection of the laws
(1) Equality before law – This concept is taken from British Constitution. The concept of
equality does not mean absolute equality among human beings which is physically no
possible to achieve. It is a concept implying absence of any special privilege by reason
of birth, Creed or the like in favour of any individual, and also the equal subject of all
individuals and classes to the ordinary law of the land.

In the words of Dr.Jennings- “Equality before the law” means that among equals the law
should be equal and should be equally administered, that like should be treated alike.

Rule of law – The guarantee of „equality before the law‟ is an aspect of what Dicey
Calls the “rule of law” in England. It means that no man is above the law and that every
person, whatever be his rank or conditions, is subject to the jurisdiction of ordinary
courts. “Dicey the Rule of Law has three distinct meaning “
(1) Supremacy of the law
(2) Equality before the flaw
(3) The Constitution is the result of the ordinary law of the land.
(2) Equal Protection of the Laws –
This concept is taken from American constitution. This has been interpreted to mean
subjection to equal law, applying to all in the same circumstances. It only means that
all persons similarly circumstance shall be treated alike both in the privileges conferred
and liabilities imposed by the law equal law should be applied to all in the same
situation and there should be no discrimination between one person and another. The
words “any person” in Art 14 of the constitution denotes that the guarantee of the equal

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 protection of laws is available to any person which includes any company or association
or body of individuals. The protection of Art 14 extends to both citizens and non-
citizens and to natural persons as well as legal persons. The equality before the law is
guaranteed to all without regard to race, colour or nationality. Corporations being
juristic persons are also entitled to the benefit of Art 14.

Test of Reasonable classification – While Art 14 forbids class legislation; it permits

reasonable classification of persons, objects and transactions by the legislature for the
purpose of achieving specific ends. But classification must not be arbitrary, artificial or
evasive”. It must always rest upon some real and substantial distinction bearing a just
and reasonable relation to the object sought to be achieved by the legislature,
classification to be reasonable must fulfill the following two conditions –
1. the classification must be founded on an “intelligible differentia” which
distinguishes persons or things that are grouped together from others left out of the
group.
2. the differentia must have a rational relation to the object sought to be achieved by
the Act. K.Thimmappa v. Chairman Central Board of Directors SBI and Ram
Krishna Dalmia vs. J. Tandulkar

New Concept of Equality: Protection against arbitrariness: - In E.P.Royappa v. State

of Tamil Nadu the new concept of equality in the following words – “Equality is a
dynamic concept with many aspects and dimensions and it cannot be described,
Cabined and confined” within traditional limits from a positivistic point of view,
equality is antithesis to arbitrariness. In fact, equality and arbitrariness are sworn
enemies, one belong to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is
unequal both according to political logic and constitutional law and is therefore
violative of Art.14.

Exceptions to the equality before law- Art 361 of the Constitution permits the
following exceptions to this rule –
• The President or the Governor of a State shall not be answerable to any court.
• No criminal proceeding whatsoever shall be instituted or continued against the
President or a Governor in any court during his term of office.
• No Civil Proceeding in which relief is claimed against the President or the
Governor of a state shall be instituted during his term of office in any Court in
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 respect of any act done or purporting to be done by him in his personal capacity.

Art 15(1)- PROHIBITION OF DISCRIMINATION ON

CERTAIN GROUNDS: -
Art 15(1) provides that the state shall not discriminate against any citizen on grounds only
of: -
• Religion
• Race
• Caste
• Sex
• Place of birth or
• Any of them
Art 15 (2) provides that: - No citizen shall be on above grounds, subject to any disability,
liability, restriction or condition with regard to—
a. access to shops, public restaurants, hotels and places of public
entertainment; or
b. the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public.
EXCEPTIONS: -
Art 15 (3), (4) and (5) contains exceptions to the general principal laid down
under Art 15 (1) and (2): -
• Nothing in this article shall prevent the State from making any special
provision for women and children.
• Nothing in this article shall prevent the State from making any special
provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes.
• Nothing in this article shall prevent the State from making any special
provision, by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institution.

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 EQUALITY OF OPPORTUNITY IN MATTERS OF PUBLIC EMPLOYMENT :-
(ARTICLE-16)
There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
No citizen shall, on grounds only of:-
o religion,
o race,
o caste,
o sex,
o descent,
o place of birth,
o residence, or
o any of them.
be ineligible for, or discriminated against in respect of, any employment or office
under the State.
Exceptions: -

Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such
employment or appointment.
Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any backward class of citizens
which, in the opinion of the State, is not adequately represented in the services under
the State.
Nothing in this article shall prevent the State from making any provision for reservation
in matters of promotion, with consequential seniority, to any class or classes of posts
in the services under the State in favour of the Scheduled Castes and the Scheduled
Tribes which, in the opinion of the State, are not adequately represented in the services
under the State.
Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body thereof shall be a
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 person professing a particular religion or belonging to a particular denomination.
ARTICLE 17-ABOLITION OF UNTOUCHABILITY
“Untouchability” is abolished and its practice in any form is forbidden. The enforcement
of any disability arising out of “Untouchability” shall be an offence punishable in
accordance with law.
The term “Untouchability” is not defined under the Constitution. However, it refers to the
social disabilities imposed on certain class of person by reason of their birth in certain caste.
However, it does not cover social boycott of a few individuals.
ARTICLE 18-ABOLITION OF TITLES
No title, not being a military or academic distinction, shall be conferred by the State.
No citizen of India shall accept any title from any foreign State.
No person who is not a citizen of India 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.
No person holding any office of profit or trust under the State shall, without the consent
of the President, accept any present, emolument, or office of any kind from or under
any foreign State.
ARTICLE 19-RIGHT TO FREEDOM
Article 19(i) defines six freedoms-
a. Freedom of speech and expression
b. Freedom of Assembly
c. Freedom to from Association
d. Freedom of Movement
e. Freedom to reside and to settle
f. freedom of Profession, occupation, trade or business.
These six freedoms are however not absolute, and subject to reasonable restriction which
are as follows: -
i. Security of the State
ii. Friendly relation with foreign states
iii. Public order
iv. Decency and Morality
v. Contempt of Court
vi. Defamation
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vii. Incitement to an offence
viii. Sovereignty and Integrity of India

Judicial pronouncement on Right to speech and expression: -

• Meaning: - 19(1) (a) Meaning of freedom of speech and expression The
freedom of speech and expression, means the right to speak and to express
one’s opinions by words of mouth. Writing, printing, pictures or in any other
manner. It includes publication also, which includes inherent freedom of
press. The liberty of circulation is vested in liberty of publication.
• Right to know:- the fundamental right principally Principal involved here
is the people’s right to know.
• In Prabhu Datt Vs. Union of India – Supreme Court held that right to know
news and information about the functioning of the Govt., is included in the
freedom of Press.
• In Union of India Vs. Association for Democratic Reforms– Supreme
Court held that people have right to know about the candidate before voting.
Thus, the law preventing the Election Commission from asking for a
candidate’s wealth, Assets, liabilities education and other such information
is invalid.
• In Tata Press Ltd. Vs. M.T.N.L. the Supreme Court held that commercial
speech (Advertisement) is a part of freedom of speech and expression U/A
19(1) (a).
• In Union of India V. Naveen Jindal, The Court held that “Flying National
Flag” is fundamental Right U/A 19(1) (a)
• Freedom of Silence – Right not to speak, In Bijoy emmanual Vs. State of
Kerala.
• Freedom of the Press - the freedom of press defined in the Indian
Constitution U/A 19(1) (a) In Indian Express Newspaper Vs. Union of India,
the Court observed the expression “freedom of the Press” has not been used
in Art 19.
• Pre-censorship Invalid – In Ramesh Thapper Vs. State of Madras.

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 ARTICLE-20 PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES
EX-POST FACTO LAW: -

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.

DOUBLE JEOPARDY: -
No person shall be prosecuted and punished for the same offence more than once. The
protection under this clause is available only in proceedings before a court of law or a judicial
tribunal. In other words, it is not available in proceedings before departmental or administrative
authorities.

SELF -INCRIMINATION: - No person accused of any offence shall be compelled to be a

witness against himself. It extends to both oral and documentary evidence. It extends to only
criminal proceedings and not to civil proceedings. The benefit is available only when all the
following conditions are satisfied: -
Person must be accused of an offence
There must be compulsion to be witness
Such compulsion should result in his giving evidence against himself.

ARTICLE 21- RIGHT TO LIFE & PERSONAL LIBERTY

“No person shall be deprived of his life or personal liberty except according to Procedure
established by law.”
In Maneka Gandhi v. Union of India. The Court has given the widest possible
interpretation of Personal liberty. Thus Art 21 requires the following Conditions to be
fulfilled before a Person is deprived of Personal liberty.
There must me a valid law.
The law must provide a Procedure.
The Procedure must be (just, fair and Reasonable) ensuring Natural Justice.
Right to life includes within its ambit the right to live with Human dignity. The S.C. held
that the right to life defines not only physical existence but the “quality of life.”

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Judicial Pronouncement on right to Life & personal liberty: -
• Right to Travel abroad. (Satwant Singh v. Assistant Passport officer)
• Right to livelihood. (D.K.Yadav v. J.M.A Industries)
• Right to Shelter. (Chameli Singh v. State of U.P.)
• Right to Privacy. (R.Raja Gopal v. State of T.N.)
• In PUCL Vs. Union of India, the S.C. held that telephone tapping is a serious
invasion of an individual’s right to Privacy which is part of the right to life and
personal liberty.
• Right to Health & Medical Assistance.
• Right to die NOT A RIGHT TO LIFE
• Protection of Ecology and Environmental Pollution
• Right to education under Art. 21A
• Prisoner’s Right. The Court held that if the Prisoner died due to beating by Police
Officer, his family is entitled to compensation.
• Right to free Legal Aid
• Right to speedy Trial
• Right Against Handcuffing
• Right against Delayed Execution.
• Right to food
• Right to Marriage. (Lata Singh v. State of U.P.)
• Right to Reputation.
• Right to Die. In case of Gian Kaur v. State of Punjab “The Constitutional Bench of
Supreme Court held that “right to life” Under Article 21 does not include “right to
die.”

Right to Education-21A
Article 21A declares that state shall provide free and compulsory education to all children
of the age of six to fourteen years in such a manner as the state may decide. Thus, this
provision makes only elementary education a fundamental right and not higher or
professional education. This provision becomes effective from the date of 01.04.2012.

ARTICLE 22- PROTECTION AGAINST ARREST AND DETENTION

Article 22 grants protection to persons who are arrested or detained. Detention is of two
types: -
• Punitive detention- is to punish a person for an offence committed by him
after trial and conviction in court.
• Preventive detention- means detention of a person without a trial and conviction
of court. The objective of the preventive detention is not to punish a person for a
past offence but to prevent him from committing an offence in near future.
Article 22 has two parts: -

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 • First part deals with the ordinary law
• Second part deals with the preventive detention
First part:- it deals with the detention under the ordinary law and provides for the
following:-
• Right to be informed of the grounds of arrest.
• Right to consult and be defended by a legal practitioner.
• Right to be produced before magistrate within 24 hours, excluding the journey
time.
• Right to be released after 24 hours unless the Magistrate authorises further
detention.
• These safeguards are not available to an alien or a person arrested or detained
under preventive detention.
• Supreme Court has held that first part is not applicable in case of civil arrest,
failure to pay income tax.
Second Part: - It deals with the detention under the preventive detention law. The
protection is available to both citizen as well as alien and includes the following: -
❖ The detention of person cannot exceed three months unless an advisory board
reports sufficient cause for extended detention.
❖ The grounds of detention should be communicated to the detenue.
❖ The detenue should be afforded an opportunity to make representation against
the detention order.
ARTICLE 23 RIGHT AGAINST EXPLOITATION
❖ Prohibition of traffic in human beings and forced labour: - Article 23
prohibits traffic in human beings and other similar forms of forced labour. This
right is available to both citizens and non-citizens. It protects the individual not
only against state but also against the private person. However, state may
impose compulsory service for public purpose i.e military service or social
service.
❖ Prohibition of employment of children in factories etc.: - Article 24
prohibits the employment of children below the age of 14 years in any factory,
mine or other hazardous activities. But it does not prohibit their employment in
any harmless innocent work.
ARTICLE 25- RIGHT TO FREEDOM OF RELIGION
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❖ Freedom of conscience etc.: - Article 25 says that all persons are equally
entitled to freedom of conscience and the right to freely profess, practice and
propogate religion. The implications of these are as follows: -
• Freedom of conscience
• Right to profess
• Right to propogate
• Right to practice
Article 25 covers not only religious belief but also religious practices. This
right is available to all person citizen as well as noncitizen.
❖ Freedom to manage religious affairs: - As per article 26, every religious
denomination or any of its section shall have the following right: -
• to establish and maintain institutions for religious and charitable
purposes;
• to manage its own affairs in matters of religion.
• to own and acquire movable and immovable property; and
• to administer such property in accordance with law.
Denomination: - Religious denomination should satisfy the following
condition: -
• It should be body of individuals who have been system of beliefs
which they regard as conductive to their spiritual well-being.
• It should have common organisation; and
• It should be designated by a distinctive name.
• For example: - ‘Ramakrishna mission’ and ‘Anand Marg’ and Arvindo
Society is not the denomination.

❖ Freedom from taxation for promotion of Religion: - Article 27 lays down

that no person shall be compelled to pay any taxes for the promotion or
maintenance of any particular religion or religious denomination. In other
words, the state should not spend the public money collected by way of tax for
the promotion or maintenance of any particular religion.
This provision prohibits only levy of tax and not a fee. This is because the
purpose of fee is to control secular administration of religious institutions not to
promote or maintain religion.
❖ Freedom from attending religious instruction (RI): - Article 28 provides that
no religious instruction shall be provided in any educational institution wholly
maintained out of state funds. However, this provision shall not apply to an
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 educational institution administered by the state but established under any
endowment or trust requiring imparting of religious institution in such
institution.
Article 28 distinguishes between four types of educational institutions: -
• Institutions wholly maintained by the state- RI totally prohibited
• Institutions administered by the state but established under any
endowment or trust-RI permitted
• Institutions recognised by the state- RI is permitted on voluntary basis
• Institutions receiving aid from the state- RI is permitted on voluntary
basis.
CULTURAL AND EDUCATIONAL
RIGHTS
PROTECTION OF INTEREST OF MINORITY: - (ARTICLE- 29): -
• Any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have
the right to conserve the same.
• Further, 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.

❖ RIGHT OF MINORITIES TO ESTABLISH AND ADMINISTER

EDUCATIONAL INSTITUTIONS:-(ARTICLE 30): -
• All minorities, whether based on religion or language, shall have the
right to establish and administer educational institutions of their choice.
• In making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a
minority, the State shall ensure that the amount fixed by or determined
under such law for the acquisition of such property is such as would not
restrict or abrogate the right guaranteed.
• The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that it is
under the management of a minority, whether based on religion or
language.

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Minority educational institutions are of three types: -
o Institutions that seek recognition as well as aid from the state.
o Institutions that seek only recognition from the state not aid.
o Institutions that neither seek recognition nor aid from the state.
Only first two types of institutions are subject to state control.

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