BASICS OF LAW
CONSTITUTIONAL LAW
Evolution of Law:
Difference between substantive law and procedural law
Substantive law Procedural law
Substantive law is a statutory law that Procedural law deals with enforcement
defines and determines the rights and of law that is guided and regulated by
obligations of citizens to be protected by the practice,procedure and machinery
law
Illustration: Illustration:
The question of whether an individual is The question of the time within which
competent to enter into a contract is dealt one party may sue another is dealt under
under Substantive Law. Procedural Law.
Indian Penal Code,1860 Criminal Procedure Code,1973.
Prosecution Plaintiff Petitioner Appellant
-Criminal case -Constitutional
-Civil suit + Appeal in higher
right or legal right
-State takes action Civil Court court
against the accused -Ex- Supreme Court
on a complaint -Egs- Law of or High Court. Ex- Appeal in a
made by the torts, Public interest civil suit or
complainant Contract Act. litigation criminal case
VS.
Vs. Vs. Vs.
Vs Respondent
Defendant Defendant Respondent
Preamble
● Taken from the Constitution of the US.
● Enforceability of Preamble-
-Berubari Union and Ors vs. Unknown,1960 - Not a part of the Constitution.
-Kesavananda Bharti vs. State of Kerala and Anr., 1973- Part of the Constitution.
- Minerva Mills Ltd. vs. Union of India, 1980- Parliament has the power to amend
preamble
Section 21 of the Indian Constitution deals with the right to life and personal liberty.
a. Correct
b. Incorrect
Fundamental Rights:
A. 13: Laws inconsistent with Fundamental Rights-
● Doctrine of Severability (Romesh Thappar vs. State of Madras,1980)
● Doctrine of Judicial Review- the power of the judiciary to decide on
the constitutional validity of the acts of the other wings of the
government (the executive and the legislative). The objective is to
regulate any such acts which may contravene the constitution.
Art. 14. Right to equality
● Applicable to citizens as well as non-citizens.
● The 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 vs. equal protection of laws:
○ Equality before law: “no one is above the law of the land”
○ Equal protection of law: “law provides equal protection to those who are in
similar circumstances”, also known “equal treatment to equals” and
“unequals cannot be treated equally”
● Examples-Air India v Nergesh Meerza & Ors 1981
● Test of Reasonable Classification and Intelligible Differentia Doctrine- the
differentia should have a rational nexus with the object to be achieved by the act,
rule, etc.
Art. 19. Right to freedom
● Protection of certain rights regarding freedom of speech etc(1) All citizens shall have
•
the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
● Reasonable restrictions.
Art. 21. Right to life and personal liberty:
● No person shall be deprived of his life or personal liberty except according to the
procedure established by law
● Rule of Golden Triangle
The Supreme Court in the case of Maneka Gandhi v. Union of India held that a
law depriving a person of ‘personal liberty’ has not only to stand the test of Article
21 but also Article 14 and Article 19.
● Auxiliary rights arising from article 21-
○ Right to clean environment,
○ Right to privacy
○ Right to development, etc.
Fundamental rights Articles
Right to equality ● Article 14 – Equal protection of laws and Equality before law.
● Article 15 – Prohibition of discrimination on grounds of religion, caste,
sex, place of birth or race.
● Article 16 – Equality of opportunity in terms of public employment.
● Article 17 – Abolition of untouchability and prohibition of its practice.
● Article 18 – Abolition of titles except military and academic.
Right to freedom ● Article 19 – Protection of six rights regarding freedom of: (i) speech
and expression, (ii) assembly, (iii) association, (iv) movement, (v)
residence, and (vi) profession
● Article 20 – Protection in a conviction for offences.
● Article 21 – Protection of life and personal liberty.
● Article 21A – Right to elementary education.
● Article 22 – Protection against arrest and detention in certain cases.
Fundamental rights Articles
Right against ● Article 23 – Prohibition of traffic in forced labour and human beings.
exploitation ● Article 24 – Prohibition of employment of children in Companies and
factories, etc.
Right to freedom of ● Article 25 – Freedom of conscience and free profession, practice and
religion propagation of religion.
● Article 26 – Freedom to manage religious affairs.
● Article 27 – Freedom from payment of taxes for promotion of any
religion or religious affairs.
● Article 28 – Freedom from attending religious instruction or worship in
certain educational institutions
Fundamental rights Articles
Cultural and ● Article 29 – Protection of language, script and culture of
Educational Rights minorities.
● Article 30 – Rights of minorities to establish and administer
educational institutions.
Right to Article 32 – Right to move the Supreme Court for the enforcement
constitutional of fundamental rights including the writs of (i) Habeas corpus, (ii)
remedies Mandamus, (iii) Prohibition, (iv) Certiorari, (v) Quo warnto
WRITS
➢ Ubi jus ibi remedium- when there is a right there is a
remedy (which means where law is established a right there
should be a corresponding remedy for its breach.)
➢ Remedy for the violation of Fundamental rights- “filing a
writ petition”
➢ Where to file? HC, SC
➢ Under which article? HC: Article 226, SC: Article 32
➢ Writ jurisdiction: capacity to issue writs
➢ Procedure: filing, admission, arguments, decision
(issued/ writ petition dismissed”)
TYPES OF WRITS
➢ Mandamus- “we command”
➢ Certiorari- “to quash the Lower Court Order”
➢ Prohibition- “to stop”
➢ Habeas Corpus- “bring the body”
➢ Quo Warranto- “by what authority”
Essential conditions for filing writ:
•Locus standi (M. C. Mehta V/s. UOI )
•Exhaustion of alternative remedies
•Fundamental rights violation
Difference between Article 32 and Article 226
➢ Article 32 is in FR ➢ Article 226 is a CR.
➢ Narrower ➢ Wider
➢ Limited to FRs ➢ Can be filed even
➢ Territorial when legal rights
implication- are violated
throughout India ➢ Limited territorial
➢ Can be suspended scope- state
during emergency ➢ Cannot be
suspended even
during emergency
Judicial Activism
➢ Judicial activism in India implies the authority of the Supreme Court and the
high courts, but not the subordinate courts, to declare the regulations
unconstitutional and void if they breach or if the legislation is incompatible
with one or more of the constitutional clauses.
➢ There are various methods of judicial activism that are followed in India.
They are:
1. Judicial review: If a bill passed by the legislature is not in accordance with
the basic structure and violates the fundamental rights of the people then
the law can be reviewed by Judicial review.
Landmark case: Kesavananda Bharati case for Basic Structure.
2. PIL: Any matter where the interest of the public at large is affected can be
redressed by filing a Public Interest Litigation in a court of law such as
Pollution, Terrorism, Road safety, Constructional hazards, etc.
Landmark case: M. C. Mehta v/s UOI
Special Leave Petition
➢ SC of India has been given extraordinary jurisdiction under Art.136 of
Constitution of India.
➢ The appeal can be made in case where substantial question of law is involved
of gross injustice has been observed.
➢ By virtue of this Article, the Court can grant special leave to appeal from any
judgment, decree or order in any cause or matter, passed or made by any
court or tribunal in the territory of India.
➢ The SLP shall not apply to any judgment or order handed down by any court
or tribunal involving armed forces, exclusively mentioned in clause 2 of Art.
136.
➢ Pritam Singh v. the State(AIR 1950 SC 169)SC had declared repeatedly
that “special leave will not be granted unless special and exceptional
circumstances exist and / or grave injustice has been committed”.
DIRECTIVE PRINCIPLES OF STATE POLICY
➢ Articles 36-51 under Part-IV of the Indian Constitution deal with
Directive Principles of State Policy (DPSP). They are borrowed from the
Constitution of Ireland, which had copied it from the Spanish
Constitution.
➢ DPSP are the directions to the state to meet social economic and cultural
reforms which are intended to give indication of the policy which the
union and state ought to follow.
➢ DPSP are ideals which are meant to be kept in mind by the state when it
formulates policies and enacts laws.
➢ NATURE: “ Instrument of instructions”
➢ Article 38- State to secure a social order for the promotion of the welfare of the people
1. Securing people informs of social economic and political justice.
2. Minimizing inequalities in income, in status, facilities and opportunities not only amongst
individuals but amongst group of people.
➢ Article 39- Secure citizens
1. adequate means of livelihood for all citizens- men and women
2. Equal distribution of material resources of community for common good
3. Prevention of concentration of wealth and means of production
4. equal pay for equal work
5. Preservation of the health and strength of workers and children against forcible abuse
6. Opportunities for the healthy development of children
❖ Article 39A -
1. Equal justice and free legal aid to the poor.
❖ Article 44- Uniform Civil Code
1. Secure for all citizens a uniform civil code throughout the country
2. Uniform Civil Code is related to governing matters like marriage, divorce, judicial separation
maintenance, adoption etc. basically personal and matrimonial laws.
❖ Article 45- Provision for early childhood care and education
1. The state shall endeavor to provide early childhood care and education for all children until
they complete the age of 6 years
2. The 86th Amendment Act of 2002 made elementary education a fundamental right under
Article 21A.
CASE LAW:
I. C. Golaknath & Ors. V/s. State of Punjab (1967 AIR 1643 )
Supreme Court ruled that “Parliament cannot amend Fundamental
Rights to implement Directive Principles of State Policy”.
FUNDAMENTAL DUTIES
Article 51A provides that it is the duty of every citizen of India:
a) To abide by the Indian Constitution and respect its ideals and institutions,
the National Flag and the National Anthem;
b) To cherish and follow the noble ideals that inspired the national struggle for
freedom;
c) To uphold and protect the sovereignty, unity and integrity of India;
d) To defend the country and render national service when called upon to do so;
e) To promote harmony and the spirit of common brotherhood amongst all the
people of India, transcending religious, linguistic and regional or sectional
diversities.
f) To renounce practices derogatory to the dignity of women.
g) Value and preserve the rich heritage of the country’s composite culture.
h) Protect and improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for living creatures.
Principles of Natural Justice
➢ The expression ‘natural justice’ covers certain salutary rules of equity and fair play.
Following are the traditionally regarded as the rules of natural justice:
1. Nemo debet esse judex in propria causa: “No man can be a judge in his own case.”
Types of Bias:
a) Personal bias: arises when judge is a friend, relative, neighbor, business
associate etc.
b) Pecuniary bias: if the adjudicator has a pecuniary (that is, monetary) interest in
the subject-matter of a dispute, he can’t decide that matter.
c) Official bias: the judge must not have any interest in the subject-matter of the
dispute being adjudicated.
2. Audi Alterem Partem: “No man can be condemned without hearing.”
3. Speaking orders: “An adjudicating authority must always pass a speaking order”
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