Understanding Pre and Post-Constitutional Law in India, Study notes of Constitutional Law

Download Understanding Pre and Post-Constitutional Law in India and more Study notes Constitutional Law in PDF only on Docsity! Page 1 of 72 BA LLB (H) CONSTITUTIONAL LAW – II PAPER CODE: 206 Unit – I Fundamental Rights – I a. Definition of ‘State’ for enforcement of fundamental rights – Justifiability of fundamental rights – Doctrine of eclipse, severability, waiver . Distinction between pre-constitutional law and post-constitutional law b. Right to equality – Doctrine of Reasonable classification and the principle of absence of arbitrariness c. Fundamental freedom: Freedom of speech and expression, freedom of association, freedom of movement, freedom to reside and settle, freedom of trade, business and profession – expansion by judicial interpretation – reasonable restrictions Unit – II: Fundamental Rights – II a. Right to life and personal liberty – scope and content – (expensive interpretation) b. Preventive detention under the Constitution – Policy and safeguards – Judicial review c. Right against exploitation – Forced labor and child employment d. Freedom of religion Unit – III: Right to Constitutional Remedies 1. Right to Constitutional Remedies – Judicial Review – Writs – Hebeas Corpus, Mandamus, Certiorari, Prohibition and Quo-warranto – Art 32 and 226 Unit – IV: Directive Principles, Fundamental Duties and Social Justice a. Directive Principles of State Policy – Nature and justifiability of the Directive Principles – Inter-relationship between Fundamental Rights and Directive Principles – Fundamental Duties b. Social justice under the Indian Constitution – Compensatory discrimination for backward classes – Mandal Commission’s case and other cases – Protective discrimination doctrine Page 2 of 72 UNIT-I ‘STATE’ ARTICLE 12 The Constitution of India, Article 12 : “In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” Tests to decide which “other authorities” could be considered as agencies or instrumentalities of state The cumulative effect of all the following factors has to be seen: 1. “If the entire share capital of the corporation is held by government, it would go a long way towards indicating that the corporation is an instrumentality or agency of government.” 2. The existence of “deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.” 3. “It may also be a relevant factor…whether the corporation enjoys monopoly status which is State conferred or State protected.” 4. “If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of government.” 5. “Specifically, if a department of government is transferred to a corporation, it would be a strong factor supportive of this inference” of the corporation being an instrumentality or agency of government. Som Prakash Rekhi v. Union of India AIR 1981 SC 212 : (1981) 1 SCC 449 Page 5 of 72 the Airport Authority. The short question that fell for decision was as to whether the Electricity Board was ‘State’. There was no debate, no discussion and no decision on the issue of excluding from the area of State under Article 12, units incorporated under a statute as against those created by a statute. On the other hand, the controversy was over the exclusion from the definition of State in Article 12 corporations engaged in commercial activities. This plea for a narrow meaning was negative by Bhargava, J. and in that context the learned Judge explained the signification of “other authorities” in Article 12: The meaning of the word “authority” given in WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, which can be applicable, is “a public administrative agency or corporation having quasi-governmental powers authorized to administer a revenue-producing public enterprise”. This dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression “other authorities” is wide enough to include within it every authority created by a statute and functioning within the territory of India, or Under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words “other authorities” are used in Article 12 of the Constitution. These decisions of the court support our view that the expression “other authorities” in Article 12 will include all constitutional or statutory authorities on whom powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Article 19(1)(g). In Part IV, the State has been given the same meaning as in Article 12 and one of the directive principles laid down in Article 46 is that the State shall promote with special care the educational and economic interests of the weaker sections of the people. The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The State, as constituted by our Constitution, is further specifically empowered under Article 298 to carry on any trade or business. The circumstance that the Board under the Electricity Supply Act, is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word “State” as used in Article 12. The decision in Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly Page 6 of 72 [(1986) 3 SCC 156] held that the appellant Company was covered by Article 12 because it is financed entirely by three Governments and is completely under the control of the Central Government and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it and also that the activities carried on by the Corporation are of vital national importance. However, the tests propounded in Ajay Hasia were not applied in Tekraj Vasandi v. Union of India [(1988) 1 SCC 236] where the Institute of Constitutional and Parliamentary Studies (ICPS), a society registered under the Societies Registration Act, 1860 was held not be an “other authority” within the meaning of Article 12. The reasoning is not very clear. All that was said was: “Having given our anxious consideration to the facts of this case, we are not in a position to hold that ICPS is either an agency or instrumentality of the State so as to come within the purview of ‘other authorities’ in Article 12 of the Constitution.” Justifiability of fundamental rights The Fundamental Rights are considered as one of the integral part of Indian Constitution. The Fundamental Rights are defined as the basic human freedoms which every individual has a right to enjoy for a proper and harmonious development of personality. Although many rights are considered as human rights a specific legal test is used by courts to determine the limitations which can be imposed on them. These rights find their origin in many places such as England Bill of Rights, United States Bill of Rights and France Declaration of Bill of Rights of Man. The framing of Indian Constitution can be best known by browsing transcripts of Constituent Assembly debate. The Constituent Assembly was composed of members elected from various British Indian Provinces and nominated by the princely states. The framers if Indian Constitution had three things in mind – ensuring unity, democracy and creating social revolution. The Constitution of India took nearly three years in its formation and finally came into force on 26th January 1950. The biggest challenge before the Constituent Assembly was to evolve a document that would address the diversity amongst the population, create accountable governance and an independent Page 7 of 72 republic. The development of fundamental human rights in India was due to exposure of students to the ideas of democracy, working of parliamentary democracy and British political parties and was also inspired by the:- • England Bill of Rights • Us Bill of Rights • France Declaration of the Rights of Man and • Development of Irish Constitution. The Nehru Committee observed that the first care should be to have Fundamental Rights guaranteed in such a manner which will not permit its withdrawal under any circumstances. The Indian Statutory Commission refused to enumerate and guarantee the demand of Fundamental Rights in the Constitution Act. Their refusal was based on Simons Commission argument that abstract definition of such rights is useless unless there existed the will and means to make them effective. The Indian National Congress at its Karachi session in 1931 again demanded for a written guarantee for Fundamental Rights in any future Constitutional setup in India. This demand was also emphasized at the round table conference at London. A memorandum circulated by the Mahatma Gandhi at the second session of round table conference demanded that the new constitution should include a guarantee to the communities concerned to the protection of their cultures, language, scripts, profession, education and practice of religion and religious endowments and protect personal laws and protection of other rights of minority communities. The Joint Select Committee of the British Parliament did not accept the demand for the constitutional guarantee of Fundamental Rights to British subjects in India. The Committee observed that:- ….there are also strong practical arguments against the proposal which may be put in the form of a dilemma: for either the declaration of rights is of so abstract a nature that it has no legal effect of any kind or its legal effect will be to impose an embarrassing restrictions on the powers of the legislatures and to create a grave risk that a large number of laws will be declared invalid or inconsistent with one or other of the rights so declared….There is this further objection that the state has made it abundantly clear that no declaration of fundamental rights is to apply to state Page 10 of 72 United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions. The various stages through which the various clauses on fundamental rights passed were similar to other parts of the constitution. Firstly- the constitutional adviser prepared a draft embodying a decision of the constituent assembly. This draft was considered exhaustively and in detail by the drafting committee, which prepared a revised draft and published it in February 1948. The revised draft was then widely circulated. The comments and suggestions received from all quarters were again considered by the drafting committee and in light of these the committee proposed certain amendments. Discussions in constituent assembly of the draft provisions took place in November and December 1948 and August, September and October 1949. During these meetings the committee considered the various suggestions for amendment made on behalf of Drafting Committee as well as those proposed by the individual members of the assembly. The provisions as passed by the assembly were again scrutinized by the Drafting Committee and incorporated by the drafting changes wherever necessary in the revised draft constitution. The revised draft was again placed before the assembly at its final session held in November 1949. The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November 1949) prepared by the Drafting Committee. DOCTRINE OF ECLIPSE "Judicial Review" is defined as the interposition of judicial restraint on the legislative and executive organs of the Government.! It is the "overseeing by the judiciary of the exercise of powers by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution." The concept has its origins in the theory of limited Government and the theory of two laws - the ordinary and the Supreme (i.e., the Constitution) - which entails that any act of the ordinary law-making bodies that contravenes the provisions of the Supreme Law must be void, and there must be some organ possessing the power or authority to pronounce such legislative acts void. Page 11 of 72 With the adoption of a written Constitution and the incorporation of Part III conferring Fundamental Rights therein, it was inevitable that the validity of all laws in India would be tested on the touchstone of the Constitution. Nevertheless, the Constitution-makers included an explicit guarantee of the justiciability of fundamental rights in Article 13, which has been invoked on numerous occasions for declaring laws contravening them void. Courts have evolved various doctrines like the doctrines of severability, prospective overruling, and acquiescence, for the purposes of effecuating this Article. The Doctrine of Eclipse ("the Doctrine") is one such principle, based on the premise that fundamental rights are prospective in nature. As a result of its operation, "an existing law inconsistent with a fundamental right, though it becomes inoperative from the date of commencement of the Constitution, is not dead altogether." Hence, in essence, the Doctrine seeks to address the following quandary: If a law is declared null and void for infringing on a fundamental right, and then that fundamental right is itself amended such that the law is purged of any inconsistency with it, does the law necessarily have to be re- enacted afresh, or can it revive automatically from the date of the amendment? In other words, what is the precise nature of the operation of the Doctrine in the face of the general rule that a Statute void for unconstitutionality is non-est and "notionally obliterated" from the Statute Book? Inherent in the application of the Doctrine to such questions is the predicament of conflicting priorities. What is to be determined here is whether, for the purpose of avoiding the administrative difficulties and expenditure involved in re-enacting a law, a law which was held void on the very sensitive and potent ground of violation of fundamental rights should, under special circumstances be permitted to revive automatically. This also raises some profound questions about legislative competence and the interference of courts in law making. An extremely vital aspect of the Doctrine - which, in India, has thus far been largely overlooked by legal theorists and practitioners alike - is its crucial role in the federal framework. A survey of the principal federations in the Anglo-American world shows that the Doctrine has been used primarily in cases where the enacting legislature undoubtedly had the power to enact a law, but the law was rendered in operative because of supervening impossibilities, arising in the form of other incompatible laws enacted by legislatures having superior powers to enact such laws. A complete demarcation of powers between the federal and state spheres is neither feasible nor desirable in a federal polity. Page 12 of 72 EVOLUTION OF THE DOCTRINE OF ECLIPSE In India, the Doctrine of Eclipse has been referred to, most frequently, in cases involving alleged violations of fundamental rights. Questions regarding the retrospectivity of these rights and the import of the word "void" in Article 13(1) of the Constitution, came up for deliberation in the leading case of Keshavan Madhava Menon v. State of Bombay, A.I.R. 1951 S.C. 128, wherein a prosecution proceeding was initiated against the appellant under the Indian Press (Emergency Powers) Act, 1931, in respect of a pamphlet published in 1949. The present Constitution came into force during the pendency of the proceedings. The appellant pleaded that the impugned section of the 1931 Act was in contravention of Article 19(1)(a) of the Constitution, and by virtue of Article 13(1), was void. Hence, it was argued that the proceedings against him could not be continued. This case raised several challenging issues with respect to the Doctrine, as analysed below. It is now well settled that the Constitution has no retrospective effect. However, one of the basic questions related to the origin of the Doctrine of Eclipse that was raised in Keshavanand Bharti Case, was whether fundamental rights are retrospective in operation. Article 13(1) provides that all pre-Constitutional laws, in so far as they are inconsistent with fundamental rights, are void. If fundamental rights are retrospective, then all pre-Constitutional laws inconsistent with fundamental rights must be void ab initio. On this point, in Keshavanand, both Das and Mahajan, JJ., maintained that fundamental rights, including the freedom of speech and expression, were granted for the first time by the Constitution and that in September 1949, when proceedings were initiated, the appellant did not enjoy these rights. Hence, it was established that, as fundamental rights became operative only on, and from the date of the Constitution coming into force, the question of inconsistency of the existing laws with those rights must necessarily arise only on and from such date. Turning specifically to Article 13(1), the Court further held that every statute is prima facie prospective unless it is expressly or by necessary implication made retrospective. According to him, there was nothing in the language of Article 13(1), to suggest that there was an intention to give it retrospective operation. In fact, the Court was of the opinion that the language clearly points the other way. Page 15 of 72 Mahendra Lal Jaini v. State of U.P., A.I.R. 1963 S.C. 1019, is the most authoritative decision forthe impossibility of reviving post-Constitutional laws by a Constitutional amendment. The Court based its finding on the two grounds. First, the language and scope of Article 13(1) and 13(2) are different. Clause (1) clearly recognizes the existence of pre-Constitutional laws which were valid when enacted, and therefore could be revived by the Doctrine. Clause (2) on the other hand begins with an injunction to the State not to make a law which takes away or abridges the rights conferred by Part III. The legislative power of Parliament and State Legislatures under Article 245 is subject to the other provisions of the Constitution and therefore, subject to Article 13(2). Second, "contravention" takes place only once the law is made. This is because the contravention is of the prohibition to make any law, which takes away or abridges the fundamental rights. It is no argument to say that simply because the Amendment removes any subsequent scope for contravention, the law is no longer in conflict with the Constitution. However, the scope of the principles established above stands drastically curtailed in view of the Supreme Court decision in State of Gujarat v. Shree Ambica Mills, A.I.R. 1974 S.C. 1300, wherein Matthew, J. held that like a pre-Constitutional law, a post- Constitutional law contravening a fundamental right could also be valid in relation to those, whose rights were not infringed upon. For instance, when a post-Constitutional law violates a fundamental right like Article 19 which is granted to citizens alone, it would remain valid in relation to non-citizens. Thus the term "void" in both the clauses of Article 13 makes a law only relatively void, and not absolutely void. From this arises the final question: When a post-Constitutional law is held inconsistent with a fundamental right, can it be revived by amending the Act in question so as to remove the blemish, or will it have to be re-enacted as a whole? The Delhi High Court in P.L. Mehra v. D.R. Khanna, A.I.R. 1971 Del. 1, has held that the legislation will have to be re-enacted and that it cannot be revived by mere amendment. This view appears to the author to emanate logically from the position adopted by the Supreme Court in treating such a law as void ab initio. There is, therefore, no need to apply the Doctrine of Eclipse to post-Constitutional laws, as discussed above. There is no direct Supreme Court ruling on this point. The closest authority on this issue is Shama Rao v. State of Maharashtra, A.I.R. 1967 S.C. 480, wherein an Act was challenged on Page 16 of 72 the ground of excessive delegation, and pending the decision, the Legislature passed an Amendment Act seeking to remove the defect. The Supreme Court ruled by a majority that when an Act suffers from excessive delegation, it is stillborn and void ab initio. It cannot be revived by an amending Act seeking to remove the vice, and must be re-enacted as a whole. It is submitted that this ruling supports the proposition that an Act held invalid under Article 13(2) would not be revived merely by amending it, but would have to be re-enacted. Hence, we may safely infer that Ambica Mills does not destroy the force of the judicial pronouncements in Deep Chand and Mahindra Jaini, but merely limits the scope of their operation, and that the Doctrine, as of now, cannot be extended to post-Constitutional laws. Doctrine of Waiver The Fundamental rights (F.R) under Part III Under Art 12 to 35 of the constitution are conferred to every citizen of India by the constitution. These constitutional rights are not absolute. There are reasonable restriction impose by the constitution. The primary objectives of this F.R are based on public policy. Therefore no individual can waive off such FRs. The doctrine of waiver of right is based on the premise that a person is his best judge and that he has the liberty to waive the enjoyment of such right as are conferred on him by the state. However the person must have the knowledge of his rights and that the waiver should be voluntary. In Basheshr Nath vs. Income Tax commissioner AIR 1959 SC 149, Held that In this case the petitioner whose matter had been referred to the Investigation commissioner u/s 5(1) of the Taxation of Income Act 1947 was found to have concealed a settlement u/s 8 A to pay Rs 3 Lakhs in monthly installments, by way of arrears of tax and penalty. In the meanwhile the SC in another case held that section 5(1) is ultra vires the constitution, as it was inconsistence with Art 14. So the appellant cannot waive off his FR. Conclusion- It means "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of Page 17 of 72 judicial or legislative officers, or by his own deed, acts, or representations, either express or implied. Doctrines of Severability Art 13 provides that Act is void which is inconsistent with the Part III of the constitution. Art 13 is having a flexible nature; it does not make the whole Act inoperative. It makes inoperative only such provisions of it as are inconsistent with or violative of fundamental right. Sometimes valid and invalid portion of the Act are so intertwined that they cannot be separated from one another. In such cases, the invalidity of the portion must result in the invalidity of the Act in its entirety, the reason is that the valid part cannot survive independently. In determining whether the valid parts of a statue are severable from the invalid parts. In intention of the Legislature is the determining factor. In other words it should be asked whether the legislature would have enacted at all that which survive without the part found ultra virus. The rule of severability applies as such clause (2) as to Clause (1) of Art 13 in Jia Lal v/s Delhi Administration AIR 1962, The appellant was prosecuted for an office u/s 19 (f) of the Arm Act 1878. In fact, section 29 of this Act provides that in certain area in which the petitioner did not obtain any license in which the petitioner was residing, it was not necessary to obtain the said license for possession fire arm. Section 29 was challenged as ultra virus and unconstitutional as offending Art 14 and also section 19(f) of the Arms Act 1878 on the ground that two sections were not severable, on the question of severability the SC held that the section 29 of the Arms Act 1878 was ultra virus. Pre–Constitutional law Post–constitutional law Page 20 of 72 Indeed, real and effective democracy cannot be achieved unless equality in all spheres is realised in a full measure. However, complete equality among men and women in all spheres of life is a distant ideal to be realised only by the march of humanity along the long and difficult path of economic, social and political progress. The Constitution and laws of a country can at best assure to its citizens only a limited measure of equality. The framers of the Indian Constitution were fully conscious of this. This is why while they gave political and legal equality the status of a fundamental right, economic and social equality was largely left within the scope of Directive Principles of State Policy. The Right to Equality affords protection not only against discriminatory laws passed by legislatures but also prevents arbitrary discretion being vested in the executive. In the modern State, the executive is armed with vast powers, in the matter of enforcing by-laws, rules and regulations as well as in the performance of a number of other functions. The equality clause prevents such power being exercised in a discriminatory manner. For example, the issue of licenses regulating various trades and business activities cannot be left to the unqualified discretion of the licensing authority. The law regulating such activities should lay down the principles under which the licensing authority has to act in the grant of these licenses. Article 14 prevents discriminatory practices only by the State and not by individuals. For instance, if a private employer like the owner of a private business concern discriminates in choosing his employees or treats his employees unequally, the person discriminated against will have no judicial remedy. One might ask here, why the Constitution should not extend the scope of these right to private individuals also. There is good reason for not doing so. For, such extension to individual action may result in serious interference with the liberty of the individual and, in the process; fundamental rights themselves may become meaningless. After all, real democracy can be achieved only by a proper balance between the freedom of the individual and the restrictions imposed on him in the interests of the community. Yet, even individual action in certain spheres has been restricted by the Constitution, as for example, the Page 21 of 72 abolition of untouchability, and its practice in any form by any one being made an offence. Altogether, Article 14 lays down an important fundamental right which has to be closely and vigilantly guarded. There is a related matter that deserves consideration here. The right to equality and equal protection of laws loses its reality if all the citizens do not have equal facilities of access to the courts for the protection of their fundamental rights. The fact that these rights are guaranteed in the Constitution does not make them real unless legal assistance is available for all on reasonable terms. There cannot be any real equality in the right "to sue and be sued" unless the poorer sections of the community have equal access to courts as the richer sections. There is evidence that this point is widely appreciated in the country as a whole and the Government of India in particular and that is why steps are now being taken to establish a system of legal aid to those who cannot afford the prohibitive legal cost that prevails in all parts of the country. Doctrine of Reasonable classification Article 14 says that State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality before law as provided in the Article 14 of our constitution provides that no one is above the law of the land. Rule of the Law is an inference derived from Article 14 of the constitution. The article 14 aims to establish the "Equality of Status and Opportunity" as embodied in the Preamble of the Constitution. Article 14 of the Indian Constitution (intelligible differentia and the object sought to be achieved It is now accepted that persons may be classified into groups and such groups may be treated differently if there is a reasonable basis for such difference. Article 14 forbids class legislation; it Page 22 of 72 does not forbid classification or differentiation which rests upon reasonable grounds of distinction. The principle of equality does not mean that every law must have universal application to all the persons who are not by nature, attainment or circumstances in the same position. The varying needs of different classes of persons require different treatment. In order to pass the test for permissible classification two conditions must be fulfilled, namely: (1) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) the differentia must have a rational nexus with the object sought to be achieved by the statute in question. What is however necessary is that there must be a substantial basis for making the classification and the there should be a nexus between the basis of classification and the object of the statute under consideration. In other words, there must be some rational nexus between the basis of classification and the object intended to achieve. The expression “intelligible differentia” means difference capable of being understood. A factor that distinguishes or in different state or class from another which is capable of being understood. The impugned act deals with users of social networking websites Test laid down in State of West Bengal v. Anwar Ali Sarkar i.e. the differentia or classification must have a rational nexus with the object sought to be achieved by the statute in question Supreme Court in many of its judgment has clearly indicated about such kinds of classifications as vague and inoperative. The Supreme Court in landmark judgment of Maneka Gandhi v. Union of India clearly ruled out the room for arbitrariness. ‘Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.’ Rule of law which permeates the entire fabric of the Indian Constitution excludes arbitrariness. Wherever we find arbitrariness or unreasonableness there is denial there is denial of rule of law. This new dimension of Art.14 transcends the classificatory principle. Art.14 is no longer to be equated with the principle of classification. It is primarily a guarantee against arbitrariness in state action and the doctrine of classification has been evolved only as a subsidiary rule for testing whether a particular state action is arbitrary or not. If a law is arbitrary or irrational it Page 25 of 72 5. In order to sustain the presumption of constitutionality the court may take into consideration maters of common knowledge, matters of report, and 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 constitutional. The question whether a classification is reasonable and proper and not must however, be judged more on commonsense than on legal subtitles. PRINCIPLE OFABSENCE ARBITRARINESS It is now too well-settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule Page 26 of 72 of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua lion to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you’. This is what men in power must remember, always.Almost a quarter century back, this Court in S.G. Jaisinghani v. Union of India and Ors., [1967] 2 SCR 703, at p.7 18-19, indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under:”In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (Dicey–”Law of the Constitution”-Tenth Edn., Introduction cx).In Shrilekha Vidyarthi Vs Union of India Page 27 of 72 “Law has reached its finest moments”, stated Douglas, J. in United States v. Wunderlick, (*), “when it has freed man from the unlimited discretion of some ruler … Where discretion is absolute, man has always suffered”. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilker (*), “means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful.” After Jaisinghani’s case (supra), long strides have been taken in several well-known decisions of this Court expanding the scope of judicial review in such matters. It has been emphasized time and again that arbitrariness is anathema to State action in every sphere and wherever the vice percolates, this Court would not be impeded by technicalities to trace it and strike it down. This is the surest way to ensure the majesty of rule of law guaranteed by the Constitution of India. Every discretionary power vested in the executive should be exercised in a just, reasonable and fair way. That is the essence of the rule of law. In United States V Wunderlich (1951) 342 US 98 Law has reached its first finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered .At times it has been his property that has been invaded, at times his privacy; at times his liberty of movement; at times his freedom of thought; at times his life. Absolute discretion is a ruthless master It is more destructive of freedom than any of mans other invention. John Wilkes (1770) 4 Burr 2528 . Discretion means sound discretion guided by law it must be governed by rule not humor; it must not be arbitrary, vague or fanciful. In a state of governed by the rule of Law, discretion must be confined within clearly defined limits. A decision taken without any principle or rule is the antithesis of a decision of a decision taken in accordance with the rule of Law.In a State governed by the rule of law , discretion can never be absolute. Its exercise has always to be in conformity with rules; in contradistinction to being whimsical and should not stand smack of an attitude of “ so let it be written, so let it be done”. It is important to emphasize that the absence of arbitrary powers is the first essential of the Rule of Law upon which our whole constitutional system is based. In a system governed by the rule of law, discretion when conferred by upon executive authorities, must be confined within clearly defined limits. Aeltemesh Rein, Advocate, Supreme Court Of India Vs Union Of India And Others (AIR 1988 SC 1768) Page 30 of 72 4) For active participation in democracy – democracy is most important feature of today’s world. Freedom of speech is there to protect the right of all citizens to understand political issues so that they can participate in smooth working of democracy. That is to say, freedom of speech strengthens the capacity of an individual in participating in decision-making. Thus we find that protection of freedom of speech is very much essential. Protection of freedom of speech is important for the discovery of truth by open discussion, for self- fulfillment and development, for expressing belief and political attitudes, and for active participation in democracy. The present study is intended to present the provisions of the American and Indian Constitution which recognize the freedom of speech and expression, the basic fundamental rights of human being. It is also to be examined that what is judicial trend in interpreting the freedom of speech and expression provisions. The study also covers the comparison between the approaches of both countries as far as freedom of speech is concerned. FREEDOM OF ASSOCIATION All citizens have the right to form associations and unions. It includes the right to form political parties, companies, partnership firms, societies, clubs, organizations, trade unions etc. It not only includes the right to start an association or union but also to continue with the association or union. Further, it covers the negative right of not to form or join an association or union. The right to obtain recognition of the association is not a fundamental right. Restrictions on Freedom of Association: The state can impose reasonable restrictions on the following grounds: 1. Sovereignty and integrity of India, 2. Public order and morality Page 31 of 72 The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or the right to strike or right to declare a lockout. The right to strike can be controlled by an appropriate industrial law. FREEDOM OF MOVEMENT: This freedom entitles every citizen to move freely throughout the territory of the country. This right underlines the idea that the India is one unit so far as the citizens are concerned. Thus the purpose is to promote national feeling. Restrictions on Freedom of Movement: The state can impose reasonable restrictions on the following grounds: 1. The interests of general public 2. The protection of interests of any scheduled tribes. The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of schedule tribes and to safeguard their traditional vocation and properties against exploitation. FREEDOM OF RESIDE AND SETTLE Every citizen has the right to reside and settle in any part of the territory. This article provides the right to reside any part of the country for a temporary period and to settle in any part of the country, which means to set up a home or domicile at any place permanently. Restrictions on freedom of Residence: The state can impose reasonable restrictions on the following grounds: 1. The interests of general public 2. The protection of interests of Scheduled Tribes. The right of outsiders to reside and settle in tribal areas is restricted to protect the distinctive culture, language and customs of Page 32 of 72 Scheduled Tribes and to safeguard their traditional vocations and properties against exploitation. FREEDOM OF TRADE, OCCUPATION & 1PROFESSION: All citizens are given the right to practice any profession or to carry on any occupation, trade or business. This right is very wide as it covers all the means of earning one's livelihood. Restrictions on Freedom of Profession2: The State can impose reasonable restrictions on the exercise of this right in the interest of the general public. Further, the state is empowered to: 1. Prescribe professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business: 2. Carry on by itself any trade, business, industry or service whether to the exclusion (complete or partial) of citizens or otherwise: Thus, no objection can be made when the state carries on a trade, business, industry or service either as a monopoly (complete or partial) to the exclusion of citizens (all or some only) or in competition with any citizens. The state is not required to justify its monopoly. In other words if the government decides to start the business of anything and it declares that only government can do this business, then nobody can claim its right to freedom of profession3. This right does not include the right to carry on a profession or business or trade or occupation that is immoral (trafficking in women or children) or dangerous (harmful drugs or explosive, etc.). The State can absolutely prohibit these or regulate them through licensing. Reasonable Restrictions 1 Maneka Gandhi vs Union Of India 2 Bachan Singh Etc. vs State Of Punjab Etc. 3 N.P. Nathwani vs The Commissioner Of Police Page 35 of 72 of scope of Article 21 has been expanded or modified gradually through different decisions of the Apex Court and it was held that interference with the freedom of a person at home or restriction imposed on a person while in jail would require authority of law. Whether the reasonableness of a penal law can be examined with reference to Article 19, was the point in issue after Gopalans case in the case of Maneka Gandhi v. Union of India , the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty. This view has been further relied upon in a case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others as follows: Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass the test not only for Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged, the court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. In another case of Olga Tellis and others v. Bombay Municipal Corporation and others, it was further observed : Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform the norms of justice and fair play. Procedure, which is just or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it.As stated earlier, the protection of Article 21 is wide enough and it was further widened in the case of Bandhua Mukti Morcha v. Union of India and others in respect of bonded labour and weaker section of the society. It lays down as follows: Article 21 assures the right to live with human dignity, free from exploitation. The state is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. Both the Central Government and the State Government are therefore bound to ensure observance of the various Page 36 of 72 social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the directive principles of the state policy. The meaning of the word life includes the right to live in fair and reasonable conditions, right to rehabilitation after release, right to live hood by legal means and decent environment. The expanded scope of Article 21 has been explained by the Apex Court in the case of Unni Krishnan v. State of A.P. and the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements and some of them are listed below: (1) The right to go abroad. (2) The right to privacy. (3) The right against solitary confinement. (4) The right against hand cuffing. (5) The right against delayed execution. (6) The right to shelter. (7) The right against custodial death. (8) The right against public hanging. (9) Doctors assistance. PREVENTIVE DETENTION ARTICLE 22 Article 22 makes the minimum procedural requirements which must be included in any law enacted by legislature in accordance of which a person is deprived of his personal liberty. Article 22(1) and (2) are also called Rights of an arrested person. Page 37 of 72 Policy and safeguards Rights of an Arrested Person (Article 22(1) and 22(2): •A person cannot be arrested and detained without being informed why he is being arrested. •A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself. •Every person who has been arrested would be produced before the nearest magistrate within 24 hours. •The custody of the detained person cannot be beyond the said period by the authority of magistrate. The Article 22(1) and 22(2) make the above provisions. However, Article 22(3) says that the above safeguards are not available to the following: •If the person is at the time being an enemy alien. •If the person is arrested under certain law made for the purpose of "Preventive Detention" The first condition above is justified, because when India is in war, the citizen of the enemy country may be arrested. But the second clause was not easy to justify by the constituent assembly. This was one of the few provisions which resulted in stormy and acrimonious discussions. Preventive Detention Laws Page 40 of 72 wanted and envisaged the judiciary to be the final arbiter of all disputes of whatever nature arising in the Republic. It is worthwhile to note the observation of the Parliamentary Joint Committee in their report in this connection. They observed: “The success of a constitution depends, indeed far more upon the manner and sprit in which it is worked than upon its formal provisions. It is impossible to foresee, so strange and perplexing are the conditions of the problem, the exact lines which constitutional developments will eventually follow, and it is, therefore, more desirable that those upon whom responsibility will rest should have all reasonable scope for working out there own salvation by the method oftrial and error”? The Right Against Exploitation The Rights against Exploitation is provided under Articles 23 and 24 of the Constitution of India. Right to personal liberty is never real if some people are exposed to exploitation by others. Arts. 23 and 24 of the constitution are designed to prevent exploitation of men by men. Thus rights ensured by these two articles may be considered as complimentary to the individual rights secured by Arts. 19 and 21 of the constitution. Article 23 of the Indian Constitution reads as follows : i. “Traffic in human beings and beggar and similar other forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.” ii. ”Nothing in this article shall prevent the state from imposing compulsory service for public purposes and in imposing such service the state shall not make any discrimination on grounds only of religion, race, caste of class or any of them.” Ever since the dawn of civilization in every society, the stronger exploited the weak. Slavery was the most prevalent and perhaps the cruelest form of human exploitation. Our constitution does Page 41 of 72 not explicitly forbid slavery. The scope of Article 23 is far wide. Any form of exploitation is forbidden. Thus forcing the landless labour to render free service by the land-owner is unconstitutional. Equally, forcing helpless women into prostitution is a crime. The intention of the constitution is that whatever a person does must be voluntary. There must not be any element of coercion involved behind a man’s action. The state however may call upon citizens to render national service in defence of the country. Thus conscription is not unconstitutional. But in compelling people to render national service, the state must not discriminate on grounds of race, sex, caste or religion. Art. 24 forbids employment of child-labour in factories or in hazardous works. The art. reads ”No child below the age of fourteen years, shall be employed to work in any factory or mine or, engaged in any other hazardous employment.” In an environment of all pervading poverty, children are often forced to seek employment to earn a living. Employers often find it less costly to engage child labour at a cheap price. But children so employed do not get opportunities for development. Thus, employment of child labor is a form of traffic in human beings. Hence it is justifiably -forbidden. But employment of child labor cannot be effectively checked unless there is overall improvement of economic conditions of the poorer sections of the society. This provision of the constitution remains a pious wish even today. Human Trafficking and Forced Labor The first provision in the Article that mentions the Right against exploitation, states the ‘eradication of human trafficking and forced labor (beggar)’. Article 23 declares slave trade, prostitution and human trafficking a punishable offence. There is, however, an exception here in the form of employment without payment for compulsory services for public purposes. Compulsory military conscription is covered by this provision. Child Labor Page 42 of 72 Article 24 of the Indian Constitution prohibits abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered gross violation of the spirit and provisions of the constitution. The parliament has also passed the Child Labor act of 1986, by providing penalties for employers and relief and rehabilitation amenities for those affected. Although Articles 23 and 24 lay down definite provisions against trafficking and child labor, the weaker sections of the society are still faced by such grave problems. Punishable by law, these acts are now legitimately bound by legal actions of the Parliament in the form of Bonded Labor Abolition Act of 1976 and the Child Labor Act of 1986, along with the ground rules and provisions stated in the Right against Exploitation act. FREEDOM OF RELIGION Religious freedom as an individual's right is guaranteed by the Constitution to 'all persons' within the following parameters: 1. All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion – Article 25(1). 2. There shall be freedom as to payment of taxes for promotion of any particular religion by virtue of which no person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religious denomination - Article 27. 3. No religious instruction is to be provided in the schools wholly maintained by State funding; and those attending any State recognized or State-aided school cannot be required to take part in any religious instruction or services without their (or if they are minor their guardian's) consent - Article 28. Group Rights Page 45 of 72 UNIT-III RIGHT TO CONSTITUTIONAL REMIDIES A declaration of fundamental rights is meaningless unless there is effective machinery for the enforcement of the rights. Hence the framers of the Constitution were in favour of adopting special provisions guaranteeing the right to constitutional remedies. This, again, is in tune with the nature in general of the various provisions embodied in the chapter on Fundamental Rights. Article 32 has four sections. The first section is general in scope and says that "the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed". The second section deals, in more specific terms, with the power of the Supreme Court to issue writs including writs in the nature of habeas-corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights. The third section empowers Parliament to confer the power of issuing writs or orders on any other court without prejudice to the power of the Supreme Court in this respect. So far, Parliament has not passed any law conferring the power of issuing writs on any courts. The last section deals with the conditions under which this right can be suspended. The first three sections of the Article, taken together, make fundamental rights under the Constitution real and, as such, they form the crowning part of the entire chapter. Adverting to the special importance of this Article, Ambedkar declared in the Assembly: "If I was asked to name the particular Article in this Constitution as the most important without which this Constitution would be a nullity, I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance. Page 46 of 72 Hereafter, it would not be possible for any legislature to take away the writs which are mentioned in this Article. It is not that the Supreme Court is left to be invested with the power to issue these writs by a law to be made by the legislature at its sweet will. The Constitution has invested the Supreme Court with these writs and these writs could not be taken away unless and until the Constitution itself is amended by means left open to the legislatures. This in my judgment is one of the greatest safeguards that can be provided for the safety and security of the individual." This opinion of the Chairman of the Drafting Committee has been reaffirmed by the Court itself on several occasions. In Romesh Thappar vs. the State of Madras the Court held: "Article 32 provides a guaranteed remedy for the enforcement of the rights conferred by Part III (of the Constitution) and this remedial right is itself made a fundamental right by being included in Part III. The Court is thus constituted the protector and guarantor of fundamental rights and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights." However, the Court will not entertain any application under Article 32 unless the matter falls within the scope of any of the fundamental rights guaranteed in Part III of the Constitution. As the guardian of fundamental rights the Supreme Court has two types of jurisdiction, original and appellate. Under its original jurisdiction, any person who complains that his fundamental rights have been violated within the territory of India may move the Supreme Court seeking an appropriate remedy. The fact that he may have a remedy in any of the High Courts does not preclude him from going directly to the Supreme Court. We have already seen under Article 32(4) that the Right to Constitutional Remedies may be suspended under certain circumstances. These circumstances are dealt with in detail in the chapter on Emergency Provisions of the Constitution. Chiefly, these emergencies are three: External aggression, internal disturbance and breakdown of constitutional machinery in the States. Page 47 of 72 Under such conditions the President of India is empowered to proclaim an emergency. During the period of emergency he may by order declare that the right to move any Court for the enforcement of any fundamental right shall remain suspended up to a maximum period of the existence of the emergency (Art. 359). Every such order should be placed before each House of Parliament as soon as possible. Until 1976 the Supreme Court had power to consider the constitutional validity of any State law in any proceedings initiated under Article 32. But this power was taken away by the Forty- second Amendment (1976). As a result the Supreme Court could consider the constitutional validity of any State law only if the constitutional validity of any Central law was also an issue in such proceedings. The Forty- third Amendment (1978) however has restored the original position. Judicial Review The power of Judiciary to review and determine validity of a law or an order may be described as the power of "Judicial Review." It means that the constitution is the Supreme law of the land and any law in consistent there with is void. The term refers to "the power of a court to inquire whether a law executive order or other official action conflicts with the written constitution and if the court concludes that it does, to declare it unconstitutional and void." Judicial Review has two prime functions: (1) Legitimizing government action; and (2) to protect the constitution against any undue encroachment by the government. Page 50 of 72 In Sajan Singh's case (1964), the corupetence of parliament to enact 17th amendment was challenged before the constitution. Bench comprising of five judges on the ground that it violated the Fundamental Rights under Article 31 (A). Supreme court reiterated its earlier stand taken in Shankari Prasad case case and held, "when article 368 confers on parliament the right to amend the constitution the power in question can be exercised over all the provisions of the constitution, it would be unreason about to hold that the word law' in article 13 (2) takes in amendment Acts passed under article 368. Thus, until 1967 the Supreme Court held that the Amendment Acts were not ordinary laws, and could not be struck down by the application of article 13 (2). The historic case of Golak Nath vs. The state of Punjab (1967) was heard by a special bench of 11 judges as the validity of three constitutional amendments (1st, 4th and 17th) was challenged. The Supreme Court by a majority of 6 to 5 reversed its earlier decision and declared that parliament under article 368 has no power to take away or abridge the Fundamental Rights contained in chapter II of the constitution the court observed. (1) Article 368 only provides a procedure to be followed regarding amendment of the constitution. (2) Article 368 does not contain the actual power to amend the constitution. (3) The power to amend the constitution is derived from Article 245, 246 and 248 and entry 97 of the union list. (4) The expression 'law' as defined in Article 13 (3) includes not only the law made by the parliament in exercise of its ordinary legislative power but also an amendment of the constitution made in exercise of its constitution power. , (5) The amendment of the constitution being a law within the meaning of Article 13 (3) would be void under Article 13 (2) of it takes away or abridges the rights conferred by part III of the constitution. Page 51 of 72 (6) The First Amendment Act 1951, the fourth Amendment Act 1955 and the seventeenth Amendment Act. 1964 abridge the scope of Fundamental Rights and, therefore, void under Article 13 (2) of the constitution. (7) Parliament will have no power from the days of the decision to amend any of the provisions of part III of the constitution so as to take away or abridge the Fundamental Rights enshrined there in. The constitutional validity of the 14th, 25th, and 29th Amendments was challenged in the Fundamental Rights case. The Govt. of India claimed that it had the right as a matter of law to change or destroy the entire fabric of the constitution through the instrumentality of parliament's amending power. In Minerva Mills case (1980) the Supreme Court by A majority decision has trunk down section 4 of the 42nd Amendment Act which gave preponderance to the Directive Principles over Articles 24, 19 and 31 of part III of the constitution, on the ground that part III and part IV of the constitution are equally important and absolute primacy of one over the other is not permissible as that would disturb the harmony of the constitution. The Supreme Court was convinced that anything that destroys the balance between the two part will ipso facto destroy an essential element of the basic structure of our constitution. WRITS The Indian Constitution empowers the Supreme Court and High Courts to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution. The writ issued by Supreme Court and High Court differs mainly in three aspects: Page 52 of 72 a) The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a High Court can issue writs for enforcement of fundamental rights along with “ for any other purpose” (refers to the enforcement of any legal right). b) SC can issue writ against a person or government throughout the territory whereas High Court can issue writs against a person residing or against a government located within its territorial jurisdiction or outside its jurisdiction only if the cause of action arises within the territorial jurisdiction. c) SC writs are under Article 32 which in itself is a fundamental right thus SC cannot refuse to exercise its writ jurisdiction. Whereas article 226 is discretionary thus HC can refuse to exercise its writ jurisdiction. Types of writs: • Habeas Corpus Habeas corpus is a Latin term which literally means "You may have the body". The concept of writ of habeas corpus has originated from England. This is a writ or legal action which can be used by a person to seek relief from illegal detention. The writ is a direction of the Court to a person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose. A writ of habeas corpus has only one purpose: to set at liberty a person who is confined without legal justification; to secure release from confinement of a person unlawfully detained. The writ does not punish the wrong-doer. If the detention is proved unlawful, the person who secures liberty through the writ may proceed against the wrong - doer in any appropriate manner. The writ is issued not only against authorities of the State but also to private individuals or organizations if necessary. • Mandamus The Latin word 'mandamus' means 'we command'. The writ of 'mandamus' is an order of the High Court or the Supreme Court commanding a person or a body to do its duty. Usually, it Page 55 of 72 UNIT-IV Directive Principles of State Policy The Directive Principles of State Policy (DPSP) are contained in part IV, articles 36 to 50, of the Indian Constitution. Many of the provisions correspond to the provisions of the ICPCR. For instance, Article 43 provides that the state shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and in particular the state shall endeavor to promote cottage industries on an individual or cooperative basis in rural areas. An important feature of the constitution is the Directive Principles of State Policy. Although the Directive Principles are asserted to be "fundamental in the governance of the country," they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution's preamble. Nature and justiciability of the Directive Principles Page 56 of 72 The Forty-second Amendment, which came into force in January 1977, attempted to raise the status of the Directive Principles by stating that no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights. The amendment simultaneously stated that laws prohibiting "antinational activities" or the formation of "antinational associations" could not be invalidated because they infringed on any of the Fundamental Rights. It added a new section to the constitution on "Fundamental Duties" that enjoined citizens "to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities." However, the amendment reflected a new emphasis in governing circles on order and discipline to counteract what some leaders had come to perceive as the excessively freewheeling style of Indian democracy. After the March 1977 general election ended the control of the Congress (Congress (R) from 1969) over the executive and legislature for the first time since independence in 1947, the new Janata-dominated Parliament passed the Forty-third Amendment (1977) and Forty-fourth Amendment (1978). These amendments revoked the Forty- second Amendment's provision that Directive Principles take precedence over Fundamental Rights and also curbed Parliament's power to legislate against "antinational activities.” The Directive Principles of State DPSP are Policy (contained in part IV, articles 36 to 50,) of the Indian Constitution. Many of the provisions correspond to the provisions of the ICESCR. For instance, article 43 provides that the state shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and in particular the state shall endeavor to promote cottage industries on an individual or cooperative basis in rural areas. This corresponds more or less to articles 11 and 15 of the ICESCR. However, some of the ICESCR rights, for instance, the right to health (art. 12), have been interpreted by the Indian Supreme Court to form part of the right to life under article 21 of the Constitution, thus making it directly enforceable and justiciable. As a party to the ICESCR, the Indian legislature has enacted laws giving effect to some of its treaty obligations and these laws are in turn enforceable in and by the courts. Page 57 of 72 Fundamental Rights versus DPSP When the tussle for primacy between fundamental rights and DPSP came up before the Supreme Court first, the court said, “The directive principles have to conform to and run subsidiary to the chapter on fundamental rights.”5 Later, in the Fundamental Rights Case (referred to above), the majority opinions reflected the view that what is fundamental in the governance of the country cannot be less significant than what is significant in the life of the individual. Another judge constituting the majority in that case said: “In building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles.”6 This view, that the fundamental rights and DPSP are complementary, “neither part being superior to the other,” has held the field since.7 The DPSP have, through important constitutional amendments, become the benchmark to insulate legislation enacted to achieve social objectives, as enumerated in some of the DPSP, from attacks of invalidation by courts. This way, legislation for achieving agrarian reforms, and specifically for achieving the objectives of articles 39(b) and (c) of the Constitution, has been immunized from challenge as to its violation of the right to equality (art. 14) and freedoms of speech, expression, etc. (art. 19).8 However, even here the court has retained its power of judicial review to examine if, in fact, the legislation is intended to achieve the objective of articles 39(b) and (c), and where the legislation is an amendment to the Constitution, whether it violates the basic structure of the constitution.9 Likewise, courts have used DPSP to uphold the constitutional validity of statutes that apparently impose restrictions on the fundamental rights under article 19 (freedoms of speech, expression, association, residence, travel and to carry on a business, trade or profession), as long as they are stated to achieve the objective of the DPSP. The DPSP are seen as aids to interpret the Constitution, and more specifically to provide the basis, scope and extent of the content of a fundamental right. To quote again from the Fundamental Rights case: Fundamental rights have themselves no fixed content; most of them are empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgement, curtailment and even abrogation of these rights in circumstances not visualised by the Page 60 of 72 Dr. Ambedkar is the man of millennium for social justice, since he was the first man in history to successfully lead a tirade of securing social to the vast sections of Indian humanity, with the help of a law. Dr. Ambedkar was the man who tried to turn the Wheel of the Law toward social justice for all. He has strong fervor to attain social justice among the Indian Communities for this purpose he began his vocation. At the time of independence, the constitution makers were highly influenced by the feeling of social equality and social justice. For the same reason, they incorporated such provisions in the constitution of India. These are as follows – The words, “Socialist”, “secular”, “democratic” and “republic” have been inserted in the preamble. Which reflects it’s from as a “social welfare state.” The expression “socialist” was intentionally introduced in the Preamble. In D. S. Nakara v. Union of India, the Supreme Court has held that the principal aim of a socialist state is to eliminate inequality in income, status and standards of life. The basic frame work of socialism is to provide a proper standard of life to the people, especially, security from cradle to grave. Amongst there, it envisaged economic equality and equitable distribution of income. This is a blend of Marxism & Gandhism, leaning heavily on Gandhian socialism. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society reveals a long march, but, during this journey, every state action, whenever taken, must be so directed and interpreted so as to take the society one step towards the goal. In Excel Wear v Union of India, the Supreme Court held that the addition of the word ‘socialist’ might enable the courts to learn more in favour of nationalisation and state ownership of an industry. But, so long as private ownership of industries is recognised which governs an overwhelming large principles of socialism and social justice can not be pushed to such an extent so as to ignore completely, or to a very large extant, the interest of another section of the public, namely the private owners of the undertaking. The term ‘justice’ in the Preamble embraces three distinct forms- social, economic and political, secured through various provisions of Fundamental Rights and Directive Principles. Social justice denotes the equal treatment of all citizens without any social distinction based on caste, colour, race, religion, sex and so on. It means absence of privileges being extended to any Page 61 of 72 particular section of the society, and improvement in the conditions of backward classes (SCs, STs, and OBCs) and women. Economic justice denotes on the non- discrimination between people on the basis of economic factors. It involves the elimination of glaring in equalities in wealth, income and property. A combination of social justice and economic justice denotes what is known as ‘distributive justice’. Political justice implies that all citizens should have equal political rights, equal voice in the government. The ideal of justice- social, economic and political- has been taken from the Russian Revaluation (1917). The term ’equality’ means the absence of special privileges to any section of the society, and provision of adequate opportunities for all individuals without any discrimination. The Preamble secures at all citizens of India equality of status an opportunity. This provision embraces three dimensions of equality- civic, political and economic. The following provisions of the chapter on Fundamental Rights ensure civic equality: a) Equality before the Law (Article 14). b) Prohibition of discrimination on grounds of religion, race, caste, sex of place of birth (Article 15). c) Equality of opportunity in matters of public employment (Article 16). d) Abolition of untouchability (Article 17). e) Abolition of titles (Article 18). There are two provisions in the Constitution that seek to achieve political equality. One, no person is to be declared ineligible for inclusion in electoral rolls on grounds of religion, race, caste or sex (Article 325). Two, elections to the Lock Sabha and the state assemblies to be on the basis of adult suffrage (Article 326). Article 36 to 51 incorporate certain directive principles of State policy which the State must keep in view while governing the nation, but by Article 37 these principle have been expressly made non-justiciable in a court of law. Although these principles are not judicially enforceable, yet they are not without purpose. The report of the Sub- Committee said: “The principles of Policy set forth in this part are intended for the guidance of the State. While these principles shall not be cognizable by any Court they are nevertheless fundamental in Page 62 of 72 the governance of the country and their application in the making of laws shall be the duty of the State.” According to Dr. B.R. Ambedkar, the Directive Principles of State Policy is a ‘novel feature’ of the Indian Constitution. They are enumerated in Part IV of the Constitution. They can be classified into three broad categories- socialistic, Gandhian and liberal- intellectual. The directive principles are meant for promoting the ideal of social and economic democracy. They seek to establish a ‘welfare state’ in India. However, unlike the Fundamental Right, the directives are non- justiciable in nature, that is, they are not enforceable by the courts for their violation. Yet, the Constitution itself declares that ‘these principles are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’. Hence, they impose a moral obligation on the state authorities for their application. But, the real force (sanction) behind them is political, that is, public opinion. In Minerva Mills case4[9] (1980), the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles’. Social Justice is the foundation stone of Indian Constitution. Indian Constitution makers were well known to the use and minimality of various principles of justice. They wanted to search such form of justice which could fulfill the expectations of whole revolution. Pt. Jawahar Lal Nehru put an idea before the Constituent Assembly "First work of this assembly is to make India independent by a new constitution through which starving people will get complete meal and cloths, and each Indian will get best option that he can progress himself." Social justice found useful for everyone in its kind and flexible form. Although social justice is not defined anywhere in the constitution but it is an ideal element of feeling which is a goal of Page 65 of 72 provision of protective discrimination has been made for those deprived people who are living in unbeneficial circumstances. Through equal opportunity on the basis of quality the Supreme Court has tried to make a reasonable balance between distribution of benefits and distributive justice. In M.R. Balaji vs State of Mysure, the Supreme Court has held that for the object of compensatory justice, limit of reservation should not be more than 50%. In India Shahni vs. Union of India full bench of nine judges approved this balance between distributive justice through quality and compensatory justice. There is a very wide planning of justice according to necessity in the constitution. It expects distribution of social benefits according to necessity by which more needy person can get benefits. It is expected to the state that the state shall in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Under Article 41, it is expected to the state that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement, and in other cases of underserved want. It is provided under Article 42 that the state shall make provision for securing just and humane conditions of work and for maternity relief. In Article 43 it is expected that the State shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the state shall endeavor to promote cottage industries on an individual or co-operative basis in rural areas. In PUDR vs. Union of India, the Supreme Court has held that minimum wages must be given and not to pay minimum wages is the violation of human dignity and it is also known as exploitation. In India, courts have performed a great role to make the Social justice successful. In the field of distributive Justice, Legislature and Judiciary both are playing great role but courts are playing more powerful role to deliver compensatory or corrective justice but these principles are known Page 66 of 72 as mutually relatives not mutually opposites. Ideals and goals are to deliver social justice. Medium may be distributive or compensatory justice. The adopted type may be of quality, Necessity, Equality, Freedom, Common interest or other. Although the Supreme Court has not found any possible definition of Social Justice but has accepted it as an essential and an organ of legal system. The supreme court of India has given a principal and dynamic shape to the concept of social justice. Social justice has been guiding force of the judicial pronouncements. In Sadhuram v. Pulin, the Supreme Court ruled that as between two parties, if a deal is made with one party without serious detriment to the other Court would lean in favour of weaker section of the society. The judiciary has given practical shape to social justice through allowing affirmative governmental actions are held to include compensatory justice as well as distributive justice which ensure that community resources are more equitably and justly shared among all classes of citizens. The concept of social justice has brought revolutionary change in industrial society by charging the old contractual obligations. It is no more a narrow or one sided or pedantic concept. It is founded on the basic ideal of socio-economic equality and its aim is to assist the removal of socio- economic disparities and inequalities. In J.K. Cotton Spinning. And Wiving. Co. Ltd. V. Labour Appellate Tribunal, the Supreme Court of India pointed out that in industrial matters doctrinaire and abstract notions of social justice are avoided and realistic and pragmatic notions are applied so as to find a solution between the employer and the employees which is just and fair. Despite the well intentioned commitment of ensuring social justice through equalization or protective discrimination policy, the governmental efforts have caused some tension in the society. In the name of social justice even such activities are performed which have nothing to do with social justice. The need of hour is to ensure the proper and balanced implementation of policies so as to make social justice an effective vehicle of social progress. English quotation if you want to succeed as a Judge/ lawyer in our profession and that quotation is: “Work like a horse and live like a hermit.” Page 67 of 72 If you apply these standards in your daily lives you will be fulfilling the constitutional dharma and if each one of you live by the constitutional dharma our society shall be free of discrimination and each one of you will be the role model for others and all these religious and caste conflicts will end. Compensatory discrimination for backward classes The governmental power to designate backward classes and the scope of judicial review of its exercise will be examined from two viewpoints. (A) What differentia may be used in selecting such a "class"? and (B) What showing of backwardness is required? ' A. "CLASS". The Constitution designates as the permissible recipients of preferences not backward individuals or families, nor yet backward castes, religious communities, occupational or regional groups, but backward" classes". These “ classes" are restricted neither to economic classes nor to classes in the sense familiar to modern social science. The term seems to be used in the broad connotation of any group of persons having certain common characteristic. In particular it would seem to include, though it is' not confined to, those'cIassifications otherwise forbidden in Articles 15, 16 and 29(2)-e.g., racial, religious groups. For Articles 15(4) and 16(4) are exceptionaly or provision to these articles, limiting the operation of their provisions. of the proviso that" nothing in this article" shall prevent the State from preferences for backward classes is not broad enough to use of the forbidden classifications, then it was' arguably unnessary to have any proviso at all since other classifications would be permissible without it. And the history of Articles 15(4) and 16(4) iIidicates they were included with this purpose.It seems generally accepted that the State may use caste as a classification in defining backward classes. The Constitution leaves no room for doubt that the President and Parliament may use caste as a criterion in defining Scheduled Castes. so But the caste criterion does not enjoy similar impunity when used to define backward classes. In the case of Scheduled Castes, the caste criterion is not only explicitly authorized by the Constitution, but its use is confined strictly to President and Parliament; in the case of backward classes it enjoys no such explicit constitutional Page 70 of 72 respectively) as per the 1971 Census, and the percentage for “forward Hindus” (17.58) as extrapolated from the incomplete 1931 Census, and adding to this derived sum (43.7) about half of the population percentage for non-Hindus (8.4). So far as the recommendations were concerned, among others, the commission called for 27 % reservation for the OBCs in public services and scientific, technical and professional institutions run by the Central and State governments. The Mandal Report faced stormy protest and opposition both from the opponents and its architects.5 Besides, politically it received cold response as by the time the Commission submitted its report (December 31, 1980), the Janata Government had collapsed and the Congress Party had assumed power at the Centre. The Congress Government under Indira Gandhi’s leadership initiated very little to implement the recommendations made by the commission. After a series of protests and demands by Lok Dal led by Charan Singh, the Congress Government conceded to put the Report before the Lok SabhaJanata Dal, the distant heir of the Janata Party came to power. Although the decision to implement the Mandal Report was taken in a hurry by V.P. Singh to unsettle the formidable political challenge posed by Devi Lal and the group, the issue had prominently figured in National Front’s election manifesto and V.P. Singh Government’s First Inaugural Address to the Parliament. It said loudly that “the recommendations of the Mandal Commission will be implemented expediously”. This sudden announcement of new quota of 27 per cent brought a violent nation wide agitations, public outcry ultimately leading to the fall of V.P. Singh government in 1990. The implementation of the recommendations of the Mandal Report was challenged and opposed not only by angry students belonging to the upper caste Hindus, but also by the Supreme Court Bar Association. A writ petition was filed in the name of Indra Sawhney, one of the practicing advocates of the Supreme Court. A nine members Bench of Supreme Court in Indra Sawhney v. Union of India (Mandal-I) judgment made far reaching announcements defining nature and relevance of OBC quota. The Bench rejected the quota proposal for “economically backward” as suggested by the Government and went on to uphold 27 per cent reservation for the OBCs subject to the exclusion of socially advanced persons/sections (creamy layer) from amongst the OBCs and directed the government to evolve criteria for identification of this creamy layer. Importantly, the Bench sought the Government to revisit the OBC lists and find out more Page 71 of 72 appropriate mechanisms than only the ‘caste’ to ascertain backwardness. In short, for the first time, the Highest Court recognized the legitimacy of OBC reservation in clear terms by clearing all ongoing doubts and controversies. Protective discrimination doctrine The Constitution of India is prefaced by a resolve" to secure to all of its citizens. EQUALITY of status and opportunity.. " Accordingly, it confers on all citizens a fundamental right to be free of discriminatory by the State on grounds of race, religion and caste In -specific contexts goverrilli.ent is further forbidden to discriminate on grounds of place of birth, residence, descent, class,s language and sex.s Additional provisions outlaw untouchability and protect the citizen from certain kinds of discrimination on the part of private persons and institutions. It is envisaged that Government will not only refrain from discriminating but will actively undertake to remove existing discriminatory practices in 'the private sphere But this attack' 'on discrimination is only one facet 'of the constitutional scheme to secure equality. The Constitution also directs and empowers the Government to under. take special measures for the advancement of backward groups. It is a " Directiye Principle of State Policy" that: economic interests of the weaker section's of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Consonant with this directive, the general provsional forbidding discrimination by the State (Article 15) is qualified by Art. 15(4), which provides that the State may make .. any special provision for the advancement of any and educationally backward classes of citizens or Scheduled Castes and the Scheduled Tribes. Government employment, is qualified in Article 16(4) to permit the State to make. " any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinionof the State, is not adequately represented in the services under the State". In authorizing preferential treatment for the backward on the basis of membership in backward groups, India is experimenting with a method of ameliorating group differences that has been little used (and is very possibly constitutionally prohibited) in dealing with minority problems in the United States. The American observer, though familiar with measures designed to outlaw discrimination, finds this principle of "protective discrimination" novel and strange. FAIRFIELD ene Institute of Management & Technology a Managed by ‘The Fairfield Foundation’ 180 9001:2008 & 14001:2004 ( Affiliated 10 GGSIP University, New Delhi ) REFERENCES: 1. http://legal-articles.deysot.com/constitutional-law/history-of-introduction-of-fundamental-rights-in- indian-constitution.html Page 72 of 72