CONSTITUTION OF INDIA

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1 CONSTITUTION OF INDIA Sample : Articles Delhi Law Academy India s Finest Law Caching JUDICIAL SERVICES, LLM ENTRANCE All materials, cpyrights and trademarks are rights f their respective wners

2 CONSTITUTION OF INDIA [Articles 12-18] INTRODUCTION Part III, cntaining the Fundamental Rights, is undubtedly the mst significant prvisin f ur Cnstitutin. Of them, the Right t Cnstitutinal Remedies, cntained in Article 32, was termed by Dr. B R Ambedkar as the heart and sul f the Cnstitutin. INSPIRATION Fundamental Rights, as incrprated in Part III f ur Cnstitutin, were inspired by the Bill f Rights f the US Cnstitutin, as als by the Universal Declaratin f Human Rights as declared by the United Natinal General Assembly n Dec 10, APPLICABILITY While sme Fundamental Rights are available nly t Indian citizens, thers are available t all persns, including crpratins and freign natinals. Only fr citizens: Articles 15, 16, 19, 29, 30 Fr all persns: Articles 14, 20, 21, 25, 32 PROTECTION AND SANCTITY Article 13 f ur Cnstitutin specifically prtects Fundamental Rights frm legislative and executive encrachment. Legislative and executive actin in vilatin f Fundamental Rights is declared null and vid by this Article by the fllwing prvisins: Clause (1) All existing laws shall be vid t the extent they are incnsistent with this Part Clause (2) State shall nt make any law which takes away r abridges rights cnferred by this Part 2 Caching fr Judicial Services, DU LLB and CLAT

3 If any such law is made it shall be vid t the extent it takes away r abridges these rights Clause (3) Law in this Article includes rdinance, rder, by-law, rule, regulatin, ntificatin Clause (4) This article shall nt apply t amendments under article 368 Nte: This last clause was added by the 24 th Amendment Act in 1971 Landmark Case law n Article 13: Case 1: Shankari Prasad v. Unin f India [1951 SC] Questin: Whether the Cnstitutin (First Amendment) Act 1951, which was passed by the prvisinal Parliament t insert articles 31A and 31B, is ultra vires and uncnstitutinal? Judgment: "Althugh "law" must rdinarily include cnstitutinal law, there is a clear demarcatin between rdinary law, which is made in exercise f legislative pwer, and cnstitutinal law, which is made in exercise f cnstituent pwer." "The terms f article 368 are perfectly general and empwer Parliament t amend the Cnstitutin, withut any exceptin whatever. Had it been intended t save the fundamental rights frm the peratin f that prvisin, it wuld have been perfectly easy t make that intentin clear by adding a prvis t that effect. In shrt, we have here tw articles each f which is widely phrased, but cnflicts in its peratin with the ther. Harmnius cnstructin requires that ne shuld be read as cntrlled and qualified by the ther." 3 Caching fr Judicial Services, DU LLB and CLAT

4 "In the cntext f article 13, "law" must be taken t mean rules r regulatins made in exercise f rdinary legislative pwer and nt amendments t the Cnstitutin made in exercise f cnstituent pwer, with the result that article 13(2) des nt affect amendments made under article 368." Case 2: Glaknath v. State f Punjab [1967 SC] Questins: Whether Amendment is a law within the meaning f Article 13(2)? Whether Fundamental Rights can be amended by Parliament? : The Supreme Curt verruled its decisin in Shankari Prasad v. Unin f India. By a thin majrity f 6:5, it held that a cnstitutinal amendment under Article 368 f the Cnstitutin was an rdinary 'law' within the meaning f Article 13(2). The majrity did nt believe there was any difference between rdinary legislative pwer f the parliament and the inherent cnstituent pwer f parliament t amend the Cnstitutin. The majrity did nt agree with the view that Article 368 f the Cnstitutin cntained "pwer and prcedure" t amend, but instead believed that the text f Article 368 nly explained the prcedure t amend the cnstitutin, the pwer being derived frm entry 97 f the List I f the VII Schedule. Since accrding t Article 13(3), Parliament culd nt make any law that abridges the Rights cntained in Part III, a cnstitutinal amendment, als being an rdinary law within the meaning f Article 13, culd nt be in vilatin f the fundamental rights. Therefre, all cnstitutinal amendments thus far which were in cntraventin r which had made an exceptin t fundamental rights were said t be vid. Case 3: Keshavanand Bharti v. State f Kerala [1973 SC] The Supreme Curt verruled its decisin in Glaknath v. State f Punjab. By a thin majrity f 7:6, it held that Parliament culd amend any prvisin f Part III f the Cnstitutin. Hwever, it was hedged with the dctrine f Basic Structure. The Curt held that any feature f the Basic Structure f the Cnstitutin culd nt be altered by Parliament even under its Cnstituent Pwer. 4 Caching fr Judicial Services, DU LLB and CLAT

5 PROTECTION AGAINST WHOM? Article 13 prtects Fundamental Rights frm vilative actins by the State. But what is State? This term is defined in Article 12 t mean the Legislature as well as the Executive: DEFINITION OF STATE : In this Part, State includes: Gvernment f India Parliament f India Gvernment f each State Legislature f each State All lcal authrities in India Other authrities in India r under cntrl f GI Scpe f this term State has been cntinuusly expanded by the Supreme Curt since 1967 thrugh its judgments. Chrnlgical Develpment f Law n Article 12 in Supreme Curt: Case 1: 1967: Rajasthan SEB v. Mhan Lal Questin: Whether the Electricity Bard, which was a crpratin cnstituted under a statute primarily fr the purpse f carrying n cmmercial activities, culd cme within the definitin f State in Article 12? Yes. The expressin ther authrities in Article 12 will include all cnstitutinal r statutry authrities n whm pwers are cnferred by law. It is nt at all material that sme f the pwers cnferred may be fr the purpse f carrying n cmmercial activities. Case 2: 1975: Sukhdev Singh v. Bhagatram Raghuvanshi Questin: Whether the Oil and Natural Gas Cmmissin, the Industrial Finance Crpratin and the Life Insurance Crpratin, each f which were public crpratins set up by statutes, were authrities and therefre within the definitin f State in Article 12? 5 Caching fr Judicial Services, DU LLB and CLAT

6 : Yes. The cncept wuld include a public authrity which is a bdy which has public r statutry duties t perfrm and which perfrms thse duties and carries ut its transactins fr benefit f the public and nt fr private prfit. Such an authrity is nt precluded frm making a prfit fr public benefit. Case 3: 1981: Ajay Hasia v. Khalid Mujib Sehravardi Questin: Whether a cllege established and administered by a sciety registered under the Jammu and Kashmir Registratin f Scieties Act, a State? : Yes. The Sciety was an authrity falling within the definitin f State in Article 12. Case 4: 1981: Sm Prakash Rekhi v. Unin f India Questin: Whether Bharat Petrleum Crpratin was a State under article 12? Bharat Petrleum Crpratin was held t be a State within the enlarged meaning f Article 12. Case 5: 1983: B.S. Minhas v. Indian Statistical Institute : The Indian Statistical Institute, a registered sciety is an instrumentality f the Central Gvernment and as such is an authrity within the meaning f Article 12 f the Cnstitutin. 6 Caching fr Judicial Services, DU LLB and CLAT

7 Case 6: 1984: P.K. Ramachandra Iyer v. Unin f India : Bth the Indian Cuncil f Agricultural Research (ICAR) and its affiliate, the Indian Veterinary Research Institute, were bdies as wuld be cmprehended in the expressin ther authrity in Article 12 f the Cnstitutin. Case 7: 1991: Chander Mhan Khanna v. NCERT Questin Whether the Natinal Cuncil f Educatinal Research (NCERT) was a State as defined under Article 12 f the Cnstitutin. Reasning N. Since NCERT was largely an autnmus bdy and the activities f NCERT were nt whlly related t gvernmental functins and that the gvernment cntrl was cnfined nly t the prper utilisatin f the grant and since its funding was nt entirely frm gvernment resurces, the case did nt satisfy the requirements f the State under Article 12 f the Cnstitutin. Case 8: 2002: Mysre Paper Mills v. Mysre Paper Mills Officers Assn : Yes. A cmpany substantially financed and financially cntrlled by the Gvernment, managed by a Bard f Directrs nminated and remvable at the instance f the Gvernment and carrying n imprtant functins f public interest under the cntrl f the Gvernment is an authrity within the meaning f Article 12. Case 9: 2002: Pradeep Kumar Biswas v. Indian Institute f Chemical Bilgy Questin: Is CSIR a State within the meaning f Article 12 f the Cnstitutin and if it is, shuld this Curt reverse a decisin which has std fr ver a quarter f a century? 7 Caching fr Judicial Services, DU LLB and CLAT

8 : Yes. Cntrl f the Gvernment in CSIR is ubiquitus. Given the fact that President f CSIR is the Prime Minister, subjugatin f the Gverning Bdy t the will f the Central Gvernment is cmplete. Nn-gvernmental cntributins are a pittance cmpared t the massive gvernmental input. Case 10: 2005: Zee Telefilms v. Unin f India Questin: Whether BCCI a State within the meaning f Article 12 f the Cnstitutin? : N. THE FIRST FUNDAMENTAL RIGHT: RIGHT TO EQUALITY EQUALITY BEFORE LAW Article 14 State shall nt deny t any persn equality befre law State shall nt deny t any persn equal prtectin f laws within the territry f India SCOPE OF ARTICLE 14 Article 14 guarantees equal treatment t persns wh are equally situated Unequals are nt nly permitted t be treated unequally but als they have t be s treated Equal treatment t unequals is nthing but inequality 8 Caching fr Judicial Services, DU LLB and CLAT

9 Article 14 allws reasnable classificatin n an bjective basis having nexus with the bject t be achieved Case Law 1: M Nagaraj v. Unin f India [2006 SC] The gravamen f Article 14 is equality f treatment. Article 14 cnfers a persnal right by enacting a prhibitin which is abslute. By judicial decisins, the dctrine f classificatin is read int Article 14. The basic principle underlying Article 14 is that the law must perate equally n all persns under like circumstances. Every discretinary pwer is nt necessarily discriminatry. Equality is nt vilated by mere cnferment f discretinary pwer. It is vilated by arbitrary exercise by thse n whm it is cnferred. Equality befre the law, guaranteed by the first part f Article 14, is a negative cncept while the secnd part is a psitive cncept which is enugh t validate equalizing measures depending upn the fact situatin. Case Law 2: Maneka Gandhi v. Unin f India [1978 SC] Equality is a dynamic cncept with many aspects and dimensins and it cannt be imprisned within traditinal and dctrinaire limits. Article 14 strikes at arbitrariness in State actin and ensures fairness and equality f-treatment. The principle f reasnableness, which legally as well as philsphically, is an essential element f equality r nn-arbitrariness pervades Article 14 like a brding mnipresence. Case Law 3: E.P. Ryappa v. State f Tamil Nadu [1974 SC] Frm a psitivistic pint f view, equality is antithetic t arbitrariness. In fact equality and arbitrariness are swrn enemies; ne belngs t the rule f law in a republic, while the ther, t the whim and caprice f an abslute mnarch. Where an act is arbitrary, it is implicit in it that it is unequal bth accrding t plitical lgic and cnstitutinal law and is therefre vilative f Article Caching fr Judicial Services, DU LLB and CLAT

10 PROHIBITION OF DISCRIMINATION Article 15(1) State shall nt discriminate against any citizen n grunds nly f Religin Race Caste Sex Place f birth Clause (2) N citizen shall be subjected t any disability, liability r restrictin n these grunds nly Affirmative Actin in favur f Wmen and Children: Clause (3) This Article des nt prevent the State frm making any special prvisin fr wmen and children Affirmative Actin in favur f SCs, STs and SEBCs: Act in 1951: Intrduced by the 1 st Amendment Clause (4) This Article des nt prevent the State frm making any special prvisin fr scially r educatinally backward class f citizens Scheduled Castes Scheduled Tribes 10 Caching fr Judicial Services, DU LLB and CLAT

11 Special Prvisin fr admissin t educatinal institutins: Intrduced by the 93 rd Amendment Act in 2005: Clause (5) This Article des nt prevent the State frm making any special prvisin, by law, fr any scially r educatinally backward class f citizens Scheduled Castes Scheduled Tribes fr their admissin t educatinal institutins including private institutins whether aided r unaided by State Exceptin: Minrity educatinal institutins under Article 30(1) DLA Ntes n Clause (5) Implementatin f article 15(5): Central Educatinal Institutins (Reservatin in Admissin) Act, 2006 Cnstitutinal Validity f the 93rd Amendment: India [2008 SC] Ashk Kumar Thakur v. Unin f Issue 1 Whether the Ninety-Third Amendment f the Cnstitutin is against the basic structure f the Cnstitutin? The Cnstitutin (Ninety-Third Amendment) Act, 2005 des nt vilate the basic structure f the Cnstitutin s far as it relates t the state maintained institutins and aided educatinal institutins. Questin whether the Cnstitutin (Ninety-Third Amendment) Act, 2005 wuld be cnstitutinally valid r nt s far as private unaided educatinal institutins are cncerned, is left pen t be decided in an apprpriate case. 11 Caching fr Judicial Services, DU LLB and CLAT

12 Issue 2 Whether exclusin f minrity educatinal institutins frm Article 15(5) is vilative f Article 14 f Cnstitutin? Exclusin f minrity educatinal institutins frm Article 15(5) is nt vilative f Article 14 f the Cnstitutin as the minrity educatinal institutins, by themselves, are a separate class and their rights are prtected by ther cnstitutinal prvisins. Issue 3 Whether Creamy Layer is t be excluded frm SEBCs? Creamy Layer is t be excluded frm SEBCs. The identificatin f SEBCs will nt be cmplete and withut the exclusin f creamy layer such identificatin may nt be valid under Article 15(1) f the Cnstitutin. Issue 4 Whether the creamy layer principle is applicable t Scheduled Tribes and Scheduled Castes? Creamy Layer principle is nt applicable t Scheduled Castes and Scheduled Tribes. NEW PROVISION: CLAUSE (6): Intrduced by the 103 rd Amendment Act f 2019 This article r articles 19(1)(g) r 29(2) d nt prevent the State (a) frm making any special prvisin 12 Caching fr Judicial Services, DU LLB and CLAT

13 fr advancement f any ecnmically weaker sectins f citizens ther than classes mentined in clauses (4) and (5) (b) frm making any special prvisin fr advancement f ecnmically weaker sectins f citizens ther than classes mentined in clauses (4) and (5 fr their admissin t educatinal institutins including private educatinal institutins whether aided r unaided by State ther than minrity educatinal institutins referred in article 30(1) which in case f reservatin wuld be in additin t the existing reservatins and subject t a maximum f 10% f ttal seats in each categry Explanatin "ecnmically weaker sectins" shall be such as may be ntified by the State n the basis f family incme and ther indicatrs f ecnmic disadvantage DLA Ntes n Clause (6) Nte 1 Clause (6) was inserted by the 103 rd Amendment Act in 2019 Nte 2 The Cnstitutin 103rd Amendment Act 2019 enables reservatin in educatinal institutins t ecnmically weaker sectins f citizens 13 Caching fr Judicial Services, DU LLB and CLAT

14 Nte 3 This amendment received assent f the President n 12 January 2019 and came int frce n 14 January 2019 EQUALITY OF OPPORTUNITY IN APPOINTMENTS AND PROMOTIONS: Article 16(1) There shall be equality f pprtunity fr all citizens in matters f emplyment r appintment t any ffice under State Article 16(2) N citizen shall be discriminated against in emplyment r ffice under State n grunds nly f Religin Race Caste Sex Descent Place f birth Place f residence Article 16(3) Parliament may by law make residence within a State/UT a cnditin fr emplyment r appintment t an ffice under gvt f that State/UT RESERVATIONS IN INITIAL APPOINTMENTS: Article 16(4) This Article des nt prevent the State frm making a prvisin fr reservatin f appintment in favur f a backward class f citizens 14 Caching fr Judicial Services, DU LLB and CLAT

15 which is nt adequately represented in services under State Supreme Curt n Article 16(4): Indra Sawhney v. Unin f India [1992] Issue 1 Whether clause (4) f Article 16 is an exceptin t clause (1)? Clause (4) f Article 16 is nt an exceptin t clause (1). It is an instance and an illustratin f the classificatin inherent in clause (1). Issue 2 Whether Article 16(4) is exhaustive f the cncept f reservatins in favur f backward classes? Article 16(4) is exhaustive f the subject f reservatin in favur f backward class f citizens, as explained in this judgment. Issue 3 Whether Article 16(4) is exhaustive f the very cncept f reservatins? Whether clause (1) f Article 16 des nt permit any reservatins? Reservatins can als be prvided under clause (1) f Article 16. It is nt cnfined t extending f preferences, cncessins r exemptins alne. These reservatins, if any, made under clause (1) have t be s adjusted and implemented as nt t exceed the level f representatin prescribed fr backward class f citizens as explained in this Judgment. Issue 4 15 Caching fr Judicial Services, DU LLB and CLAT

16 Meaning f the expressin backward class f citizens in Article 16(4). Answer A caste can be and quite ften is a scial class in India. If it is backward scially, it wuld be a backward class fr the purpses f Article 16(4). Amng nn- Hindus, there are several ccupatinal grups, sects and denminatins, which fr histrical reasns, are scially backward. They t represent backward scial cllectivities fr the purpses f Article 16(4). Issue 5 Means-test and creamy layer? Answer Creamy layer can be, and must be excluded. Issue 6 T what extent can the reservatin be made? Whether the 50% rule enunciated in Balaji a binding rule r nly a rule f cautin r rule f prudence? Issue 7 The reservatins cntemplated in clause (4) f Article 16 shuld nt exceed 50%. While 50% shall be the rule, it is necessary nt t put ut f cnsideratin certain extrardinary situatins inherent in the great diversity f this cuntry and the peple. Whether clause (4) f Article 16 prvides reservatin nly in the matter f initial appintments/direct recruitment r des it cntemplate and prvide fr reservatins being made in the matter f prmtin as well? Article 16(4) des nt permit prvisin fr reservatins in the matter f prmtin. This rule shall, hwever, have nly prspective peratin and shall nt affect the prmtins already made. 16 Caching fr Judicial Services, DU LLB and CLAT

17 Issue 8 Desirability f a Permanent Statutry Bdy t Examine Cmplaints f Overinclusin/ Under-inclusin The Gvernment f India and the State Gvernments have the pwer t, and ught t, create a permanent mechanism - in the nature f a Cmmissin - fr examining requests f inclusin and cmplaints f ver-inclusin r nn-inclusin in the list f OBCs and t advise the Gvt, which advice shall rdinarily be binding upn the Gvt. RESERVATIONS IN PROMOTIONS: Intrduced by the 77 th Amendment Act f 1995 Article 16(4A) This Article des nt prevent the State frm making a prvisin fr reservatin in matters f prmtin with cnsequential senirity in favur f SCs and STs which are nt adequately represented in services under State Nte: Clause (4A) was inserted by the 77 th Amendment Act in 1995 Reserved Unfilled Vacancies as Separate Class f Vacancies: Intrduced by the 81 st Amendment Act f 2000 Article 16(4B) This Article des nt prevent the State frm cnsidering any reserved unfilled vacancies f a year as separate class f vacancies fr subsequent years Such vacancies are nt t be cnsidered fr determining ceiling f 50% reservatin fr thse subsequent years 17 Caching fr Judicial Services, DU LLB and CLAT

18 Supreme Curt n Articles 16(4A) and 16(4B): M. Nagraj v. Unin f India [2006] The cnstitutinal amendments by which Articles 16(4-A) and 16(4-B) have been inserted flw frm Article 16(4). They d nt alter the structure f Article 16(4). They retain the cntrlling factrs r the cmpelling reasns, namely, backwardness and inadequacy f representatin which enables the States t prvide fr reservatin keeping in mind the verall efficiency f the State administratin under Article 335. They d nt bliterate any f the cnstitutinal requirements, namely, ceiling limit f 50% (quantitative limitatin), the cncept f creamy layer (qualitative exclusin), the sub-classificatin between OBCs n ne hand and SCs and STs n the ther hand, the cncept f pst-based rster with inbuilt cncept f replacement. The State cncerned will have t shw in each case existence f the cmpelling reasns, namely, backwardness, inadequacy f representatin and verall administrative efficiency befre making prvisin fr reservatin. The impugned prvisin is an enabling prvisin. The State is nt bund t make reservatin fr SCs/STs in matters f prmtins. Hwever, if they wish t exercise their discretin and make such prvisin, the State has t cllect quantifiable data shwing backwardness f the class and inadequacy f representatin f that class in public emplyment in additin t cmpliance with Article 335. It is made clear that even if the State has cmpelling reasns, the State will have t see that its reservatin prvisin des nt lead t excessiveness s as t breach the ceiling limit f 50% r bliterate the creamy layer r extend the reservatin indefinitely. RESERVATION FOR ECONOMICALLY WEAKER SECTIONS OF CITIZENS: NEW PROVISION : ARTICLE 16(6): Intrduced by the 103 rd Amendment Act f 2019 This article des nt prevent the State frm making reservatin f appintments in favur f ecnmically weaker sectins f citizens ther than classes mentined in clause (4) in additin t existing reservatin and subject t a maximum f 10% f psts in each categry 18 Caching fr Judicial Services, DU LLB and CLAT

19 Nte 1 Clause (6) was inserted by the 103 rd Amendment Act in 2019 Nte 2 The Cnstitutin 103rd Amendment Act 2019 enables reservatin in public appintments t ecnmically weaker sectins f citizens ABOLITION OF UNTOUCHABILITY Article 17 Untuchability is ablished Its practice in any frm is frbidden Enfrcement f any disability arising ut f untuchability shall be an ffence, punishable by law Enactments under article 17: Prtectin f Civil Rights Act 1955 SCs and STs (Preventin f Atrcities) Act 1989 ABOLITION OF TITLES Article 18 State shall nt cnfer any title except fr military r academic distinctin N citizen f India shall accept any title frm any freign State Nte: Bharat Ratna, Padma Vibhusan etc. are Natinal Awards and nt Titles These shuld nt be prefixed and suffixed Surce: Balaji Raghavan v. Unin f India [1996 SC] *********** 19 Caching fr Judicial Services, DU LLB and CLAT