SHUBADA COACHING CENTER HUBBALLI CONSTITUION I BY:RAGHAVENDRA SALI [Link].

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UNIT - I
I. Meaning & Definition of Constitution
Introduction:
Every country must have a constitution as the constitution helps and guides in governing a
country. It is the supreme law of the State. A constitution is a basic design, which deals with the structure
and powers of the government. It also includes rights and duties of citizens.
The term Constitution is derived from Latin ‘Constitute’ which means ‘to establish’. The
constitution is the basic document of a state. It is the fundamental rule of a state which regulates the
distribution of powers within organs of government.

Definition of Constitution by scholars

A constitution means a document having a special legal sanctity which sets out the frame-work
and the principal functions of the organs of the Government of a state and declares the principles governing
the operation of those organs.
Aristotle explains, “Constitution as the way in which, citizens or the component parts of the state are
arranged in relation to one another”.
According to Woolsey, a constitution “the collection of principal according to which he powers of the
government rights of the government and relations between the two are adjusted.”

 To sum up, Constitutional Law is a body of law which defines

1. Organization of the Government: The organization, functions, powers, and structure of different organs
of a state, namely, the legislature, the judiciary and the executive.
2. Division of Powers: In federal States such as the USA, Canada, India, etc., the relationship between the
central government and state, provincial, or territorial governments.
3. Basic rights and duties of the people: Constitution defines the fundamental rights and duties of the
people. These rights cannot be abridges without the provisions of Constitution.
4. Relations between the people and their government: Rights and duties create a legal relationship
between parties. For all rights there should be duties corresponding to them and vice versa.
5. Principles and rules governing the political process: Various principles and doctrines on the basis of
which the Constitution is to be interpreted.

II. Kinds of Constitution

[Link] Constitution: A written constitution is single, formal document that describes the arrangement
of governance in a country. It is framed in a systematic manner, usually by a representative body called the
constituent assembly after many deliberations and discussions and therefore is also known as codified
Constitution or enacted Constitution. It also specifies the date of its enactment. A written constitution is
generally rigid in nature, i.e., a defined procedure which is different from the procedure of making an
ordinary legislation is laid down to amend it, examples are – American Constitution and Indian
Constitution.

2. Unwritten Constitution: An unwritten Constitution is not written in a single document. It is derived

from a number of sources that are part written and part unwritten, including conventions, traditions,
customs, Acts of Parliament and the common law, and hence is also called a cumulative Constitution.
It evolves over a period of time and therefore is also known as an evolved Constitution.
An unwritten constitution is usually flexible in nature as the amendment procedure is simple and usually
there is no difference between the procedure of making an ordinary legislation and the procedure of
amending the Constitution, example – British Constitution. However, no Constitution in this world is
completely written or unwritten. Also, though the British Constitution is largely unwritten, it is based on
several written laws such as the Magna Charta 1215, the Bill of Rights 1689 and so on. Therefore, every
written constitution, includes certain unwritten components and every unwritten constitution, includes
certain written components.
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3. Flexible Constitution: The Flexible or Elastic Constitution is the kind of constitution that can easily
be changed. For this type, constitutional law can be amended in the same way as ordinary law. The
Parliament can alter constitutional principles and define new baselines for government action through
ordinary legislative processes, e.g. UK and Canada Constitution.

Some advantages of a flexible constitution include:

i. Its ability to change quickly in accordance with changes in the social and political environment of the
society and the state.
ii. Helpful in meeting emergencies since it can be easily amended.
iii. It is dynamic; hence there is less opportunity for revolt. This is also because of its ability to keep pace
with changing times.
iv. It keeps on developing with time; hence, it is up to date and popular.

Disadvantages of a flexible constitution include:

i. It is a source of instability. This is because the government in power can use it for its benefit.
ii. It is unsuitable for a federation. This is because it can lead to undesired changes by the federal
government or governments of federating units.

[Link] Constitution: The Rigid or Inelastic Constitution is the kind of constitution that cannot be
easily amended (usually, a Written Constitution). Moreover, it is a constitution whose terms cannot be
altered by ordinary forms of legislation, only by special amending procedures. That is to say, if the
constitution itself provides that particular amendment, then it could be possible to amend the Constitution.
Advantages of a rigid constitution include:
i. . It is a source of stability in administration
ii. It maintains continuity in administration
iii It cannot become a tool in the hands of the party exercising the state's power at a particular time.
iv. It prevents the autocratic exercise of powers by the government
v. It is ideal for a federation
Disadvantages of a rigid constitution include:
i. It doesn't keep pace with the fast-changing social environment
ii. It hinders the process of social development because of its inability to change easily
iii. It is a source of hindrance during emergencies
iv. Its inability to change easily can lead to revolts against the government
v. It can be a source of conservativeness.

[Link] constitution: Under a federal constitution exists a division of powers between central
government and the individual states or provinces which make up the federation. The powers divided
between the federal government and states or provinces will be clearly set down in the constituent
document. E.g. the USA, Canada, Australia, Nigeria, Malaysia, Germany, Switzerland and etc.
Some major characteristics of the federal form of the constitution are-
i. Division of power: The distinctive character of a federal constitution is a division of power between the
central government and the constituent units-such as states, provinces, regions. This unit has the power to
pass laws on the subjects allotted to them.
ii. Division of Sovereignty: In a federal constitution, sovereignty is divided between the national and state
units.
iii. Dual Citizenship: In a federal constitution, it is stated that a citizen can enjoy dual citizenship. Citizens
can enjoy the rights given by both the authorities. He must obey the norms of constitutions.
iv. Dual Representation: In a federal constitution, the legislature is bicameral. One chamber constitutes the
federating units and the other chambers serve the people of the nation.
v. Supremacy of Constitution: The central and state governments must obey the constitution. The federal
constitution does not tolerate infringement.
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vi. Rigid: A federal constitution has the major legal authority than the other laws. It can be amended only in
special circumstances. The federal constitution cannot be changed in the same way as the other laws.
[Link] Constitution: Constitutions of this nature exist in a state where a government is formed after
a union of two or more sovereign states. A state is governed as a one single unit in which the central
government is supreme and any administrative divisions exercise only powers which their government
chooses to delegate, e.g. Tanzania (Zanzibar and Mainland Tanzania), U.K (Scotland, Wales, N.
Ireland and England) and etc.

Some major characteristics of the unitary constitution are stated below:-

i. Most Effective Form of Constitution: The unitary constitution is said to be the most effective form of
constitution. In the unitary system, the uniformity of law, policy and administration exists throughout the
country. It promotes national harmony among the citizens of the country.
ii. Single Citizenship: In a unitary constitution, a citizen enjoys single citizenship.
iii. Efficient in Defence and Foreign Affairs: In the field of defence and foreign affairs the unitary
constitution is manifest. The clear cut policies can be executed in foreign policies and securities of the
country.
iv. Single Government: In a unitary system, there is only one central government and the sovereign power
belongs to the central government.
v. Flexible: The unitary constitution is flexible. It can be easily changed according to circumstances.

[Link] Constitution: A constitutional republic is a form of government in which the head of the
state, as well as other officials, are elected by the country’s citizens to represent them. Those representatives
must then follow the rules of that country’s constitution in governing their people. Like the U.S.
government, a constitutional republic may consist of three branches – executive, judicial, and legislative –
which divide the power of the government so that no one branch becomes too powerful.
A country is considered constitutional republic if:
 It has a constitution that limits the government’s power
 The citizens choose their own heads of state and other governmental officials

[Link] monarchy :It is a form of government in which a monarch—typically a king or queen

—acts as the head of state within the parameters of a written or unwritten constitution. In a constitutional
monarchy, political power is shared between the monarch and a constitutionally organized government such
as a parliament. Constitutional monarchies are the opposite of absolute monarchies, in which the monarch
holds all power over the government and the people. Along with the United Kingdom, a few examples of
modern constitutional monarchies include Canada, Sweden, and Japan.

[Link] Constitution: Under this constitution model, the head of the executive branch is also
head of state, and is not a member of or directly responsible to the legislature, e.g. Tanzania, Kenya,
Uganda, and etc.
Merits of Presidential System
i. Separation of powers: Efficiency of administration is greatly enhanced since the three arms of the
government are independent of each other.
[Link] government: Since the executive need not be legislators, the President can choose experts in
various fields to head relevant departments or ministries. This will make sure that people who are capable
and knowledgeable form part of the government.
[Link]: This type of government is stable. Since the term of the president is fixed and not subject to
majority support in the legislative, he need not worry about losing the government. There is no danger of a
sudden fall of the government. There is no political pressure on the president to make decisions.
[Link] influence of the party system: Political parties do not attempt to dislodge the government since the
tenure is fixed.

Demerits of Presidential System

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[Link] responsible executive: Since the legislature has no hold over the executive and the president, the
head of the government can turn authoritarian.
[Link] between executive and legislature: Since there is a more strict separation of powers here,
there can be frequent tussles between both arms of the government, especially of the legislature is not
dominated by the president’s political party. This can lead to an erosion in efficiency because of wastage of
time.
[Link] government: Presidential systems are often accused of being rigid. It lacks flexibility.
[Link] system: The system gives the president sweeping powers of patronage. Here, he can choose
executives as per his will. This gives rise to the spoils system where people close to the president (relatives,
business associates, etc.) get roles in the government.

[Link] Constitution: It is a form of a Constitution of a state in which the chief executive is

a Prime Minister who is a member of and is responsible to the legislature, e.g. U.K, and Israel.

Features of the parliamentary system

i)Close relationship between the legislature and the executive: Here, the Prime Minister along with the
Council of Ministers form the executive and the Parliament is the legislature. The PM and the ministers are
elected from the members of parliament, implying that the executive emerges out of the legislature.
[Link] responsible to the legislature: The executive is responsible to the legislature. There is a
collective responsibility, that is, each minister’s responsibility is the responsibility of the whole Council.
[Link] executive: There are two executives – the real executive and the titular executive. The nominal
executive is the head of state (president or monarch) while the real executive is the Prime Minister, who is
the head of government.
[Link] of procedure: A prerequisite of this form of government is that cabinet proceedings are secret,
and not meant to be divulged to the public.
[Link] of the Prime Minister: The leader of this form of government is the Prime Minister.
Generally, the leader of the party that wins a majority in the lower house is appointed as the PM.
[Link] Legislature: Most parliamentary democracies follow bicameral legislature.
[Link] fixed tenure: The term of the government depends on its majority support in the lower house. If the
government does not win a vote of no confidence, the council of ministers has to resign. Elections will be
held and a new government is formed.
Merits of Parliamentary System
[Link] coordination between the executive and the legislature: Since the executive is a part of the
legislature, and generally the majority of the legislature support the government, it is easier to pass laws and
implement them.
[Link] authoritarianism: Since the executive is responsible to the legislature, and can vote it out in a
motion of no confidence, there is no authoritarianism. Also, unlike the presidential system, power is not
concentrated in one hand.
[Link] government: The members of the legislature can ask questions and discuss matters of
public interest and put pressure on the government. The parliament can check the activities of the executive.
[Link] diverse groups: In this system, the parliament offers representation to diverse groups of
the country. This is especially important for a country like India.
[Link]: There is flexibility in the system as the PM can be changed easily if needed. During the
Second World War, the British PM Neville Chamberlain was replaced by Winston Churchill. This is unlike
the presidential system where he/she can be replaced only after the entire term or in case of
impeachment/incapacity.
Demerits of Parliamentary System
[Link] separation of powers: Since there is no genuine separation of powers, the legislature cannot always
hold the executive responsible. This is especially true if the government has a good majority in the house.
Also, because of anti-defection rules, legislators cannot exercise their free will and vote as per their
understanding and opinions. They have to follow the party whip.
[Link] legislators: The system creates legislators whose intention is to enter the executive only.
They are largely unqualified to legislate.
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[Link]: Since the governments sustain only as long as they can prove a majority in the house, there is
instability if there is no single-largest party after the elections. Coalition governments are generally quite
unstable and short-lived. Because of this, the executive has to focus on how to stay in power rather than
worry about the state of affairs/welfare of the people.
ivMinisters: The executive should belong to the ruling party. This rules out the hiring of industry experts for
the job.
[Link] to take a prompt decision: Because there is no fixed tenure enjoyed by the Council of Ministers,
it often hesitates from taking bold and long-term policy decisions.
[Link] politics: Party politics is more evident in the parliamentary system where partisan interests drive
politicians more than national interests.
[Link] by the bureaucracy: Civil servants exercise a lot of power. They advise the ministers on
various matters and are also not responsible to the legislature.

III. CONSTITUTIONALISM
Constitutionalism is a complex of ideas, attitudes, and patterns of behaviour elaborating the principle that
the authority of government derives from and is limited by a body of fundamental law, i.e., the Constitution.
Political organizations are constitutional to the extent that they contain institutionalized mechanisms of
power control for the protection of the interests and liberties of the citizens, including those that may be in
the minority.
USAGES OF THE EXPRESSION
 Expression ‘Constitutionalism’ has descriptive as well as prescriptive usages. Descriptive in the sense
that it describes Constitution, and prescriptive in the sense that it prescribes the requirements of an ideal
Constitution.
 In other words, used descriptively, Constitutionalism tells us what the Constitution is, and used
prescriptively it tells us what the Constitution ought to be. According to Professor Gerhard Casper,
“Constitutionalism has both descriptive and prescriptive connotations.
 Used descriptively, it refers chiefly to the historical struggle for Constitutional recognition of the
people’s right to ‘consent’ and certain other rights, freedoms, and privileges. Used prescriptively, its
meaning incorporates those features of government seen as the essential elements of the ... Constitution”.

IMPLICATIONS OF THE EXPRESSION CONSTITUTIONALISM

 Constitutionalism implies limits on Government’s authority. It is antithesis of arbitrary powers.
Constitutionalism recognizes the need for government with powers but at the same time insists that
limitation be placed on those powers.
 The antithesis of Constitutionalism is despotism. A government which goes beyond its limits loses its
authority and legitimacy. Their acts become ultra vires, and therefore, they become invalid.
 In some minimal sense of the term, a “Constitution” consists of a set of rules or norms creating,
structuring and defining the limits of, government power or authority. They mean not only that there are
rules creating legislative, executive and judicial powers, but that these rules impose limits on those
powers. Constitutionalism in this richer sense of the term is the idea that government should be limited
in its powers and that its authority depends on its observing these limitations. 12 Constitutionalism
ELEMENTS OF CONSTITUTIONALISM
Written constraints in the Constitution, however, are not constraining by themselves. Tyrants will not
become benevolent rulers simply because the Constitution tells them to. In order to guard against violations
against the letter and spirit of the Constitution, there needs to be a set of institutional arrangements. Louis
Henkin defines constitutionalism as constituting the following elements:
1. government according to the Constitution;
2. separation of power;
3. sovereignty of the people and democratic government;
4. constitutional review;
5. independent judiciary;
6. limited government subject to a bill of individual rights;
7. controlling the police;
8. civilian control of the military; and
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9. no state power, or very limited and strictly circumscribed state power, to suspend the operation of some
parts of, or the entire, constitution.
Broadly speaking, Henkin’s nine elements of Constitutionalism can be divided into two groups,
1. one that concerns power construction and power lodging; and
2. the other that deals with rights protection. These two groups of institutional arrangements work together
to ensure the supremacy of the constitution, the existence of limited yet strong government, and the
protection of basic freedom.

IV. Salient Features Constitution of Indian

Before making the present Constitution, the framers examined Constitutions of various
countries of the world and also the working of the Government of India Act, 1935. They liberally borrowed
appropriate provisions from Constitutions of many countries of the world.
The Constitution so adopted has the following salient features—
i. The Lengthiest Constitution in the World.-
Constitutions are classified into written, like the American Constitution, or unwritten, like the British
Constitution. The Constitution of India is the lengthiest of all the written Constitutions of the world. It is a
very comprehensive, elaborate and detailed document.
The Indian Constitution originally consisted of 395 articles divided into 22 Parts and 9 Schedules.
Presently, it consists of a Preamble, about 450 articles divided into 24 Parts and 12 Schedules.

ii. Parliamentary Form of Government.-

The Constitution of India has opted for the British Parliamentary system of Government rather than
American Presidential System of Government. The Parliamentary system is based on the principle of co-
operation and co-ordination between the legislative and executive organs while the Presidential system is
based on the doctrine of separation of powers between the two organs.

iii. A Federation with Strong Centralizing Tendency.-

The term ‘federation’ has nowhere been used in the Constitution. Article 1 describes that India “is a
Union of States” which implies two things:
Firstly – Indian federation is not the result of an agreement by the States; and
Secondly – no State has the right to secede from the federation. The Constitution of India establishes a
federal system of Government. It contains all the usual features of a federation viz., two governments,
division of powers, written Constitution, Supremacy of the Constitution, rigidity of Constitution,
independent judiciary and bicameralism.

iv. Separation of Powers.-

Doctrine of separation of powers implies that powers of the three organs of the government viz.,
Legislative, Executive and Judiciary should be kept separate from each other.97 subject union list ,66 state
and 47 concurrent list.

v. Directive Principles of State policy.-(part iv 36-51)

The Directive Principles of State Policy contained in Part of the Constitution set out the aims and
objectives to be taken by the state in the governance of the country. According to B.R. Ambedkar “the
Directive Principle of State policy is a novel feature of the Indian Constitution. They can be classified into
three broad categories, Socialistic, Gandhian and Liberal-intellectual.

vi. Unique Blend of Rigidity and Flexibility.-

The Constitution of India is neither rigid nor flexible but a synthesis of both. A rigid Constitution is
one that requires a special procedure for its amendment while flexible Constitution is one that can be
amended in the same manner as ordinary laws are made. provision laid down under article 368

vii. Fundamental Rights.-

Part III of the Indian Constitution guarantees six fundamental rights to all the citizens—
(a) Right to Equality (Articles 14-18);
(b) Right to Freedom (Articles 19-22);
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(c) Right against Exploitation (Articles 23-24);

(d) Right to Freedom of Religion (Articles 25-28);
(e) Cultural and Educational Rights (Articles 29-30);
(f) Right to Constitutional Remedies (Article 32).
The Fundamental Rights are meant for promoting the idea of political democracy. They operate as
limitations on the tyranny of the executive and arbitrary laws of the legislature.

viii. Fundamental Duties.-

By Forty-second Amendment Act, Part IV-A has been added to the Constitution which enumerates
certain fundamental duties of the citizens. Originally, ten duties were enlisted in clause (a) to (j) of article
51A. Clause (k), which imposes duty on parents/wards has been added by the Constitution (86th
Amendment) Act, 2002.

ix. Adult Suffrage.-

In India every person, male or female, who has obtained the age of 18 years, is entitled to vote in
elections to Parliament or State Legislatures. Originally this age limit was 21 years but after the 61st
Amendment Act, 1988 it was reduced to 18 years.

x. An Independent Judiciary.-
Independence of Judiciary is essential for impartial adjudication of disputes between individuals,
between Union and State, between Union/State and individuals, between Union and States or between States
inter se. The Supreme Court stands at the top of the integrated judicial system in the country. Below it, there
are High Courts at the State level. This single system of courts enforces both the Central laws as well as the
States [Link] Supreme Court of India is a federal court, the highest court of appeal, the guarantor of the
fundamental rights of the citizens and the guardian of the Constitution

xi. A Secular State.-(article 25-28)

The Constitution of India stands for a secular State. Hence, it does not uphold any particular religion
as the official religion of the Indian State. The term ‘Secular’ was added to the Preamble of the Indian
Constitution by the 42nd Amendment Act, 1976. Articles 25-28 of the Constitution give concrete shape to
this concept of secularism.

xii. Single Citizenship.-

In most of the federation, people have double citizenship, citizenship of the Union and citizenship of
one of the several States which form the Union. Every citizen is the citizen of India and enjoys the same
rights of citizenship no matter in which State he resides.

xiii. Emergency Provisions

The authors of the Constitution anticipated that there might be circumstances in which the government
could not function as it does in normal circumstances. The Constitution elaborates on emergency provisions
to deal with such circumstances. During a crisis, the state governments take complete control of the federal
government, which gains absolute [Link] 18 a 352 national emergency,356 state e and 360 financial
e.

V Preamble
The Preamble to a Constitution embodies the fundamental values and the philosophy, on which the
Constitution is based, and the aims and objectives, which the founding fathers of the Constitution enjoined
the polity to strive to achieve. The Preamble to the Constitution of India records the aims and aspirations of
the people of India which have been translated into the various provisions of the Constitution. A Preamble
means the introduction to the statute. The importance and utility of the Preamble has been pointed out in
several decisions of the Supreme Court of India. Though, by itself, it is not enforceable in Court of Law
and does not constitute an operative part of the Indian constitution, yet it serves several important
purposes. The basic idea behind it was the preamble should be in conformity with the provisions of the
constitution and express in a few words the philosophy of the constitution.
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History of the Preamble

The Preamble to the Indian constitution is based on “Objective Resolution” of Nehru. Jawaharlal Nehru
introduced an objective resolution on December 13, 1947, and it was adopted by Constituent assembly on
22 January 1948. The drafting committee of the assembly in formulating the Preamble in the light of
“Objective Resolution” felt that the Preamble should be restricted to defining the essential features of the
new state and its basic socio-political objectives and that the other matters dealt with Resolution could be
more appropriately provided for in the substantive parts of the Constitution.
The committee adopted the expression ‘Sovereign Democratic Republic’ in place of
‘Sovereign Independent Republic’ as used in the “Objective Resolution,” for it thought the independence
was implied in the word Sovereign. The committee added the word Fraternity which was not present in the
Objective Resolution. “The committee felt that the need for fraternal concord and goodwill in India was
never greater than now and that this particular aim of the new Constitution should be emphasized by special
mention in the Preamble.” In other respect the committee tried to embody in the Preamble “the spirit and, as
far as possible, the language of “Objective Resolution.”

Meaning of Preamble
The term ‘Preamble’ means the introduction to a statute. It is the introductory part of the constitution. A
preamble may also be used to introduce a particular section or group of sections. According to Chambers
Twentieth Century Dictionary, a preamble means preface, introduction, especially that of an act of
Parliament, giving its reasons and purpose – a prelude. Black’s Law Dictionary states that the preamble
means a clause at the beginning or a statute explanatory of the reasons for its enactment and the objectives
sought to be accomplished. Generally, a Preamble is a declaration made by the legislature of the reasons for
the passage of the statute and is helpful in the interpretation of any ambiguities within the statute to which it
is prefixed.
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

THE PURPOSE IT SERVES

The Preamble serves the following purposes:
(a) The source from which the Constitution comes is indicated viz., the people of India.
(b) The enacting clause which brings the Constitution into force is contained.
(c) The rights and freedoms which the people of India intended to secure to all citizens are declared and the
basic type of government and polity which were to be established.

Therefore, it declares that the source of authority under the Constitution is the People of India and
there is no subordination to any external authority.
In A.K Gopalan v. State of Madras, it was contended that the preamble to our constitution
which seeks to give India a ‘democratic’ constitution should be the guiding start in its interpretation and
hence any law made under Article 21 should be held as void if it offends the principles of natural justice, for
otherwise the so-called “fundamental” rights to life and personal liberty would have no protection. The
majority on the bench of the Supreme Court rejected this contention holding that ‘law’ in Article 21 refers to
positive or state made law and not natural justice and that this meaning of the language of Article 21 could
not be modified with reference to the preamble.
In Berubari Union case the Supreme Court held that the preamble had never been regarded as
the source of any substantive power conferred on the government or on any of its departments. The court
further explained that “what is true about the powers is equally true about the prohibitions and limitations”.
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It, therefore, observed that the preamble had limited application. The court laid down that the preamble
would not be resorted to if the language of the enactment contained in the constitution was clear. However,
“if the terms used in any of the articles in the constitution are ambiguous or capable of two meanings, in
interpreting them some assistance may be sought in the objectives enshrined in the Preamble.”
In State of Rajasthan v. Basant Nahata it was held that a preamble with an ordinary Statute is to be
resorted only when the language is itself capable of more than one meaning and not when something is not
capable of being given a precise meaning as in case of public policy.
In Kesavananda Bharati case the Supreme Court attached much importance to the preamble. In this
case, the main question before the Supreme Court related to the scope of amending power of the Union
Parliament under Article 368 of the Constitution of India. The Supreme Court traced the history of the
drafting and ultimate adoption of the Preamble.
Chief Justice Sikri observed, “No authority has been referred before us to establish the propositions that
what is true about the powers is equally true about the prohibitions and limitations. Even from the Preamble
limitations have been derived in some cases. It seems to me that the preamble of our Constitution is of
extreme importance and the constitution should be read and interpreted in the light of the grand and noble
vision expressed in the preamble.”

Scope of Preamble
The Preamble sets out the objectives which the constituent assembly intended to achieve. As Supreme Court
has observed, the Preamble is a key to unravel the minds of the makers of the Constitution. It also embodies
the ideals and aspirations of the people of India. The Preamble is non-justifiable in nature, like the DPSPs
and cannot be enforced in a court of law. The Preamble cannot override the specific provisions of the
constitution. In case of any conflict between the two, the latter shall prevail. The Preamble can neither
provide substantive power (definite or real) to the three organs of the State, nor limit their powers under the
provisions of the constitution. As observed by the Supreme Court, the Preamble plays a limited and yet vital
role in removing the ambiguity surrounding the provisions of the Constitution.
Whether the Preamble is a part of the Constitution?
It has been highly a matter of arguments and discussions in the past that whether Preamble should be treated
as a part of the constitution or not. The vexed question whether the Preamble is a part of the Constitution or
not was dealt with in two leading cases on the subject:
1. Beruberi Case Berubari case was the Presidential Reference “under Article 143(1) of the Constitution of
India on the implementation of the Indo-Pakistan Agreement Relating to Beruberi Union and Exchange of
Enclaves which came up for consideration by a bench consisting of eight judges headed by the Chief Justice
B.P. Singh. Justice Gajendragadkar delivered the unanimous opinion of the Court. The court ruled out that
the Preamble to the Constitution, containing the declaration made by the people of India in exercise of their
sovereign will, no doubt it is “a key to open the mind of the makers” which may show the general purposes
for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of
the Constitution.

2. Kesavananda Bharati case Kesavananda Bharati case has created history. For the first time, a bench of
13 judges assembled and sat in its original jurisdiction hearing the writ petition. Thirteen judges placed on
record 11 separate opinions. To the extent necessary for the purpose of the Preamble, it can be safely
concluded that the majority in Kesavananda Bharati case leans in favor of holding,
(i) That the Preamble to the Constitution of India is a part of the Constitution;
(ii) That the Preamble is not a source of power or a source of limitations or prohibitions;
(iii) The Preamble has a significant role to play in the interpretation of statutes and also in the interpretation
of provisions of the Constitution. D.G. Palekar, J. held that the Preamble is a part of the Constitution and,
therefore, is amendable under Article 368. Preamble is an introductory part of our ConstitutionPreamble tells
about the nature of state and objects that India has to achieve. There was a controversial issue whether
Preamble was part of Indian Constitution there were a number of judicial interpretation but finally
Kesavanada Bharati case it was held that the Preamble is a part of the Constitution.

Amendment to the Preamble

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The issue that whether the preamble to the constitution of India can be amended or not was raised before the
Supreme Court in the famous case of Kesavananda Bharati v. State of Kerala, 1973. The Supreme Court has
held that Preamble is the part of the constitution and it can be amended but, Parliament cannot amend the
basic features of the preamble. The court observed, “The edifice of our constitution is based upon the basic
element in the Preamble. If any of these elements are removed the structure will not survive and it will not
be the same constitution and will not be able to maintain its identity.” The preamble to the Indian
constitution was amended by the 42nd Amendment Act, 1976 whereby the words Socialist, Secular, and
Integrity were added to the preamble by the 42nd Amendment Act, 1976, to ensure the economic justice and
elimination of inequality in income and standard of life. Secularism implies equality of all religions and
religious tolerance and does not identify any state religion. The word integrity ensures one of the major aims
and objectives of the preamble ensuring the fraternity and unity of the state.

PRINCIPLES ENSHRINED IN THE PREAMBLE

 “We, the People of India”
The words “We, the people of India” declares in unambiguous terms that the Constitution has
been adopted, enacted and given to themselves by the people of India. It emphasizes the sovereignty of
the people and the fact that all powers of government flow from the people. It is the people of India on
whose authority the Constitution rests. The preamble surmises that it is the people of India who are the
authors of the constitution. Although the constitution was not directly voted upon by the people of the
country as it was practically impossible for four hundred million people to take part in the voting, it is
clear from the Preamble that the framers of the constitution has been promulgated in the name of the
people, attached importance to the sovereignty of the people and the constitution. The constitution is not
based on the mandate of several states which constitute the units of the Union.

 Sovereign
According to Preamble, the constitution of India has been pursuance of the solemn resolution of
the people of India to constitute India into a ‘Sovereign Democratic Republic’, and to secure well-
defined objects set forth in the preamble. Sovereignty denotes supreme and ultimate power. It may be
real or normal, legal or political, individual or pluralistic. In monarchial orders, sovereignty was vested
in the person of monarchs. But, in the republican form of governments, which mostly prevail in the
contemporary world, sovereignty is shifted to the elected representatives of the people.

 Socialist
The constitutional commitment to the goal of socio-economic justice, as envisaged by the
original preamble by the constitution of India has been fortified by the Constitution (42nd Amendment)
Act, 1976. The term ‘socialist’ literally means a political-economic system which advocates the state’s
ownership of the means of production, distribution, and exchange. Concise Oxford Dictionary defines
‘socialism’ as a political and economic theory of a social organization which advocates that the means of
production, distribution, and exchange should be owned or regulated by the community as a whole.”

In Excel Wear v. Union of India, the Supreme Court observed that “the addition of the word
socialist might enable the courts to lean more in favor of nationalization and state ownership of the
industry. But, so long as private ownership of industries is recognized and governs an overwhelming
large proportion of our economic structure, the principle of socialism and social justice cannot be pushed
to such an extent so as to ignore completely or to a very large extent, the interest of another section of
the public, namely, the private owners of the undertaking.”
In D.S Nakara v. Union of India, the court observed that “the basic framework of socialism is to
provide a decent standard of life to the working people and especially provide security from cradle to
grave.” The principal aim of the socialist State, the Supreme Court held, was to eliminate inequality in
income and status and standard of life.
In Air India Statutory Corporation v. United Labour Union, the Supreme Court elaborated the
concept of “socialism” and stated that the word socialism was expressly brought in the constitution to
establish an egalitarian social order through rule of law as its basic structure.
 Secular
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In Webster’s Dictionary, the word ‘secular’ has been described as a ‘view of life’, or of any
particular matter based on premise that religious considerations should be ignored or purposefully
excluded or as a system of social ethics based upon doctrine that ethical standards and conduct be
determined exclusively without reference to religion. It is the rational approach to life and it refuses to
give a plea for religion. For the first time, by the 42nd amendment of the constitution in 1976, the term-
secular’ was inserted into the Preamble but without a definition of the term. Secular is derived from the
Latin word speculum, which means an indefinite period of time. Before the mid-nineteenth century, the
word ‘secular’ was occasionally used with contempt. The term secular inserted by the Constitution (42nd
Amendment) Act, 1976, explains that the state does not recognize any religion as a state religion and that
it treats all religions equally, and with equal respect, without, in any manner, interfering with their
individual rights of religion, faith or worship. It does not mean that it is an irreligious or atheistic state.
Nor, it means that India is an anti-religious state. It neither promotes nor practices any particular
religion, nor it interferes with any religious practice. The constitution ensures equal freedom to all
religions.
The Supreme Court in St. Xavier’s College v. State of Gujarat, explained “secularism is
neither anti-God nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God
from the matters of the state and ensures that no one shall be discriminated against on the grounds of
religion”. That, every person is free to mold or regulate his relations with his God in any manner. He is
free to go to God or to heaven in his own ways. And, that worshipping God is left to be dictated by his
own conscience.
I.R Coelho v. State of Tamil Nadu it has been held that secularism is a matter of conclusion to be
drawn from various Articles conferring Fundamental Rights. “If the secular character is not to be found
in Part III”, the Court ruled, “it cannot be found anywhere else in the Constitution, because every
fundamental right in Part III stands either for a principle or a matter of detail”.

 Democratic
The term Democracy is derived from the Greek words ‘demos’ which means ‘people’ and
‘kratos’ which means ‘authority’. It thus means government by the people. Democracy may properly be
defined as that form of government in the administration of which the mass of the adult population has
some direct or indirect share.
The Supreme Court in Mohan Lal v. District Magistrate, Rai Bareilly, observed:
“Democracy is a concept, a political philosophy, an ideal practiced by many nations culturally advanced
and politically matures by resorting to governance by representatives of the people elected directly or
indirectly”. The basic principle of democracy in a society governed by the rule of Law is not only to
respect the will of the majority but also to prevent the dictatorship of the majority”.
The apex court in Union of India v. Association for Democratic Reforms, observed: “A
successful democracy posits an ‘aware’ citizenry”. “Democracy cannot survive”, the court said, without
free and fair elections, without free and fairly informed voters.” This states that free and fair elections
are the most important features of democracy. Thus democracy implies that all three powers of the
government i.e. the executive, the legislature and the judiciary should be separate, yet mutually
independent. Democracy is also a way of life and it must maintain human dignity, equality and rule of
law.

 Republic
A republic means a state in which the supreme power rests in the people and their elected
representatives or officers, as opposed to one governed by the king or a similar ruler. The word
‘republic’ is derived from res publica, meaning public property or commonwealth. According to
Montesquieu, “a republican government is that in which a body, or only a part of people, is possessed of
the supreme power”. The term ‘republic’ is used in distinction to the monarchy. A republic means a form
of government in which the head of the state is an elected person and not a heredity monarch like the
king or the queen in Great Britain. Under such a system, political sovereignty is vested in the people and
the head of the state is the person elected by the people for a fixed term. In a wider sense, the word
‘republic’ denotes a government where no one holds the public power as a proprietary right, but all
power is exercised for the common good-where inhabitants are the subjects and free citizens at the same
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time. The Indian government as a ‘republican form of government’, in which, the ultimate power resides
in the body of the people exercised via universal adult suffrage. The president of India who is the
executive head of the state is elected by the people (though indirectly) who holds office for a term of five
years. All citizens are equal in the eyes of law, there is no privileged class and all public offices are open
for all the citizens without any distinction on the basis of race, caste, sex or creed.

OBJECTIVES ENSHRINED IN THE PREAMBLE

 Justice (social, economic and political)
The preamble of the constitution of India professes to secure to all its citizens political,
economic and social justice. The expression ‘justice’ is the harmonious reconcilement of individual
conduct with the general welfare of society. An act or conduct of a person is said to be just if it promotes
the general well-being of the community. Therefore, the attainment of the common good as
distinguished from the good of individuals is the essence of justice. Justice is considered to be the
primary goal of a welfare state and its very existence rests on the parameters of justice. Social justice
means the abolition of all sorts of inequities which may result from the inequalities of wealth,
opportunity, status, race, religion, caste, title and the like. To achieve this ideal of social justice, the
constitution lays down the directives for the state in Part IV of the constitution. The expression
‘economic justice’ means justice from the standpoint of economic force. In short, it means equal pay for
equal work, that every person should get his just dues for his labor irrespective of his caste, sex or social
status. Political justice means the absence of any unreasonable or arbitrary distinction among men in
political matters. The constitution has adopted the system of universal adult suffrage, to secure political
justice.
 Liberty (of thought, expression, belief, faith, and worship)
Liberty has been derived from the Latin word 'liber' which means free. The idea of Liberty
came to the forefront with the French Revolution in 1789 and the leaders defined liberty as "the power to
do like anything that does not injure another is liberty." [14] The term liberty' is used both in a negative
as well as positive sense. As a negative concept liberty means the absence of all undue or arbitrary %
interference with individual's action on the part of the State. In a positive sense, liberty comprises of
liberties or rights which are considered essential for an individual to attain his potentialities and for the
perfection of the national life. The Constitution of India professes to secure the liberty of thought,
expression, belief, faith, and worship, which are regarded as essential to the development of the
individual in the Nation. The same principle is reflected in Articles 25-28 of the Constitution which talk
about the Right to Freedom of Religion and Article 19 (1) (a) which talks about the liberty in the field of
expression.

 Equality (of status and of opportunity)

Guaranteeing of certain rights to each individual is meaningless unless all equality is banished
from the social structure, and each individual is assured of equal status and opportunity for the
development of what is best in him. Equality of status and of opportunity is secured to the people of
India by abolishing all distinctions or discriminations by the State, between citizen and citizen, on the
ground of religion, race, caste, sex or place of birth and by throwing open 'public places' to all the
citizens. This has been provided for in the Articles 14 and 15 of the Constitution of India and the same
talk about equality before law and prohibition of discrimination. The Constitution also abolishes
untouchability and titles by the Articles 17 and 18 respectively. This helps in securing equality of
opportunity in the matters relating to employment or appointment to any office under the State under
Article 16 of the Constitution of India.

 Fraternity
Fraternity means a feeling of brotherhood, brotherliness, a feeling that all people are children
of the same soil, the same motherland. The term was also inspired by the French Revolution and was
added to the Preamble by the Drafting Committee of the Constituent Assembly because, "The
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Committee felt that the need for fraternal concord and goodwill in India was never greater than now and
that this particular aim of the new constitution should be emphasized by special mention in the
Preamble”. There is no express provision in the Constitution which reflects r 'fraternity as an object.
However, there are provisions in the Constitution, such as common citizenship, the right of the citizen of
India to move freely, to reside and settle in any part of the territory of India, etc., which generate their
spirit of brotherhood. the Preamble assures the dignity of each and every individual. This dignity is
assured by securing to each individual equal fundamental right and at the same time laying down a
number of Directives for the State which directs the State policies towards the betterment of citizens.
It will not be wrong to say that the preamble is an integral part of the Constitution because it
contains the spirit and ideology of the Constitution. The preamble highlights the fundamental values and
guiding principles of the Constitution. The preamble declares that the citizens of India accepted the
Constitution on 26th November 1949, but the date of commencement of the Constitution was decided to
be 26th January 1950.

VI. CITIZENSHIP
 Intro :
A citizen enjoys fundamental rights including right to work, right to vote, right to return, etc. in his or
her country. At the same time, the citizen is also bound to observe duties of citizenship. It reflects that
the right to citizenship is not an absolute one, and the legislature may impose reasonable restrictions on
the enjoyment of one’s citizenship. Every country has its own immigration laws which regulate the entry
and stay of immigrants. Right to participate in the government is also being regulated by the immigration
laws. For this, the countries differentiate between ‘nationality’ and ‘citizenship’. However, it has also
been seen that the countries sometimes make strict immigration laws, and exclude foreigners on the
discriminatory basis. That’s why the International Conventions and other instruments have a check on
such immigration laws. There are many ways of acquiring citizenship of a country. A citizenship can be
acquired by birth, marriage, honorary basis, etc. is automatic. But immigration laws nowadays are strict
in order to regulate false marriages, where people marry each other for money or other benefits. States
also grant honorary citizenship. Citizens are full members of the state. These citizens enjoy full civil and
political rights. Aliens are not entitled to all constitutional and other rights because they are not citizens.
For example, in India, aliens have right to life and personal liberty but not the freedoms guaranteed
under Article 19 of the Indian Constitution. Furthermore, enemy aliens suffer many more difficulties. In
India, enemy aliens cannot enforce Article 22 of the Constitution which protects the rights of accused
persons detained under preventive detention laws. Stateless Persons’ are persons who are not citizens of
any country. Their status is similar to aliens.

 Meaning of citizenship
The population of a state is divided into two categories: citizens and non-citizens. A citizen of a
state enjoys all civil and political rights. A non-citizen, on the other hand, doesn’t enjoy these rights.
Under the Indian constitution, certain fundamental rights are available only to the citizens, namely:
Right against discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15); right to
equality of opportunity in matter of public employment (Article 16); freedom of speech and expression,
assembly, association, movement, residence and profession (Article 19); cultural and educational rights
(Article 29 and 30); and right to vote and become members of the union and state legislatures.
Several offices can also be occupied exclusively by citizens: president (Article 58(1)(a), vice-
president (Article 66(2)), judges of the Supreme Court (Article 124(3)) and high court (Article 217(2)),
governor of a state (Article 157), attorney general (Article 76(1)) and advocate general (Article 165).
Equality before the law or equal protection of the laws within the territory of India (Article 14) and
protection of life or personal liberty (Article 21) are applicable to non-citizens as well.

 Constitutional provisions relating to citizenship in India

The Indian constitution doesn’t prescribe a permanent provision relating to citizenship in India. It
simply describes categories of persons who are deemed to be citizens of India on the day the Indian
constitution was promulgated on January 26, 1950, and leaves citizenship to be regulated by law made by
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the parliament. Article 11 of the constitution confers power on the parliament to make laws regarding
citizenship. The Indian Citizenship Act, 1955 was enacted in exercise of this provision.

Who were the persons who were deemed to be citizens of India when the constitution was
promulgated?
i) Citizenship by domicile (Article 5):
A person who was born in India or either of the person’s parents was born in India or the person
must have been an ordinarily resident in the territory of India for not less than five years immediately before
the commencement of the constitution. Domicile of a person is in that country in which the person either has
or is deemed by law to have his/her permanent house. The term ‘domicile’ has not been defined in the Indian
Constitution.
‘Domicile’ means the place where a person’s habitation is fixed without any present intention of
moving there from. Every person has a domicile at his birth called the domicile of origin. The domicile of
origin remains unchanged until the person acquires a new domicile, i.e. by actually settling in another
country with the intention of permanently residing there. Till then the domicile of origin continues even if he
has left the country with an intention of never returning again. The onus to prove that a person has changed
his domicile of origin lies upon him.
It has been held by the Supreme Court that there must be factum and animus to constitute the
existence of domicile in India.8 Similarly, the Supreme Court said in Louis De Raedt v Union of India,
that the person should show his appropriate state of mind required for acquisition of domicile by choice.
In Pradeep Jain v Union of India, the Supreme Court held that there is only one domicile in India.
The court said that the domicile does not change with the change of residence within India. A minor or
married person does not have the legal capacity to make a change of domicile. Therefore, a minor carries the
domicile of his father and a married woman gets the domicile of her husband.

ii) Citizenship of migrants to India from Pakistan (Article 6): Persons who have migrated from
Pakistan to India have been classified into two categories:
a) those who came to India before July 19, 1948, and
b) those who came on or after July 19, 1948.
In the case of persons migrating before July 19, 1948, if the person has been ordinarily residing in India
since the date of her migration, and in case of a person migrating on or after July 19, 1948, if he/she has
been registered as a citizen of India, after residing for at least six months immediately before the date of
applying for registration, by an officer appointed by the government of India, shall be deemed to be a citizen
of India.

iii) Citizenship of migrants of Pakistan (Article 7): If a citizen of India has migrated to Pakistan after
March 1, 1947, but returned to India on the basis of permit for resettlement in India, the person is entitled to
become a citizen of India if he/she registers herself as a citizen of India, after residing for at least six months
immediately before the date of applying for registration, by an officer appointed by the government of India.
Both Articles 6 and 7 use the term ‘migrated’.
The meaning of the term ‘migrated’ came into consideration of Supreme Court in Kulathi v State
of Kerala. The majority held that the word ‘migrate’ was used in a wider sense of moving from one country
to another with the qualification that such movement was not for a short visit or for a special purpose.
State of Bihar v. Kumar Amar Singh Kumar Rani went to Karachi in July 1948 leaving her
husband in India. She returned to India in December 1948 after obtaining a temporary permit, stating in her
application that for the said permit that she was domiciled in Pakistan and she was a Pakistani national. On
expiry of the permit she went back to Pakistan in the April 1949. On May 14, 1953 she came back to India
under permanent permit obtained from High Commissioner for India in Pakistan, which was cancelled on
July 12, 1950, because it was wrongly issued without the concurrence of the government as required by the
rules made under the Influx form Pakistan (control) Act, 1949. She contended, alternatively that the proviso
to A.7 applied to her since she had returned to India on a permanent permit and the subsequent cancellation
of the permit was illegal and irrelevant. She made an application for permanent settlement in India through
having citizenship under Art. 5. SC observed “Article 7 clearly overrides Art.5. It is pre- emptory in its
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scope and makes no exception for such a case i.e of the wife migrating to Pakistan leaving her husband in
India.”

iv) Citizenship of persons of Indian origin residing outside India (Article 8): Indian nationals
(whose parents or any grandparents were born in India as defined in the Government of India Act, 1935)
residing abroad shall be conferred Indian citizenship, as if they have been registered by the diplomatic or
consular representatives of India in the country where they are residing. Article 8 provides for the Rights of
citizenship of certain persons of Indian origin residing outside India. Article 9 provides that no person shall
be a citizen of India by virtue of Article 5, or be deemed to be a citizen of India by virtue of Article 6 or
Article 8, if he has voluntarily acquired the citizenship of any foreign State. It deals only with voluntary
acquisition of citizenship of a foreign state before the Constitution came into force. Under Article 10
Parliament may take away the right of citizenship of any person. Article 11 gives a proper way to the
Parliament for making any law relating to Citizenship. While exercising the authority, the Parliament
enacted the Citizenship Act, 1955 for the acquisition and termination of the citizenship in India.

 Citizenship under the Citizenship Act, 1955 to provide for the acquisition and
determination of Indian Citizenship.
The Act provides for acquisition of Indian citizenship after the commencement of the Constitution in
five ways, i.e., birth, descent, registration, naturalization and incorporation of territory.
i) Citizenship by Birth:
A person acquires citizenship by birth if he is born on or after 26th January 1950 but before
1st July, 1987. In this case, there is no need to determine the nationality of his parents. But in case where he
born on or after 1st July, 1987 but before 3rd December, 2004, it is necessary that either of his parents is a
citizen of India at the time of his birth. After 3rd December, 2004, he acquires citizenship by birth if both the
parents are citizens of India or one of the parents is a citizen of India and the other is not an illegal migrant
at the time of his birth. An ‘illegal migrant’ means a foreigner who entered India without a valid passport or
documents or remains in India beyond the permitted period of time.

ii) Citizenship by Descent:

Section 4 of the Citizenship Act, 1955 provides that a person born outside India on or after
26th January 1950 but before 10th December 1992 is a citizen of India by descent, if his father was a citizen
of India by birth at the time of his birth. A person born outside India on or after 10th December 1992 but
before 3rd December, 2004, is considered to be a citizen of India if either of his parents was a citizen of
India by birth at the time of his birth. A person born outside India on or after 3rd December, 2004 shall not
be a citizen of India, unless the parents declare that the minor does not hold passport of another country and
his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the
Central Government, after the expiry of the said period.

iii)Citizenship by Registration:
Under Section 5 of the Citizenship Act, 1955, a person who has been ordinarily residing in
India for seven years before making the application or who has been ordinarily residing in any other country
outside undivided India, would acquire Indian citizenship by registration. A person can also register himself
or herself as Indian citizen if he or she gets married to an Indian citizen who has been ordinarily residing
India for seven years before making application. Both minor and major children of Indian citizens could also
acquire citizenship by registration. A registered overseas citizen of India (OCI) for five years and who has
been residing in India for one year before making application, would also get citizenship by registration.

iv) Citizenship by naturalisation:

A person is granted a certificate of naturalisation if the person is not an illegal migrant and
has resided in India for 12 months before making an application to seek the certificate. Of the 14 years
preceding this 12-months duration, the person must have stayed in India for 11 years.

v)Citizenship by incorporation of territory:

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If any new territory becomes a part of India, the government of India shall specify the persons
of the territory to be citizens of India. If the central government is of the opinion that an applicant is a person
who has rendered distinguished service to the cause of science, philosophy, art, literature, world peace or
human progress generally, it may waive all or any conditions specified to attain Indian citizenship. Overseas
Citizenship: The Citizenship Amendment Act of 2003, provided for acquisition of overseas citizenship of
India by persons of Indian origin of 16 specified countries other than Pakistan and Bangladesh. In 2005, the
Act was further amended in order to grant more and more overseas citizenship of India to persons of Indian
origin of all Countries except Pakistan and Bangladesh. By this amendment, the earlier requirement of
period of residence in India was also reduced from two years to one year for persons registered as overseas
citizens of India to acquire Indian citizenship.
The Overseas Citizenship of India (OCI) Scheme was introduced by amending the Citizenship
Act, 1955 in August 2005. The Scheme was launched in 2006. The Scheme provides for registration as
Overseas Citizen of India (OCI) of all Persons of Indian Origin (PIOs) who were citizens of India on 26th
January, 1950 or thereafter or were eligible to become citizens of India on 26th January, 1950. But the
scheme excludes citizens of Pakistan and Bangladesh. Overseas Citizen of India (OCI) does not mean ‘dual
citizenship’. Overseas Citizen of India (OCI) does not confer any political right on the concerned persons.
The registered Overseas Citizens of India cannot enjoy the same status as that of Indian citizens in
case of equal opportunities in public employment. It means Overseas Citizen of India (OCI) cannot enforce
Article 16 of the Indian Constitution. 15 Furthermore, Overseas citizens of India cannot enjoy voting rights.
Overseas Citizen of India (OCI) cannot enjoy the right to hold offices like President, Vice-President, Judge
of Supreme Court and High Court, Member of Lok Sabha, Rajya Sabha, Legislative Assembly or Council.
Overseas Citizen of India (OCI) cannot be appointed to the Public Services. However, Overseas Citizen of
India (OCI) enjoys some other rights. A registered Overseas Citizen of India gets Indian visa for his whole
life. He or she enjoys the same status as that of Non-Resident Indians in matters of inter-country adoption,
tariffs in domestic air fares, entry fee for visiting national parks, the national monuments, museums, etc. in
India. Overseas citizen is eligible to practice professions of doctors, dentists, nurses and pharmacists,
Advocates, Architects, Chartered Accountants in India. But Overseas Citizen of India (OCI) does not enjoy
the same parity with Non-Resident Indians in matters of agricultural properties.

 Renunciation, Termination and Deprivation of Citizenship

Section 8 of the Citizenship Act 1955 provides that a major and capable person can renounce
his or her Indian citizenship. On renunciation, his minor child also loses citizenship. But the minor child can
resume the Indian citizenship after attaining the age of majority. Section 9(1) of the Citizenship Act 1955
provides that an Indian citizen loses his Indian citizenship if he or she acquires the citizenship of another
country. It has also been held by the Hon’ble Supreme Court that section 9 is a complete code regarding the
termination of Indian Citizenship on the acquisition of the citizenship of a foreign country. On renunciation
or termination, the concerned person has to surrender his or her Indian passport to the authorities under the
Passport Act. If he or she fails to do so, he or she is liable to receive prescribed punishment. Deprivation of
citizenship means compulsory termination of citizenship in India. Section 10 provides that the Central
Government may terminate a person’s citizenship on certain grounds like the person commits fraud in
registration, the person is not loyal towards the Constitution of India, the person is trading or communicating
with enemy when India is at war, the person’s citizenship is not in favour of public good, etc. Increasingly,
in the case of Hari Shankar Jain v Sonia Gandhi, the Supreme Court opined that a petition to challenge
one’s citizenship can be filed before the High Court or election judge.

 Is Corporation a Citizen?
The Supreme Court in State Trading Corporation v Commercial Tax Officer held that company
or corporation is not a citizen of India and cannot claim fundamental rights. The court said that citizenship is
concerned with natural persons only. The court said that citizenship cannot be conferred upon the juristic
persons.
However, the Supreme Court in Cooper v Union of India, also known as Bank Nationalization
case, held that a shareholder of a company should be considered as an Indian citizen and is entitled to the
protection given under Article 19 of the Indian Constitution. The Fundamental rights of the shareholders as
citizens should not be violated by any state action.
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In Bennett Coleman Case, the Supreme Court again said that the State Action not only affects the
right of newspapers companies but also of the editors, readers and shareholders. These individuals do have
freedom of speech and expression which should be protected against any unreasonable State action.
In Godhra Electric Co. Ltd v State of Gujarat the court held that a managing director of a company
had right to carry on business through agency of company. The court said that he had right to challenge the
constitutional validity of the concerned enactment. Following Bank Nationalization and Bennet Coleman
cases the Supreme Court in D.C. & G.M. v Union of India, has held that writ petition filed by a company
complaining denial of fundamental rights guaranteed under Article 19 is maintainable. The Constitution of
India provides for a single citizenship for the entire country. The provisions relating to citizenship at the
commencement of the Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India.
The Citizenship Act enacted by the Parliament in 1955 provides for acquisition and determination of
citizenship.
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UNIT II
I. State: Definition under Article 12, New Judicial trends on concept of State Action- need for
widening the definition.

[Link] (ARTICLE – 12) Most of the Fundamental Rights are claimed against the state and its
instrumentalities and not against private bodies.
According to Art. 12, the term ‘state’ includes—
(i) The Government and Parliament of India:
(ii) The Government and the Legislature of a State;
(iii) All local authorities; and
(iv) Other authorities within the territory of India, or under the control of the Central Government.

The definition of State is inclusive and provides that State includes the following:
 Government and Parliament of India
o The term State includes the Government of India i.e., Union executive and the Parliament of
India.
o This term stands to include a Department of Government or any institution under the control of a
Department of Government e.g. the Income Tax Department.
o The President while acting in his official capacity must be included in the term and be regarded
as State.
 Government and Legislature of Each State
o The term State includes the Government of each State that is the State Executive and legislature
of each State that is the State legislatures.
o It includes Union Territories as well.
 Local or Other Authorities Within the Territory of India
o The expression local authorities is defined in Section 3(31) of the General Clause Act, 1897 as
local Authority shall mean a municipal committee, district board, body of commissioner or other
authority legally entitled to or entrusted by the Government within the control or
management of a municipal or local fund.
o The expression local authorities usually refer to authorities such as municipalities, District
Boards, Panchayats, mining settlement boards, etc. Anybody functioning under the state; owned;
controlled and managed by the State and carrying out a public function is a local authority and
comes within the definition of the state.
 Judiciary when acting “judicially” would not fall under the definition of state. But when it performs ant
administrative similar function e.g. Conducting examination it will fall under state and remedy could
sought in that context in case of violation of fundamental rights.

The most significant expression used in Art. 12 is “other authorities”. This expression is not
defined in the Constitution. It is, therefore, for the Supreme Court, as the Apex Court, to define this term. It
is obvious that wider the meaning attributed to the term “other authorities” in Art. 12, wider will be the
coverage of the Fundamental Rights, i.e., more and more bodies can be brought within the discipline of the
Fundamental Rights.

OTHER AUTHORITIES
 The interpretation of the term ‘other authorities’ in Art. 12 has caused a good deal of difficulty, and
judicial opinion has undergone changes over time. Today’s government performs a large number of
functions because of the prevailing philosophy of a social welfare state. The government acts through
natural persons as well as juridical persons. Some functions are discharged through the traditional
governmental departments and officials while some functions are discharged through autonomous bodies
existing outside the departmental structure, such as, companies, corporations etc. While the government
acting departmentally, or through officials, undoubtedly, falls within the definition of ‘state’ under Art.
12, doubts have been cast as regards the character of autonomous bodies. Whether they could be
regarded as ‘authorities’ under Art. 12 and, thus, be subject to Fundamental Rights? An autonomous
body may be a statutory body, i.e., a body set up directly by a statute, or it may be a non-statutory body,
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i.e., a body registered under a general law, such as, the Companies Act, the Societies Registration Act, or
a State Cooperative Societies Act, etc. Questions have been raised whether such bodies may be included
within the coverage of Art. 12. For this purpose, the Supreme Court has developed the concept of an
“instrumentality” of the state. Any body which can be regarded as an “instrumentality” of the state falls
under Art. 12. The reason for adopting such a broad view of Art. 12 is that the Constitution should,
whenever possible, “be so construed as to apply to arbitrary application of power against individuals by
centres of power. The emerging principle appears to be that a public corporation being a creation of the
state is subject to the Constitutional limitation as the state itself.

 In University of Madras v. Santa bai(1954) The principle of ejusdem generis or things of like nature
was applied and this meant that authorities exercising governmental or sovereign function would only
be covered under other authorities.

 The liberal interpretation came when the Apex court in Ujjambai v. State of U.P(1961) rejected the
interpretation on the basis of ejusdem generis and held that no restriction can be assigned to the
interpretation of the term.

 In Rajasthan State Electricity Board v. Mohanlal(1967), the Supreme Court ruled that a State
electricity board, set up by a statute, having some commercial functions to discharge, would be an
‘authority’ under Art. 12.

 In Sukhdev v. Bhagatram(1975), three statutory bodies, viz., Life Insurance Corporation, Oil and
Natural Gas Commission and the Finance Corporation, were held to be “authorities” and, thus, fall
within the term ‘state’ in Art. 12. These corporations do have independent personalities in the eyes of the
law, but that does not mean that “they are not subject to the control of the government or that they are
not instrumentalities of the government” but same bench in Sbhajit tewary v UOI(1975) is CSIR in
state court held CSIR established by govt and gave financial support but there is no any statutory
character so its not state.

 The question was considered more thoroughly in Ramanna D. Shetty v. International Airport
Authority(1979), The International Airport Authority, a statutory body, was held to be an ‘authority’.
The Supreme Court also developed the general proposition that an ‘instrumentality’ or ‘agency’ of the
government would be regarded as an ‘authority’ or ‘State’ within Art. 12 and laid down some tests to
determine whether a body could be regarded as an instrumentality or not. Where a corporation is an
instrumentality or agency of the government, it would be subject to the same constitutional or public law
limitation as the government itself. In this case, the Court was enforcing the mandate of Art. 14 against
the Corporation.

 In Som Prakash v. Union of India(1980), the company was held to fall under Art. 12. The Court
emphasized that the true test for the purpose whether a body was an ‘authority’ or not was not whether it
was formed by a statute, or under a statute, but it was “functional”. In the instant case, the key factor was
“the brooding presence of the state behind the operations of the body, statutory or other”. In this case,
the body was semi-statutory and semi-non-statutory. It was non- statutory in origin (as it was registered);
it also was recognised by the Act in question and, thus, had some “statutory flavour” in its operations
and functions. In this case, there was a formal transfer of the undertaking from the Government to a
government company. The company was thus regarded as the “alter ego” of the Central Government.
The control by the Government over the corporation was writ large in the Act and in the factum of being
a government company.

 Agency of a State would mean a body which exercises public functions. The question regarding the
status of a non-statutory body was finally clinched in Ajay Hasia v Khalid Mujib(1981), where a
society registered under the Societies Registration Act running the regional engineering college,
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sponsored, supervised and financially supported by the Government, was held to be an ‘authority’.
Money to run the college was provided by the State and Central Governments. The State Government
could review the functioning of the college and issue suitable instructions if considered necessary.
Nominees of the State and Central Governments were members of the society including its Chairman.
The Supreme Court ruled that where a corporation is an instrumentality or agency of the government, it
must be held to be an authority under Art. 12. “The concept of instrumentality or agency of the
government is not limited to a corporation created by a statute but is equally applicable to a company or
society….” Thus, a registered society was held to be an ‘authority’ for the purposes of Art. 12. Ajay
Hasia has initiated a new judicial trend, viz., that of expanding the significance of the term “authority”.
 In Ajay Hasia, The Supreme Court laid down the following tests to adjudge whether a body is an
instrumentality of the government or not:
(1) If the entire share capital of the body is held by the government, it goes a long way towards
indicating that the body is an instrumentality of the government.
(2) Where the financial assistance given by the government is so large as to meet almost entire
expenditure of the body, it may indicate that the body is impregnated with governmental character.
(3) It is a relevant factor if the body enjoys monopoly status which is conferred or protected by the state.
(4) Existence of deep and pervasive state control may afford an indication that the body is a state
instrumentality.
(5) If the functions performed by the body are of public importance and closely related to governmental
functions, it is a relevant factor to treat the body as an instrumentality of the government.
 Chander Mohan Khanna v NCERT (1992) NCERT is not be state because its largely an autonomus
 In Zee Telefilms v. Union of India(2005) as BCCI is not created by a statute, not dominated by
government either financially, functionally or administratively. Hence,it cannot be called a State as
under Article 12 of The Constitution.

II. Definition and Meaning of Law: Pre- Constitutional and Post- Constitutional
Laws, Doctrine of Severability and Doctrine of eclipse, Judicial Review and Article
13.

II. RIGHT TO EQUALITY (Art.13)

Article 13 of the constitution do talks about the four principles relating to fundamental rights.
Fundamental rights do exist from the date on which the Indian constitution came into force i.e on 26th
January 1950 hence fundamental rights became operative from this date only.
Laws inconsistent with or in derogation of the fundamental rights
(1)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 Pan, shall, to the extent of such
inconsistency, be void.
(2)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 the contravention, be void.
(3)In this article, unless the context otherwise requires,-
(a)"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law;
(b)"laws in force" includes laws passed or made by Legislature or other competent authority in
the territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or in
particular areas.
(4)Nothing in this article shall apply to any amendment of this Constitution made under article 368.

 Article 13(1) talks about the pre-constitutional laws

i.e the day from which the constitution came in existence there were many laws in the
country and when the constitution came into existence fundamental rights do came, therefore the laws
before the existence of the constitution must prove their compatibility with the fundamental rights, only
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then these laws would be considered to be valid otherwise they would be declared to be void. For
example article 15 of the constitution do gives the right to education to all without any discrimination on
the basis of caste, sex, religion, etc, but an Education act which came in existence in 1930 says that a
particular group of kids would not be provided education on the basis of their caste'. As this particular
clause of the act is inconsistent with that of the fundamental rights therefore it is declared to be null and
void.
o Moreover article 13(1) is prospective in nature but not retrospective i.e the article will be
in effect from the day when constitution came in effect.
o Article 13(1) refers to pre-Constitution laws: According to clause (1) of Article 13 all
pre constitution or the existing laws, i.e. laws which were in force immediately before the
commencement of the constitution shall be void to the extent to which they are
inconsistent with fundamental rights from the date of the commencement of the
constitution.
 Art. 13(1) is prospective and not retrospective.
Therefore, a pre Constitution law inconsistent with a Fundamental Right becomes void only after
the commencement of the Constitution. Any substantive rights and liabilities accruing under it prior to
the enforcement of the Constitution are not nullified. It is ineffective only with respect to the
enforcement of rights and liabilities in the post-Constitution period. A person was being prosecuted
under a law before the Constitution came into force. After the Constitution came into force, the law
became void under Art. 19(1)
(a). Keshva Madhav Menon v. State of Bombay, In this case the petitioner published a pamphlet
according to the pre- constitutional laws in 1949 but as the Indian constitution came in effect from 1950
it gave the freedom of speech and expression under article 19 of the Indian constitution, therefore the
apex court said that the petitioner's trial must go on as the benefit of article 13 would not be given to him
because article 13 is not retrospective in nature. It was held that Art. 13(1) could not apply to him as the
offence had been committed before the enforcement of the Constitution and, therefore, the proceedings
against him were not affected. But the procedure through which rights and liabilities were being
enforced in the pre- Constitution era is a different matter.

A discriminatory procedure becomes void after the commencement of the Constitution and so it cannot
operate even to enforce the pre-Constitution rights and liabilities, Lachmandas v. State of Maharashtra.
A law inconsistent with a Fundamental Right is not void as a whole. It is void only to the extent of
inconsistency. This means that the doctrine of severability has to be applied and the offending portion
of the law has to be severed from the valid portion thereof, Sub-Inspector Rooplal v. Lt. Governor.

 DOCTRINE OF SEVERABILITY
According to Art. 13, a law is void only “to the extent of the inconsistency or contravention”
with the relevant Fundamental Right. The above provision means that an Act may not be void as a
whole; only a part of it may be void and if that part is severable from the rest which is valid, then the rest
may continue to stand and remain operative. The Act will then be read as if the invalid portion was not
there. If the valid portion is so closely mixed up with invalid portion that it cannot be separated without
leaving an incomplete or more or less mingled remainder the court will declare the entire Act void.
A.K Gopalan v. State of Madras In this case section 14 of Preventive detention act,1950
was challenged. Section 14 of the act says that if any person is being detained under this act then he or
she may not disclose the grounds of his or her detention in court of law, this particular statement is
inconsistent with that of fundamental rights as per article 22 of the Indian constitution, thus if we do
apply the doctrine of severability here so the whole act (preventive detention act,1950) would not be
declared as void but only section 14 of the act would be declared as void as it is inconsistent with the
fundamental rights.
R.M.D.C. v. Union of India The Supreme Court has explained the doctrine as follows
“When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in
excess of its powers, it is entirely void and must be completely ignored. But when the legislation falls in
part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it
on that become necessarily void in its entirety? The answer to this question must depend on whether
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what is valid could be separated from what is invalid, and that is a question which has to be decided by
the Court on a consideration of the provisions of the Act”.

 DOCTRINE OF ECLIPSE
The prospective nature of Art. 13(1) has given rise to the doctrine of eclipse. The Doctrine
of Eclipse is based on the principle that a law which violates Fundamental Rights is not nullity or void
ab initio but becomes only unenforceable. It is over-shadowed by the Fundamental rights and remains
dormant, but it is not dead. They exist for all post transactions and for the enforcement of the rights
acquired and liabilities incurred before the commencement of the Constitution. The doctrine of eclipse
envisages that a pre-Constitution law inconsistent with a Fundamental Right was not wiped out
altogether from the statute book after the commencement of the Constitution as it continued to exist in
respect of rights and liabilities which had accrued before the date of the Constitution. Therefore, the law
in question will be regarded as having been ‘eclipsed’ for the time being by the relevant Fundamental
Right. It was in a dormant or moribund condition for the time being. Such a law was not dead for all
purposes. If the relevant Fundamental Right is amended then the effect would be “to remove the shadow
and to make the impugned Act free from all blemish or infirmity”.
A legal provision enacted in 1948, authorising the State Government to exclude all
private motor transport business, became inconsistent with Art. 19(1)(g) when the Constitution came
into force in 1950. In 1951, Art. 19(1) (g) was amended so as to permit the State Government to
monopolise any business.

What was the effect of the constitutional amendment of 1951 on the law of 1948? Whether the law
having become void was dead once for all and so could not be revitalised by a subsequent constitutional
amendment without being re-enacted, or whether it was revived automatically?
It was to solve this problem that the Supreme Court enunciated the doctrine of eclipse in
Bhikaji v. State of Madhya Pradesh. The doctrine of eclipse has been held to apply only to the pre-
Constitution and not to the post- Constitution laws. The reason is that while a pre-Constitution law was
valid when enacted and, therefore, was not void ab initio, but its voidity supervened when the
Constitution came into force, a post-Constitution law infringing a Fundamental Right is unconstitutional
and a nullity from its very inception. Therefore, it cannot be vitalised by a subsequent amendment of the
Constitution removing the infirmity in the way of passing the law.

 Post- constitutional law:

Article 13 (2) talks about the post constitutional laws i.e it says that once the constitution is
framed and came in effect then any of the state may not make laws that takes away or abridges the
fundamental rights of an individual and if done so then it would be void till the extent of contravention.
Does the doctrine of eclipse apply to a post- constitutional law?
In Deep Chand v. State of U.P., SC held that a post constitutional law made under A.13(2) which
contravenes a fundamental right is nullity from its inspection and a still- born law. It is void ab initio. The
doctrine of eclipse does not apply to pots- constitutional laws and therefore, a subsequent constitutional
amendment cannot revive it.
State of Gujrat v. Ambika mills Here a certain labour welfare fund act was challenged, as certain
sections in it were against the fundamental rights. Since the fact that the laws made by the state after the
constitution is framed would be declared void if those laws are against the fundamental rights, but here the
question arose that fundamental rights are only granted to citizens but what will happen in the case of non-
citizens or a company (company here is the respondent i.e Ambika mills). It was held by the apex court that
since the fundamental rights are only granted to the citizens but not to the company or any non-citizen,
therefore the labour welfare fund act is valid. In this case SC modified its view as expressed in Deep Chand
case. In case the law contravenes a Fundamental Right limited to the citizens only, it will operate with
respect to the non-citizens. Such a law will be regarded as ‘still-born’ vis-à-vis the citizens even though it
may be operative qua the non- citizens, and so it will have to be re-enacted if it is desired to make it valid
qua the citizens.

 ‘Law’ and ‘Law in force’

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 Art. 13(3)(a) ‘law’

The term ‘law’ in Art. 13 has been given a wide connotation so as to include any ordinance, order, bye-
law, rule, regulation, notification, custom or usage having in the territory of India the force of law.
The definition of ‘law’ in this article is wider than the ordinary connotation of law which refers
to enacted law or legislation. It includes even the administrative order issues by an executive officer, but
does not include administrative directions or instructions issued by the government for the guidance of
its officers. Accordingly, inter alia the following have been held to be ‘law’ under Art. 13, the validity of
which can be tested on the touchstone of Fundamental Rights:
(i) a resolution passed by a State Government under Fundamental Rule 44 of the State;
(ii) a government notification under the Commissions of Inquiry Act setting up a commission of inquiry;
(iii) a notification or an order under a statute;
(iv) an administrative order; but administrative instruction is not law within the meaning of Article 13.
(v) a custom or usage;
(vi) bye-laws of a municipal or a statutory body;
(vii) regulations made by a statutory corporation like the Life Insurance Corporation.
The validity of the above can be questioned under the Fundamental Rights. The bye-laws of a
co-operative society framed under the Co-operative Societies Act do not fall within the purview of Art.
13. Parliament, while making an Act cannot be deemed to have taken into consideration an earlier law
found to be in contravention of Art. 13. Though a law as such may not be invalid, yet an order made
under it can still be challenged as being inconsistent with a Fundamental Right because no law can be
presumed to authorize anything unconstitutional.

 Article 13(3) (b) “laws in force”

“laws in force” includes laws passed or made by Legislature or other competent authority in
the territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or in
particular areas. Clause (3) of Article 13 consists of the word ‘law’ and ‘law in force’.
The law can be of the following kinds:
1. Statutory Law: These are the laws which may be directly enacted by the legislature or by the other
subordinate authorities under the delegated lawmaker powers. The delegated legislations appears under
various names – rules, regulations, notifications, and bye- laws.

2. Customs: The term ‘law’ includes ‘customs’ and ‘usages’. In early times, custom was the main source
of law but now to a large extent, it has been suspended by statutory law. However, custom has not wholly
lost its law creating efficacy. A reasonable and certain ancient custom is binding on the courts like an Act of
legislature. In Gazula Dasaratha Rama Rao v. State of A.P. the SC held that the customs yielding to the
fundamental rights and recognized by law will be law under the purview of this provision. Personal laws like
Hindu Law and Mohammedan Law are not included within this expression.

 Is constitutional Amendment a law?

The question whether the word “law” in clause (2) of Art.13 also includes a ‘Constitutional
amendment’ was for the first time considered by the supreme court in Shankari Prasad Singh Deo v.
Union of India the Constitutional (1st Amendment) Act, 1951, which amended the fundamental rights
guaranteed under the constitution, which was challenged on the ground that since the amendment has the
effect of abridging the fundamental rights it was not valid law within the meaning of clause (2) of Article 13.
The contention was rejected by the apex court and held that the word ‘law’ in clause (2) did not include a
law made by the Parliament under Article 368 amending the constitution. It was said that the word ‘law’
means the “the rules and regulations enacted by legislatures” and not the “constitutional amendments made
in exercise of constituent powers.” Therefore, this judgment was followed by majority of judgments such as
in Sajjan Singh v. State of Rajasthan.
However, in the case of Golak Nath v. State of Punjab, the apex court by 6:5 majority held that the
word ‘law’ in Article 13 (2) included the amendment of the constitution and as a consequence, if an
amendment abridged or took away fundamental rights guaranteed under Part III of the Constitution of India,
the amending Act itself will become void and ultra vires. Subsequently, in the case of Kesavananda
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Bharati v. State of Kerala, the Supreme Court of India overruled the Golak Nath case and unanimously
held that the Constitution (24th amendment) Act, 1971, which inserted clause (4) in Article 13 and clause
(3) in Article 368 was valid.
Therefore, all the judges agreed that the amended Article 368, all the provisions including those
enshrining fundamental rights (Part III) could be amended.
 Judicial review
The Doctrine of Judicial Review was for the first time propounded by the Supreme Court of
America. Originally, the constitution of United States did not contain an express provision for judicial
review but it was assumed by the Supreme Court of United States in the historic case of Marbury vs
Madison The case was rooted in division between the Federalist and Republican parties following election
1800. During election, Thomas Jefferson(Republican) defeated John Adams(Federalist). While Adams
lost election in November 1800, his term of office did not expire until following march 1801. Adams used
this period to appoint several federal judges to bench. Some of these appointments were made during final
hours of his presidency, earning dubious title 'the midnight judge'. Judges could not assume position until a
commission was officially delivered by secretary of state. Since many of Adams appointments were made in
final days of his presidency many of commissions were not delivered when he left office. The new
president, Thomas Jefferson ordered his new secretary of the state James Madison not to deliver the
commission. William Marbury, who expected his commission requested the SC to issue a writ of
mandamus(an official order to govt officer) to Madison ordering him to deliver the commission. Marbury
argued that SC had power to issue writ under provisions of judiciary act of 1789,passed by [Link]
1803,the chief justice John Marshall of SC ruled that:
 Madison should not have withheld Marbury's commission
 Since the commission was signed & sealed it was rightfully owed to Marbury.
 However he also ruled that SC did not have jurisdiction in this matter & could not force Madison to
deliver commission.
 U/s.13, Judiciary act,1789 passed by congress gave supreme court the power to issue writs & orders.
(In Marshall's opinion, Congress could not give the Supreme Court the power to issue an order
granting Marbury his commission. Only the Constitution could, and the document said nothing about
the Supreme Court having the power to issue such an order.) Sec.13 of judiciary act,1789,was
declared unconstitutional because congress tries to expand SC authority to include writ of mandamus
under court's original jurisdiction. (Art.3, sec.2 of U.S constitution specifically listed 3 types of
original jurisdiction). Marshall stated that congress overstepped its authority by changing SC
jurisdiction without following proper amendment procedure. Thus, CJ Marshall declared
s.13 ,judiciary act of 1879,as unconstitutional. This case became a landmark case for judicial review.
Marshall stated, ''constitution is the supreme law of land''& SC has final say over meaning of
constitution. Thus, court itself asserted the doctrine of judicial review.
Shankari Prasad V. Union of India
In this case, the Zamindars challenged the constitutional validity of the first amendment Act 1951
on the ground that it violates fundamental rights and Article 13(2) of the Constitution of India and contended
that Article 31 is unconstitutional. The court held that any amendment made under Article 368 is not a law
under Article 13 of the constitution. So, the First Amendment Act is constitutionally valid.
After this case, the Fourth Amendment Act came, which added Article 31(2A) which stated that
unless the ownership of property acquired is transferred to state or state corporation, there would be no
compensation. It also stated that the adequacy of compensation which is to be fixed by law is not non-
justiciable.
Further 17th Amendment came in 1964 which was given retrospective effect. It added Article 31A(2)
(a)(iii) and laid down that estate includes Any land for the purpose of agriculture or ancillary purpose which
includes wasteland or forest land.

Sajjan Singh V. State of Rajasthan

In this case, the constitutional validity of the 17th Amendment Act of 1964 was challenged. Hon’ble court
by the ratio of 3:2 rejected the contention and applied the doctrine of pith and substance and held that Article
368 gives the power to amend 13(2). The judgement made in Shankari Prasad was upheld in this case.
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I.C. Golak Nath & Ors V. State of Punjab

in this case, the validity of the 17th Amendment Act of 1964 was challenged again and was referred to a
larger bench of 11 Judges. Court by the ratio 6:5 overruled the earlier judgement made in Shankari Prasad
and Sajjan Singh and held that the word Law in Article 13 includes constitutional amendment made under
Article 368. CJI Subba Rao, speaking for 5 Judges held that Article 368 provides only for the procedure and
not power to amend. As it derives its power from Article 248 i.e Residuary Power (as not mentioned
specifically) that is an ordinary law, so the test of Article 13 will apply.

After this landmark case 24th Amendment of 1971, came to neutralize the effect of Golaknath
case. It gave us Article 13(4), which says that any amendment made under Article 368 is not a law under
Article 13. It also changed the Marginal note of Article 368 to Power of parliament and procedure to amend
the constitution. Soon the 25th Amendment of 1971 came which changed the word “compensation” in
Article 31(2) to “amount” to remove the obligation that the government is bound to give compensation. It
added Article 31C to the constitution which stated that Article 14,19,31 won’t apply to a law enacted to
effectuate policy underlying Article 39(b) and (c) [DPSP].

Kesavananda Bharti V. State of Kerala

In this case, the 24th and 25th Amendment Act of 1971 was challenged. A Judge Bench of 13
Judges was constituted. With the ration of 7:6 held that:
1. Power to amend the constitution is to be found in Article 368. It is hard to believe that it lies in residuary
power.
2. There is a difference between ordinary law and constitutional amendment.
3. Parliament can’t destroy or amend the basic structure of the constitution.
CJI Sikri gave the list of the Basic structure though not exhaustive;
• The supremacy of the constitution.
• Republic and democratic form of government.
• Secular character of the Indian Constitution.
• Separation of Power.
• Federal character.
1. Court also held that “compensation” can’t be replaced with “amount”.
2. Article 31(c)(i) was held valid but Article 31(c)(i was declared invalid.

Indira Nehru Gandhi V. Raj Narain

In this case, the 39th Amendment Clause 4 was challenged as it puts a bar to challenge the election
of Speaker and Prime Minister. It was struck down in this case and the court declared it unconstitutional.

Minerva Mills V. Union of India

In this case, further Judicial Review was added to the list of Basic Structure of the constitution
along with the balance between Fundamental Rights and Directive Principles.

I.R. Coelho V. State of Tamil Nadu

In this case the court held that any act inserted in Schedule 9 can be judicially scrutinized but only
those enactments which are inserted after 24th April 1973. Article 13 of the constitution do upholds the
supremacy over Indian constitution and do paves the way to judicial review. This prescription do enables us
to review the pre-constitutional and existing laws. Although the intervention of the judiciary in
constitutional matters is a debatable topic, yet in most of the cases, the power of judiciary is considered to be
the supreme and is summoned to guard and enforce the fundamental rights guaranteed in the Indian
constitution under part III.

III. Equality and Social Justice: General Equality Clause under Article 14, New
Concept of Equality, Judicial Interpretation on Equality.
RIGHT TO EQUALITY
The Constitution of India guarantees the Right to Equality through Articles 14 to 18. “Equality is one of the
magnificent corner-stones of Indian democracy.
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Article 14 The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India, on grounds of religion, race, caste, sex or place of birth.
In view of a certain amount of indefiniteness attached to the general principle of equality enunciated in
Article 14, separate provisions to cover specific discriminatory situations have been made by subsequent
Articles. Thus,
Art. 15 prohibits discrimination against citizens on such specific grounds as religion, race, caste, sex or place
of birth.
Art. 16 guarantees to the citizens of India equality of opportunity in matters of public employment.
Art. 17 abolishes untouchability, and
Art. 18 abolishes titles, other than a military or academic distinction.
Thus, the Supreme Court has said that the Constitution lays down provisions both for protective
discrimination as also affirmative action.
It may be noted that the right to equality has been declared by the Supreme Court as a basic feature of the
Constitution. The Constitution is wedded to the concept of equality. The Preamble to the Constitution
emphasizes upon the principle of equality as basic to the Constitution. This means that even a constitutional
amendment offending the right to equality will be declared invalid. Neither Parliament nor any State
Legislature can transgress the principle of equality.
This principle has been recently reiterated by the Supreme Court in M.G. Badappanavar v. State of
Karnataka in the following words: “Equality is a basic feature of the Constitution of India and any
treatment of equals unequally or unequals as equals will be violation of basic structure of the Constitution of
India.”

Equality before the Law:

(a) This is a negative concept taken from the English Constitution. It implies the absence of any privilege
in favour of any person. It means that among equals the law should be equal and should be equally
administered and that 'like should be treated alike' (Jennings). It also means the right to sue and to be sued,
to prosecute and to be prosecuted for the same kind of action should be the same for all without distinction
of race, religion, wealth, social status or political influence (Jennings).

(b) Dicey's concept of Rule of law has equality as its central core.
Dicey had given three meanings to this term:
1. The supremacy of law: It means that the law is supreme and the Government cannot act arbitrarily. If a
person has violated any law, he can be punished but he cannot be punished for anything else at the whim of
the Government.
2. Equality before Law: It means that all the people should be subject to the same provisions of law which
is administered by the ordinary courts of the land. Thus, no person is above the law and has to follow the
law. Dicey had given an exception to the Monarch under this rule because in England it is believed that the
King can do no wrong.
3. Constitution originates from the ordinary law: It means that the rights of the people is not granted by
the constitution but instead it is the result of the law of the land which is administered by the courts.

In India, the first and second rule has been adopted but the third rule has been omitted because
the Constitution is the supreme law of the land and the rights of the people originate from it and all the other
laws which are passed by the Legislature should not violate the provisions of the Constitution.

An exception to Equality before Law

 There is some exception to the rule of equality which has been provided under the Indian Constitution.
Under Articles 105 and 194, the Members of the Parliament and the State Legislatures respectively are
not held liable for anything which they say within the House.
 Under Article 359 when there is a proclamation of Emergency, the operation of Fundamental Rights
including Article 14 can be suspended and if any violation of this right is done during such proclamation,
it cannot be challenged in the Courts after the proclamation ends.
 Under Article 361 the President and the Governors are not liable to any court for any act which is done
by them in exercising their power and duties of the office.
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(c) Equal Subjection to Courts: According to Dicey, equality before the law means that no man should be
made to suffer in body or goods except for a distinct breach of law ; It also means that no man is above the
law and that all are amenable to the jurisdiction of the ordinary courts.

Equal protection of the Laws:

This is a dynamic concept taken from the 14 th amendment of American Constitution. It implies equality of
treatment in equal circumstances. The essence of it is that when persons are similarly placed they must be
similarly treated. It imposes a duty on the State to take all the necessary steps to ensure that the guarantee of
equal treatment of people is followed. Like people being treated alike is followed under this rule and another
important point under this rule is that unlike should not be treated alike. Thus, even if people who are under
different position and circumstances are governed by the same rule then it will also have a negative effect on
the rule of equality. It is a guarantee of equal treatment. An equal law should be applied with an equal hand
to all persons who are the equals. The rule is that the like should be treated alike and not that unlike should
be treated alike. The same or uniform treatment of unequals is as bad as unequal treatment of equals. It has
been said that the equal protection of the law is a pledge of protection or guarantee of equal laws.

The Rule of Law embodied in Article 14 is the ‘basic feature’ of the Indian Constitution and hence it cannot
be destroyed even by an amendment of the Constitution under Article 368 of the Constitution. Article 14
Permits Classification But Prohibits Class Legislation Article 14 guarantee equal protection of laws and
they are:
• Neither means that the laws need to be general in character nor that it should be applicable to everyone,
which means, the same law applies to every person.
• It does not assess attainment or situations in the same position. Different classes have various needs that
require separate treatment.
• For safety and security different laws for varying places and legitimate control policies enacting laws lie at
the best interest of the state.
• Identical treatment in unequal situations, in fact, would amount as inequality. Therefore for the society to
progress a reasonable classification is not only permitted but also necessary.
Article 14 forbids class legislation but not reasonable classification. The article applies on the
reasonable basis, equals are treated differently. The article does not apply where unequals and equals are
given different treatments. Conferring particular privileges upon a class of persons, class legislation makes
improper discrimination by selecting a large number of persons arbitrarily. No reasonable or substantial
difference can be found in justifying the exclusion of the one and the inclusion of the other from such
privilege.

Article 14 and Reasonable Classification

Article 14 has provided the provision for equality of all people before the law but every person is
not the same and therefore it is not practically possible to have a universal application of equality. Thus, the
laws cannot be of a general character and some classification is permitted under Article 14.
Thus, the legislature has been allowed to identify and classify different people in groups because it
has been accepted that treating the unequal in the same manner is likely to cause more problems instead of
preventing them. So for the society to progress, classification is important.
This classification cannot be done arbitrarily because in such case, there will be no justification, so
even though Article 14 allows for classification such classification should not confer special privileges to
any group arbitrarily and such a classification has to be done on a rational basis. For e.g. the Legislature
cannot pass a law which favours a particular caste of people without any rational basis for it and if such a
law is passed, it is bound to be held unconstitutional by the Judiciary.
Such arbitrary classification by the legislature is known as class legislation ad it is forbidden by the
Constitution but it allows for reasonable classification in which the legislation is passed on a rational basis
for the purpose of achieving some specific objectives.

Test of Reasonable Classification

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Article 14 of the Indian constitution forbids class legislation but it does not prohibit the
reasonable classification of objects, persons, and transactions for the purpose so as to achieve specific ends
by the parliament. Such classification should not be artificial, arbitrary or evasive and it must rest on
substantial distinction which is real. It must bear a reasonable and just relation to the sought object which is
to be achieved by the legislation.
Classification of reasonable as laid by the Indian Supreme Court has two conditions as in the case of
Saurabh Chaudhari v Union Of India, are-
(i) The classification must be founded on intelligible differentia, distinguishing grouped together persons or
goods from the left out ones of the group.
(ii) The differential must be in a rational relation with the sought object that is to be achieved by the act.
The object of the act and differential on the basis of classification are two separate things. It is essential
that there must be the presence of nexus between the object of the act and the basis of classification. When a
reasonable basis is not present for classification then such classification made by the legislature must be
declared discriminatory. The age at which a person would be deemed competent between themselves can be
fixed by the legislature but competency cannot be claimed. A contract made dependent on the color of hair
cannot be made, and such a classification would be arbitrary.
Supreme Court in Re Special Courts Bill case had warned against overemphasizing the
classification. The court observed that the doctrine of classification is a subsidiary rule which has been used
by the court to facilitate the doctrine of equality. If there is an overemphasis on the doctrine of classification
it would inevitably result in the doctrine of equality under Article 14 to erode and will lead to the
substitution of equality by classification.
The true meaning and scope of Article 14 have been explained in a number of cases by the Supreme
Court. In view of this the propositions laid down in DaLmia case still hold good governing a valid
classification and are as follows.
1.A law may be constitutional even though it relates to a single individual if on account of some special
circumstances or reasons applicable to him and not applicable to others, that single individual may be treated
as a class by itself
2. There is always presumption in favour of the constitutionality of a statute and the burden is upon him who
attacks it to show that there has been a clear transgression of constitutional principles.
3. The presumption may be rebutted in certain cases by showing that on the fact of the statue, there is no
classification and no difference peculiar to any individual or class and not applicable to any other individual
or class, and yet the law hits only a particular individual or class
4. It must be assumed that Legislature correctly understand and appreciates the need of its own people that
its law are directed to problem made manifest by experience and that its discrimination are based on
adequate grounds
5. In order to sustain the presumption of constitutionality the court may take into consideration maters of
common knowledge, matters of report, the history of the times and may assume every state of facts which
can be conceived existing at the time of the legislation.
6. Thus the legislation is free to recognize degrees of harm and may confine its restriction to those cases
where the need is deemed to be the clearest.
7. While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed,
if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court
on which the classification may reasonable be regarded as based, the presumption of constitutionality cannot
be carried to extent always that there must be some undisclosed and unknown reason for subjecting certain
individuals or corporation to be hostile or discriminating legislation
8. The classification may be made on different bases e.g. geographical or according to object or occupation
or the like.
9. The classification made by the legislature need not be scientifically perfect or logically complete.
Mathematical nicety and perfect equality are not required. Equality before the law does not require
mathematical equality of all persons in all circumstances. Equal treatment does not mean identical treatment.
Similarly not identity of treatment is enough.
10. There can be discrimination both in the substantive as well as the procedural law. Article 14 applies to
both. If the classification satisfies the test laid down in the above propositions, the law will be declared
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constitutional. The question whether a classification is reasonable and proper and not must however, be
judged more on common sense than on legal subtitles.

NEW CONCEPT OF EQUALITY

E.P. Royappa v state of Tamilnadu This is a very prominent case where the Article 14 of the Indian
Constitution was further interpreted and the ambit of this Article was broaden by the judgment given by
renowned Supreme Court Judges. It was for the first time in Royappa case that the Supreme Court laid a
basic, new dimension to Article 14 and that it was a guarantee against arbitrariness. Equality is a dynamic
concept with many aspects and dimensions and it cannot be "cribbed cabined and confined" within
traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In
fact equality and arbitrariness are sworn enemies; one belongs 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.

In Maneka Gandhi's Case, the Govt. had impounded the passport, and this was held as "not justified". The
Supreme Court held that equality was not limited to the "judicial formula" of reasonable classification. It
was much -wider. The Legislative Act should not only pass the two tests of reasonable classification, but
also be NOT ARBITRARY. Accordingly, impounding a passport without hearing was "not fair". (The
petitioner was heard &passport issued.) In International Airport Authority Case, the court held that equality
had an "activist magnitude" and embodied guarantee against arbitrariness.
*
In the case of Air India v. Nargesh Meerza, the regulation of the Indian Airlines provided that an Air
Hostess had to retire from their services on attaining the age of 35 or if they married within 4 years of their
service or on their first pregnancy whichever occurred earlier. The court held that terminating the services of
an air hostess on the grounds of pregnancy amounted to discrimination as it was an unreasonable ground for
termination. The regulations provided that after 4 years of service the air hostess could marry therefore the
grounds of pregnancy was not reasonable. Thus, it was held that this regulation flagrantly violated Article 14
and such termination would not be valid.
*
In Mithu V. State of Punjab, S. 303. I.P.C. was struck down. In this case, if a person is guilty of murder
under S.3021.P.C. the court in its discretion may award death penalty, but under S.303 I.P.C. if the person, a
prisoner (under life imprisonment), commits murder, then the court shall give death penalty. This
classification was held bad as under Sn.302, there was judicial discretion but there was no such discretion
under S. 303. Hence S. 303 was arbitrary and bad.
*
In the case of D.S. Nakara v. Union of India, Rule 34 of the Central Services rules was held to be
violating Article 14 and thus unconstitutional. Under this rule, a classification was made between the
pensioners who retired before a specific date and those who retired after that date. Such classification was
held irrational by the Court and it was arbitrary. Thus it was an infringement of Article 14 and as a result,
was set aside.

In Pradeep Jain vs Union Of India, In regard to admission to M.B.B.S. and post-graduate medical courses,
a somewhat uniform and consistent practice had grown in almost all the States and Union Territories to give
preference to those candidates who had their domicile or permanent residence within the State for a
specified number of years ranging from 3 to 20 years and to those who had studied in educational
institutions in the State for a continuous period varying from 4 to 10 years. Sometimes the requirement was
phrased by saying that the applicant must have his domicile in the State. The petitioners and the appellant
who sought admission in M.B.B.S. and M.D.S. courses in different universities of different States and Union
Territory of Delhi challenged the residential requirement and institutional preference on the ground of being
violative of Constitution. The question which arose for consideration was whether, consistently with the
constitutional values, admissions to a medical college or any other institution of higher learning situate in a
State could be confined to those who had their 'domicile' within the State or who were resident within the
State for a specified number of years or can any reservation in admissions be made for them so as to give
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them precedence over those who do not possess 'domicile' or residential qualification within the State,
irrespective of merit. Disposing of the writ petitions and the civil appeal.
HELD: The entire country is taken as one nation with one citizenship and every effort of the Constitution
makers is directed towards emphasizing, maintaining and preserving the unity and integrity of the nation.
Now if India is one nation and there is only one citizenship, namely, citizenship of India, and every citizen
has a right to move freely throughout the territory of India and to reside and settle in any part of India,
irrespective of the place where he is born or the language which he speaks or the religion which he professes
and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of India and is
entitled to equality before the law and equal protection of the law with other citizens in every part of the
territory of India, it is difficult to see how a citizen having his permanent home in Tamil Nadu or speaking
Tamil language can be regarded as an outsider in Uttar Pradesh or a citizen having his permanent home in
Maharashtra or speaking Marathi language be regarded as an outsider in Karnataka. He must be held entitled
to the same rights as a citizen having his permanent home in Uttar Pradesh or Karnataka, as the case may be.
To regard him as an outsider would be to deny him his constitutional rights and to derecognise the essential
unity and integrity of the country by treating it as if it were a mere conglomeration of independent States.

Charanjit Lal Chowdhury v. Union of India,

 The petitioner was an ordinary shareholder of the Sholapur Spinning and Weaving Co. Ltd. The
petitioner approached the Supreme Court for the protection against the enforcement of a Central Act, the
Sholapur Spinning and Weaving Co. (Emergency Provisions) Act, 1950.
 On Account of mismanagement and neglect of the affairs of the Company, a situation had arisen that
brought about the closing down of the mill.
 The Central Government thereupon issued an Ordinance which was later replaced by the above-
mentioned Act. By this Act, the management and administration of the assets of the Company were
placed under the control of the directors appointed by the government.
 The contention of the petitioner was that the impugned Act infringed the rule of equal protection of the
laws embodied in Article 14 because a single company and its shareholders were being subjected to
disabilities vis-à-vis other companies and held the legislation valid.

Sri Srinivas Theatre v. Govt. of Tamil Nadu Whether it was not competent for the Tamil Nadu
Legislature to declare that the theatres situated within the 5 kms radius (belt) of the municipal corporation
areas and the areas of special grade municipalities shall be subjected to the same method of taxation as the
theatres situated within the said areas. Appeal dismissed.

Basis of Classification:
Reasonable classification may be based on different grounds:
(i) Geographical basis : Depending on the peculiar circumstances and situations, the classification may be
based on territorial grounds. Thus, in Ram Chandra V. State of Orissa, two Nationalizations Acts, to take
over road transport for different areas in the State of Orissa were held valid, as there were material
differences peculiar to the two Acts. But, district wise distribution of seats in the Medical College was held
bad in Rajendran V. Tamilnadu. Law providing for different fees in Medical and Engineering Colleges
between residents and non residents was held valid in Joshi V. State of M.P.

(ii) Historical basis: Merger, State reorganization etc. may be grounds for reorganization. In Pavitra
Kumar V. State of W.B.,he different categories of Advocates into Barrister advocates and non-barrister
advocates was held valid for "historical reasons". (Now Under Advocates Act 1962 there is no such
classification). Special immunity to Ex- Rulers in C.P.C. was held valid on historical grounds.

(iii) Time as the basis: The basis of classification maybe based on date of operation of law. For instance, an
enhanced tax rate may be imposed from a particular date. Pending cases may be taxed at old rates. This is
not hit by Art. 14.

(iv) Nature of persons, trade, calling or business: Classification of persons, on the basis of age, for instance
is valid (S. 11 Contract Act). Small Scale Industries, may be classified as one group for favoured treatment;
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Classification of News papers into Small, Medium and Big for levying customs duty on newsprint was held
valid (Express Newspaper Case).

(v) Special Courts and Special Procedure: Leading case: Kathi Ranning V. State of Saurastra. In re
Special Courts Bill the Supreme Court has held that Special Courts and Special Procedures were valid if the
law clearly lays down the guiding principles e.g. public safety, maintenance of public order etc. The
offences must be properly classified in relation to the objective to be achieved.

(vi) Tax basis: The basis of tax must pass the test of classification under Art. 14. Hence, tax on Virginia
tobacco but no tax on country tobacco was held valid in E-I-Tobacco Case.
(vii) Individual or group may be classified, if it is not arbitrary and answers the two tests. Ameerunisa V.
Mehboob: There were continuous court litigations between two claimants. The Hyderabad Legislature
passed the Walud Dowla Succession Act and gave the property of the deceased Nawab of Hyderabad to one
party. The other party challenged this law as it denied its right to claim the property, just as any other
citizen, in a court. Held, classification was bad. The essence of Art. 14 is that not only that there must be a
reasonable classification having a relation to the objective to be achieved, but that such a classification itself
should not be arbitrary.
Art. 14 and Special Courts
Whether Special Courts may be constituted by the Legislature to try certain types of offences, was discussed
in detail by the Supreme Court in 'in re Special Courts 'case. The Court held that the Bill was valid. The
classification of offences during Emergency had been defined. The duration had been specified. There were
no unguided and uncontrolled powers to the Executive. The guide lines were clear.
Art. 14 guarantees to all persons
(1) Equality before the law and
(2) Equal protection of the Laws, within the territory of India.
Equality before the law means that among equals, law should be equal and should be equally
administered, and that like should be treated alike. It includes the right to sue and to be sued, to
prosecute and to be prosecuted without any distinction of religion race, Wealth, Social Status or Political
Influence. This includes the concept of "Rule of Law". According to Dicey, this means the supremacy of
law, and, that no man is above the Law; It means that no person shall suffer in body or goods except for
a distinct breach of law, and, that all persons are amenable to the jurisdiction of the ordinary Courts.

In State of West Bengal V Anwar Ali, the Act had provided for special courts to conduct "speedier trial
of certain offences". The Govt. could select the offences for speedy trial. The Supreme Court held that
this was an arbitrary Power and violated Art. 14. No guidelines were given by the Act to classify the
offences. Further, the procedure for trial also varied from the general procedure provided in the Cr.P.C.
This was also held bad.

However, in Kathai Raning [Link] of Saurastra, the law had given proper guidelines and also had
specified the categories of offence that could be selected for special trial.

Hence, the law was held good. In its advisory opinion, in "In re special courts case ", the
Supreme Court held that special courts set up to try offences committed during national emergency of
1975-77,did not violate Art. 14. and the procedure provided therein, was held not against the
Constitution. Hence, in India ,Special Courts may be constituted by law, but the law should classify the
offences or provide clear guidelines to the Govt. to classify. There should be no room for any arbitrary
discretion of the executive. The procedure should not be substantially different from the one prescribed
by ordinary law. Article 14 of the Constitution is part of the Fundamental rights under Part III of the
Indian Constitution and it is regarded as one of the most important Articles of the Constitution.
Article 14 provides for equality to all the people and absence of any discrimination on grounds
such as sex, caste, religion etc. Under Article 14 two important aspects have been included which are
equality before the law and the equal protection of the law and both of them play an important role.
Under Article 14 the concept of Rule of law has been adopted under which no person can be said to be
above the law and every person has to abide to the provisions of law. But the equality which has been
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provided for under Article 14 is not universal and the principle of equality among the equals is followed.
This is the reason why many laws are made which some people such as laws for the benefit of children.
Such classification is reasonable and not arbitrary.
The new dimensions of Article 14 have been developed by the judiciary and the main purpose of
Article 14 is to remove any arbitrariness which may exist in the actions of the State and thus this Article
has a much wider scope in the present time as compared to its scope at the time of enactment of the
Constitution. Thus, the scope of this article has been enlarged by various judicial pronouncements.
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UNIT III