Indian Constitutional Law New Challenges Notes | LL.M. Semester 1 | Mumbai University | munotes

In one line

Before you can argue about the Constitution you have to be able to read the thing itself, and the official text is printed with conventions that are not obvious.

In the wording a student can write in an exam: the Constitution of India as it stands today consists of a Preamble, 395 numbered articles arranged in twenty-five Parts, and twelve Schedules. The original numbering has never been changed, so articles added by amendment carry the number of the article they follow with a letter attached, and articles taken away are shown as omitted rather than renumbered. The current official text is the Legislative Department edition, and the one used throughout this book is the edition as on 1 May 2026, which incorporates every amendment up to the Constitution (One Hundred and Sixth Amendment) Act, 2023.

Parts, Schedules and articles

The Constitution is organised in three layers.

Parts are the large divisions, numbered in Roman numerals, and each holds a subject. Part III is the fundamental rights, Part IV the directive principles, Part XI the relations between the Union and the States, Part XV elections. When a judgment says "Part III", it means the fundamental rights and everything that goes with them.

Articles are the numbered provisions, running from 1 to 395. They are the unit you cite. An article may be divided into clauses shown in round brackets, and those into sub-clauses shown as letters in brackets: article 19(1)(a) is article 19, clause (1), sub-clause (a).

Schedules are the twelve lists at the end. They carry the material that would clutter the articles: the names of the States, the forms of oath, the salaries, the division of legislative subjects into three Lists, the languages, and the law on defection. A Schedule has effect because an article says it does, so the Seventh Schedule matters because article 246 refers to it, and the Tenth Schedule matters because articles 102 and 191 refer to it.

Why the numbering looks broken, and why that is a good thing

The Constitution has been amended 106 times, and each amendment adds, alters or removes provisions. A drafter could renumber the whole document each time. India's drafters chose not to.

The consequence is that an added article takes the number of the article before it, with a capital letter attached. The right to education was added after article 21, so it is article 21A. The fundamental duties were added after article 51, so they are article 51A. The whole of the reservation of seats for women, added in 2023, sits as articles 330A, 332A and 334A, next to the articles about reservation of seats that were already there.

This is worth understanding rather than memorising, because the letter tells you the history. When you see a letter, you are looking at something that was put in later, and you can go and find out when and why.

In one line

A federation is a State in which power is divided between a central government and regional governments by a constitution that neither of them can alter on its own.

In the wording a student can write in an exam: federalism is a form of political organisation in which two sets of government, one for the whole country and one for each of its regions, both derive their authority directly from a written constitution, exercise their powers independently within their allotted fields, and are subject to a court that decides which of them has trespassed. The classical statement is Wheare's: the federal principle is the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent.

The problem federalism exists to solve

Two pressures pull in opposite directions in any large and diverse country.

The first is the case for unity. Defence, currency, foreign relations, and the free movement of goods and people cannot be run region by region without weakening the whole. A country divided into small sovereign units is poorer and less secure than the same territory governed as one.

The second is the case for diversity. People who differ in language, religion, custom and economic life do not want to be governed identically from a distant capital, and if they are forced to be, they eventually stop consenting to be governed at all.

Federalism is the constitutional device that answers both at once. It does not compromise between unity and diversity by giving each a little; it separates the subjects on which unity is required from the subjects on which diversity is tolerable, and gives each set to a different government.

That is why the interesting question about any federation is never "is it federal or not" as a yes or no, but where the line has been drawn, who drew it, and who may move it.

The classical tests

Writers differ in their lists, but the following appear in nearly all of them, and an examiner expects them.

A written constitution. The division of powers has to be recorded somewhere both governments can be held to. An unwritten constitution can be changed by the ordinary legislature, which means the central legislature could rewrite the division whenever it lost an argument.

Supremacy of the constitution. The constitution must be the higher law, so that a law of either government that conflicts with it is void. Without this the division is a convention, not a rule.

Rigidity of the constitution. The provisions dividing power must not be amendable by the central legislature acting alone. Some special procedure is required, usually involving the regions.

Distribution of powers. The constitution must allocate subjects between the two levels, and must say what happens to subjects it did not think of. This last point, the residue, is one of the most revealing things about any federation.

In one line

India has every structural feature of a federation and several that no federation has, and the honest answer is that it is a federation with a strong centre whose federal character is now part of the basic structure.

In the wording a student can write in an exam: the Constitution establishes a dual polity with a division of legislative, executive and financial powers between the Union and the States under a written, supreme and largely rigid Constitution, enforced by an independent judiciary, which are the classical marks of a federation. It also contains features unknown to a true federation: a single citizenship, an integrated judiciary, all-India services, the power of Parliament to alter the boundaries of a State without its consent, emergency provisions under which the federal structure is suspended, and a Governor appointed by the Centre. Article 1 accordingly calls India a Union of States and not a federation. The judicial position has moved: in State of West Bengal v Union of India the Court held that the Constitution is not truly federal, while in S.R. Bommai v Union of India a nine-judge Bench held that it has created a federation, though with a bias in favour of the Centre, and that within the sphere allotted to them the States are supreme.

What the Constituent Assembly decided, and the words it chose

Article 1 opens: "India, that is Bharat, shall be a Union of States." The word federation appears nowhere in it.

That was deliberate. Dr Ambedkar explained the choice on two grounds, and both are worth reproducing in an answer because they anticipate the whole debate. First, the Indian Union is not the result of an agreement among the units, so no unit has the right to secede from it. Second, though the country is one integral whole, its administration is divided between the Union and the States, which are not creatures of the Centre.

Notice what those two propositions do together. The first denies the coming-together model: the States did not create the Union and cannot leave it. The second denies the unitary model: the States are not delegates and their powers are not held at the Centre's pleasure. Between those two denials is the whole Indian position.

The Drafting Committee also said, in terms, that the Constitution can be both unitary and federal according to the requirements of time and circumstances. That sentence is the origin of every later description of India as quasi-federal, and it should be quoted rather than paraphrased.

The federal features

A written, supreme and rigid Constitution. The division of powers is in the text; a law contrary to it is void; and the provisions dealing with the federal structure cannot be amended by Parliament alone but need ratification by half the State legislatures under the proviso to article 368(2).

In one line

Part I says what India is, what it is made of, and who may change either, and the answer to the last question is Parliament alone.

In the wording a student can write in an exam: Part I contains four articles. Article 1 declares that India, that is Bharat, shall be a Union of States, that the States and their territories shall be as specified in the First Schedule, and that the territory of India comprises the territories of the States, the Union territories specified in the First Schedule, and such other territories as may be acquired. Article 2 empowers Parliament to admit into the Union, or establish, new States on such terms as it thinks fit. Article 3 empowers Parliament to form a new State, and to increase, diminish or alter the area, boundaries or name of any State, subject only to a recommendation of the President and a reference of the Bill to the legislature of the State affected for its views. Article 4 provides that a law under article 2 or article 3 may amend the First and Fourth Schedules and shall not be deemed to be an amendment of the Constitution for the purposes of article 368.

Article 1: three things in one sentence

"India, that is Bharat" gives the country two names in the text itself, both official. Nothing turns on which is used.

"shall be a Union of States" is the choice discussed in [Is India a Federation?]. The word Union rather than Federation was picked to convey that the Union is not the result of an agreement between the States and that no State has a right to secede.

The territory of India is defined in three parts by article 1(3): the territories of the States, the Union territories specified in the First Schedule, and such other territories as may be acquired. The third limb matters. It means the Constitution contemplates acquisition, and that a territory once acquired becomes part of India without any further amendment being necessary.

States and Union territories are not the same thing

This distinction runs through the whole Constitution and is worth fixing early.

A State has its own legislature and its own council of ministers with a Chief Minister, has a Governor as its head, has entries of the State List reserved to it, and is represented in the Council of States. Its relationship with the Union is the federal relationship this module is about.

A Union territory is administered by the President acting through an Administrator appointed by him, under article 239. Some Union territories have been given a legislature by Parliament; some have not. The federal guarantees do not apply to a Union territory in the same way, because a Union territory is not a unit of the federation but a part of the Union administered directly.

In one line

Parliament can create a State, abolish one, redraw its boundaries or change its name by an ordinary law, and the State affected has a right to be asked and no right to refuse.

In the wording a student can write in an exam: under article 2 Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. Under article 3 Parliament may by law form a new State by separation of territory from any State or by uniting two or more States or parts of States, increase or diminish the area of any State, and alter the boundaries or the name of any State. Two conditions attach to article 3: no Bill may be introduced except on the recommendation of the President, and where the proposal affects the area, boundaries or name of a State, the President must refer the Bill to the legislature of that State for its views within a period he specifies. The State legislature's view does not bind Parliament. By article 4 such a law may amend the First and Fourth Schedules and is not deemed to be an amendment of the Constitution for the purposes of article 368.

Article 2 and article 3 do different work

The two are often run together and they should not be.

Article 2 looks outward. It deals with territory that is not yet part of India, and with States that do not yet exist as units of the Union. Parliament may admit such a State into the Union, or establish one, "on such terms and conditions as it thinks fit". Those words are wide: admission may be on special terms, which is one source of the asymmetry discussed in [Asymmetric Federalism: Articles 371 to 371-J].

Article 3 looks inward. It deals with territory that is already part of India and with rearranging the units among themselves. It has five limbs: form a new State by separation or by union; increase the area of a State; diminish the area of a State; alter the boundaries of a State; alter the name of a State. An explanation added by the Eighteenth Amendment makes clear that "State" in the first limb includes a Union territory, and that the power to form a new State includes the power to form one by uniting a part of a State with a Union territory.

The two conditions, and how little they protect

The President's recommendation is required before the Bill is introduced. Since the President acts on the advice of the Union Council of Ministers, this is in substance a requirement that the Union Government must want the Bill. It protects the Union, not the State.

In one line

Article 246 divides legislative power between Parliament and the State legislatures by giving each a list of subjects, and everything difficult about Indian federalism comes from the fact that the lists overlap.

In the wording a student can write in an exam: article 245 fixes the territorial extent of legislative power, Parliament for the whole or any part of India and a State legislature for the whole or any part of the State. Article 246 distributes the subject matter by reference to the three Lists of the Seventh Schedule. Parliament has exclusive power over the ninety-seven entries of List I, the Union List. The legislature of a State has exclusive power over the sixty-six entries of List II, the State List. Both have power over the forty-seven entries of List III, the Concurrent List. The clauses are so worded that the Union List prevails over both the others and the Concurrent List prevails over the State List, and by article 248 read with Entry 97 of List I the residuary power belongs to Parliament. Article 246A, inserted by the 101st Amendment, sits outside this scheme and confers a concurrent power over the goods and services tax.

Article 245: how far a law reaches

Before asking what a legislature may legislate about, ask how far its law travels.

Article 245(1) gives Parliament power to make laws for the whole or any part of the territory of India, and a State legislature power to make laws for the whole or any part of the State. So a State law is territorially confined and a Union law is not.

Article 245(2) provides that a law made by Parliament shall not be deemed invalid on the ground that it would have extra-territorial operation. Parliament may therefore legislate for persons and things outside India, and the courts will not strike the law down for that reason alone.

A State legislature has no such freedom, and what it has instead is the doctrine of territorial nexus: a State law may reach something outside the State if there is a sufficient connection between the State and the subject matter of the law, and the liability imposed is relevant to that connection. Both limbs matter, and both are examined in [The Reach of a Legislature].

Article 246: the machinery

The article is built out of four clauses and two phrases, and reading it properly answers most questions about it.

Clause (1) gives Parliament exclusive power over List I, and it opens with the words "Notwithstanding anything in clauses (2) and (3)".

Clause (2) gives Parliament and the State legislatures power over List III, and it opens "Notwithstanding anything in clause (3)" while itself being "subject to clause (1)".

In one line

When a law seems to fall in two Lists at once, the court asks what the law is really about, and allots it to the List its true nature belongs to, ignoring whatever else it incidentally touches.

In the wording a student can write in an exam: the doctrine of pith and substance means that where the true nature and character of a law falls within a field allotted to the legislature that made it, the law is valid even though it incidentally trenches upon a field allotted to the other legislature. The court looks at the enactment as a whole, at its object, scope and effect, to determine its true subject matter. The doctrine is necessary because the three Lists inevitably overlap, and without it, as the Privy Council said in Prafulla Kumar Mukherjee v. Bank of Commerce Ltd, Khulna, much beneficent legislation would be stifled at birth.

Why the doctrine has to exist

A legislative list is a list of abstractions. A statute is a concrete thing that does several jobs at once.

Take a law limiting the interest a moneylender may charge on a loan. Money-lending is a State subject. But most loans are recorded in a promissory note, and negotiable instruments are a Union subject. Every provision of the law about interest necessarily affects what the holder of a promissory note may recover. Is the law about money-lending or about promissory notes?

If the answer had to be "both, and therefore void", then no legislature could pass a useful law on any subject that touched another's field, which is to say almost no useful law at all. The doctrine of pith and substance is the way out: the court identifies the subject of the law, not every subject the law touches.

The doctrine comes to India from the Canadian and Australian case law under the British North America Act and the Commonwealth of Australia Constitution Act, both of which had the same problem with lists, and it was applied here under the Government of India Act 1935 before the Constitution carried it forward unchanged.

The leading case, and the passage everyone misquotes

Facts. Prafulla Kumar Mukherjee v. Bank of Commerce Ltd, Khulna, (1947) 49 Bom LR 568, also reported at [1947] FCR 28, advice of the Privy Council delivered by Lord Porter on 11 February 1947. The Bengal Money-Lenders Act 1940 limited the amount a money-lender could recover, including a debt due on a promissory note. Money-lending was a Provincial subject under the Government of India Act 1935; promissory notes and banking were Federal subjects. The Act was attacked as trespassing on the Federal field.

Held. The Act was valid, in whole and in part. Where subjects overlap the question must be asked what in pith and substance is the effect of the enactment complained of, and in what List its true nature and character is to be found. If those questions could not be asked, "much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with". On the extent of the trespass their Lordships said this, and it is the passage to learn:

In one line

A legislature cannot do indirectly what it cannot do directly, so a law dressed up as being about its own subject, while really being about somebody else's, is void; but a law genuinely about its own subject is not void merely because it spills over.

In the wording a student can write in an exam: the doctrine of colourable legislation rests on the maxim that what cannot be done directly cannot be done indirectly. Where a legislature lacks competence over a subject, it cannot acquire competence by giving its law the appearance of legislation on a subject within its own field. The doctrine does not enquire into the bona fides or the motive of the legislature; it asks only whether the legislature had the power to enact what, in substance, it has enacted. It is therefore the negative counterpart of the doctrine of pith and substance: pith and substance saves a law whose true nature is within power, colourable legislation strikes down a law whose true nature is outside it.

The maxim, and what it actually means

The doctrine is usually introduced with the Latin: quando aliquid prohibetur ex directo, prohibetur et per obliquum, when anything is prohibited directly, it is prohibited also indirectly.

Applied to a federal constitution the idea is simple. Legislative power is limited by subject matter. If a limit could be avoided by drafting, the limit would be worth nothing, because any competent draftsman can make a law about A look like a law about B. So the court looks past the form to the substance.

But two clarifications have to be made straight away, because both are examined.

"Colourable" does not mean dishonest. The word describes the law, not the legislators. A legislature may act in perfect good faith, believing the subject to be its own, and still produce colourable legislation, because the question is one of competence and not of conduct. The standard judicial formulation is that the whole doctrine resolves itself into the question of whether the legislature possessed the power to make the law, and that the idea of colourability has nothing to do with the motive or bona fides of the legislature.

Motive is irrelevant, and so is the merit of the law. A court examining competence does not ask whether the law is wise, necessary or fair. If the legislature had power, a bad law is valid; if it had none, a good law is void.

Colourable legislation and pith and substance are one enquiry

Students often learn these as two doctrines and then cannot say how they differ. They are better understood as the two possible answers to a single question.

The question is: to which List does this law, in its true nature and character, belong?

In one line

When Parliament and a State legislature have both validly legislated on the same Concurrent subject and their laws cannot both be obeyed, the central law prevails, unless the State law got the President's assent.

In the wording a student can write in an exam: article 254(1) provides that if any provision of a law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters in the Concurrent List, then the law made by Parliament, whether passed before or after the State law, shall prevail and the State law shall, to the extent of the repugnancy, be void. Article 254(2) creates an exception: where a State law with respect to a Concurrent matter contains a provision repugnant to an earlier law of Parliament or an existing law, the State law shall prevail in that State if it has been reserved for the consideration of the President and has received his assent. The proviso to article 254(2) preserves Parliament's power at any time to enact a law with respect to the same matter, including one adding to, amending, varying or repealing the State law.

When the question arises, and when it does not

Repugnancy is the last question, not the first, and answers go wrong by reaching it too early.

First ask competence. Was each legislature competent to enact its law? That is article 246 with the Lists, and the tools are pith and substance and colourable legislation. If the State law was beyond the State's power, it is void for want of competence and repugnancy never arises.

Then ask whether the field is Concurrent. Article 254 operates on the Concurrent List and on existing laws with respect to Concurrent matters. If the central law is on a Union subject and the State law on a State subject, there is no repugnancy question: each is valid in its own field and, if they collide in practice, the collision is resolved by the hierarchy in article 246, not by article 254.

Only then ask about repugnancy. Both laws valid, both in the Concurrent field, and they conflict. Which prevails?

The test

Facts. M. Karunanidhi v. Union of India, AIR 1979 SC 898, (1979) 3 SCC 431, decided 20 February 1979. The Tamil Nadu Public Men (Criminal Misconduct) Act 1973, which had received the President's assent, provided for enquiry into the criminal misconduct of public men by a Commissioner of the status of a High Court judge. The appellant, a former Chief Minister, was being prosecuted under the central Prevention of Corruption Act and the Penal Code, and argued that the State Act occupied the field or was repugnant.

In one line

Whatever the Constitution's three Lists forgot belongs to Parliament, and the practical effect is that a central law only has to avoid the State List.

In the wording a student can write in an exam: article 248 provides that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List, and that such power includes the power of making any law imposing a tax not mentioned in either of those Lists. Entry 97 of the Union List says the same from within the List. The residuary power therefore rests with the Union, which is the reverse of the position in the United States and Australia, where the residue remains with the units. In Union of India v. H.S. Dhillon the Supreme Court held that the consequence is that when a central Act is challenged the only enquiry is whether it legislates on a matter in the State List, because that is the only field from which Parliament is barred.

Why the residue exists at all

No list of subjects can be complete. The Constituent Assembly was allocating the world of government as it stood in 1949, and the world did not stop there. Television, computer software, space, biotechnology, digital payments and artificial intelligence are not in any of the three Lists, because nobody could have put them there.

Every federal constitution therefore has to answer the question: when something turns up that the lists do not mention, who may legislate about it? The answer says a great deal about the federation.

Coming-together federations give the residue to the units. The units existed first and gave the centre a defined list of powers; anything not given was never given away. The Tenth Amendment to the United States Constitution and section 107 of the Australian Constitution both work this way.

Holding-together federations give the residue to the centre. The whole existed first and devolved defined powers on the units; anything not devolved was never devolved. India and Canada both work this way, and Canada is the model the Indian drafters had in front of them.

What articles 246, 248 and Entry 97 do together

There are three provisions and students often wonder why the same rule is stated twice.

Article 246(1) gives Parliament exclusive power over the matters in List I.

Entry 97 of List I is itself an entry: "Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists."

Article 248 states the same power directly: exclusive power in Parliament over any matter not enumerated in List II or List III, including the power to impose a tax not mentioned in them.

In one line

The State List is exclusive to the States except in five situations, and one of them, the treaty power, has no time limit and no State consent at all.

In the wording a student can write in an exam: although article 246(3) gives a State legislature exclusive power over the State List, the Constitution provides five exceptions. Under article 249 Parliament may legislate on a State subject if the Council of States resolves by a two-thirds majority of members present and voting that it is necessary or expedient in the national interest. Under article 250 Parliament may legislate on any State subject while a Proclamation of Emergency is in operation. Under article 252 Parliament may legislate for two or more States whose legislatures have passed resolutions to that effect, and for any other State that afterwards adopts the law. Under article 253 Parliament may make any law for implementing a treaty, agreement or convention with another country or a decision of an international body. Under article 356, where a Proclamation is in force, Parliament may confer the State legislature's power on itself.

Article 249: the national interest resolution

How it works. The Council of States, the Rajya Sabha, must pass a resolution supported by not less than two-thirds of the members present and voting, declaring it necessary or expedient in the national interest that Parliament should make laws with respect to a specified State List matter. Parliament may then legislate on it for the whole or any part of India.

How long it lasts. The resolution remains in force for one year, may be renewed for a year at a time, and there is no limit on the number of renewals. A law made under it ceases to have effect six months after the resolution expires, except as to things done or omitted before then.

Why the Council of States. The chamber that represents the States is made the gatekeeper. That is the federal safeguard, and it is a real one in form. In substance it is weaker than it looks, because the Council's composition reflects the party position in the State assemblies, so a party with a national majority will often have the necessary two-thirds.

What it does not do. It does not take the subject away from the States. The State legislature's power under article 246(3) is untouched, and if the two laws conflict, article 251 makes the State law inoperative only while the central law is in force. When the central law goes, the State law revives.

Article 250: legislation during an emergency

While a Proclamation of Emergency under article 352 is in operation, Parliament may make laws for the whole or any part of India with respect to any matter in the State List.

In one line

Parliament's laws may reach outside India and cannot be struck down for it; a State's laws may reach outside the State only if there is a real connection between the State and what the law is about.

In the wording a student can write in an exam: article 245(1) empowers Parliament to make laws for the whole or any part of the territory of India and a State legislature to make laws for the whole or any part of the State. Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. A State legislature has no corresponding protection, and a State law with operation outside the State is valid only if the doctrine of territorial nexus is satisfied, that is, if the connection between the State and the subject matter of the law is real and not illusory, and the liability sought to be imposed is pertinent to that connection. Article 255 provides that a requirement of a recommendation or previous sanction is a matter of procedure only, and an Act is not invalid for want of it if it received the necessary assent.

Two different limits

Legislative power is limited in two independent ways, and confusing them is the commonest error here.

Competence by subject matter is article 246 and the Lists: what the legislature may legislate about. That is the last four chapters.

Competence by territory is article 245: how far the law may reach. A legislature may be perfectly competent as to subject and still exceed its territorial reach, and the other way round.

Both must be satisfied. A State law on a State subject that operates wholly outside the State is bad, and a State law within the State on a Union subject is bad.

Parliament and extra-territorial operation

Article 245(2) is short and absolute: no law made by Parliament shall be deemed invalid on the ground that it would have extra-territorial operation.

What it permits. Parliament may legislate for persons, property and conduct outside India. Provisions of the income-tax legislation reaching income arising abroad, and provisions of the criminal law reaching offences committed by Indian citizens outside India, are the standard examples.

What it does not permit. The protection is against a challenge on the ground of extra-territoriality alone. It does not make a law valid that fails for any other reason: want of subject matter competence, or violation of a fundamental right, remain available.

The nexus question for Parliament. It has been argued that a law of Parliament must nevertheless have some connection with India, on the footing that Parliament legislates for India and not for the world. The safer statement for an answer is this: article 245(2) removes extra-territoriality as a ground of invalidity, and a law with no conceivable connection with India would in practice fail on the separate ground that it is not a law for the territory of India within article 245(1).

In one line

Legislative power is divided but administration is not, because the Union may direct a State on how to carry out Union law, and a State that ignores the direction can be dismissed.

In the wording a student can write in an exam: Part XI Chapter II governs administrative relations. Article 256 obliges every State to exercise its executive power so as to ensure compliance with laws made by Parliament, and empowers the Union to give such directions to a State as may appear necessary for that purpose. Article 257 provides that the executive power of a State shall not be exercised so as to impede or prejudice the exercise of the executive power of the Union, and empowers the Union to give directions as to the construction and maintenance of means of communication of national or military importance and the protection of railways. Articles 258 and 258A permit the entrustment of functions by the Union to a State and by a State to the Union. Article 261 requires full faith and credit to be given throughout India to the public acts, records and judicial proceedings of the Union and of every State. Failure to comply with a direction attracts article 365, under which the President may hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the Constitution.

Why administration is not divided the way legislation is

In a classical federation each level administers its own laws with its own machinery. That is expensive: it means two sets of officials, two inspectorates and two enforcement systems across the same territory.

India took a different route. The States administer central law as well as their own. Central legislation on Concurrent subjects, and much on Union subjects too, is enforced through the State's police, its magistracy and its departments. The Union has very few field officers of its own.

That arrangement is efficient, and it has a price. Because the Union depends on the States to carry out its laws, it needs a power to make them do it, and the power the Constitution gives is direction backed by the ultimate sanction of article 356.

Article 256: the duty to comply, and the power to direct

The article has two limbs and both matter.

The obligation. The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State. So a State may not simply decline to enforce a central law it dislikes.

The power. The executive power of the Union extends to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.

In one line

Water is a State subject, rivers do not stop at State borders, and article 262 lets Parliament take these disputes away from the courts altogether, which is a large part of why they take decades.

In the wording a student can write in an exam: Entry 17 of the State List gives the States water, including water supplies, irrigation and canals, subject to Entry 56 of the Union List, which gives the Union the regulation and development of inter-State rivers and river valleys to the extent declared by Parliament to be expedient in the public interest. Article 262(1) empowers Parliament by law to provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of any inter-State river or river valley. Article 262(2) empowers Parliament to provide by law that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint. Parliament has exercised both powers by the Inter-State River Water Disputes Act 1956, section 11 of which excludes the jurisdiction of the courts, and by the River Boards Act 1956.

Why the constitutional design produces the problem

Three provisions have to be read together and they pull against each other.

Entry 17 of List II gives water to the States. Irrigation, drinking water, canals, drainage and water storage are all State subjects, and the States legislate and administer accordingly.

Entry 56 of List I gives the Union the regulation and development of inter-State rivers, but only to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. So the Union's power over inter-State rivers is not automatic: Parliament must first declare it.

Article 262 provides a special adjudicatory mechanism and permits the ouster of the courts.

The result is a subject in which the resource is inherently shared, the legislative power over it is mostly with the units that share it, the Union's power depends on a declaration it has largely not made, and the ordinary judicial machinery can be excluded. Every structural feature points towards deadlock.

The Inter-State River Water Disputes Act 1956

The Act is the machinery article 262 contemplates, and its scheme is what an answer must describe.

Section 3. A State Government which considers that a water dispute with another State has arisen may request the Central Government to refer it to a Tribunal.

Section 4. When the Central Government is of opinion that the dispute cannot be settled by negotiation, it shall constitute a Water Disputes Tribunal. The original Act left the timing at large; the 2002 amendment required the Tribunal to be constituted within one year of the request.

In one line

The Constitution provides a standing forum for the Centre and the States to settle things by discussion, and it was left unused for forty years.

In the wording a student can write in an exam: article 263 empowers the President, if at any time it appears to him that the public interests would be served by the establishment of a Council, to establish by order an Inter-State Council charged with the duty of inquiring into and advising upon disputes which may have arisen between States, investigating and discussing subjects in which some or all of the States, or the Union and one or more States, have a common interest, and making recommendations upon any such subject and in particular recommendations for the better co-ordination of policy and action with respect to that subject. The President may define the nature of the duties, the organisation and the procedure of the Council. The Council was in fact established only in 1990, by an order made on the recommendation of the Sarkaria Commission.

What article 263 actually provides

Three duties may be assigned to the Council, and it is worth keeping them apart because they are different in kind.

Inquiring into and advising upon disputes between States. This is an advisory jurisdiction over inter-State disputes, and it is deliberately advisory: the Council does not decide, it advises. Note that article 131 gives the Supreme Court the judicial route for such disputes, and article 262 provides a tribunal for water; article 263 is the political route, intended for disputes better settled by negotiation than by adjudication.

Investigating and discussing subjects of common interest. Between States, or between the Union and one or more States. This is the deliberative function and in practice it is the main one.

Making recommendations for the better co-ordination of policy and action. The co-ordinating function, and the reason the provision is grouped with cooperative federalism.

Two features limit it. The Council is established by an order of the President, which is to say at the discretion of the Union Government; the Constitution does not require it to exist. And its output is advice and recommendation, never a binding decision.

Why it went unused for forty years

The Constitution came into force in 1950 and the Inter-State Council was established in 1990. That gap is itself the examinable point.

For most of that period the same party held office at the Centre and in most States, so co-ordination happened inside the party rather than between governments, and a formal constitutional forum would have added little. The Planning Commission, an executive body created by a Cabinet resolution and not by the Constitution, occupied much of the ground: it allocated plan funds and negotiated with the States, and the National Development Council attached to it became the forum in which Centre and States actually met.

In one line

The Constitution gives the States most of the spending responsibilities and the Union most of the revenue, and then builds machinery to move money from one to the other, so the real balance of the federation is decided in Part XII.

In the wording a student can write in an exam: Part XII, Chapter I, distributes financial powers. Article 265 provides that no tax shall be levied or collected except by authority of law. Articles 266 and 267 establish the Consolidated Fund, the Public Account and the Contingency Fund of India and of each State. Articles 268 to 281 distribute the proceeds of taxation between the Union and the States: article 268 covers duties levied by the Union but collected and appropriated by the States, article 269 taxes levied and collected by the Union but assigned to the States, article 269A the goods and services tax on inter-State supply, article 270 the distribution of the net proceeds of Union taxes, article 271 a surcharge for Union purposes, article 275 grants in aid to States in need of assistance and article 282 discretionary grants. Article 280 requires the President to constitute a Finance Commission every fifth year to recommend the distribution of the net proceeds of taxes and the principles governing grants in aid. Article 279A, inserted by the 101st Amendment, constitutes the Goods and Services Tax Council.

The structural imbalance, and why it is deliberate

Begin an answer here, because the arithmetic explains the constitutional machinery.

The States carry most of the expenditure. Public order and police, public health, agriculture, irrigation, roads other than national highways, local government and, since 1976, education are State or Concurrent responsibilities. These are the expensive, staff-heavy functions of government.

The Union collects most of the revenue. The buoyant and broad-based taxes, income tax other than agricultural income, corporation tax, customs, and now the Union's share of the goods and services tax, are Union heads. The States' own heads are narrower: taxes on land and buildings, on agricultural income, on the consumption of electricity, on vehicles, on professions, and on alcohol for human consumption, which is the one large excise the States kept.

This gap between spending responsibility and revenue capacity is called the vertical imbalance, and it is not an accident of drafting. It is the deliberate consequence of assigning the taxes that need uniformity to the level that can deliver uniformity. The consequence is that the States cannot fund their own functions from their own taxes, and the Constitution must therefore provide a transfer mechanism. That mechanism, and who controls it, is the substance of fiscal federalism.

There is also a horizontal imbalance, between richer and poorer States, which is why transfers are not shared out per head.

In one line

The 101st Amendment created a tax that neither level can operate alone, and a Council in which they have to agree, and the Supreme Court has held that the Council's recommendations do not bind anybody.

In the wording a student can write in an exam: the Constitution (One Hundred and First Amendment) Act, 2016 introduced the goods and services tax. Article 246A, notwithstanding articles 246 and 254, confers on Parliament and on the legislature of every State power to make laws with respect to goods and services tax imposed by the Union or by the State, with Parliament having exclusive power where the supply takes place in the course of inter-State trade or commerce. Article 269A provides that goods and services tax on inter-State supply shall be levied and collected by the Government of India and apportioned between the Union and the States on the recommendations of the Council. Article 279A requires the President within sixty days of the commencement of the amendment to constitute a Goods and Services Tax Council consisting of the Union Finance Minister as chairperson, the Union Minister of State in charge of revenue or finance, and the Minister in charge of finance or taxation of each State, to make recommendations on the taxes to be subsumed, the rates, the exemptions, the threshold and the model laws. In Union of India v. Mohit Minerals Pvt Ltd the Supreme Court held that those recommendations are not binding on the Union or the States.

Why the amendment was needed at all

Before 2016 the taxing power over the same commercial transaction was split down its length, and neither level could tax the whole of it.

The Union could tax manufacture, through central excise, and services, through a levy traced for many years to the residuary power. It could not tax the sale of goods within a State.

The States could tax the sale of goods, through sales tax and later value added tax. They could not tax services, and they could not tax manufacture.

The result was a cascade: tax on tax, different rates in different States, check posts at State borders, and a national market that was not national. Reform required either the Union to give up its levies to the States or the States to give theirs up to the Union, and neither was politically possible. What the amendment did instead was create a shared power.

Article 246A: a concurrent power outside the Concurrent List

Read the opening words carefully, because they are the whole design: "Notwithstanding anything contained in articles 246 and 254".

It displaces article 246. The distribution of powers by the three Lists does not apply to this tax. GST is not an entry in any List; it is a free-standing head of power granted by article 246A itself.

In one line

Part XIII exists to stop the States from turning their borders into customs frontiers, and its central doctrine survived for fifty years before a nine-judge Bench abandoned it.

In the wording a student can write in an exam: article 301 declares that subject to the other provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. Article 302 empowers Parliament to impose such restrictions on that freedom as may be required in the public interest. Article 303(1) forbids both Parliament and a State legislature to make any law giving preference to one State over another, or making any discrimination between States, by virtue of any entry relating to trade and commerce in any of the Lists, but article 303(2) permits Parliament to do so if it declares by law that it is necessary to deal with a situation arising from scarcity of goods. Article 304(a) permits a State to impose on goods imported from other States any tax to which similar goods manufactured in that State are subject, so as not to discriminate, and article 304(b) permits a State to impose reasonable restrictions in the public interest, provided the Bill has been introduced with the previous sanction of the President.

What Part XIII is for

A federation with internal customs barriers is not an economic union. If each State could tax goods entering it, or licence traders from other States more heavily than its own, the country would be a set of markets rather than a market, and the constitutional division of powers would have produced exactly what the drafters most feared after partition.

Part XIII is the answer. It is modelled on section 92 of the Australian Constitution, which declared that trade, commerce and intercourse among the States shall be absolutely free, and the Indian drafters both borrowed the idea and departed from it. The Indian text says "throughout the territory of India" rather than "among the States", so the freedom applies to internal trade within a State as well as trade across State lines. And it is expressly made "subject to the other provisions of this Part", so it was never absolute.

The scheme, article by article

Article 301 states the freedom. It binds both Parliament and the State legislatures, and it applies to executive action as well as to legislation.

Article 302 lets Parliament restrict the freedom in the public interest. Parliament is the only authority that may impose restrictions generally.

Article 303(1) is the anti-preference rule and it binds Parliament too. Neither Parliament nor a State may give preference to one State over another, or discriminate between States, by virtue of any entry relating to trade and commerce.

In one line

The Governor is appointed by the Centre, holds office at its pleasure, is bound by the advice of a Council of Ministers he did not choose, and has just been held to have a discretion in the one function where that matters most.

In the wording a student can write in an exam: article 163(1) provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion. Article 163(2) makes the question whether a matter falls within the Governor's discretion non-justiciable in the sense that his decision on it shall be final, and article 163(3) bars inquiry into what advice was tendered. Article 200 provides that when a Bill passed by the State legislature is presented to the Governor he shall declare either that he assents, or that he withholds assent, or that he reserves the Bill for the consideration of the President, and the first proviso requires him, if he withholds assent to a Bill other than a Money Bill, to return it as soon as possible with a message, after which, if the House passes it again, he shall not withhold assent. Article 201 governs a Bill reserved for the President.

The structural problem

Nothing in this chapter makes sense without the following four facts held together.

The Governor is appointed by the President under article 155, which is to say by the Union Government. The State has no say.

He holds office during the pleasure of the President under article 156, which is to say he may be removed by the Union Government at any time, without reasons and without a procedure.

He is required to act on the advice of a Council of Ministers responsible to the State legislature. Article 164 provides that the Chief Minister shall be appointed by the Governor and the other Ministers appointed by him on the Chief Minister's advice, that the Ministers hold office during the Governor's pleasure, and that the Council of Ministers is collectively responsible to the Legislative Assembly. So the Council is drawn from whichever party won the State election, which may be the party in opposition at the Centre, and the Governor's "pleasure" under article 164(1) is read subject to that collective responsibility: a ministry that holds the confidence of the House cannot be dismissed at will.

He has functions in which he acts in his discretion, and the extent of those is the whole of the controversy.

So the office is one in which a person appointed and removable by one government must ordinarily act on the advice of another. Where the same party controls both, nothing happens. Where different parties control them, everything in this chapter happens.

In one line

For the duration of a national emergency the Constitution stops being federal, and the Forty-fourth Amendment exists because that happened once and nobody could stop it.

In the wording a student can write in an exam: Part XVIII provides for three emergencies. Article 352 permits a Proclamation of Emergency where the President is satisfied that a grave emergency exists whereby the security of India or any part of it is threatened by war, external aggression or armed rebellion. Article 353 provides that while such a Proclamation is in operation the executive power of the Union extends to giving directions to a State as to the manner in which its executive power is to be exercised, and the power of Parliament extends to making laws on matters in the State List. Article 355 imposes on the Union the duty to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the Constitution. Article 358 suspends the freedoms in article 19 during an emergency proclaimed on the ground of war or external aggression, and article 359 permits the President to suspend the right to move any court for the enforcement of specified fundamental rights, other than articles 20 and 21. Article 356 provides for a Proclamation on the failure of the constitutional machinery in a State, and article 360 for a financial emergency.

The three emergencies

National emergency, article 352. War, external aggression or armed rebellion, or an imminent danger of any of them. Proclaimed three times: in 1962 on the ground of external aggression by China, in 1971 on the ground of external aggression by Pakistan, and in 1975 on the ground of internal disturbance while the 1971 Proclamation was still in force.

Failure of constitutional machinery in a State, article 356. The most used and the most litigated, dealt with in [President's Rule].

Financial emergency, article 360. Where the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of it is threatened. Never proclaimed.

What a national emergency does to the federation

This is the part that answers the question. A Proclamation under article 352 does not suspend the Constitution; it changes the distribution of powers within it, and the changes are extensive.

Article 353(a). The executive power of the Union extends to giving directions to a State as to the manner in which its executive power is to be exercised. Not merely directions about compliance with a central law, as under article 256, but directions about how the State is to run its own executive power.

Article 353(b). The power of Parliament extends to making laws conferring powers and imposing duties on the Union or its officers with respect to any matter, even if that matter is not in the Union List.

In one line

Article 356 lets the Union dismiss an elected State government, it was used more than a hundred times in forty years, and since 1994 a court can put the government back.

In the wording a student can write in an exam: article 356(1) provides that if the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution, he may by Proclamation assume to himself all or any of the functions of the Government of the State, declare that the powers of the State legislature shall be exercisable by or under the authority of Parliament, and make such incidental and consequential provisions as appear necessary. He may not assume any of the powers vested in a High Court. By article 356(3) the Proclamation must be laid before each House of Parliament and ceases to operate at the end of two months unless approved by resolutions of both Houses. By article 356(4) an approved Proclamation continues for six months at a time and may not ordinarily continue beyond three years. Article 365 provides that failure by a State to comply with a direction given by the Union may found the President's satisfaction.

The text, read carefully

Four features of article 356 are worth extracting before any case is discussed.

The trigger is a satisfaction, not a fact. The article does not say the government of the State has broken down; it says the President is satisfied that a situation has arisen in which it cannot be carried on in accordance with the Constitution. Everything about the article's history follows from that drafting.

"On receipt of a report from the Governor of a State or otherwise". The Governor's report is one route and not the only one. The Union may act on its own material.

The President's satisfaction is the Union Cabinet's. Article 74 makes the President act on the advice of the Council of Ministers, so the power is in substance the Union Government's.

The High Court is protected. The President may not assume any power vested in a High Court, nor suspend any provision relating to it. So the courts continue to function during President's rule, which is the reason the Proclamation itself can be challenged in one.

Article 357 and article 365

Article 357 supplies the machinery. Where the powers of the State legislature have been declared exercisable by Parliament, Parliament may confer them on the President, and he may delegate them further. Laws so made continue in force after the Proclamation ends until altered by the State legislature.

In one line

Article 370 gave one State a constitutional relationship with the Union that no other State had, and in 2019 the President used the article's own machinery to bring it to an end.

In the wording a student can write in an exam: article 370, placed in Part XXI under the heading "Temporary, Transitional and Special Provisions", provided that notwithstanding anything in the Constitution the provisions of article 238 should not apply to the State of Jammu and Kashmir; that Parliament's power to make laws for the State should be limited to those matters in the Union and Concurrent Lists which, in consultation with the Government of the State, were declared to correspond to matters specified in the Instrument of Accession, and such other matters as the President might specify with the concurrence of that Government; and that the President might by order declare that such other provisions of the Constitution should apply to the State as he specified, subject to exceptions and modifications. Clause (3) provided that the President might by public notification declare that article 370 should cease to be operative, or be operative only with such exceptions and modifications, from such date as he might specify, subject to a proviso that the recommendation of the Constituent Assembly of the State should be necessary before the President issued such a notification.

Where the article came from

Jammu and Kashmir acceded to India in October 1947 by an Instrument of Accession executed by the Maharaja, on the same form used by every other princely State, ceding three subjects: defence, external affairs and communications. What made the case different was the circumstances of the accession and the expectation, held at the time by both governments, that the State's future would be settled later.

Article 370, drafted as article 306A, was the constitutional expression of that unsettled position. It did two things. It limited Parliament's legislative power over the State to the acceded subjects and whatever else the State's government concurred in. And it made the application of the rest of the Constitution to the State a matter for Presidential order rather than automatic.

The State also had its own Constitution, framed by its own Constituent Assembly, which met from 1951 and dissolved in 1957 without making any recommendation under the proviso to article 370(3).

How the article actually worked

Two mechanisms did all the work, and understanding them is the whole of the 2019 question.

Article 370(1)(d). The President may by order declare that other provisions of the Constitution shall apply to the State, subject to such exceptions and modifications as he specifies. Concurrence of the State Government is required where the matter goes beyond the Instrument of Accession.

In one line

Ten States hold special constitutional terms that the others do not, which means the Indian federation treats its units differently on purpose.

In the wording a student can write in an exam: Part XXI contains, besides article 370, a series of special provisions for particular States. Article 371 confers special responsibility on the Governors of Maharashtra and Gujarat for the establishment of development boards. Article 371A makes special provision for Nagaland, 371B for Assam, 371C for Manipur, 371D and 371E for Andhra Pradesh, 371F for Sikkim, 371G for Mizoram, 371H for Arunachal Pradesh, 371-I for Goa and 371J for the Hyderabad-Karnataka region of Karnataka. In each case Parliament has, by ordinary constitutional amendment under article 368, created a term of membership of the Union different from that of the other States. The Supreme Court in In re Article 370 of the Constitution described article 370 itself as a feature of asymmetric federalism rather than of sovereignty, and the same description fits this series.

What asymmetric federalism means

A symmetric federation gives every unit the same constitutional terms. Each State has the same powers, the same relationship with the centre and the same protections. The United States is close to this model.

An asymmetric federation gives different units different terms. Some have powers others do not, or protections others do not, or immunities others do not.

India is asymmetric in three distinct ways, and an answer that distinguishes them is doing more than listing articles.

By constitutional provision, which is this chapter: the article 371 series.

By category of unit. A State, a Union territory with a legislature, and a Union territory without one are governed differently. Delhi under article 239AA is different again.

By scheduled area. The Fifth Schedule for Scheduled Areas in most States and the Sixth Schedule for the tribal areas of Assam, Meghalaya, Tripura and Mizoram create a further layer of differentiated governance, with autonomous district councils holding legislative and judicial powers of their own.

The provisions, State by State

Article 371, Maharashtra and Gujarat. The President may confer on the Governor special responsibility for the establishment of separate development boards for Vidarbha, Marathwada and the rest of Maharashtra, and for Saurashtra, Kutch and the rest of Gujarat, with equitable allocation of funds for development and equitable arrangements for technical education, vocational training and employment. The concern is intra-State regional imbalance.

Article 371A, Nagaland. The strongest of the series. No Act of Parliament in respect of religious or social practices of the Nagas, Naga customary law and procedure, the administration of civil and criminal justice involving decisions according to Naga customary law, and ownership and transfer of land and its resources, shall apply to Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides. The Governor has special responsibility for law and order while internal disturbances continue, and there is a provision for a regional council for the Tuensang district.

In one line

A federation needs a court that can hear one government sue another, and article 131 is it, subject to two large exclusions.

In the wording a student can write in an exam: article 131 provides that subject to the provisions of the Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Government of India and one or more States, between the Government of India and any State or States on one side and one or more other States on the other, or between two or more States, if and in so far as the dispute involves any question, whether of law or fact, on which the existence or extent of a legal right depends. The proviso excludes disputes arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument entered into before the commencement of the Constitution and continuing in operation, or which provides that the jurisdiction shall not extend to such a dispute. Article 262(2) permits Parliament to exclude the jurisdiction of the Supreme Court in inter-State water disputes, and Parliament has done so by section 11 of the Inter-State River Water Disputes Act 1956.

Why a federation needs this jurisdiction

When two levels of government hold powers under the same constitution, they will disagree about where the boundary lies. Somebody has to decide, and it cannot be either of them.

Article 131 provides that forum, and three features of the drafting are deliberate.

It is original. The dispute starts in the Supreme Court. It does not come up on appeal from a High Court, and no High Court may hear it.

It is exclusive. "To the exclusion of any other court". A dispute of this description cannot be tried anywhere else.

It is limited by subject. The dispute must involve a question, of law or fact, on which the existence or extent of a legal right depends. A political disagreement, however sharp, is not enough.

Who may be a party

The parties must be governments, and this is the point on which many suits fail.

Government of India against one or more States. Government of India and one or more States on one side against one or more other States on the other. Two or more States against each other.

Nothing else. A private person cannot invoke article 131, nor be a party to a suit under it. A dispute between the Union and a private company is not within it, and neither is a dispute between a State and its own residents. A public sector undertaking, even one wholly owned by a government, is not that government for this purpose.

In one line

Cooperative federalism is not a rule the Constitution imposes but a description of how two governments with overlapping work actually behave, and the Supreme Court has said that the Indian version includes the freedom to disagree.

In the wording a student can write in an exam: cooperative federalism describes an arrangement in which the Union and the States, rather than operating in watertight compartments, work together through shared institutions, joint finance and consultation, because the problems of modern government do not divide neatly along the lines of the Seventh Schedule. Competitive federalism describes the parallel process by which States compete with one another for investment and for performance, with the Union measuring and ranking them. Neither expression appears in the Constitution. In Union of India v. Mohit Minerals Pvt Ltd the Supreme Court described Indian federalism as a dialogue between cooperative and uncooperative federalism, in which the federal units are at liberty to use different means of persuasion ranging from collaboration to contestation.

Where the idea comes from

The classical model of federalism, described in [What Federalism Is], imagines two governments each supreme in its own sphere and neither interfering with the other. Dual federalism, the older name, treats the two spheres as separate layers.

No modern federation works that way. Three developments made it impossible.

The subjects overlap in fact even where the Lists separate them. Public health is a State subject and a pandemic is not. Environment is shared and a river is not. Education was moved to the Concurrent List in 1976 because it had become impossible to run it otherwise.

Money flows one way and responsibility the other. As [Fiscal Federalism] shows, the level that spends is not the level that collects, so every substantial programme involves both.

Administration is shared by design. The States administer central law, so the Union depends on the States to deliver what Parliament enacts.

Cooperative federalism is the name for the machinery that grew up in response: joint bodies, shared schemes, conditional grants, consultation and negotiation.

The instruments of cooperation

Gathered in one place, because an answer benefits from concrete examples rather than the phrase alone.

Constitutional. The Inter-State Council under article 263. The Finance Commission under article 280. The Goods and Services Tax Council under article 279A. Legislation by consent under article 252. The entrustment of functions under articles 258 and 258A. The Concurrent List itself.

Statutory. The Zonal Councils under the States Reorganisation Act 1956, and the North Eastern Council.

Executive. The National Development Council, attached to the Planning Commission. NITI Aayog, which replaced the Planning Commission in 2015. Conferences of Chief Ministers, of Chief Secretaries and of Directors General of Police. Centrally sponsored schemes funded under article 282.

In one line

A fundamental right in Part III is a right against the State, so if you get article 12 wrong the right is unenforceable against the body that actually holds the power over you.

In the wording a student can write in an exam: article 12 provides that in Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India, 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. The definition is inclusive and not exhaustive, and it operates only for the purposes of Part III, with article 36 applying the same definition to Part IV. Its importance is that most of the rights in Part III are guaranteed against the State alone, so whether a body falls within article 12 decides whether those rights bind it and whether a petition under article 32 lies against it. The expression that has generated all the litigation is "other authorities".

What turns on the answer

Three consequences follow from a body being "State", and they should be stated at the start of any answer because they explain why the question is fought so hard.

The fundamental rights bind it. It cannot discriminate contrary to article 14, cannot deny equality of opportunity in employment under article 16, cannot restrict speech beyond article 19(2), and cannot deprive a person of life or personal liberty except by a procedure that satisfies article 21.

Article 32 lies against it. A person aggrieved may go directly to the Supreme Court, and article 32 is itself a fundamental right.

Article 13 applies to what it makes. Its rules, regulations and bye-laws are "law" for the purposes of article 13(2) and are void to the extent they take away or abridge a fundamental right.

If the body is not "State", none of that follows. The person is left with the ordinary law: a contract, a suit, a statutory remedy, or a writ under article 226 if the public function route is open, which is the subject of [Private Bodies and Public Functions].

Reading the article

Four features of the drafting matter.

"Unless the context otherwise requires". The definition is not absolute. A particular article of Part III may require a narrower or wider reading, which is how the Court has been able to hold that the judiciary is "State" for some purposes and not for others.

"Includes". The definition is inclusive, not exhaustive. Whatever else the word "State" naturally covers is not cut down by the list, and the list itself is a floor rather than a ceiling. This is the textual foundation for every widening the courts have done.

In one line

Three of the four categories in article 12 are settled and take five minutes; the fourth has taken sixty years.

In the wording a student can write in an exam: article 12 names the Government and Parliament of India, the Government and the Legislature of each of the States, and all local authorities, before adding the residual category of other authorities. The first two cover the executive and the legislature at both levels of the federation, including every department, officer and instrumentality through which executive power is exercised. "Local authority" is not defined in the Constitution, and the accepted meaning is that in section 3(31) of the General Clauses Act 1897: a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.

The Government and Parliament of India

"Government" here means the executive, and it is read functionally rather than formally. It covers the President, the Union Council of Ministers, every ministry and department, and every officer exercising the executive power of the Union. The executive power is defined by article 73 as extending to the matters on which Parliament may legislate.

Three points are examinable.

A department is not a separate legal person, so a challenge lies against the Union of India, but the fundamental rights bind the department's action all the same.

Executive action, not only legislation, is caught. Article 12's whole purpose would fail if only laws were tested. An administrative order, a circular, a policy, a decision to award or refuse a contract, and an executive instruction all bind the State to Part III.

The armed forces are covered, subject to article 33, which permits Parliament to restrict or abrogate the application of the fundamental rights to members of the armed forces and comparable services. See [Limits: Articles 33, 34 and 35].

Parliament, and the State legislatures

The legislature is expressly included, which answers a question that might otherwise be open: a law made by Parliament or a State legislature is action by the State and is subject to Part III.

Two consequences follow.

Article 13(2) forbids the State to make any law taking away or abridging the rights conferred by Part III, and declares any such law void to the extent of the contravention. The inclusion of the legislatures in article 12 is what makes that prohibition operate on them.

A constitutional amendment is a different question. Whether an amendment under article 368 is "law" for the purposes of article 13(2) is the question that produced Golak Nath, the Twenty-fourth Amendment and eventually the basic structure doctrine. It is dealt with in [The Amending Power] and is not an article 12 question at all: nobody doubts that Parliament is the State, the doubt was whether an amendment is law.

In one line

The courts spent twenty years deciding what "other authorities" limits, and the answer they reached was that it is limited by function and control, not by legal form.

In the wording a student can write in an exam: the expression "other authorities" in article 12 is not defined. Three readings were pressed in the early cases: that ejusdem generis confines it to bodies of the same genus as those named before it; that it covers only bodies exercising sovereign or governmental functions; and that it covers every authority created by statute on which powers are conferred to carry out governmental or quasi-governmental functions. The last prevailed in Rajasthan State Electricity Board v. Mohan Lal, where the Court held that ejusdem generis has no application because the bodies named share no distinct genus. In Sukhdev Singh v. Bhagatram the Court held that the regulations of a statutory corporation have the force of law and that such corporations are authorities within article 12, and the concurring judgment of Mathew J. introduced the reasoning that a body is to be judged by whether it is an instrumentality or agency of the State.

The three readings

The ejusdem generis reading. Where general words follow an enumeration of specific things, the general words take their colour from the specific ones. On this reading "other authorities" would cover only bodies of the same kind as governments, legislatures and local authorities, that is, organs of government proper. This would have made article 12 close to exhaustive and would have left every statutory corporation outside Part III.

The sovereign function reading. A body is an authority only if it exercises functions that belong to the sovereign, such as taxation, policing and adjudication. A body carrying on trade or industry would be outside, however completely the State owned it.

The statutory power reading. A body is an authority if it is created by or under a statute and has been given powers to carry out governmental or quasi-governmental functions, whether or not those functions are commercial.

The early High Court decisions divided among these, and one line went as far as holding that a university was not an authority because it did not exercise sovereign power. That position could not survive.

The case that settled it

Facts. Rajasthan State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857, (1967) 3 SCR 377, decided 3 April 1967. Permanent government employees were placed at the disposal of the State Electricity Board, constituted under the Electricity (Supply) Act 1948. The Board never framed its own grades or service conditions. When the first respondent, reverted to the Board, was refused consideration for promotion as Assistant Engineer while others identically placed had been promoted, he moved the High Court under articles 226 and 227 alleging breach of articles 14 and 16. The Board contended that it was not "State" within article 12 and that no direction could therefore issue to it.

In one line

The courts stopped asking how a body was created and started asking whether it is really the government wearing another form, and produced a list of indicia to answer it.

In the wording a student can write in an exam: the instrumentality or agency test asks whether a body, whatever its legal form, is an instrumentality or agency of the State. In Ramana Dayaram Shetty v. International Airport Authority of India the Supreme Court held that there is no cut and dried formula, and identified as relevant the holding of the entire share capital by government, extensive and unusual financial assistance, a monopoly status conferred or protected by the State, deep and pervasive State control, functions of public importance closely related to governmental functions, and the transfer to the body of a department of government. In Ajay Hasia v. Khalid Mujib Sehravardi the Court applied the same tests to a society registered under an ordinary Act, holding that the form in which the State chooses to act cannot decide whether a fundamental right applies.

The reasoning behind the test

The argument is short and it should be given before the list of indicia, because the list without the argument is only a list.

The State may perform a function through a department, a statutory corporation, a government company or a registered society. The choice among those forms is the State's own, made for administrative or commercial convenience. If the applicability of Part III turned on which form was chosen, the State could remove any activity from the reach of the fundamental rights by a decision nobody could challenge, taken for reasons that have nothing to do with rights at all.

The courts therefore ask a question that the choice of form cannot answer: is this body, in substance, the State? The indicia are evidence going to that question, and that is all they are.

The tests as first stated

Facts. Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, (1979) 3 SCC 489, decided 4 May 1979. The Authority invited tenders to run a restaurant and two snack bars at Bombay airport, confining eligibility to registered second class hoteliers with at least five years' experience. Of six tenders only the fourth respondents' was complete and it was the highest, but they were neither running a second grade hotel nor had they five years' experience. The Authority accepted it. Paragraph 8 of the notice reserved a right to reject any tender without reasons.

Held. Accepting a tender from a party who did not meet the Authority's own published standard was discriminatory, because it excluded others similarly situated, and it was arbitrary and without reason; the acceptance was invalid as violating the equality clause. The eligibility condition was an objective test, and the Authority could not justify what it did by saying it might have rejected all tenders and negotiated directly, because it had not done so.

In one line

Seven judges turned the six indicia from a checklist into evidence going to a single question, and added an exception for regulatory control that has decided every case since.

In the wording a student can write in an exam: in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology a Bench of seven judges held that the tests formulated in Ajay Hasia are not a rigid set of principles, so that a body falling within any one of them must ex hypothesi be considered a State; that the question in each case is whether, in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government; that such control must be particular to the body in question and must be pervasive; and that where the control is merely regulatory, whether under statute or otherwise, it does not make the body a State. In Zee Telefilms Ltd v. Union of India a Bench of five judges applied that test and held that the Board of Control for Cricket in India is not State, while holding that an aggrieved party may nevertheless seek relief under article 226.

Why a correction was needed

The instrumentality test as stated in Ajay Hasia had six indicia and no rule for weighing them. Two consequences followed.

Any one indicium could be argued to be enough. A body receiving substantial government funding could be said to satisfy the test, whatever else was true of it. Since almost every institution of any size receives some government money, the boundary of article 12 became a matter of advocacy.

Inconsistent results accumulated. Bodies materially alike were held to be State in one case and not in another, and an earlier decision holding that the Council of Scientific and Industrial Research was not State sat uneasily with later decisions on comparable bodies, having been, as the Court later put it, distinguished and watered down in the subsequent decisions.

A Bench of seven was constituted to settle it.

The correction

Facts. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, decided 16 April 2002 by seven judges. Whether the Council of Scientific and Industrial Research, a society registered under the Societies Registration Act, is "State" within article 12, so that its employees may enforce articles 14 and 16 against it.

Held. CSIR is "State". But the Court restated the test, and the restatement is the important part:

The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.

In one line

Article 12 does not mention the courts, and the working answer is that the judiciary is State when it makes rules and when it administers itself, but a judicial order of a competent court is not challenged as violating a fundamental right.

In the wording a student can write in an exam: article 12 names the executive and the legislature of both levels, local authorities and other authorities, and says nothing about the judiciary. Since the definition is inclusive, the omission does not settle the question. The position that has emerged distinguishes between the judiciary acting on its administrative or rule-making side, where it is treated as State, and the judiciary exercising judicial power, where the settled rule is that an order made by a court within its jurisdiction, applying a valid law, cannot be said to violate a fundamental right, so that a petition under article 32 does not lie against it. That rule was stated in Naresh Shridhar Mirajkar v. State of Maharashtra.

Why the question is not academic

If the judiciary is "State" for all purposes, then every judicial order is State action, every erroneous order that affects a person adversely could be attacked as violating article 14 or article 21, and article 32 would become an appeal from every court in India to the Supreme Court. The hierarchy of appeals, the finality of decisions and the very idea of res judicata would be undermined.

If the judiciary is not "State" at all, then the courts could discriminate in their own employment, could make rules that offend article 14, and could not be restrained under Part III when acting administratively.

Neither answer is acceptable, which is why the law distinguishes between what the judiciary is doing.

The three capacities

Rule-making. Articles 145 and 227(2) empower the Supreme Court and the High Courts to make rules regulating practice and procedure. Such rules are subordinate legislation, and there is no reason why they should be immune from Part III. A rule that discriminated between litigants on a prohibited ground would be as bad as any other rule.

Administrative. A High Court appointing, promoting, transferring or disciplining the staff of the subordinate judiciary under article 235, or its own staff under article 229, acts administratively. In that capacity it is dealing with employment and is subject to articles 14 and 16 like any other public employer.

Judicial. Deciding a case. This is the capacity in which the answer is different, and the reason is not that the judiciary is outside article 12 but that a judicial order is a different kind of thing.

The leading case

Facts. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, (1966) 3 SCR 744, decided 3 March 1966 by nine judges. In a defamation suit on the original side of the Bombay High Court, a witness asked that his evidence not be published, saying his business would suffer. The trial judge made an oral order prohibiting publication of the evidence. Journalists, who were not parties to the suit, moved the Supreme Court under article 32, contending that the High Court had no inherent power to make the order, that it violated their right under article 19(1)(a), and that it was amenable to article 32.

In one line

A body may be outside article 12 and still be answerable in a writ petition, because article 226 reaches whoever performs a public function or owes a public duty.

In the wording a student can write in an exam: article 226 empowers a High Court to issue directions, orders or writs to any person or authority, including in appropriate cases any Government, for the enforcement of the fundamental rights and for any other purpose. The words "any person or authority" are wider than "the State" in article 12, and the words "for any other purpose" extend the jurisdiction beyond the enforcement of fundamental rights to the enforcement of legal rights generally. The consequence is that a body which is not State under article 12, so that no petition lies against it under article 32, may nevertheless be amenable to article 226 if it discharges a public function or owes a public duty. In Zee Telefilms Ltd v. Union of India the Supreme Court, having held that the Board of Control for Cricket in India is not State, said that an aggrieved party may nevertheless seek a remedy under article 226, which is much wider than article 32.

Why the route exists

Two facts create the gap this doctrine fills.

Article 12 has narrowed, as [The Retreat, and What Survived It] describes: cumulative facts, particular and pervasive control, and no mere regulatory control.

Public power has dispersed. Functions once performed by departments are now performed by companies, societies, self-regulatory bodies, professional councils and concessionaires. Some are State on the Pradeep Kumar Biswas test and many are not.

If article 12 were the only gate, a person dealing with a body that exercises real public power over them, controls entry to a profession, allocates a scarce public resource, or selects a national team, would have no public law remedy at all. Article 226 prevents that.

The two jurisdictions, compared

Set them side by side, because a problem question usually asks which one is available.

Article 32 lies only against the State as defined in article 12; only for the enforcement of fundamental rights; in the Supreme Court; and it is itself a fundamental right, so the Court cannot decline it on the ground that another remedy exists.

Article 226 lies against any person or authority; for the enforcement of fundamental rights and for any other purpose, which includes any legal right; in the High Court; and it is discretionary, so the existence of an alternative remedy is a relevant consideration, though not an absolute bar.

Two further differences. Article 226 is territorially limited, though the power extends to any authority or person outside the territorial jurisdiction if the cause of action arises wholly or in part within it. And article 32 cannot be suspended except as provided by article 359, and after the Forty-fourth Amendment not at all in respect of articles 20 and 21.

In one line

The State has been withdrawing from direct provision since 1991 while the definition of State has been narrowing since 2002, and the question MU asks is whether the fundamental rights should follow the function out of government hands.

In the wording a student can write in an exam: the economic reforms begun in 1991 replaced State provision with private provision across large parts of the economy, through disinvestment, the opening of sectors previously reserved to the public sector, contracting out, public private partnership, and a shift from ownership to regulation. Article 12 has not been amended, and its judicial interpretation moved in the opposite direction over the same period: the wide instrumentality approach of the 1980s was narrowed in Pradeep Kumar Biswas, which required cumulative financial, functional and administrative domination that is particular and pervasive, and excluded merely regulatory control. The consequence is that functions once performed by bodies bound by Part III are now performed by bodies that are not. Whether the definition should be widened, and if so how, is the question this topic asks.

The two movements, and why they matter together

Set them out separately before combining them, because it is the combination that makes the problem.

The economy moved. Before 1991 the public sector occupied the commanding heights: banking, insurance, telecommunications, aviation, power, steel, coal, and much of manufacturing. A citizen dealing with any of them was dealing with an instrumentality of the State, bound by articles 14, 16 and 21, answerable under article 32. Since 1991 the State has disinvested, opened sectors, licensed private entrants, and in many fields become a regulator rather than a provider.

The doctrine moved. Over the same period the test contracted. Ajay Hasia in 1980 asked whether the body was an instrumentality on six indicia. Pradeep Kumar Biswas in 2002 required cumulative domination, particular and pervasive, and excluded regulatory control. Zee Telefilms in 2005 applied that to a body with a national monopoly over a sport and held it was not State.

Put together, the function leaves the State just as the test stops following it. A private hospital, a private university, a private power distributor, a private airport concessionaire and a privatised bank perform functions that were public within living memory, over people who often have no alternative, and none of them is bound by Part III.

What is actually lost

Be concrete, because an abstract answer here is a weak one.

Equality in employment. Articles 14 and 16 govern recruitment and promotion in a public sector undertaking. After privatisation the same posts are governed by contract and by labour legislation, and the constitutional guarantee of equality of opportunity in public employment simply ceases to apply, because the employment is no longer public.

In one line

Article 13 makes the fundamental rights operative: it kills existing law that conflicts with them going forward, forbids new law that conflicts with them, and defines "law" widely enough that the prohibition cannot be evaded by calling something else.

In the wording a student can write in an exam: article 13(1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III, shall to the extent of such inconsistency be void. Article 13(2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III, and that any law made in contravention shall, to the extent of the contravention, be void. Article 13(3)(a) defines "law" to include any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law, and article 13(3)(b) defines "laws in force" to include laws passed by a legislature or other competent authority before the commencement of the Constitution and not previously repealed. Article 13(4), inserted by the Twenty-fourth Amendment, provides that nothing in article 13 shall apply to any amendment of the Constitution made under article 368.

The two clauses do different work

This is the distinction on which most of the doctrine turns, and it should be drawn at the start.

Article 13(1) is about pre-Constitution law. Such a law was validly made when it was made, by a legislature that was not subject to Part III because Part III did not exist. Article 13(1) does not say it was never law. It says that to the extent of the inconsistency it is void, and the question is void from when.

Article 13(2) is about post-Constitution law. Here the legislature was subject to Part III at the moment it acted, and article 13(2) is addressed to it as a prohibition: the State shall not make any such law. A law made in breach of that prohibition was made without power.

That difference in the character of the two clauses, one operating on a law validly made and the other on a law made without power, is what produces the different treatment of the two under the doctrine of eclipse in [Eclipse, Severability and Waiver].

Article 13(1) is prospective

Facts. Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128, 1951 SCR 228, decided 22 January 1951. A prosecution under sections 15 and 18 of the Indian Press (Emergency Powers) Act 1931 had begun before the Constitution came into force and was still pending when it did. The accused argued that article 13(1) had made the Act void, so the prosecution could not continue.

In one line

Three doctrines follow from the words "to the extent of": a void law may be only shadowed and can revive, only the bad part of a law falls, and a person cannot agree to give up a fundamental right.

In the wording a student can write in an exam: article 13 declares an inconsistent law void "to the extent of such inconsistency" or "to the extent of the contravention". Three doctrines follow. The doctrine of eclipse holds that a pre-Constitution law inconsistent with a fundamental right is not obliterated but overshadowed, remaining on the statute book and unenforceable while the shadow lasts, and becoming operative again without re-enactment if the inconsistency is removed, as decided in Bhikaji Narain Dhakras v. State of Madhya Pradesh. The doctrine of severability holds that where the offending part of a statute can be separated from the rest, only the offending part is void, the tests for which were laid down in R.M.D. Chamarbaugwalla v. Union of India. The rule against waiver holds that a person cannot waive a fundamental right, stated by Bhagwati and Subba Rao JJ. in Basheshar Nath v. Commissioner of Income-tax, Delhi.

Eclipse

The problem it answers. If "void" meant "wiped out", then a law struck down for inconsistency would be dead, and a later constitutional amendment removing the inconsistency would achieve nothing unless the legislature re-enacted the law. That is inconvenient, and it does not follow from the words used.

Facts. Bhikaji Narain Dhakras v. State of Madhya Pradesh, AIR 1955 SC 781, (1955) 2 SCR 589, decided 29 September 1955. The C.P. and Berar Motor Vehicles (Amendment) Act 1947 empowered the Provincial Government to create a monopoly of the motor transport business to the exclusion of all private operators. On the Constitution's commencement the Act became inconsistent with article 19(1)(g) and was held void. The First Amendment 1951 then widened article 19(6) so as to permit exactly such a State monopoly. The Government issued a notification under the Act in 1955, and the operators said the Act was dead and could not be revived without re-enactment.

Held. The Act was not dead. A pre-Constitution law inconsistent with a fundamental right is not obliterated: it remains on the statute book, overshadowed by the fundamental right and unenforceable while the shadow lasts. When the amendment removed the inconsistency, the shadow was removed and the law became operative again without re-enactment.

Why it matters. It is the doctrine of eclipse in its classical form, and it is the practical demonstration of what Keshavan Madhava Menon meant by saying that article 13(1) is not retrospective.

Does eclipse apply to a post-Constitution law? This is the difficult half, and it follows from the difference between article 13(1) and article 13(2) explained in the previous chapter. A post-Constitution law contravening Part III was made by a legislature that had no power to make it, so the argument runs that it was still-born and there is nothing to revive.

In one line

Articles 14 to 18 are one scheme, not five separate rights: a general guarantee, two specific prohibitions with enabling exceptions, and two abolitions.

In the wording a student can write in an exam: the equality code consists of five articles. Article 14 guarantees to every person equality before the law and the equal protection of the laws. Article 15 prohibits discrimination against any citizen on grounds only of religion, race, caste, sex or place of birth, and by clauses (3) to (6) enables the State to make special provision for women and children, for socially and educationally backward classes and the Scheduled Castes and Scheduled Tribes, for their admission to educational institutions, and for the economically weaker sections. Article 16 guarantees equality of opportunity in matters of public employment, with corresponding enabling clauses in (4), (4A), (4B) and (6). Article 17 abolishes untouchability and forbids its practice in any form. Article 18 abolishes titles. In E.P. Royappa v. State of Tamil Nadu the Supreme Court held that article 14 is the genus and article 16 a species of it.

How the five fit together

The order is not accidental, and describing it correctly is worth marks on its own.

Article 14 is the general guarantee, and it applies to every person, citizen or not. It states the principle in the abstract: like should be treated alike.

Articles 15 and 16 are specific applications of that principle, and both are confined to citizens. Article 15 addresses the State's dealings with citizens generally; article 16 addresses one field, public employment. Each names the grounds on which the State may not discriminate, and each then carries enabling clauses permitting positive measures.

Articles 17 and 18 are abolitions, not guarantees in the same sense. They do not say the State must treat people equally; they abolish two specific institutions of inequality, untouchability and titles.

Two structural points follow.

Article 14 remains available even where 15 or 16 does not apply. A classification that does not rest on any ground named in article 15(1) is still tested under article 14 for reasonableness and non-arbitrariness. So article 14 is the floor beneath the whole scheme.

Articles 15 and 16 are not exceptions to article 14. They are instances of it, and the enabling clauses within them are instances too. That proposition matters most for article 16(4), and it was settled in Indra Sawhney, treated in [Reservation in Public Employment].

Article 14 as the genus

Facts. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, (1974) 4 SCC 3, decided 23 November 1973. A senior member of the Indian Administrative Service, holding the post of Chief Secretary of Tamil Nadu, was transferred to two posts he said were inferior, and alleged the transfers were mala fide and offended articles 14 and 16.

In one line

Article 14 carries two formulas, one English and negative, one American and positive, and the second is what makes reservation possible.

In the wording a student can write in an exam: article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The first expression is taken from English constitutional law and is a negative concept, implying the absence of any special privilege in favour of any person and the equal subjection of all to the ordinary law administered by the ordinary courts. The second is taken from the Fourteenth Amendment to the United States Constitution and is a positive concept, implying the right to equality of treatment in like circumstances, that is, that among equals the law should be equal and equally administered. The two are not the same, and the difference matters: equality before the law forbids the State to confer a privilege, while the equal protection of the laws permits, and may require, that persons differently situated be treated differently.

The two limbs

Equality before the law. Dicey's formula, and it has three parts in his account: the absence of arbitrary power, so that a person may be punished only for a breach of law established in the ordinary manner; equality before the law, meaning the equal subjection of all classes to the ordinary law administered by the ordinary courts; and the proposition that the general principles of the constitution are the result of judicial decisions determining the rights of private persons.

Only the second of Dicey's three is what article 14 means by the phrase, and even that has to be qualified for India: the Constitution itself confers immunities, notably on the President and the Governors under article 361, and on members of the legislatures under articles 105 and 194. Those are constitutional exceptions to the equal subjection Dicey described, and an answer should name them rather than pretend the formula is absolute.

The equal protection of the laws. The positive limb. It does not require that the same law apply to everybody. It requires that persons in like circumstances be treated alike, which necessarily means that persons in unlike circumstances may be treated differently. This is the limb that makes classification lawful, and therefore the limb from which reasonable classification is derived.

Why the Constitution has both. The negative limb alone would forbid privilege but say nothing about whether the State may distinguish between groups. The positive limb alone would permit distinction but say nothing about privilege. Together they say: no special privilege, and no identical treatment of the unalike.

In one line

A law may treat one group differently if the group is marked off by something real and if that something is connected to what the law is trying to do, and both halves have to be satisfied.

In the wording a student can write in an exam: article 14 forbids class legislation but does not forbid reasonable classification. A classification is reasonable if it satisfies two conditions, known as the twin test. First, the classification must be founded on an intelligible differentia which distinguishes persons or things grouped together from those left out of the group. Second, the differentia must have a rational nexus with the object sought to be achieved by the statute in question. What is necessary is that there must be a nexus between the basis of classification and the object of the Act. A law which confers an uncontrolled and unguided discretion to select who shall be treated differently, without laying down any principle to govern the selection, is discriminatory even though the differential treatment could itself have been justified, as State of West Bengal v. Anwar Ali Sarkar decided.

The twin test

Condition one: an intelligible differentia. There must be some real, identifiable characteristic that separates those inside the group from those outside it. "Intelligible" means capable of being understood, so the line must be drawn on something, not at random. Classification by age, by income, by the nature of a trade, by the gravity of an offence, by geography, all pass this first condition.

Condition two: a rational nexus with the object of the Act. The characteristic that marks the group off must be connected to the purpose the law pursues. This is the condition that does the work, and the one weak answers omit.

Take an example. A law reserving a benefit for persons over sixty is founded on an intelligible differentia, age. Whether it is valid depends on the object: if the object is a pension scheme, the nexus is obvious; if the object is to regulate the speed of vehicles, there is none.

The two conditions are cumulative. A classification that is intelligible but unconnected to the object fails, and a classification connected to a purpose but drawn on nothing identifiable fails too.

The object must itself be lawful

A refinement worth adding, because it closes an obvious hole.

If the only test were a nexus between the differentia and the object, then a law with a discriminatory object would always pass: the classification would fit the purpose perfectly. The answer is that the object itself must not be discriminatory. A statute whose purpose is to disadvantage a group cannot be saved by showing that its classification serves that purpose efficiently.

In one line

Article 14 grew a second test: a State act may be struck down for being arbitrary even where nobody has been treated differently from anybody else.

In the wording a student can write in an exam: the classification test asks whether a law that treats one group differently has drawn the line reasonably. It cannot reach a law or an act which treats everybody the same but does so on no rational basis at all, because there is then no classification to attack. In E.P. Royappa v. State of Tamil Nadu the Supreme Court held that equality is antithetic to arbitrariness, that the two are sworn enemies, and that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of article 14. In Ramana Dayaram Shetty v. International Airport Authority of India the Court added that every action of the executive government must be informed with reason and free from arbitrariness, which is the essence of the rule of law. The doctrine now extends to legislation under the name of manifest arbitrariness.

Why a second test was needed

The classification test has a structural limit that is easy to state and easy to forget.

It works only where there is a classification. If a rule applies to everybody in the field identically, nobody can say they were treated differently from a comparable person, and the twin test has nothing to bite on. Yet a rule may be identically applied and still be indefensible: a selection method that bears no relation to what it selects for, a condition imposed for no reason, a benefit withdrawn on a whim.

The classification test also invites a formalism. A court that asks only whether the line is intelligible and connected to the object can end up sustaining almost anything, because a competent draftsman can always supply an object the classification fits.

The arbitrariness doctrine answers both. It asks not "was the line drawn reasonably" but "was there any reason at all".

The founding passage

Facts. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, (1974) 4 SCC 3, decided 23 November 1973. A senior IAS officer holding the post of Chief Secretary of Tamil Nadu was transferred to two other posts which he contended were inferior, and alleged mala fides and a breach of articles 14 and 16.

Held. The plea of mala fides failed on the evidence. On article 14 the Court said that equality is a dynamic concept which cannot be cribbed, cabined and confined within traditional and doctrinaire limits, and then:

From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14.

In one line

Two articles name the grounds on which the State may never discriminate, and then enable it to do the opposite for the groups those grounds have historically harmed.

In the wording a student can write in an exam: article 15(1) forbids the State to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(2) forbids subjection to any disability, liability, restriction or condition, on those grounds, with regard to access to shops, public restaurants, hotels and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, and article 16(2) forbids ineligibility or discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Clauses (3) to (6) of each article are enabling provisions.

The grounds, and the word "only"

Article 15(1) names five grounds: religion, race, caste, sex, place of birth.

Article 16(2) names seven: the same five, plus descent and residence. The two additions are explained by the field. Descent matters in employment because hereditary claims to office were a real feature of the services the Constitution inherited. Residence matters because States wished to prefer their own residents in State employment, and article 16(3) then permits Parliament, and only Parliament, to make a law prescribing a residence requirement for a class of employment within a State.

"On grounds only of". This is the most litigated word in either article, and it has two competing readings.

The narrow reading: the prohibition bites only where the ground is the sole reason. Add any other consideration and the article is escaped. This reading would empty both provisions, because no administrator says the reason is caste alone.

The settled reading: the article is not escaped merely because some other ground is present as well. What is forbidden is discrimination on a prohibited ground, and the presence of an additional, apparently neutral, factor does not save it if the prohibited ground is an operative reason. Otherwise the words would supply a drafting instruction for evading the Constitution.

A related question: does article 15 reach indirect discrimination, where a rule neutral on its face has a disproportionate effect on a protected group? The modern trend is to say yes, on the footing that the guarantee is substantive, and an answer that raises the point is doing better than one that treats the article as reaching only express classification.

In one line

Article 15 as enacted had no power to reserve at all, and every clause that now permits it was added by amendment after a court said the State could not.

In the wording a student can write in an exam: article 15 as originally enacted contained clauses (1) to (3) only. Clause (4), permitting the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes, was inserted by the Constitution (First Amendment) Act, 1951. Clause (5), permitting such special provision so far as it relates to admission to educational institutions including private institutions, aided or unaided, other than minority educational institutions referred to in article 30(1), was inserted by the Constitution (Ninety-third Amendment) Act, 2005. Clause (6), permitting special provision for economically weaker sections other than those covered by clauses (4) and (5), including reservation of up to ten per cent of seats, was inserted by the Constitution (One Hundred and Third Amendment) Act, 2019.

The First Amendment, and why it happened

The State of Madras operated a Communal Government Order allocating seats in its medical and engineering colleges among named communities. Applicants challenged it as discriminating on grounds of caste and religion contrary to articles 15(1) and 29(2), the latter of which forbids denial of admission to a State-maintained or State-aided educational institution on grounds only of religion, race, caste, language or any of them.

The order was struck down, and the reasoning is the point: article 15 as it then stood contained no enabling clause for education at all, and article 29(2) was in terms a prohibition. The case is State of Madras v. Champakam Dorairajan, decided by the Supreme Court in 1951.

Parliament responded within months. The Constitution (First Amendment) Act, 1951 inserted article 15(4), and the official text records the insertion in its footnote to that clause. So the very first amendment to the Constitution was made to permit reservation in education after a court had held it unconstitutional, and that fact frames the whole topic.

The report of Champakam could not be opened from the sources this book is built from, so no citation is printed for it and none should be invented. What is stated above about the amendment is verified from the Constitution's own footnote to article 15(4).

What article 15(4) permits

"Special provision for the advancement". Wider than reservation: it covers scholarships, hostels, fee concessions, relaxation of qualifying marks, coaching and separate institutions, as well as reserved seats.

"Socially and educationally backward classes". Both adjectives, conjunctively. Backwardness that is only social, or only educational, or only economic, is not enough. Note the contrast with article 16(4), which speaks of a "backward class of citizens" without the two adjectives, and which Indra Sawhney held to be wider, with the accent on social backwardness.

In one line

Article 16(4) permits reservation for a backward class that is not adequately represented, and everything difficult about it comes from four words: backward, class, adequately, represented.

In the wording a student can write in an exam: article 16(4) provides that nothing in article 16 shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Article 335 provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts. In Indra Sawhney v. Union of India a Bench of nine judges held that article 16(4) is not an exception to article 16(1) but an instance of the classification inherent in it, that a caste can be a class, that the creamy layer must be excluded, that reservation should not exceed fifty per cent, and that article 16(4) does not permit reservation in promotion.

The four conditions in the clause

Read article 16(4) as a checklist and each condition becomes a separate question.

"Any backward class of citizens". Not "socially and educationally backward", as in article 15(4). Indra Sawhney held that the expression in article 16(4) is wider, with the accent on social backwardness, though social, educational and economic backwardness are closely intertwined in the Indian context.

"Which, in the opinion of the State". The identification is for the State, and the adequacy of representation is a matter within its subjective satisfaction. Judicial scrutiny is the same as for other matters of subjective satisfaction: the court examines whether there was material, not whether it would have reached the same view.

"Is not adequately represented". The trigger is under-representation in the services, not backwardness in the abstract. A class that is adequately represented cannot be reserved for, whatever its social position, because the object of the clause would not be served.

"In the services under the State". The field is public employment. Once the employer ceases to be the State, the clause has nothing to operate on, which is MU's own question and is [Privatisation and Affirmative Action].

What is a backward class

Facts. Indra Sawhney v. Union of India, AIR 1993 SC 477, decided 16 November 1992 by nine judges. Challenges to the memoranda implementing the Mandal Commission's twenty-seven per cent reservation for the socially and educationally backward classes in central services, and to a further ten per cent for other economically backward sections.

Held. Among the fourteen summarised answers, on identification:

In one line

Fifty per cent is a judge-made rule, not a constitutional text, and in 2022 the Court held it is not inflexible and does not govern reservation made outside the backward-class provisions.

In the wording a student can write in an exam: no provision of the Constitution fixes any limit on the extent of reservation. The fifty per cent rule is judicial, and it rests on the proposition that reservation is an instance of the classification permitted by article 16(1) rather than an exception to it, so that it cannot be carried to a point at which the rule of equality of opportunity is destroyed rather than qualified. In Indra Sawhney v. Union of India the Court held that reservations under article 16(4) should not exceed fifty per cent, that fifty per cent shall be the rule subject to relaxation in extraordinary situations made out with extreme caution, and that the rule applies to each year and not to the total cadre strength. In Janhit Abhiyan v. Union of India the Court held that the ceiling is itself not inflexible and in any case applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4).

Where the rule comes from

The Constitution says nothing about a percentage. The rule is derived, and the derivation is worth setting out because it explains both the rule and its limits.

Step one. Article 16(1) guarantees equality of opportunity. Article 16(4) permits reservation.

Step two. If article 16(4) were an exception to article 16(1), it would have to be construed narrowly, but there would be no arithmetic limit in principle: an exception is as wide as its terms.

Step three. But article 16(4) is not an exception. Indra Sawhney holds it is an instance and an illustration of the classification inherent in article 16(1). It is therefore an application of the equality guarantee, not a departure from it.

Step four. An application of a guarantee cannot destroy the guarantee. If reservation took every post, equality of opportunity would not have been qualified, it would have been abolished. So there must be some point at which the exercise ceases to be an application of article 16(1) and becomes its negation.

Step five. The Court fixed that point at a majority of the posts, on the reasoning that reservation must leave the general field as the rule and the reserved field as the qualification.

The rule is therefore a structural limit derived from the character of article 16(4), not a number found in the text. That is exactly why it could later be held not to bind a reservation made under a different provision.

What Indra Sawhney actually held

Facts. Indra Sawhney v. Union of India, AIR 1993 SC 477, decided 16 November 1992 by nine judges. Challenges to the implementation of the Mandal Commission's recommendations.

In one line

Those within a backward class who have advanced far enough to be no longer backward must be taken out of it, and the long argument has been whether that applies to the Scheduled Castes and Scheduled Tribes as well.

In the wording a student can write in an exam: the creamy layer is that section of a backward class which has advanced socially and economically to the point where it is no longer backward, and whose members would otherwise take the benefit of reservation intended for those who remain disadvantaged. In Indra Sawhney v. Union of India the Supreme Court held that the creamy layer can be, and must be, excluded from the backward classes for the purposes of article 16(4). The exclusion follows from the logic of the clause itself: the class is identified because it is backward, so a person who is no longer backward no longer answers the description, and including him defeats the object of the provision and offends the requirement of a rational nexus under article 14.

Why the exclusion follows from the clause

The doctrine is often presented as a policy limitation imposed by judges. It is better understood as a consequence of the words.

Article 16(4) permits provision for "any backward class of citizens which, in the opinion of the State, is not adequately represented". The justification for treating the class differently is its backwardness. If a person within the class has ceased to be backward, then as to that person the differentia has disappeared, and the classification loses its nexus with the object. On the twin test in [Reasonable Classification], the reservation as applied to him fails.

There is a second, practical reason. Where the advanced members of a class take the reserved seats, the benefit never reaches those for whom it was created, and the class remains backward indefinitely while formally receiving assistance. The exclusion is what makes reservation a remedy rather than a permanent entitlement.

What Indra Sawhney held

Facts. Indra Sawhney v. Union of India, AIR 1993 SC 477, decided 16 November 1992 by nine judges. Challenges to the Mandal memoranda.

Held. Among the fourteen summarised answers, in four words: "'Creamy layer' can be, and must be, excluded."

The Court also held that a caste can be a class, that there is no constitutional bar to classifying backward classes into backward and more backward, and that a backward class cannot be identified only and exclusively by economic criteria.

Why it matters. "Must" rather than "may". The exclusion is not a discretion the State may decline to exercise: a scheme that does not provide for it is bad.

What the tests are

The criteria are set by government, on the Court's direction, and the standard heads are worth knowing because they are what a problem will turn on.

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The Court said article 16(4) does not reach promotion, Parliament amended the Constitution three times to say it does, and the Court then attached conditions to the amendments.

In the wording a student can write in an exam: in Indra Sawhney v. Union of India the Supreme Court held that article 16(4) does not permit reservation in the matter of promotion, though it gave the ruling prospective effect and allowed existing promotional reservations to continue for five years. Parliament responded by the Constitution (Seventy-seventh Amendment) Act, 1995, inserting article 16(4A) to permit reservation in matters of promotion for the Scheduled Castes and Scheduled Tribes; by the Constitution (Eighty-first Amendment) Act, 2000, inserting article 16(4B) on carried-forward vacancies; by the Constitution (Eighty-fifth Amendment) Act, 2001, adding consequential seniority to article 16(4A) with retrospective effect; and by the Constitution (Eighty-second Amendment) Act, 2000, adding a proviso to article 335 permitting relaxation in qualifying marks or standards of evaluation.

The sequence, which is the answer

This topic is a sequence of moves, and setting it out in order is most of a good answer.

Move one, the decision. Indra Sawhney v. Union of India, AIR 1993 SC 477, decided 16 November 1992 by nine judges. Among the fourteen summarised answers: "Article 16(4) does not permit provision for reservations in the matter of promotion." The Court made the ruling operate prospectively only, so promotions already made were unaffected, and directed that existing promotional reservations, whether in Central or State services or in any body falling within article 12, may continue in operation for five years from the date of the judgment, within which the authorities might revise the rules. It added that extending concessions and relaxations to reserved candidates in promotion, short of reservation, would not be impermissible.

Move two, the amendments. Parliament did not revise the rules. It amended the Constitution.

• Article 16(4A), inserted 1995, permits the State to make provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State, in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented. Note the narrowing: promotion reservation is confined to the SC and ST, and does not extend to the other backward classes.
• Article 16(4B), inserted 2000, takes carried-forward unfilled reserved vacancies out of the ceiling for the year in which they are filled. See [The Ceiling on Reservation].
• The words "with consequential seniority" were added to 16(4A) in 2001, answering decisions which had allowed reservation in promotion but denied the promoted candidate seniority over a general candidate promoted later.
• The proviso to article 335, added 2000, permits relaxation in qualifying marks or standards of evaluation for reservation in promotion.

In one line

The 103rd Amendment made poverty by itself a ground of reservation for the first time, excluded the backward classes from it, and was upheld by three judges against two.

In the wording a student can write in an exam: the Constitution (One Hundred and Third Amendment) Act, 2019 inserted clause (6) in article 15 and clause (6) in article 16. Article 15(6) enables the State to make any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5), including special provision relating to their admission to educational institutions, aided or unaided, other than minority educational institutions under article 30(1), subject to a maximum of ten per cent of the total seats, which is in addition to the existing reservations. Article 16(6) enables reservation of appointments or posts in favour of any economically weaker sections other than the classes mentioned in clause (4), subject to a maximum of ten per cent, in addition to the existing reservation. The Explanation provides that economically weaker sections shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.

Why it was a departure

Three settled propositions had to be displaced, and naming them is how an answer shows what the amendment did.

Economic criteria alone were not enough. Indra Sawhney v. Union of India, AIR 1993 SC 477, decided 16 November 1992 by nine judges, held that a backward class of citizens cannot be identified only and exclusively with reference to economic criteria, though identification on the basis of occupation-cum-income without reference to caste is permissible. On that ground it struck down the reservation of ten per cent for other economically backward sections made by the office memorandum of 25 September 1991.

Reservation was for the socially disadvantaged. The whole architecture of articles 15(4) and 16(4) rests on social backwardness, of which economic condition is evidence. The 103rd Amendment separates the two and makes economic condition sufficient on its own.

Fifty per cent was the ceiling. The new reservation is expressly "in addition to the existing reservation", which on the arithmetic takes the total past fifty in most States.

So the amendment does not extend an existing power. It creates a new one, resting on a different justification.

The three grounds of challenge

One, economic criteria alone. The petitioners said reservation is a facet of the equality code, that the code compensates for discrimination, and that poverty is not discrimination. On that view reservation for the poor as such is not affirmative action at all but a welfare measure, and using the reservation power for it damages the basic structure.

In one line

Who counts as a Scheduled Caste, a Scheduled Tribe or a backward class is decided by a constitutional machinery of Presidential lists and parliamentary law, and the fight of the last decade has been over who controls it.

In the wording a student can write in an exam: article 341 empowers the President, by public notification, to specify the castes, races or tribes which shall be deemed to be Scheduled Castes in relation to a State or Union territory, and provides by clause (2) that Parliament may by law include in or exclude from the list any caste, but that a notification issued under clause (1) shall not be varied by any subsequent notification. Article 342 makes identical provision for the Scheduled Tribes. Article 342A, inserted by the Constitution (One Hundred and Second Amendment) Act, 2018 and amended by the Constitution (One Hundred and Fifth Amendment) Act, 2021, makes provision for the socially and educationally backward classes. Article 340 empowers the President to appoint a Commission to investigate the conditions of socially and educationally backward classes. Articles 338, 338A and 338B establish the National Commissions for the Scheduled Castes, the Scheduled Tribes and the Backward Classes respectively.

The two mechanisms are different

This is the distinction the whole chapter turns on.

For the Scheduled Castes and Scheduled Tribes, the list is constitutional machinery: a Presidential notification under article 341(1) or 342(1), variable only by a law of Parliament under clause (2). No State may alter it, and no notification may vary an earlier one. Once a caste is in, backwardness is not a further question, as [The Creamy Layer] explains.

For the socially and educationally backward classes, there was for most of the Constitution's life no list machinery at all. Article 340 permits the President to appoint a Commission to investigate their conditions and recommend, but the identification itself was done by each government, Union or State, for its own purposes. That is why Indra Sawhney had to decide how identification may be done, and why it held that no procedure is prescribed and none should be laid down by a court.

The 102nd and 105th Amendments

The Constitution (One Hundred and Second Amendment) Act, 2018 did three things: it gave the National Commission for Backward Classes constitutional status as article 338B; it inserted article 342A, providing for a Presidential list of socially and educationally backward classes on the model of articles 341 and 342, variable only by Parliament; and it inserted article 366(26C) defining the expression.

The consequence, or so it was held, was that the States lost the power to identify their own backward classes for their own purposes, because article 342A now provided a single central list.

In one line

Protective discrimination is the name for treating a disadvantaged group differently in order to make equality real, and its whole defence is that formal equality between unequals is not equality at all.

In the wording a student can write in an exam: protective discrimination, also called compensatory discrimination or affirmative action, describes the constitutional practice of making special provision in favour of groups historically subjected to disadvantage, so that the equality guaranteed by article 14 becomes substantive rather than merely formal. Its textual basis is the enabling clauses of articles 15 and 16 read with the directive principle in article 46, which requires the State to promote with special care the educational and economic interests of the weaker sections, and in particular of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. The doctrine rests on the proposition that the equal protection of the laws requires likes to be treated alike and unlikes differently, so that a measure favouring a disadvantaged class is an application of the equality guarantee and not a departure from it.

The justification

State it as an argument, in four steps, because that is what an examiner is testing.

One. Article 14 guarantees the equal protection of the laws, which requires that persons in like circumstances be treated alike.

Two. It follows that persons in unlike circumstances need not be treated alike, and that treating them alike may itself be unequal. A race in which one runner starts a hundred metres behind is not made fair by applying the same rules to both.

Three. Certain groups in India began the race behind, and did so because of a social order the Constitution itself condemns: untouchability in article 17, the prohibited grounds in articles 15 and 16, the directive in article 46.

Four. Measures that correct for that starting position therefore serve the equality guarantee rather than derogating from it. That is why Indra Sawhney holds that article 16(4) is not an exception to article 16(1) but an instance and an illustration of the classification inherent in it, and why the enabling clauses are best read as declaratory of what article 14 already permitted.

Protective, compensatory, affirmative: the words

Three terms circulate and they are not identical, which is worth a sentence.

Protective discrimination emphasises shielding a group from a disadvantage it still suffers.

Compensatory discrimination emphasises making good a historical wrong. It is the term the Court used in Janhit Abhiyan when it described the exclusion of the backward classes from the EWS quota as balancing the requirements of non-discrimination and compensatory discrimination.

Affirmative action is the American term, and it covers a wider range of measures, many of which fall short of reservation: outreach, training, relaxed cut-offs, scholarships.

In one line

Reservation binds the State, privatisation moves the employer out of the State, and the Constitution has no answer to what happens to the programme in between.

In the wording a student can write in an exam: articles 15(4), 15(5), 16(4), 16(4A) and 16(6) are enabling provisions addressed to the State, and article 16 is in terms confined to employment or appointment to any office under the State. The obligations of Part III attach to a body only if it falls within article 12, and since Pradeep Kumar Biswas v. Indian Institute of Chemical Biology the test is whether, on the cumulative facts, the body is financially, functionally and administratively dominated by or under the control of the Government, that control being particular and pervasive and not merely regulatory. Where the State disinvests an undertaking, contracts a service out, or opens a sector to private providers, the body performing the function ceases to satisfy that test, and with it the reservation obligation, the guarantee of equality of opportunity and the remedy under article 32 all cease to apply, although the function and the power over the citizen are unchanged.

Set the question up properly

Weak answers describe privatisation and then assert that reservation should continue. The question is a legal one and it has a precise shape.

Reservation is not a free-standing policy. It is an exercise of a power conferred on the State by an enabling clause, over a field defined as employment under the State. Take away the State and there is no power to exercise and no field to exercise it on.

Article 16 is not merely about who pays. Its guarantee is equality of opportunity in matters relating to employment or appointment to any office under the State. A privatised undertaking is not an office under the State whoever owns its shares was yesterday.

So the loss is automatic, not deliberate. No government decides to withdraw reservation when it disinvests. The obligation lapses because its precondition has gone.

What exactly is lost

Be concrete. This is where an answer earns marks.

The reservation itself. Articles 16(4), 16(4A) and 16(6) bind the State as employer. A private employer is under no constitutional obligation to reserve, and no statute of general application imposes one.

Equality of opportunity in recruitment. Article 16(1) requires that selection for public employment be open and non-arbitrary. A private employer may recruit as it pleases, subject only to labour and anti-discrimination legislation.

The duty of non-arbitrariness in dealing. On the R.D. Shetty line, every action of the executive must be informed with reason. That duty attaches to the body, not to the function.

The article 32 remedy. A fundamental right in itself, and unavailable against a body outside article 12.

In one line

Three articles were inserted to protect land reform from the fundamental rights, one of them created a schedule where any law could be hidden, and the Court eventually held that nothing can be hidden from the basic structure.

In the wording a student can write in an exam: article 31A, inserted by the First Amendment 1951 with retrospective effect, provides that no law providing for the acquisition of an estate or the extinguishment or modification of rights in it, and four other classes of law, shall be deemed void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by article 14 or article 19. Article 31B, inserted by the same amendment, provides that none of the Acts and Regulations specified in the Ninth Schedule shall be deemed void on the ground that they are inconsistent with any of the rights conferred by Part III, notwithstanding any judgment to the contrary. Article 31C, inserted by the Twenty-fifth Amendment 1971, provides that no law giving effect to the policy of the State towards securing the principles specified in article 39(b) and (c) shall be deemed void on the ground that it is inconsistent with article 14 or article 19.

Why the three exist

The whole of Part III's early history is a contest about land.

The Constitution guaranteed property, and the States began abolishing the zamindari system. The compensation provisions and the equality guarantee together made agrarian reform slow and expensive, and courts struck down or delayed reform statutes. Parliament's response was to place the reform legislation beyond the reach of the rights that were obstructing it.

Article 31A immunises a class of law by subject matter: acquisition of estates, taking over the management of property, amalgamation of corporations, extinguishment of the rights of directors or shareholders, and modification of rights under mining leases. The immunity is from articles 14 and 19 only, not from the whole of Part III. A proviso requires the President's assent for a State law to attract the protection.

Article 31B immunises named statutes, whatever their subject, by listing them in the Ninth Schedule. The immunity is from the whole of Part III, and the article says so notwithstanding any judgment, decree or order of any court to the contrary. That last phrase makes it retrospective in effect.

Article 31C immunises by purpose: a law giving effect to the directive principles in article 39(b), material resources distributed to subserve the common good, and 39(c), the operation of the economic system not resulting in concentration of wealth.

The Ninth Schedule, and what it became

Article 31B was drafted for thirteen land reform statutes. It has been used for hundreds, and many have nothing to do with land: legislation on trade, on industry, on reservation, on elections and on the requisitioning of property has been placed in the Schedule.

In one line

Article 17 is the only fundamental right that abolishes a social institution outright and binds every private person, and article 18 abolishes the machinery by which a society ranks its members.

In the wording a student can write in an exam: article 17 provides that untouchability is abolished and its practice in any form is forbidden, and that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. Article 18 provides by clause (1) that no title, not being a military or academic distinction, shall be conferred by the State; by clause (2) that no citizen of India shall accept any title from any foreign State; by clause (3) that no person who is not a citizen shall, while holding any office of profit or trust under the State, accept any title from any foreign State without the consent of the President; and by clause (4) that no person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument or office of any kind from or under any foreign State.

Article 17: what makes it unusual

Four features distinguish it from every other article in Part III, and naming them is the answer to "discuss article 17".

It abolishes rather than guarantees. Other articles confer a right or forbid the State to do something. Article 17 declares an institution abolished. The sentence "Untouchability is abolished" is performative: it does not prohibit conduct in the first instance, it ends a status.

It binds private persons. Almost the whole of Part III is enforceable against the State alone. Article 17 is enforceable against everybody, and it is the clearest instance of horizontal application in the Constitution. A private individual who enforces a disability arising out of untouchability violates article 17 directly.

It is absolute. There is no reasonable-restrictions clause, no enabling exception, and no proviso. It cannot be justified by any competing interest, including religious freedom under articles 25 and 26, which is why practices claimed as religious have failed against it.

It contemplates its own criminal law. The article itself says the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law, which is a constitutional direction to legislate. Article 35 then gives Parliament, and only Parliament, the power to make that law.

The term is not defined

The Constitution does not define untouchability, and the omission is deliberate rather than careless.

The accepted approach is that the word is used in its historical sense, as the practice as it developed in India in relation to castes regarded as untouchable, and not in a literal or figurative sense. So it does not cover every social boycott or every refusal of contact. A person excluded from a club, or shunned for a personal reason, is not within article 17, however unpleasant the treatment.

In one line

The Constitution gives women a guarantee of equality, a power in the State to favour them, four directive principles, one fundamental duty, and, since 2023, a reservation of legislative seats that has not commenced.

In the wording a student can write in an exam: the constitutional provisions for women fall into five groups. Equality: articles 14, 15(1) and 16(1) and (2), of which sex is a prohibited ground in both articles 15 and 16. Enabling provisions: article 15(3), permitting the State to make special provision for women and children, and article 16, under which reservation for women in public employment is sustained. Directive principles: article 39(a) on an adequate means of livelihood for men and women equally, 39(d) on equal pay for equal work, 39(e) on the health and strength of workers and 42 on just and humane conditions of work and maternity relief. Fundamental duty: article 51A(e), to renounce practices derogatory to the dignity of women. Political representation: articles 243D and 243T reserving seats in the panchayats and municipalities, and articles 330A, 332A and 334A inserted by the 106th Amendment 2023.

The five groups

Setting the material out in groups rather than in article order is what turns a list into an answer.

Equality, which is a guarantee. Sex is a prohibited ground in article 15(1) and in article 16(2). A law or an executive act that discriminates against a woman on the ground of sex is void unless it falls within an enabling clause. Article 14 stands behind both, so a measure that does not turn on sex at all may still be attacked as arbitrary.

Special provision, which is a power. Article 15(3): "Nothing in this article shall prevent the State from making any special provision for women and children." Note the form. It is an enabling clause, so it confers no right; and it is an exception to the whole of article 15, including clause (2), which binds private persons.

Directive principles, which are directions to the State. Article 39(a), that citizens, men and women equally, have the right to an adequate means of livelihood. Article 39(d), equal pay for equal work for both men and women. Article 39(e), that the health and strength of workers, men and women, is not abused and that citizens are not forced by economic necessity into avocations unsuited to their age or strength. Article 42, that the State make provision for securing just and humane conditions of work and for maternity relief. Article 44 on a uniform civil code belongs here too, and is treated in [A Uniform Civil Code]. None is enforceable in a court, and all are fundamental in the governance of the country.

In one line

Article 15(3) lets the State favour women, and the whole difficulty is telling a provision that helps them from one that keeps them where they are.

In the wording a student can write in an exam: article 15(1) forbids the State to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, and article 15(2) forbids subjection to any disability, liability, restriction or condition on those grounds with regard to access to certain places and facilities. Article 15(3) then provides that nothing in article 15 shall prevent the State from making any special provision for women and children. It is an enabling clause and not a right, so no woman can compel the State to make a provision under it; it is an exception to the whole of article 15, including clause (2); and it operates only in favour of women and children, so it cannot be used to justify a provision that disadvantages them.

Why the clause is not an exception at all

The clause is usually described as an exception to article 15(1), and on the same reasoning that governs article 16(4) that description is misleading.

Article 15(1) forbids discrimination against a citizen on the ground of sex. A special provision in favour of women is not discrimination against anybody on that ground; it is a classification which the equal protection limb of article 14 already permits, because women and men are not similarly situated in the respects the provision addresses.

On that reading article 15(3) is declaratory rather than derogatory: it puts beyond argument something article 14 would have permitted anyway, and it does so because the drafters did not want the point litigated. In Indra Sawhney the same reasoning was applied to article 16(4), which the Court held to be "an instance and an illustration of the classification inherent in" article 16(1) rather than an exception to it.

Why it matters for an answer. If the clause is an exception, it is construed narrowly and the State must bring itself within it. If it is an instance of the equality principle, the question is the ordinary one: is the differentia real and does it connect to the object. The second is the better view and it is the one that explains the case law.

Four features of the clause

"Special provision" is wider than reservation. It covers reservation of seats or posts, but also protective legislation, financial assistance, separate institutions, relaxed conditions, and procedural advantages such as exemption from court fees.

"For women and children". The two are coupled, and the clause protects each independently: a provision for children alone is within it, as is a provision for women alone.

In one line

Every question about women at work is the same question in a different setting: is this rule protecting them or shutting them out.

In the wording a student can write in an exam: sex is a prohibited ground of discrimination in public employment under article 16(2) and in the general provision under article 15(1), and article 16(1) guarantees equality of opportunity in matters relating to employment or appointment to any office under the State. Article 15(3) enables the State to make special provision for women. Article 39(a) directs that citizens, men and women equally, have the right to an adequate means of livelihood, article 39(d) that there be equal pay for equal work for both men and women, article 39(e) that the health and strength of workers be not abused, and article 42 that the State make provision for securing just and humane conditions of work and for maternity relief. In Air India v. Nergesh Meerza the Supreme Court struck down a service regulation terminating the employment of an air hostess on first pregnancy as official arbitrariness violating article 14.

The four recurring questions

Almost every problem in this area is one of these, and identifying which is half the answer.

Conditions of entry. Age limits, physical standards, educational requirements and marital status conditions that apply differently to men and women.

Conditions of continuance. Retirement ages, and terms terminating employment on marriage or pregnancy.

Conditions of the work itself. Night work, underground work, hazardous processes, hours, and postings.

Pay and benefits. Equal remuneration, maternity benefit, creches, and the treatment of periods of absence.

The rule against terminating on pregnancy or marriage

Facts. Air India v. Nergesh Meerza, AIR 1981 SC 1829, (1981) 4 SCC 335, decided 28 August 1981. Air hostesses employed by Air India and Indian Airlines retired at thirty-five, or on marriage within four years of joining, or on first pregnancy, whichever occurred earlier, with the Managing Director holding an option to extend service; male cabin crew were not subject to comparable terms. The regulations were challenged under articles 14, 15 and 16.

Held. The impugned provisions were a clear case of official arbitrariness. The words "or on first pregnancy whichever occurs earlier" are unconstitutional, void and violative of article 14 and stand deleted. That part of the regulation giving the Managing Director an option to extend service was also struck down, because it permitted him to discriminate between one air hostess and another; the effect is that extensions must be granted as a matter of course for ten years where she is medically fit. The offending parts being severable, the whole regulation was not struck down.

Why it matters. It is the leading authority for the proposition that ending a woman's employment because she becomes pregnant is arbitrary and void. Pregnancy is not a disqualification and it is not a lapse in performance; a rule that treats it as either has no relevant reason behind it, and on E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, (1974) 4 SCC 3, decided 23 November 1973, an act without a relevant reason is arbitrary and therefore unequal.

In one line

The Supreme Court wrote a code of conduct because Parliament had not, said it would bind until Parliament did, and Parliament took sixteen years.

In the wording a student can write in an exam: sexual harassment at the workplace violates a woman's fundamental rights to equality under articles 14 and 15, to practise any profession or carry on any occupation, trade or business under article 19(1)(g), and to life with dignity under article 21. In Vishaka v. State of Rajasthan the Supreme Court held that in the absence of enacted law to provide for the effective enforcement of those rights, it would lay down guidelines and norms which would be binding and enforceable, treated as the law declared under article 141, until suitable legislation was enacted. The guidelines defined sexual harassment, imposed a duty on the employer to prevent it, and required a complaints committee headed by a woman with a majority of women members and a third-party member. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 was enacted sixteen years later.

The constitutional foundation

Set this out first, because the question is a constitutional one and the statute is the consequence.

Article 21. Life means life with dignity. Harassment at work is an assault on dignity, and the right is available against the State and, through the duty to protect it, informs what the State must require of private employers.

Article 19(1)(g). The right to practise any profession or to carry on any occupation, trade or business. A workplace in which a woman is harassed is one in which she cannot in practice exercise that right; the interference is not by prohibition but by making the exercise intolerable.

Articles 14 and 15. Harassment directed at women because they are women is discrimination on the ground of sex, and the resulting inequality in the conditions of work is a denial of the equal protection of the laws.

Why naming all four matters. A candidate who founds the claim on article 21 alone misses the point that made the case constitutionally interesting: the right affected was the right to work, and the wrong was that women were being driven out of employment.

Vishaka

The facts, which are worth stating because the case is often discussed as though it had none. A social worker employed on a State programme to prevent child marriage was, according to the complaint, gang-raped in reprisal for her work. The criminal proceedings failed. A group of organisations then petitioned the Supreme Court, not for a remedy in her case, but for directions to fill the legislative vacuum that left working women without protection.

The problem the Court faced. There was no statute. The Penal Code punished outraging the modesty of a woman, which was both narrower and differently aimed. There was no obligation on an employer to prevent harassment, no machinery for complaint, and no civil remedy.

In one line

The largest limitation on the constitutional scheme for women is that the law governing marriage, divorce, maintenance, guardianship and succession is religious law, and whether that law is even subject to Part III has never been decided.

In the wording a student can write in an exam: the equality guarantees in articles 14 and 15 bind the State, and article 13 makes void any law inconsistent with Part III. Article 13(3)(a) defines law to include custom or usage having the force of law. Whether personal law, meaning the religious law of a community as distinct from a custom, is law within article 13 has never been authoritatively settled, and the question is decisive, because if it is not, personal law is immune from the fundamental rights altogether. Article 25(1) guarantees freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health and to the other provisions of Part III, and article 25(2)(b) permits the State to make law providing for social welfare and reform.

The threshold question

State this before anything else, because everything depends on it.

If personal law is "law" under article 13, then a rule of personal law inconsistent with articles 14 or 15 is void, and the whole of the equality code applies to marriage, divorce, maintenance, guardianship and inheritance.

If it is not, then personal law stands outside Part III, and the only routes to reform are legislation under article 25(2)(b), or codification, or a uniform civil code under article 44.

The argument that it is not "law". Article 13(3)(a) lists Ordinance, order, bye-law, rule, regulation, notification, custom and usage. Personal law derives from scripture and is not made by the State, so it is not within the enumeration; and the framers, who provided separately in article 44 for a uniform civil code, cannot have intended article 13 to achieve the same thing at a stroke.

The argument that it is. Personal law is applied by the courts of the State and is given force by statutes such as the Muslim Personal Law (Shariat) Application Act 1937, so it operates as law and should be tested as law. And a reading that leaves the largest body of rules affecting women outside Part III defeats the equality guarantee in the field where it is most needed.

Where the law stands. Unresolved. An answer should say so. The Court has repeatedly decided cases in this area without deciding this question, either by construing the personal law itself, or by testing the statute that gives it effect, or by relying on article 25's own limits.

The routes that have been used instead

Because the threshold question is open, four other routes have done the work, and identifying which route a case took is the skill this topic tests.

In one line

The only reservation of political seats for women that actually operates in India is in the panchayats and the municipalities, and it has been working since 1993.

In the wording a student can write in an exam: article 243D, inserted by the Constitution (Seventy-third Amendment) Act, 1992, provides for the reservation of seats in every panchayat for the Scheduled Castes and the Scheduled Tribes in proportion to their population, and by clause (3) that not less than one-third of the total number of seats to be filled by direct election in every panchayat shall be reserved for women, such seats to be allotted by rotation to different constituencies; and by clause (4) that not less than one-third of the total number of offices of Chairpersons in the panchayats at each level shall be reserved for women. Article 243T makes identical provision for the municipalities. Clause (6) of each article empowers the legislature of a State to make any provision for reservation of seats or offices in favour of backward classes.

Why this is the important one

MU's question yokes two things together, "political reservation to women" and "grass root democracy", and the yoking is the point.

The reservation of legislative seats for women at the Union and State level was enacted only in 2023 and has not commenced, for reasons set out in [The 106th Amendment, and Why It Has Not Started]. The reservation in local government was enacted in 1992, came into force in 1993, and has operated continuously for more than thirty years.

So when the examiner asks whether political reservation for women is part of grass root democracy, the honest answer is that grass root democracy is the only place it exists. Everything that is known in India about how such a reservation actually works comes from the panchayats and the municipalities.

What the articles provide

One-third of directly elected seats. Article 243D(3) and article 243T(3): not less than one-third of the total number of seats to be filled by direct election shall be reserved for women. "Not less than" is a floor, not a ceiling, and many States have raised it to one-half by their own legislation, which the words permit.

Within the reserved categories too. The one-third for women operates within the seats reserved for the Scheduled Castes and Scheduled Tribes as well as within the general seats. So the reservation is horizontal: a woman of a Scheduled Caste occupies a Scheduled Caste seat reserved for a woman, and is not counted twice. Clause (2) of each article says so expressly, requiring not less than one-third of the seats reserved for the Scheduled Castes and Scheduled Tribes to be reserved for women of those groups.

In one line

The largest constitutional measure ever enacted for women reserves a third of the seats in the Lok Sabha and the State Assemblies, and none of it is in force, because the Constitution makes it wait for a delimitation that has not happened.

In the wording a student can write in an exam: the Constitution (One Hundred and Sixth Amendment) Act, 2023 inserted article 330A, reserving for women seats in the House of the People, article 332A, reserving for women seats in the Legislative Assembly of every State, a corresponding provision for the Legislative Assembly of the National Capital Territory of Delhi, and article 334A, which governs commencement. Article 334A(1) provides that notwithstanding anything in the foregoing provisions of Part XVI or Part VIII, the provisions relating to the reservation of seats for women shall come into effect after an exercise of delimitation is undertaken for this purpose after the relevant figures for the first census taken after the commencement of the Amendment Act have been published, and shall cease to have effect on the expiration of a period of fifteen years from such commencement.

What the amendment provides

Article 330A. Seats shall be reserved for women in the House of the People, including seats reserved for the Scheduled Castes and Scheduled Tribes, and as nearly as may be one-third of the total number of seats.

Article 332A. The same for the Legislative Assembly of every State: seats reserved for women, including within the seats reserved for the Scheduled Castes and Scheduled Tribes, and as nearly as may be one-third of the total.

The National Capital Territory of Delhi is dealt with by an amendment to article 239AA, so the reservation reaches its Assembly too.

The reservation is horizontal within the reserved seats. The words "including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes" mean that the one-third operates inside those categories, as it does in local government under [Women in Local Government]. There is no separate quota for women of the other backward classes, and that omission was the principal political objection to the Bill.

Article 334A, which is the whole difficulty

The commencement provision is short and it should be read rather than summarised. Its first clause provides:

Notwithstanding anything in the foregoing provision of this Part or Part VIII, the provisions of the Constitution relating to the reservation of seats for women in the House of the People, the Legislative Assembly of a State and the Legislative Assembly of the National Capital Territory of Delhi shall come into effect after an exercise of delimitation is undertaken for this purpose after the relevant figures for the first census taken after commencement of the Constitution (One Hundred and Sixth Amendment) Act, 2023 have been published and shall cease to have effect on the expiration of a period of fifteen years from such commencement.

In one line

The Constitution never mentions the press, and everything the press has comes from the ordinary citizen's right to speak.

In the wording a student can write in an exam: article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression, and article 19(2) permits the State to make any law imposing reasonable restrictions on the exercise of that right in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The expression "freedom of the press" is not used in article 19, but as the Supreme Court declared in Indian Express Newspapers (Bombay) Pvt Ltd v. Union of India it is included in article 19(1)(a), and freedom of the press means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers.

Why the omission matters

The Constituent Assembly considered a separate guarantee for the press and did not enact one. Dr Ambedkar's reason was that the press has no special right that a citizen does not have: an editor or a manager is exercising the same freedom of expression as anybody else, and to give the press a distinct right would be to create a privileged class of speaker.

Four consequences follow, and stating them is how an answer shows it understands the structure rather than reciting cases.

The press has no greater right than a citizen. A journalist may go where a citizen may go and publish what a citizen may publish. There is no constitutional privilege to enter, to obtain information, or to withhold a source, though statutes and practice supply some of these.

The press has no lesser right either. The State cannot regulate newspapers as a trade and then say that speech is unaffected, which is the argument Bennett Coleman rejected.

The right belongs to citizens. Article 19 is conferred on citizens, so a foreign national or a foreign company cannot claim it. That produced the standing problem in Bennett Coleman.

The grounds of restriction are the citizen's grounds. Article 19(2) applies unchanged, so nothing may be done to a newspaper that could not be done to a speaker.

What the freedom includes

Built up case by case, and the list is the answer to "what does freedom of the press mean".

The right to publish. To print and to disseminate ideas.

The right to circulate. This is the one students forget, and it is the most important.

Facts. Sakal Papers (P) Ltd v. Union of India, AIR 1962 SC 305, (1962) 3 SCR 842, decided 25 September 1961. The Newspaper (Price and Page) Act 1956 and an Order under it fixed the number of pages and the size a newspaper might publish in relation to its price, and regulated the space for advertisements. The stated object was to prevent unfair competition and to help smaller newspapers.

In one line

Speech may be restricted only on eight named grounds, only by a law, and only so far as the restriction is reasonable, which now means proportionate.

In the wording a student can write in an exam: article 19(2) provides that nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by that sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The clause as originally enacted contained neither sovereignty and integrity of India, nor public order, nor friendly relations with foreign States; the second and third were added by the Constitution (First Amendment) Act, 1951 and the first by the Constitution (Sixteenth Amendment) Act, 1963.

The three requirements

Every restriction must satisfy all three, and a problem answer should take them in order.

One, there must be a law. Article 19(2) speaks of the operation of any existing law or the making of any law. An executive order without statutory backing cannot restrict article 19(1)(a), however good its purpose. This is the requirement most often overlooked and most often decisive.

Two, the restriction must fall within one of the eight grounds. The list is exhaustive. As Indian Express Newspapers (Bombay) Pvt Ltd v. Union of India, AIR 1986 SC 515, (1985) 2 SCR 287, decided 6 December 1984, put it, there can be no restriction other than those mentioned in article 19(2), and no interference in the name of public interest: even when clause (2) was substituted by the First Amendment, Parliament did not add the general interest of the public. Sakal Papers held the same, striking down a law whose object was to help smaller newspapers because that object appears nowhere in clause (2).

Three, the restriction must be reasonable. Not merely rationally connected but reasonable in extent, and the court decides, not the legislature.

The eight grounds

Sovereignty and integrity of India. Added by the Sixteenth Amendment 1963, following the recommendation of a committee on national integration, to reach advocacy of secession.

Security of the State. Narrower than public order. It refers to serious and aggravated forms of disturbance: rebellion, waging war, insurrection. Ordinary breaches of the peace are not within it, and the distinction was drawn very early.

Friendly relations with foreign States. Added by the First Amendment 1951.

Public order. Added by the First Amendment 1951, after decisions had held that the original clause did not cover it. It is the ground with the widest practical reach and it is defined by contrast: law and order is the widest circle, public order a smaller circle within it, and security of the State the smallest at the centre. An act may disturb law and order without disturbing public order; what matters is whether it affects the community at large or merely individuals.

In one line

Stopping something from being published is worse than punishing it afterwards, and Indian law treats prior restraint with a suspicion it does not extend to subsequent liability.

In the wording a student can write in an exam: a prior restraint is a restriction imposed before publication, whether by requiring official permission, by prohibiting publication of a class of matter, or by suppressing a particular item. It is distinguished from subsequent punishment, which leaves the speaker free to publish and answerable afterwards under the law of defamation, contempt, obscenity or sedition. Prior restraint is not per se unconstitutional in India, unlike the position under the First Amendment to the United States Constitution, but it must satisfy article 19(2) like any other restriction, and because it operates before anything has happened it is harder to justify: the apprehended harm is necessarily hypothetical, and the restriction suppresses matter that may turn out to be entirely lawful.

Why prior restraint is worse

Four reasons, and they should be given before any case.

It suppresses the lawful with the unlawful. A subsequent prosecution operates on a publication that exists and can be examined. A prior restraint operates on a prediction, and necessarily catches material that would have been perfectly lawful.

It reverses the burden. After publication the State must prove the offence. Before it, the publisher must persuade an official to permit him to speak.

It has no public record. Speech that is punished has at least been heard, and the punishment can be criticised. Speech that is prevented leaves nothing behind, so the restraint escapes the scrutiny that publication would have attracted.

It is administered by officials, not courts. A licensing or permission regime puts the decision in the hands of the executive, and the decision is usually unreviewable in practice because the applicant has nothing to show.

The Indian position

Unlike the American doctrine, which treats prior restraint as presumptively invalid and almost never permits it, Indian law has no separate rule. A prior restraint is a restriction, and it must satisfy the three requirements in [The Grounds of Reasonable Restriction]: a law, one of the eight grounds, and reasonableness meaning proportionality.

What follows in practice is that prior restraints are permitted in defined and narrow fields, and struck down where they operate as general licensing.

Permitted, in substance: pre-censorship of films, on the footing that the medium is uniquely powerful and reaches an undifferentiated audience, exercised under a statute with a right of appeal; restrictions on publication of court proceedings in defined circumstances; and temporary prohibitions under public order powers where the conditions are strictly satisfied.

Struck down: requirements of official permission before publishing a newspaper; controls on pages, price and circulation; and general powers to prohibit publication with no principle stated.

In one line

A House of the legislature can punish for contempt, a newspaper can report what the House does, and article 361A was inserted because the two collided.

In the wording a student can write in an exam: article 105 confers on Parliament, its members and committees freedom of speech in Parliament, immunity from proceedings in any court in respect of anything said or any vote given, immunity in respect of publication by or under the authority of a House of any report, paper, votes or proceedings, and such other powers, privileges and immunities as Parliament may by law define. Article 194 makes identical provision for the State legislatures. Article 361A, inserted by the Constitution (Forty-fourth Amendment) Act, 1978, provides that no person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or of a State legislature, unless the publication is proved to have been made with malice, and that the protection does not apply to a report of proceedings of a sitting held in secret.

The two things a House holds

Keep them apart, because they behave differently.

Freedom of speech in the House, under articles 105(1) and (2) and 194(1) and (2). A member is not liable in any court for anything said or any vote given in the House or a committee. This is an immunity of the member, and it is absolute within its field.

The powers, privileges and immunities of the House, under articles 105(3) and 194(3). These include the power to regulate its own proceedings, to exclude strangers, to control publication of its debates, and to punish for contempt or breach of privilege, including by admonition, reprimand or committal. The clause provides that these shall be such as Parliament or the State legislature may by law define, and until so defined, those which the House had at the commencement of the Constitution.

The consequence of the second half of that clause. No such law has been enacted. So the privileges continue to be those the House had in 1950, which are the privileges of the House of Commons as they then stood, incorporated by reference. That is an unusual state of affairs: a power to punish, held by a body that is not a court, whose content is fixed by reference to the practice of a foreign legislature at a date now three quarters of a century past.

Where the press comes in

Three collisions, and each has a different answer.

Reporting what was said. A member's speech may be defamatory of a person outside the House. The member is immune under article 105(2). Is the newspaper that reports the speech equally immune?

In one line

The Constitution says nothing about a right to information, and the courts read one into the right to speak, on the ground that you cannot form or express an opinion about what you are not allowed to know.

In the wording a student can write in an exam: the Constitution contains no express right to information. The right has been read into article 19(1)(a) on the reasoning that the freedom of speech and expression includes the right to receive and to impart information, since expression without information is empty and the citizen of a democracy must be able to know what is done in his name. In Indian Express Newspapers (Bombay) Pvt Ltd v. Union of India the Supreme Court held that freedom of the press means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers, and that there can be no restriction other than those in article 19(2). The right was given statutory form by the Right to Information Act 2005, and any restriction on it must satisfy article 19(2) like any other restriction on speech.

How the right was derived

Three steps, and each is a proposition the courts have stated.

Step one: the right to speak includes the right to know. A guarantee of expression which left the State free to withhold the facts would protect the form of speech and not its substance. So article 19(1)(a) carries a correlative right to receive information.

Step two: the citizen is entitled to know what government does. In a republic the government holds power on behalf of the people, and information about how that power is used is not the government's property. Secrecy is the exception and must be justified.

Step three: the same limits apply. Because the right is located in article 19(1)(a), a restriction on it must satisfy article 19(2). On Indian Express Newspapers (Bombay) Pvt Ltd v. Union of India, AIR 1986 SC 515, (1985) 2 SCR 287, decided 6 December 1984, there can be no restriction other than those in article 19(2) and no interference in the name of public interest. That is a stronger discipline than a statutory exemption clause, and it is the reason the constitutional derivation still matters after the Act.

The related use of the right. The same reasoning produced the voter's right to know the antecedents of a candidate, which is dealt with in [The Voter's Right to Know], and it is worth cross-referring because it shows the derivation doing work outside the press context.

The Act of 2005

The scheme. Every public authority must maintain its records, publish specified categories of information suo motu under section 4, and appoint Public Information Officers. Any citizen may request information, with no obligation to give reasons for the request. The officer must respond within thirty days, or forty-eight hours where the request concerns the life or liberty of a person. There is a first appeal within the authority and a second appeal to the Information Commission.

In one line

The medium is new and the article is not: speech on the internet has exactly the protection of speech anywhere else, and the difficulty is that the internet gives the State three levers it never had over a printing press.

In the wording a student can write in an exam: the freedom of speech and expression under article 19(1)(a) is not confined to any medium. In Anuradha Bhasin v. Union of India the Supreme Court declared that the freedom of speech and expression and the freedom to practise any profession or carry on any trade, business or occupation over the medium of the internet enjoy constitutional protection under articles 19(1)(a) and 19(1)(g), and that restrictions upon such rights must be in consonance with the mandate under article 19(2) and (6), inclusive of the test of proportionality. Restrictions on online speech operate in three ways not available against print: by penalising the speaker, by imposing liability on the intermediary who carries the speech, and by suspending the medium itself.

Lever one: penalising the speaker

Section 66A of the Information Technology Act 2000 made it an offence, punishable with imprisonment, to send by means of a computer resource or communication device any information that is grossly offensive or has menacing character, or any information the sender knows to be false but sends for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.

Shreya Singhal v. Union of India struck it down in its entirety as violating article 19(1)(a) and not saved by article 19(2). The reasoning, as it is generally reported, rested on three grounds worth stating separately.

Vagueness. Expressions such as grossly offensive, menacing, annoyance and inconvenience have no ascertainable meaning, so a citizen cannot know what is forbidden, and an officer decides case by case. A criminal provision that cannot be understood in advance offends the requirement that a restriction be reasonable.

Overbreadth. The section reached a vast amount of protected speech in order to catch a small amount of unprotected speech, and a restriction whose sweep exceeds its object is disproportionate.

The advocacy and incitement distinction. Discussion and advocacy of an idea, however unpopular, are protected; only incitement may be punished, and section 66A did not distinguish among the three at all.

The Court also read down the intermediary provisions and struck down a provision permitting State authorities to block, while upholding the central blocking power with its procedural safeguards.

The report of Shreya Singhal could not be opened from the sources this book is built from. It is named without a citation and the account above is the standard one; confirm it against the report before relying on it in writing.

In one line

Nine judges held unanimously that privacy is a fundamental right, and the interesting part is that they located it in the whole of Part III rather than in article 21 alone.

In the wording a student can write in an exam: the Constitution contains no express right to privacy, and in M P Sharma, decided by eight judges, and in Kharak Singh, decided by six, it had been held that no such right is protected. In Justice K.S. Puttaswamy (Retd) v. Union of India a Bench of nine judges unanimously overruled M P Sharma, overruled Kharak Singh to the extent it held that the right to privacy is not protected, and declared that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Restrictions on the right must satisfy the requirements of legality, a legitimate State aim and proportionality.

The decision

Facts. Justice K.S. Puttaswamy (Retd) v. Union of India, decided 24 August 2017 by nine judges. A reference arising out of challenges to the Aadhaar scheme, in which the Union contended that there is no fundamental right to privacy at all, relying on two older and larger Benches.

Held. Unanimously, in four terms:

(i) M P Sharma, which holds that the right to privacy is not protected by the Constitution, stands overruled.

(ii) Kharak Singh, to the extent that it holds that the right to privacy is not protected by the Constitution, stands overruled.

(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

(iv) Decisions subsequent to Kharak Singh which enunciated that position lay down the correct law.

Six separate judgments were delivered; the judgment for the Chief Justice, Agrawal and Nazeer JJ. and himself was delivered by Chandrachud J.

Why the wording of (iii) matters more than students notice. Privacy is not confined to article 21. It is protected as a part of the freedoms guaranteed by Part III, which means it inheres in article 19 as well. That is what allows privacy reasoning to be used about speech, association and movement, and it is why this case belongs in a chapter on the press rather than only in a chapter on life and liberty.

The tests for a restriction

Because privacy is a Part III right, it may be restricted, and the standard formulation has three requirements, with a fourth commonly added.

Legality. There must be a law. Executive action without statutory backing cannot invade privacy, which is the same first requirement as under article 19(2) and the one most often decisive.

In one line

There is no offence called hate speech in India, the Constitution does not use the phrase, and every attempt to define it runs into the line between an idea that offends and a statement that incites.

In the wording a student can write in an exam: the Constitution does not use the expression hate speech, and no statute defines it. What exists is a set of offences directed at particular consequences: promoting enmity between groups on grounds of religion, race, place of birth, residence or language and doing acts prejudicial to the maintenance of harmony; deliberate and malicious acts intended to outrage religious feelings; imputations prejudicial to national integration; and statements conducing to public mischief. Any such restriction must be justified under article 19(2), and the grounds available are public order, decency or morality, incitement to an offence, and the sovereignty and integrity of India. The controlling distinction is between the advocacy of an idea, which is protected however unpopular, and incitement to an offence, which is not.

Why "hate speech" is not a legal category here

Three points, and they should open any answer, because the question is usually framed using a term the law does not employ.

The Constitution restricts by ground, not by category. Article 19(2) permits restriction in the interests of public order, decency or morality, sovereignty and integrity, and in relation to incitement to an offence. A restriction is justified by showing it falls within a ground, not by labelling the speech.

"Hate" is not a ground. Speech that expresses hatred is not for that reason restrictable. What matters is its effect: does it tend to disturb public order, or does it incite an offence.

"Offensive" is certainly not a ground. This is the proposition that decides most examination problems. There is no right not to be offended, and a restriction resting on offence alone finds no home in article 19(2). It was precisely the vagueness of "grossly offensive" and "annoyance" that brought down section 66A of the Information Technology Act, dealt with in [Speech Online].

The line: advocacy, discussion, incitement

The three-way distinction is the most useful tool in this topic.

Discussion of an idea, including an idea most people find repellent, is protected.

Advocacy of an idea, urging others to accept it, is protected.

Incitement to an offence is not, and it is the eighth ground in article 19(2).

What separates incitement from advocacy is proximity, and two elements are usually required: the speech must call for or be directed at unlawful action, and the connection between the speech and the apprehended harm must be direct and immediate, not remote or conjectural. The image customarily used is that of a spark in a powder keg: the question is whether the material is such that the words will set it off now.

In one line

Every new medium has been said to require a new doctrine, and what has actually happened is that the same doctrine has been applied while the assumptions underneath it quietly stopped holding.

In the wording a student can write in an exam: article 19(1)(a) is not confined to any medium, and the grounds of restriction in article 19(2) do not vary with the technology used. The freedom has accordingly been held to extend to print, to film, to broadcasting and, in Anuradha Bhasin v. Union of India, to speech and to trade over the medium of the internet, subject in each case to article 19(2) and to the test of proportionality. What changes with each new technology is not the doctrine but the factual assumptions the doctrine was built on: about who publishes, at what cost, to what audience, with what permanence, and through whose hands the speech passes.

The four assumptions that technology has removed

This is the organising idea of the chapter, and an answer built on it will be better than one that lists gadgets.

Assumption one: publishing is expensive, so publishers are few. The whole architecture of press law assumes an identifiable publisher with a printing press, an editor and an address. Regulation was addressed to that person. When everyone can publish at no cost, a rule proportionate as applied to a newspaper may be grossly disproportionate applied to millions of individuals, and the practical enforcement of any speech restriction becomes selective, which raises its own article 14 problem.

Assumption two: speech is local and perishable. A defamatory statement in a newspaper reached one city and was forgotten. Online it reaches everywhere, stays indefinitely, and resurfaces. The proximity test for incitement, described in [Hate Speech, Fake News and Broadcasting], assumes a speaker addressing a crowd; it fits badly where the audience assembles months later.

Assumption three: the speaker controls the speech. In print the publisher decided what appeared. Online the speech passes through an intermediary whose incentives differ from the speaker's, which gives the State a lever against the carrier rather than the speaker, as [Speech Online] explains.

Assumption four: to reach an audience you must persuade a publisher. Now an algorithm decides what is seen. Nothing is censored and much is invisible, which no doctrine framed around prohibition addresses at all.

What has stayed the same, and should be said first

Before describing what is new, an answer should establish that the doctrine has held, because that is the legally correct position and it earns credit.

The medium does not change the right. Anuradha Bhasin v. Union of India, decided 10 January 2020, declared that the freedom of speech and expression and the freedom to practise any profession or carry on any trade, business or occupation over the medium of the internet enjoy constitutional protection under articles 19(1)(a) and 19(1)(g), and that restrictions must be in consonance with article 19(2) and (6), inclusive of the test of proportionality. It also directed that suspension orders be published, that indefinite suspension is impermissible, that suspension must be temporary and not beyond the necessary duration and is subject to judicial review, with review by the Review Committee within seven working days, and that under section 144 the danger must be in the nature of an emergency, the power may not be used to suppress legitimate expression of opinion or grievance, the order must state material facts, the Magistrate must apply the least intrusive measure, and repetitive orders are an abuse of power.

In one line

For the Constitution's first twenty-eight years the guarantees of freedom, life and arrest were read as separate boxes, so a law that fitted into one box escaped the tests in the others; in 1978 the Court said they overlap, and almost every right in this module was built on that change.

In the wording a student can write in an exam: in A.K. Gopalan v. State of Madras the Supreme Court held that articles 19, 21 and 22 were mutually exclusive, that a law of preventive detention was to be tested against article 22 alone, that "law" in article 21 meant State-made law and not natural justice, and that "procedure established by law" was not to be read as the American "due process of law". In Maneka Gandhi v. Union of India a seven-judge Bench held the opposite on every branch: article 21 does not exclude article 19, a law depriving a person of personal liberty must also satisfy articles 19 and 14, and the procedure such a law prescribes must be "fair, just and reasonable, not fanciful, oppressive or arbitrary". The three articles are now read together as the golden triangle.

Why the law has this at all

Article 21 is eighteen words long and, read flatly, promises very little. It does not say a person may not be deprived of life or liberty. It says he may not be deprived of them except according to procedure established by law. On its face, then, the article is satisfied the moment there is a law and the law is followed. A legislature that wanted to detain people could simply pass a statute saying so, and the guarantee would have been kept.

That is not a hypothetical worry, and it is not a drafting accident. The Constituent Assembly considered the American phrase "due process of law", which allows a court to strike down a law whose content is unfair, and deliberately did not use it. What replaced it, "procedure established by law", was borrowed from the Japanese Constitution and was understood at the time to be the narrower promise.

So the question that runs through this whole module is: how did a guarantee drafted to be narrow become the source of the rights to livelihood, shelter, health, education, privacy and dignity? The answer begins with the two cases in this chapter, and the honest version of it includes the criticism that the Court got there by reading into the article something its makers took out.

The provision

Article 21 is headed Protection of life and personal liberty, and its whole text is one sentence: "No person shall be deprived of his life or personal liberty except according to procedure established by law."

In one line

The Constitution says a person may be deprived of life or liberty by "procedure established by law", which on its face means any procedure a legislature writes down; the Court has since held that the procedure must also be fair, so the phrase now does most of the work the rejected American phrase would have done.

In the wording a student can write in an exam: the makers of the Constitution deliberately declined to adopt the American formula "due process of law" and adopted instead "procedure established by law", which was understood to confine the court to asking whether a law existed and was followed, not whether it was just. A.K. Gopalan gave the phrase that narrow reading, holding that "law" meant State-made law and not the principles of natural justice. Maneka Gandhi held that the mere prescription of some kind of procedure cannot meet the mandate of article 21, and that the procedure must be "fair, just and reasonable, not fanciful, oppressive or arbitrary". The result is that Indian law now applies a standard of substantive fairness without having adopted the words that authorise it.

Why this phrase is the whole argument

Two constitutional traditions answer differently the question of how far a judge may go in reviewing a law that takes away liberty.

The procedural answer. The judge asks only: is there a law, was it made by a competent legislature, and was its procedure followed? If yes, the deprivation is lawful however harsh the law. The legislature is trusted, and the judge stays out of the merits.

The substantive answer. The judge asks in addition: is the law itself fair? A law can be validly enacted, correctly followed, and still be struck down because what it does to a person is unjust. That is what "due process of law" in the American Fifth and Fourteenth Amendments has come to mean.

The choice between them is a choice about who has the last word. India's text chose the first. India's case law arrived at something close to the second. Everything difficult about this topic sits in that gap, and a good answer explains the gap rather than pretending it does not exist.

What the makers refused

The drafting history is not decoration here; it is the reason the narrow reading was available at all.

The draft article carried the words "without due process of law". They were removed. The phrase substituted, "except according to procedure established by law", follows the Japanese Constitution of 1946. The change was made on advice that "due process" would give the judiciary an open-ended power to review the wisdom of legislation, which the framers of a new republic with a large legislative programme did not want.

In one line

"Life" in article 21 does not mean only being alive; it means living with dignity, and once the Court said so it acquired a method for adding a new right to the Constitution without an amendment.

In the wording a student can write in an exam: the right to life in article 21 is not confined to mere animal existence. In Francis Coralie Mullin the Court held that it "includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter", and that "every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live". The content of the right varies with the economic development of the country but must in any view include the basic necessities of life and the bare minimum expression of the human self. This is the reasoning from which the rights to livelihood, shelter, health, a clean environment, education and privacy were each derived.

Why the law has this at all

Read narrowly, article 21 protects a person from being killed or imprisoned without legal authority. That is a real protection and it is not nothing. But it leaves untouched almost everything that makes a life: whether a person can eat, be treated when ill, be schooled, be free from surveillance, or be spared degrading treatment in custody.

For a Constitution that opens by promising to secure to all its citizens justice, liberty, equality and the dignity of the individual, that is a strange result. The word "life" was doing far less work than the Preamble suggested.

There were two ways to fix it. Amend the Constitution to add the missing rights, which requires Parliament and a special majority. Or read the word "life" as meaning what the Preamble implies, which requires only a court. India took the second route, and this chapter is about the method, its power and its cost.

Where the expansion began, and it began by losing

Facts. Kharak Singh v. State of U.P., 1963 AIR 1295, 1964 SCR (1) 332, decided 18 December 1962. Kharak Singh was challaned in a dacoity case and released for want of evidence. The police opened a history sheet on him and put him under "surveillance" as defined by Regulation 236 of the U.P. Police Regulations. Surveillance meant five things: secret picketing of his house, domiciliary visits at night, periodical enquiries by officers into his repute, habits, associations, income, expenses and occupation, the reporting by constables and chaukidars of his movements and absences, and the collection of all this on a history sheet. He petitioned under article 32.

In one line

Take away the only thing a poor person lives on and you have not merely made him poorer: you have taken his life, and that cannot be done to him except by a fair procedure.

In the wording a student can write in an exam: the right to life in article 21 includes the right to livelihood, because "no person can live without the means of living, that is, the means of livelihood", and the right to shelter, because a reasonable residence "should be taken as included in 'life' in Article 21". Neither obliges the State to hand anyone a job or a house. Each converts the taking away of an existing livelihood or shelter into a deprivation of life, to be done only by a procedure that is just, fair and reasonable. Articles 39(a) and 41 supply the content of the right without themselves becoming enforceable.

Why the law has this at all

Read literally, article 21 protects a person against being killed or locked up. That is a real protection, but not the one the poorest need. Nobody proposes to execute a pavement dweller. What happens to him is that his hut is pulled down and the job he walked to every morning is now four hundred kilometres away. He has not been killed. He has lost everything that made living possible.

The Constitution had promised him better, but in the wrong Part. Articles 39(a) and 41 are directive principles, and article 37 says of the whole of Part IV that its provisions "shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country". The promise sat in the unenforceable Part and the remedy in the enforceable one, and until 1985 nothing joined them. What joined them is the method in [The Expansion of "Life"]: read "life" in the light of the directive principles, and Part IV enters Part III without becoming enforceable.

The provisions

Article 21, headed Protection of life and personal liberty, is one sentence: "No person shall be deprived of his life or personal liberty except according to procedure established by law."

Article 41, headed Right to work, to education and to public assistance in certain cases, reads: "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 cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want."

Article 39(a) directs the State to secure "that the citizens, men and women equally, have the right to an adequate means of livelihood".

Broken down

Article 41 has its own brake, and it is a duty to make provision rather than to provide. The duty arises only "within the limits of its economic capacity and development", and to "make effective provision" is a direction about schemes and budgets, not a promise of employment to a named person. That is why article 41 cannot be turned into a right to be given a job.

In one line

The Constitution puts health and the environment among the directive principles, which are expressly unenforceable in a court; the Court has nonetheless made both enforceable, by reading them into the right to life in article 21 and using the directive principles to say what "life" means.

In the wording a student can write in an exam: articles 47 and 48A place duties on the State in respect of public health and of the environment, and article 37 makes the directive principles not enforceable by any court. The Supreme Court has held that the right to life in article 21 includes the right to emergency medical treatment (Parmanand Katara), the right to health and medical care of a worker in service and after retirement (Consumer Education and Research Centre), and the right to the enjoyment of pollution-free water and air (Subhash Kumar), and has read the precautionary principle and the polluter pays principle into domestic law as part of sustainable development (Vellore Citizens Welfare Forum). The technique in each is the same: the directive principle supplies the content, and article 21 supplies the enforceability.

Why the law has this at all

Part IV of the Constitution states goals the State is to pursue: nutrition, public health, a living wage, the environment. Article 37 then says in terms that these provisions "shall not be enforceable by any court". They were drafted that way on purpose. A new republic could not promise a court-enforceable right to health when it had neither the hospitals nor the revenue, and the framers preferred an honest aspiration to a hollow guarantee.

That left an obvious gap. A person poisoned by an employer's asbestos, or refused treatment at a hospital gate, or drinking water fouled by a factory, had a real injury and no constitutional remedy: article 47 was unenforceable and article 21 protected only "life", which on the older reading meant not being killed or imprisoned unlawfully.

The gap was closed from the other side. If "life" in article 21 means more than animal existence, as [The Expansion of "Life"] explains, then the question of what it does include has to be answered from somewhere. The Court answered it from Part IV. The directive principles stopped being merely unenforceable goals and became the dictionary for the enforceable right.

The two provisions the Court reads with article 21

Article 47 is headed Duty of the State to raise the level of nutrition and the standard of living and to improve public health, and provides that "The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties", and in particular shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs injurious to health.

In one line

The Constitution asked the State to try to educate every child and gave no child a way of insisting on it; the Court found the right inside article 21 instead, and then had to decide how much of it there was.

In the wording a student can write in an exam: education appeared in the Constitution of 1950 only in Part IV, in articles 41 and 45, and article 37 makes Part IV unenforceable. In Miss Mohini Jain v. State of Karnataka the Court held that "The right to education flows directly from right to life", that every citizen has a right to education at all levels, and that a capitation fee is a denial of it. In Unni Krishnan, J.P. v. State of Andhra Pradesh a Constitution Bench of five agreed on the source but refused that width: the right is read in the light of articles 45 and 41, so that "every child/citizen of this country has a right to free education until he completes the age of 14 years", and after fourteen it "is subject to the limits of economic capacity and development of the State". The Eighty-sixth Amendment later put that holding into the text as article 21A.

Why the law has this at all

The Constitution of 1950 contained no fundamental right to education. It contained a promise, in the Part that cannot be enforced. Article 45 as originally enacted gave the State ten years to provide free and compulsory education for every child up to fourteen. That decade expired in 1960 with the promise unkept, and a child had no court to go to, because article 37 says the provisions of Part IV "shall not be enforceable by any court".

That is the problem this chapter is about. Not whether education matters, which nobody disputed, but where in the Constitution a child could find something a judge could enforce. The answer is the manoeuvre used for livelihood and shelter in [Livelihood and Shelter]: leave Part IV unenforceable, and read its content into the word "life" in article 21, which is enforceable. What makes education the hardest case for that method is scale. A right to be left alone costs the State nothing. A right to be taught costs it a school and a teacher for every child in the country, and Unni Krishnan is the Court discovering the limits of a right it had just created.

The provisions

Article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law."

Article 41 directs 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 cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want."

In one line

Since 2010 a child between six and fourteen has a fundamental right to be schooled for nothing, and Parliament has decided that private schools help pay for it by giving away a quarter of their first class.

In the wording a student can write in an exam: article 21A, inserted by the Constitution (Eighty-sixth Amendment) Act 2002, provides that "The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine." The obligation it creates is on the State, not on a school; but the words "in such manner as the State may, by law, determine" confer a new power, and the law made under that power is the Right of Children to Free and Compulsory Education Act 2009, whose section 12(1)(c) requires every recognised school, including an unaided school, to admit in Class I at least twenty-five per cent of the strength of that class from the weaker sections and disadvantaged groups of the neighbourhood. That obligation binds unaided non-minority schools, and does not bind minority schools, aided or unaided.

Why the law has this at all

The Constitution promised universal elementary education in 1950, and it promised it in the wrong Part. Article 45, as originally enacted, was a directive principle: within ten years the State was to endeavour to provide free and compulsory education for all children until they completed fourteen years. Article 37 makes the whole of Part IV unenforceable, so nothing followed from the failure to do it.

The Court closed part of the gap by reading education into article 21, which is [Education Before Article 21A]. What it read in was limited, and the limit is the reason for the amendment. The Statement of Objects and Reasons of the Bill that became the Eighty-sixth Amendment, reproduced in the Pramati judgment, is candid about why. Of the goal in article 45 it says: "We could not achieve this goal even after 50 years of adoption of this provision." Therefore "an explicit provision should be made in the Part relating to Fundamental Rights".

Note the dates, because students get them wrong. The amendment is of 2002, and its own footnote in the Constitution records that it took effect from 1 April 2010, the day the Act of 2009 came into force. For eight years the article bound nobody.

The provisions

Article 21A, headed Right to education, is one sentence: "The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."

The same amendment rewrote article 45, which now reads: "The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years." The directive principle was not repealed. It was moved down to the years the new fundamental right does not reach.

In one line

The Constitution never mentions privacy, and for sixty-seven years the State was able to say so; in 2017 nine judges held unanimously that privacy is protected anyway, as part of the right to life and of the freedoms in Part III, and laid down three tests any law invading it must pass.

In the wording a student can write in an exam: in Justice K.S. Puttaswamy (Retd) v. Union of India a Bench of nine judges held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and as a part of the freedoms guaranteed by Part III of the Constitution, overruling M.P. Sharma and overruling Kharak Singh to the extent that it held privacy is not so protected. A law invading privacy must satisfy a three-fold requirement: legality, that is, the existence of a law; need, in terms of a legitimate State aim; and proportionality, that the means adopted are proportional to the object sought to be achieved.

Why the case had to be decided by nine judges

The reason is procedural, and it is worth stating because MU's examiners like it.

Two old decisions stood in the way. M.P. Sharma was decided by eight judges in 1954 and Kharak Singh by six in 1962, and both contained observations that the Constitution contains no right to privacy. Later benches, of two and three judges, had repeatedly held that privacy was protected. That is an untidy state of the law: smaller benches cannot overrule larger ones, so the later cases were of doubtful authority however numerous.

When the Aadhaar scheme was challenged, the Union took the point squarely: there is no fundamental right to privacy, and M.P. Sharma and Kharak Singh say so. The only way to settle it was a Bench larger than eight. Hence nine.

That is why the answer to "how many judges decided Puttaswamy" is not trivia. The number was determined by the size of the benches that had to be overruled.

What the two old cases actually decided

Neither was a privacy case in the modern sense, and saying so is what separates a good answer from a recital.

Facts. M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, District Magistrate, Delhi, 1954 AIR 300, 1954 SCR 1077, decided 15 March 1954. Search warrants were issued under section 96(1) of the Code of Criminal Procedure 1898 and documents were searched for and seized. The challenge was that this offended article 19(1)(f), the then right to property, and article 20(3), the protection against self-incrimination.

Held. The provision for a search warrant does not offend article 19(1)(f). A search and seizure is only a temporary interference with the right to hold the property searched and the articles seized; statutory recognition of it is a necessary and reasonable restriction. It was in the course of this reasoning, and not as the point decided, that the Court observed that the Constitution contains no provision analogous to the American Fourth Amendment and so no right to privacy.

In one line

Article 21 protects life, and the question this chapter answers is whether a right to life can include a right to decide how it is lived and how it ends; the answer is that it protects choices about how you live, and dignity at the end of life, but not a right to shorten life itself.

In the wording a student can write in an exam: in Gian Kaur v. State of Punjab a Constitution Bench held that "'Right to life' is a natural right embodied in article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of 'right to life'", and that "the 'right to die', if any, is inherently inconsistent with the 'right to life' as is 'death' with 'life'". But it also held that the right to live with human dignity "would mean the existence of such a right upto the end of natural life", including "the right to a dignified life upto the point of death including a dignified procedure of death". In Common Cause a Constitution Bench built on that to recognise passive euthanasia and the advance directive. In Navtej Singh Johar the Court held section 377 of the Penal Code unconstitutional so far as it criminalises consensual sexual conduct between adults of the same sex.

Why the law has this at all

Once "life" means life with dignity, as [The Expansion of "Life"] establishes, a second question follows immediately and the Constitution does not answer it. If the right is to a dignified life, who decides what is dignified?

Two answers are possible. The State decides, applying a public standard of what a good life is. Or the individual decides, and the right becomes a right of self-determination. Article 21 is silent, and almost every hard question in this chapter is a version of that choice: whether a person may end his own life, whether a dying person may refuse treatment, whom he may love.

The Court's position, worked out over twenty-two years, is that the individual decides how to live, and that the State may not criminalise that choice merely because a majority disapproves of it; but that the right does not extend to extinguishing life itself, because a right cannot include its own destruction.

The right to life does not include a right to die

Facts. Smt. Gian Kaur v. State of Punjab, 1996 AIR 946, (1996) 2 SCC 648, decided 21 March 1996 by a Constitution Bench. The appellants were convicted under section 306 of the Indian Penal Code for abetting a suicide. They argued that since P. Rathinam had held section 309, which punished attempted suicide, unconstitutional on the footing that article 21 includes a "right to die", a person who assists a suicide is merely assisting the enforcement of a fundamental right, so section 306 must also be void.

In one line

Article 20 gives anyone facing criminal punishment three protections: no punishment under a law made after he acted, no prosecution and punishment twice for the same offence, and no compulsion to supply the evidence that convicts him.

In the wording a student can write in an exam: article 20 contains three guarantees. Clause (1) forbids ex post facto criminal law, a law that reaches backwards in time: no conviction except for violation of a law in force when the person acted, and no penalty greater than the one then available. Clause (2) enacts the rule against double jeopardy, being put in peril twice for the same wrong; it is narrower than the common law plea, because it requires a prosecution and a punishment before a court of law or a judicial tribunal, as Maqbool Hussain v. State of Bombay held. Clause (3) forbids compelled self-incrimination; it protects a person formally accused, it operates from the police station and not merely the courtroom, and "compelled testimony" includes testimony obtained by psychological pressure, as Nandini Satpathy v. P.L. Dani held and Selvi v. State of Karnataka applied to narcoanalysis, polygraph and brain mapping. The right to move a court to enforce article 20 cannot be suspended even during an Emergency.

Why the law has this at all

The three clauses look unconnected. One idea holds them together: the State prosecuting a person has overwhelming advantages, and three of them it must not be allowed to take.

The first is hindsight: a government embarrassed by conduct it did not think to forbid can forbid it now and punish what has already happened, destroying the promise that a person can know in advance what is forbidden. The second is repetition: a State that loses, or dislikes its sentence, can prosecute again until the result suits it. The third is the accused himself, who knows most about the offence; the cheapest way to prove a case is to make him prove it, and every system that permits that ends in torture.

Article 20 removes all three, absolutely: no exceptions and no "reasonable restrictions" proviso.

The provision

Article 20 is headed Protection in respect of conviction for offences.

Clause (1): "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."

Clause (2): "No person shall be prosecuted and punished for the same offence more than once."

Clause (3): "No person accused of any offence shall be compelled to be a witness against himself."

In one line

The State may lock a person up for what it fears he will do, without a charge or a trial, and article 22 both permits that and limits it.

In the wording a student can write in an exam: article 22 contains two distinct sets of guarantees addressed to two different situations, and clause (3) is the switch between them. Clauses (1) and (2) give a person arrested in the ordinary way the grounds of his arrest, a legal practitioner of his choice, and a magistrate within twenty-four hours. Clause (3) then provides that nothing in clauses (1) and (2) applies to an enemy alien or to a person detained under a law providing for preventive detention. Clauses (4) to (7) are all such a person has: a ceiling of three months unless an Advisory Board reports sufficient cause, and the grounds of detention with the earliest opportunity of representing against the order.

Why the Constitution has this at all

Two kinds of detention have to be separated first, and the difference is not one of degree. Punitive detention is imprisonment for something already done: a charge, a trial, a burden of proof on the prosecution and a sentence at the end, which is the process [Article 20: The Protections of an Accused] deals with. Preventive detention is confinement to stop something that has not yet happened. There is no charge and no trial, because there is as yet nothing to try. The detaining authority acts on its own satisfaction that the person is likely to act in a manner prejudicial to some stated interest, so the order is a precaution against the future, not a punishment for the past.

Most constitutions, if they allow such a power at all, leave it to emergency legislation. India's writes it into the chapter on fundamental rights, so a detention law cannot be attacked merely for being one, and the Seventh Schedule distributes the subject between entry 9 of the Union List and entry 3 of the Concurrent List. The guarantee of liberty and the authority to detain without trial sit in the same Part, four lines apart.

The provision, in two halves

Article 22 is headed Protection against arrest and detention in certain cases, and it reads as two documents bound together.

The first half: ordinary arrest

Clause (1): "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."

Clause (2): "Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest", excluding travelling time, "and no such person shall be detained in custody beyond the said period without the authority of a magistrate."

In one line

A man who agrees to work for less than the law says he must be paid has not really agreed to anything, because hunger left him nothing to agree to, and the Constitution treats his work as forced labour.

In the wording a student can write in an exam: articles 23 and 24 form the right against exploitation, and both bind private persons as well as the State. Article 23(1) prohibits traffic in human beings, begar and other similar forms of forced labour, and makes contravention an offence. "Begar" is labour exacted without any remuneration, but the article is not confined to it: "Every form of forced labour, 'begar' or otherwise, is within the inhibition of Article 23", and it makes no difference whether the person forced to give his labour is remunerated. "Force" includes "compulsion arising from hunger and poverty, want and destitution", so payment below the statutory minimum wage makes the labour forced. Article 24 forbids employing any child below fourteen in a factory or mine or in any other hazardous employment, and operates of its own force whether or not Parliament legislates.

Why the law has this at all

Most fundamental rights are addressed to the State, because the drafters expected the danger to come from government. Articles 23 and 24 assume the opposite. The practices they name, bonded labour, begar exacted by a landlord, children in a match factory, are not things a government does. They are things people do to other people, and the State's failure is a failure to stop them.

That is why both are written as flat prohibitions rather than as restraints on State power, and why article 23(1) makes a contravention "an offence punishable in accordance with law". It is also why the same question recurs in every case here: the wrong was done by a contractor or a quarry owner, so what is the State doing in the writ petition? Because when a right enforceable against private persons is violated, the State is constitutionally obliged to interdict the violation.

The provisions

Article 23 is headed Prohibition of traffic in human beings and forced labour. Clause (1): "Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law." Clause (2): "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 or class or any of them."

Article 24, headed Prohibition of employment of children in factories, etc., 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 one line

A fundamental right that could not be enforced would be a promise with nothing behind it, so the Constitution makes the right to go to the Supreme Court and have one enforced itself a fundamental right.

In the wording a student can write in an exam: article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of Part III rights, and because it sits inside Part III that remedial right is itself a fundamental right, so that 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", as Romesh Thappar v. State of Madras held while overruling an objection that the petitioner should have gone first to the High Court. Article 32(2) empowers the Court to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Article 32 is available only for a fundamental right, and does not lie against a judicial order of a superior court made within its jurisdiction, as Naresh Shridhar Mirajkar v. State of Maharashtra held.

Why the law has this at all

Part III would work perfectly well as a set of declarations nobody could act on, and many constitutions are exactly that. The makers did two things instead. They put the remedy in the same Part as the rights, so that a refusal of the remedy is itself a breach of a fundamental right. And they gave it to the Supreme Court directly, without requiring the citizen to climb a ladder of appeals.

A guaranteed remedy against the State is also a check on it: if the executive knows that any person it wrongs can reach the highest court in one step, the calculation changes before the wrong is done.

The provision

Article 32 sits in Part III under the heading Right to Constitutional Remedies, and has four clauses.

Clause (1): "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed."

Clause (2): "The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part."

Clause (3): "Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)."

In one line

The High Court's writ power covers more kinds of wrong than the Supreme Court's does, and covers less of the map: any legal wrong, but only within the territory that High Court serves.

In the wording a student can write in an exam: article 226 empowers every High Court to issue directions, orders or writs, including the five named writs, to any person or authority including any Government, "for the enforcement of any of the rights conferred by Part III and for any other purpose". It is therefore wider than article 32 in subject matter, not being confined to fundamental rights, and narrower in territory, running only throughout the territories in relation to which that High Court exercises jurisdiction, extended by clause (2) to any High Court within whose territories the cause of action wholly or in part arises. The remedy is discretionary, and an adequate alternative remedy is the commonest ground on which it is declined. Article 227 gives the High Court superintendence over all courts and tribunals in its territories. Both powers, with article 32, are part of the basic structure and cannot be excluded, as L. Chandra Kumar v. Union of India held.

Why the law has this at all

If article 32 were the only writ jurisdiction, two things would follow. Every person wronged by the State would have to come to Delhi, which for most of the country is a remedy on paper. And a great many public wrongs would have no writ remedy at all, because they are not breaches of fundamental rights: an authority acting outside its statute, a tribunal exceeding its jurisdiction, an appointment made in defiance of a statutory qualification. Article 226 exists so that there is a court close enough to reach and wide enough to hear them.

The provision

Article 226(1): "Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose."

Article 226(2) extends that power to "any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."

Article 226(3) deals with an interim order made without notice. Where the party against whom it was made applies to have it vacated, the High Court "shall dispose of the application within a period of two weeks", and if it is not, "the interim order shall, on the expiry of that period... stand vacated."

In one line

Part III ends with three articles that are not rights at all: one lets Parliament cut fundamental rights down for people in uniform, one lets it forgive, after the event, what was done where martial law was in force, and one says that on certain subjects only Parliament may legislate.

In the wording a student can write in an exam: article 33 empowers Parliament, and Parliament alone, to determine by law to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces, the Forces charged with the maintenance of public order, persons employed in intelligence or counter intelligence organisations, and persons employed in connection with the telecommunication systems of those Forces or organisations, "be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them". Article 34 empowers Parliament to indemnify persons for acts done in connection with the maintenance or restoration of order in an area where martial law was in force, and to validate sentences, punishments, forfeitures and other acts done under martial law. Article 35 provides that notwithstanding anything in the Constitution, Parliament and not the State legislatures shall have power to make laws on the matters covered by articles 16(3), 32(3), 33 and 34, and to prescribe punishment for the acts declared to be offences under Part III.

Why the law has this at all

The three articles answer three embarrassments in a document that has just guaranteed a long list of rights.

Discipline. An army in which every soldier may sue over a posting or form a union is not an army. Some rights must give way for the people whose job is the use of force, and the Constitution says so openly rather than letting courts improvise an exception.

Aftermath. When ordinary government has broken down in a district and order is restored by force, people will have been shot at, detained and tried by military authority. Somebody must decide afterwards whether those acts stand, and article 34 places that decision with Parliament rather than the executive that gave the orders.

Uniformity. Some limits Part III contemplates would be worthless if every State legislature could draw them differently. Article 35 collects those subjects and gives them to Parliament alone.

The provisions

Article 33 is headed Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. Parliament may by law determine to what extent any of the rights conferred by this Part shall, in their application to:

• "(a) the members of the Armed Forces; or"
• "(b) the members of the Forces charged with the maintenance of public order; or"
• "(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or"
• "(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c),"

In one line

If only the person injured may complain, then the people most often injured, who are poor, illiterate, in jail or in bondage, are the ones whose injuries never reach a court. Public interest litigation is what the Supreme Court did about that.

In the wording a student can write in an exam: locus standi, the standing to sue, traditionally required the petitioner to be the person injured. Public interest litigation relaxes that in two ways. Where a legal wrong is done to a person or determinate class who cannot approach the court by reason of poverty, helplessness, disability or disadvantage, any member of the public may move the High Court under article 226 or the Supreme Court under article 32 for them; and where the injury is a public injury from a breach of public duty, any member having sufficient interest may sue, as S.P. Gupta v. President of India held. Because article 32(1) permits the Court to be moved "by appropriate proceedings" and prescribes no form, a letter may be treated as a writ petition, as Bandhua Mukti Morcha v. Union of India held. The relaxation is conditional: the petitioner must act bona fide, and a personal grievance in the garb of public interest is an abuse of process, as Subhash Kumar v. State of Bihar held while dismissing the petition with costs.

Where it came from

Nothing was invented. Three things already in the text made it possible. Article 32(1) says "by appropriate proceedings", prescribing no form: what is appropriate is measured by the purpose. It does not say whose right. And article 226 runs "for any other purpose", so the High Court's writ power was never confined to the petitioner's own fundamental right at all. Both articles are set out in [Article 32 and the Writs] and [Article 226].

What the Court added was a willingness to read those words for what they say, in the years after the Emergency, when it had reason to rebuild its standing.

The relaxation of locus standi

Facts. S.P. Gupta v. President of India, AIR 1982 SC 149, (1982) 2 SCR 365, decided 30 December 1981 by seven judges. Advocates in several High Courts petitioned about the independence of the judiciary, challenging a circular letter of 18 March 1981 in which the Union Law Minister asked the Governor of Punjab and the Chief Ministers to obtain from every Additional Judge his consent to be appointed a permanent Judge in another High Court; also short term appointments and the discontinuance of an Additional Judge. A preliminary objection was taken that the advocates had suffered no legal injury and so had no standing.

Held. The objection was rejected, on two propositions. First, where a legal wrong is caused to a person or determinate class who, "by reason of poverty, helplessness or disability or socially or economically disadvantaged position", cannot approach the court, "any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right... in this Court under Article 32". Second, on public injury as distinct from private, "any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty", the rule being relaxed for one "who is not a mere busy-body or a meddlesome interloper".

In one line

When the State violates a fundamental right, the court hearing the writ petition can order it to pay money there and then, instead of sending the victim away to file a civil suit.

In the wording a student can write in an exam: compensatory jurisprudence is the award of monetary compensation by the Supreme Court under article 32, or by a High Court under article 226, for the established infringement of a fundamental right, particularly the right to life and personal liberty under article 21. Rudul Sah v. State of Bihar created the jurisdiction; Nilabati Behera v. State of Orissa stated its basis exactly, holding that the award is "a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply", and is "distinct from, and in addition to, the remedy in private law for damages for the tort".

Why the law needed this

A fundamental right without a remedy is an announcement. That is why article 32(1) does not merely allow a person to come to the Supreme Court but makes coming a fundamental right in itself: the right to move the Court for the enforcement of Part III rights "is guaranteed".

But look at what the writs do. Habeas corpus releases a prisoner, mandamus orders an authority to do its duty, certiorari quashes an order. Every one is directed at the future, and none repairs what is already done. In the cases that matter most, a custodial death, fourteen years of unlawful imprisonment, a beating in a lock-up, the harm is wholly in the past.

The orthodox answer was that the victim should sue in tort, and three things were wrong with it. The suit takes years, then appeals, then execution. The victim of custodial violence is usually poor and cannot fund any of that. And the State could plead sovereign immunity, the doctrine that it is not liable for a wrong done by its servant exercising a sovereign function, which is exactly what policing is. The choice was therefore between a remedy formally available and practically useless, and a new one; the Court took the second, and the question is where it found the power.

The provisions the jurisdiction is built on

Article 32(2): "The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part."

Three phrases carry the doctrine. "Directions or orders" are not writs and are wider, the writs being named only as included. "Whichever may be appropriate" makes the remedy a question of fitness to the violation. "For the enforcement" is a purpose clause: a remedy that does not enforce is not what the article contemplates.

In one line

Two techniques, both invented because a single order would have changed nothing: the court keeps the case open and supervises until the job is done, and where there is no law it writes rules binding until Parliament makes one.

In the wording a student can write in an exam: continuing mandamus is the practice of not disposing of a writ petition after issuing a direction, but retaining the matter, requiring the authority to report progress and passing further orders until the duty is performed. Vineet Narain v. Union of India called such a proceeding "continuing mandamus", "a new tool forged because of the peculiar needs of this matter". Judicial guidelines are directions laid down under article 32 read with article 142 to fill a legislative vacuum until the legislature acts. Vishaka v. State of Rajasthan laid down guidelines "until a legislation is enacted for the purpose", adding that this "would be treated as the law declared by this Court under Article 141."

Why the law needed these

An ordinary writ of mandamus is a single command: do your duty. It is issued, the petition is disposed of, and the court is done. That works where the authority is willing. It fails in two situations, and each produced one of these techniques.

The authority will not move. If an investigating agency has done nothing for years because the suspects are powerful, a command to investigate changes nothing: the agency can accept the order and continue doing nothing, and the petitioner must start again. What is needed is not a stronger order but a court that stays in the case.

There is no law to enforce. If working women are being harassed and no statute defines the wrong, imposes a duty on the employer or provides machinery, a court can declare the constitutional right and still leave the woman where she was. The right exists; the remedy does not.

Both answer the same point, that a right without an effective remedy is not a right, and both raise the same difficulty.

The provisions relied on

Article 32(2) is the source: the Supreme Court "shall have power to issue directions or orders or writs", of the five named kinds, "whichever may be appropriate, for the enforcement of any of the rights conferred by this Part." The words "directions or orders" do the work, because a continuing supervision is not a writ at all.

Article 142(1) supplies the reach: the Supreme Court "may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it". Note "pending before it", which is exactly what a continuing mandamus keeps a case.

In one line

A political party may ask the country to stop work; it may not shut the country down, because the day it shuts down is a day on which nobody else can trade, travel, study or reach a hospital.

In the wording a student can write in an exam: in Bharat Kumar K. Palicha v. State of Kerala a Division Bench of the High Court of Kerala declared, under article 226, that "the calling for a bundh by any association, organisation or political party and the enforcing of that call by it is illegal and unconstitutional", because a bundh carries an express or implied threat which prevents other citizens from exercising the rights guaranteed to them by articles 19 and 21. A general strike or a hartal, unaccompanied by a threat of violence to enforce it, remains lawful. That decision was affirmed on appeal by the Supreme Court.

Why the law has this at all

Part III is addressed to the State. A political party is not the State, and on the ordinary reading a citizen has no fundamental right against it. That is the subject of [Why the Definition of "State" Decides Everything].

A called bandh exposes the gap in that arrangement. Nobody is arrested, no statute is passed, no officer gives an order. A private organisation announces that on Tuesday the State will be closed, and on Tuesday it is: shops shut, buses off the road, patients unable to reach a doctor. The citizen has lost the use of articles 19 and 21 for a day, and on the vertical reading of Part III he has lost it to nobody the Constitution recognises.

The question this chapter answers is what a court does about that. The answer is the emerging regime the syllabus label points at: a right of the ordinary citizen not to have his freedoms extinguished by private power, enforced through article 226 against the State that failed to protect him and by a declaration binding the organisers.

What a bandh is

The Kerala Court began with the word, and so should an answer. "'Bundh' is a Hindi word meaning 'closed' or 'locked'." The expression therefore conveys "that everything is to be blocked or closed", and the organisers "clearly express their intention that they expect all activities to come to a standstill on the day of the bundh".

That is what separates it from the two things students confuse it with. A hartal is a call to close voluntarily, historically as a mark of protest or mourning. A general strike is a withdrawal of labour by workers. Each is a call to those who choose to answer it. A bandh is a call addressed to everybody, including those who want no part of it, and the Court held that the call itself carries a threat: "the call for a bundh implies a threat to the citizen that any failure on his part to honor the call, would result in either injury to person or injury to property". Even without an express threat, "there is clearly a menacing psychological fear instilled into the citizen by a call for a bundh which precludes him from enjoying his fundamental freedoms".

In one line

Property is the only right the Constitution ever took out of Part III, and what is left is a promise that the State will not take your land except by a law, which is worth more than it sounds.

In the wording a student can write in an exam: article 19(1)(f), the right to acquire, hold and dispose of property, and article 31, the right against compulsory acquisition without compensation, were both omitted by the Constitution (Forty-fourth Amendment) Act 1978, with effect from 20 June 1979. The same amendment inserted article 300A in Part XII, under a new Chapter IV headed Right to Property: "No person shall be deprived of his property save by authority of law." The right is therefore a constitutional right and not a fundamental right, and cannot be enforced under article 32; but on K.T. Plantation Pvt Ltd v. State of Karnataka a public purpose is a pre-condition of deprivation, the obligation to pay is inferred in the article, and the depriving law must be just, fair and reasonable.

Why the law has this at all

The Constitution of 1950 guaranteed property twice, in article 19(1)(f) and article 31, and the States immediately set about abolishing the zamindari system. The two things could not both happen. Compensation provisions and the equality guarantee made agrarian reform slow and expensive, and courts struck down or delayed reform statutes.

Parliament's answer was not to argue about the guarantee but to move the legislation out of its reach. That is the history of articles 31A and 31B, taken in full in [Saving of Laws: Articles 31A, 31B and 31C]. After twenty-eight years of amendments and a Schedule of protected statutes, the guarantee protected almost nothing that mattered, and the Forty-fourth Amendment deleted it.

So this chapter is about a demolition and what was left standing, which is the question the syllabus is really asking: what is a constitutional right that is not a fundamental right worth?

The dismantling, in the Constitution's own footnotes

Do not date these from memory. The Constitution's own footnotes record each step.

• Article 31A, saving laws for the acquisition of estates, was "Ins. by the Constitution (First Amendment) Act, 1951, s. 4, (with retrospective effect)", and its clause (1) was substituted by the Fourth Amendment 1955, also with retrospective effect. A second proviso, protecting land within the ceiling limit under personal cultivation, was added by the Seventeenth Amendment 1964, from 20 June 1964.
• Article 31B, validating the Acts listed in the Ninth Schedule, was "Ins. by the Constitution (First Amendment) Act, 1951, s. 5 (w.e.f. 18-6-1951)".
• The Forty-fourth Amendment 1978 then did four things on the same day, 20 June 1979: it omitted sub-clause (f) of article 19(1) by section 2; it omitted the sub-heading "Right to Property" by section 5; it omitted article 31 by section 6; and by section 34 it inserted article 300A.
• The same amendment tidied article 31A by section 7, substituting "article 14 or article 19" for "article 14, article 19 or article 31", because article 31 no longer existed.

In one line

Part IV lists the things the Constitution tells the State to do, and no court will make it do any of them; the list is not decorative, because those instructions decide what the enforceable rights in Part III mean.

In the wording a student can write in an exam: article 37 provides that "The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws." A directive principle therefore founds no cause of action. It works in three other ways: it supplies the content of a fundamental right, as in Unni Krishnan, J.P. v. State of Andhra Pradesh; it justifies a restriction on one as reasonable; and the balance between Parts III and IV is itself a basic feature, so neither may be given absolute primacy, as Minerva Mills Ltd v. Union of India held.

Why the law has this at all

A constitution can promise two kinds of thing: that the State will leave you alone, and that the State will provide for you. The first can be enforced by an order against an officer. The second needs money, administration and time, and a court that ordered a living wage for every worker would be ordering what no judgment can deliver. The Constituent Assembly wanted to promise both and would not pretend the second was the same as the first, so it wrote the social and economic programme into a separate Part and said in terms that no court would enforce it.

The consequence is the argument that runs through the next fifty years: if the goals are in Part IV and the enforceable rights in Part III, what happens when reaching a goal requires abridging a right?

The provision that governs the whole Part

Article 37, headed Application of the principles contained in this Part, is to be quoted exactly: "The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws."

Three limbs, and weak answers give only the first. Not enforceable by any court: no writ, no suit, no decree. Nevertheless fundamental in the governance of the country, a phrase MU has set as a long question: the principles are not aspirations of a lower order but the ends the Constitution exists to secure. And it shall be the duty of the State to apply these principles in making laws, a duty on the legislature and executive with no judicial sanction attached.

In one line

The Constitution lists eleven things every citizen ought to do, provides no court, no penalty and no procedure for making anybody do them, and courts nevertheless decide real cases by them.

In the wording a student can write in an exam: article 51A, the only article in Part IVA, provides that "It shall be the duty of every citizen of India" to do eleven listed things. Clauses (a) to (j) were inserted by the Constitution (Forty-second Amendment) Act 1976, section 11, with effect from 3 January 1977, on the recommendation of the Swaran Singh Committee; clause (k), on the parent or guardian of a child of six to fourteen, was inserted by the Constitution (Eighty-sixth Amendment) Act 2002, section 4, with effect from 1 April 2010. The duties are not enforceable against a citizen by any court, because Part IVA creates no remedy; they are used to construe statutes, to show that State action is reasonable, and to give content to a fundamental right.

MU's own slip, and how to answer it

MU's 2019 paper, QP 81954, asked at question 1(a) for "Fundamental Duties under Article 51". That is the wrong article, and a student who goes looking for duties in article 51 will find none.

Article 51 is a directive principle in Part IV. It is headed Promotion of international peace and security and directs the State to promote international peace, to maintain just and honourable relations between nations, to "foster respect for international law and treaty obligations", and to encourage the settlement of international disputes by arbitration. It says nothing about citizens.

Article 51A is in Part IVA and is the fundamental duties article. If the same wording appears in an examination, answer article 51A. Open with one sentence saying so: that the fundamental duties are contained in article 51A, inserted by the Forty-second Amendment 1976, article 51 being the directive principle on international peace and security. That sentence costs nothing, answers the question the examiner meant, and shows the examiner you know which article is which. Do not write the answer on article 51 and do not leave the discrepancy unmentioned.

Why the law has this at all

The Constitution as adopted had a Part of rights and a Part of directions to the State. It said nothing about what a citizen owes.

The duties were added in 1976, on the recommendation of the Swaran Singh Committee, and the timing is part of the answer to any question that asks for a critical view: they were inserted during the Emergency, by the same amendment that tried to give the directive principles primacy over articles 14 and 19 and to put constitutional amendments beyond the reach of a court, which is [The Directive Principles]. Nothing about the duties themselves is objectionable. The suspicion attaches to the moment.

In one line

Two articles of the Constitution give special rights to minorities, and the Constitution never once says who a minority is; the courts had to supply the answer, and the answer is that you count heads within the State, not across the whole country.

In the wording a student can write in an exam: the expression "minority" is not defined anywhere in the Constitution, and neither is "religious" nor "linguistic". A minority is a group numerically less than half, but that leaves the decisive question of half of what. In In Re The Kerala Education Bill, 1957 the Supreme Court rejected the locality or the region as the unit and held that, the Bill there extending to the whole of the State, "the minority must be determined by reference to the entire population of that State", while expressly declining to settle the question generally. In T.M.A. Pai Foundation v. State of Karnataka an eleven-judge Bench settled it: "for the purpose of determining the minority the unit will be the State and not the whole of India", and religious and linguistic minorities, having been put on a par in article 30, "have to be considered State-wise".

Why the law has this at all

A Constitution that guarantees equality to everybody does not obviously need a separate chapter of rights for some people. It has one because a majority under adult franchise can protect itself through the ballot box and a minority cannot. Whatever the majority wants can be put on the statute book by the representatives it elects. A community that is permanently outvoted has no such route, and what it stands to lose is not only political power but its language, its script and its way of educating its children.

Khanna J. put the point in St. Xaviers, worked in full in [State Control and Regulation]: the idea of giving special rights to minorities is "not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence", and their real effect "was to bring about equality by ensuring the preservation of the minority institution". Special rights, on that view, are not an exception to equality. They are the condition on which equality becomes real.

That is why articles 29 and 30 sit under their own printed sub-heading, Cultural and Educational Rights, and why the question in this chapter is not a technicality. Every claim under either article begins by asking whether the claimant is inside the door.

The provisions, and the hole in them

Article 29(1) reads: "Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same."

In one line

Article 29 has two clauses that look like a pair and are not: the first lets a group keep its own language, script or culture, while the second forbids any State or State-aided school from shutting a citizen out because of his religion, race, caste or language, and the second belongs to everybody.

In the wording a student can write in an exam: article 29(1) confers on "any section of the citizens" having a distinct language, script or culture of its own the right to conserve it, and minority status is not a condition of the claim. Article 29(2) is a wholly different guarantee. It is an individual right against exclusion from an educational institution maintained by the State or receiving aid out of State funds, on grounds only of religion, race, caste, language or any of them, and it is conferred on every citizen and not on minorities alone. As Khanna J. put it in St. Xaviers, "For invoking this clause it is not necessary that the section of citizens should constitute a minority."

Why the law has this at all

Independence arrived with partition, and the fear in 1950 was not abstract. Communities that spoke a different language or practised a different faith from the people around them expected to be absorbed: their schools closed, their script dropped, their children taught in a tongue not their own. Article 29(1) answers that fear directly. It does not create schools, and it does not give money. It says the State may not stop a group from keeping what makes it distinct.

Article 29(2) answers the opposite fear, and this is what makes the article strange. The same communities were also being kept out of the good schools. A State that funds an institution and then lets it exclude candidates by community is doing with public money what it may not do itself. So clause (2) attaches a condition to the public rupee: take State funds, and the door has to stay open.

One article, therefore, does two jobs pulling in different directions. Clause (1) protects a group's separateness. Clause (2) protects an individual against being kept out. The tension between them is the engine of the whole topic, and it is settled in [The Eleven-Judge Answer].

The provision, in its own words

Article 29 is headed Protection of interests of minorities, and the heading is misleading, because only half the article is about minorities.

Clause (1): "Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same."

Clause (2): "No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."

In one line

Article 30 gives a minority two rights in one sentence, to start a school and to run it, and a claimant who cannot prove the first gets nothing from the second.

In the wording a student can write in an exam: article 30(1) confers on all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. The two words are conjunctive. As Khanna J. said in The Ahmedabad St. Xaviers College Society v. State of Gujarat, the word "establish" indicates "the right to bring into existence, while the right to administer an institution means the right to effectively manage and conduct the affairs of the institution", and the words "of their choice" show that the institutions "need not be of some particular class". Where an institution was not brought into existence by the minority, no right to administer it arises under article 30 at all.

Why the law has this at all

The right to conserve a language, a script or a culture, given by article 29(1), is empty unless there is somewhere to do the conserving. The Court has said so in terms: a minority's distinct language, script or culture "can best be conserved by and through educational institutions, for it is by education that their culture can be inculcated into the impressionable minds of the children of their community". Article 30(1) is the machinery clause for that promise, and it is more than machinery, because the institutions it protects may teach anything at all.

The provision, in its own words

Clause (1): "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice."

Clause (1A): "In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause."

Clause (2): "The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language."

Clause (1A) was inserted by the Constitution (Forty-fourth Amendment) Act, 1978, section 4, with effect from 20 June 1979. The Constitution's own footnote records it.

Broken down

1. "All minorities, whether based on religion or language." Only minorities, unlike article 29(1). Who counts is settled in [Who Is a Minority?]: the unit is the State.

2. "The right to establish." To bring into existence. This is a question of historical fact, and it is where most claims are actually lost.

In one line

The State may make rules that push a minority school towards being a better school, and it may not make rules that move the running of it into somebody else's hands.

In the wording a student can write in an exam: the right under article 30(1), though couched in absolute terms, is not absolute and is not free from regulation. The State may prescribe reasonable regulations to secure the excellence of the institution, the standards of education and the interests of teachers and students, and may make compliance a condition of aid, recognition or affiliation. It may not prescribe conditions which have the effect of impairing the right, and the test is whether the measure works through the existing management or displaces it: "If the administration has to be improved it should be done through the agency or instrumentality of the existing management and not by displacing it."

Why the law has this at all

Two positions were argued to the Supreme Court in 1958 and neither has ever been accepted.

The State's position was that a minority may found any school it likes and run it as it pleases, but the moment it asks for public money or for recognition it must take the terms offered. The institutions' position was that the right in article 30(1) is absolute and cannot be subjected to any restriction whatever. The Court described these as two extreme propositions and said neither could be sustained.

The reason neither works is practical. Without recognition, a school's pupils cannot sit university examinations or enter the public services, so an unregulated right is a right to run an institution nobody can use. And with unlimited conditions, aid becomes the price of surrender: the State says, in the Court's own paraphrase of the argument, "I have money and I shall distribute aid but I shall not give you any aid unless you surrender to me your right of administration." A legislature cannot do indirectly what it cannot do directly.

The line, in three formulations

1958, on aid and recognition. The right to administer "cannot obviously include the right to maladminister". A minority cannot demand aid for a school run "in unhealthy surroundings, without any competent teachers", so the State "may prescribe reasonable regulations to ensure the excellence of the institutions to be aided". But to deny recognition "except upon terms tantamount to the surrender of their constitutional right of administration" is in truth to deprive the minority of the right itself.

1974, on displacement. The right to administer "is not an absolute right" and "is not free from regulation", because "regulatory measures are necessary for ensuring orderly, efficient and sound administration". The limit is stated as a method: improvement must come "through the agency or instrumentality of the existing management and not by displacing it". A second limit is stated as a purpose: restrictions imposed "in the interest of the general public alone and not in the interests of and for the benefit of minority educational institutions concerned will affect the autonomy in administration".

In one line

Eleven judges sat to answer eleven questions about who may run a school or a college in India and on what terms, and the answer that has mattered most is the shortest one: you count a minority within a State, not across the country.

In the wording a student can write in an exam: in T.M.A. Pai Foundation v. State of Karnataka an eleven-judge Bench held that the right to establish and administer educational institutions is guaranteed to all citizens under articles 19(1)(g) and 26 and to minorities specifically under article 30; that "for the purpose of determining the minority the unit will be the State and not the whole of India"; that admission to unaided minority schools and undergraduate colleges cannot be regulated beyond qualifications and minimum eligibility; that an aided minority institution must admit non-minority students "to a reasonable extent", the percentage to be notified by the State rather than fixed at a rigid figure; and that the scheme framed in Unni Krishnan, except so far as it held primary education to be a fundamental right, is unconstitutional.

Why the case had to be heard

Three separate pressures brought eleven judges together, and an answer that does not name them misses the point of the case.

The unit question had never been settled. In 1958 the Court decided only that a Bill extending to the whole State required the count to be taken across that State, and expressly left the general question open. That gap had held for forty-four years.

Education had moved. The Forty-second Amendment put education into Entry 25 of the Concurrent List, so Parliament could now legislate on it. Every earlier decision belonged to the period when education was a State subject, and the reference order of 6 February 1997 said so in terms: the question of who is a "minority" had to be reconsidered because "the earlier case laws related to the pre-amendment era".

Two decisions were in trouble. A five-judge Bench doubted whether article 30 lets a minority institution choose its own method of selecting students, and doubted St. Stephen's. Separately, the scheme framed in Unni Krishnan, under which half the seats in a private professional college were "free seats" filled on a common entrance test at a minimal fee and cross-subsidised by "payment seats", had produced a result nobody intended: on the record placed before the Court, children of affluent families were taking the free seats and less affluent children the payment seats.

The matter went from five judges to seven and then, by the order of 6 February 1997, to eleven. On 19 March 1997 the Bench recorded that it "would not feel itself inhibited" by the views expressed in the Kerala Education Bill opinion or in St. Xaviers, the object being to read article 30(1) "in its pristine purity".

In one line

Eleven judges answered the questions about private and minority colleges in 2002, everybody read the answer differently, five judges tried to explain it in 2003, seven judges said in 2005 that the explanation had gone too far, and Parliament amended the Constitution to undo part of what the seven judges had held.

In the wording a student can write in an exam: T.M.A. Pai Foundation left the fixing of a management quota and a State quota in private unaided professional colleges unclear. In Islamic Academy of Education v. State of Karnataka, decided on 14 August 2003, five judges purporting to clarify Pai Foundation held that the State could fix the percentage of seats to be filled by the management and by the State according to "local needs", and directed every State to set up, under article 142, two permanent committees, one to approve fees and one to supervise admission tests. In P.A. Inamdar v. State of Maharashtra, AIR 2005 SUPREME COURT 3226, 2005 (6) SCC 537, seven judges held that "neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution", and that the seat-sharing part of Islamic Academy "does not lay down the correct law and runs counter to Pai Foundation". The committees survived. Parliament answered Inamdar by the Constitution (Ninety-third Amendment) Act, 2005, which inserted article 15(5).

Why there was anything left to decide

An eleven-judge Bench is supposed to end an argument. This one did not, and the reason recurs.

Pai Foundation was decided by five separate opinions. The majority answered eleven questions at the end, but the answers were a summary, and the body of the judgment pointed in different directions. Its paragraph 68 said that a private unaided professional institution could be required to provide for merit-based selection, that "a certain percentage of the seats can be reserved for admission by the Management", and that "the prescription of percentage for this purpose has to be done by the government according to the local needs". Read one way, that described an arrangement the institution might voluntarily accept. Read another way, it was a power in the State to fix quotas.

Both readings were argued in the High Courts within weeks. Lahoti C.J. recorded in Inamdar an academic writer's view that "the decision raises more questions than it has answered", and added that "the prophecy has come true". The sequence in this chapter is therefore not a story about judges changing their minds. It is what happens when a long judgment is summarised into answers and the answers are read apart from the reasoning.

In one line

Parliament made school education a fundamental right and then made private schools pay for a quarter of it, and the question was whether a school run by a minority could be made to pay too; the answer, after two rounds, is that it cannot, whether it takes government aid or not.

In the wording a student can write in an exam: section 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2009 obliges an unaided school to admit in class I at least twenty-five per cent of the strength of that class from children of weaker sections and disadvantaged groups in the neighbourhood. In Society for Un-aided Private Schools of Rajasthan v. Union of India, decided on 12 April 2012, the majority held the Act valid and applicable to government, aided (including aided minority) and unaided non-minority schools, but held that sections 12(1)(c) and 18(3) infringe article 30(1) as against unaided minority schools, so the Act does not apply to them. In Pramati Educational and Cultural Trust v. Union of India, AIR 2014 SUPREME COURT 2114, a Constitution Bench went further: the 2009 Act "insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution". So the exemption now covers aided minority schools as well.

Why the question arises at all

Two constitutional commands meet here and pull in opposite directions.

The first is article 21A, inserted by the Constitution (Eighty-sixth Amendment) Act, 2002 with effect from 1 April 2010: "The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine." The duty is on the State. The words "in such manner as the State may, by law, determine" are what allowed Parliament to pass the duty on.

The second is article 30(1): "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice." A school that must admit twenty-five per cent of its entering class from the neighbourhood, whatever the religion or language of those children, has lost some control over who is inside it. If the school exists to serve a minority, the loss is not merely administrative.

The collision is sharpened by a third provision, article 29(2), which says that "No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them." That article catches an aided institution. It is why the two decisions in this chapter split on aided minority schools and agreed on unaided ones.

In one line

A child whose home language is not the language of the State he lives in is entitled to be taught in his own language in the early years, his community may ask the President to have that language officially recognised in the State, and there is an officer whose whole job is to report to Parliament on whether any of this is happening.

In the wording a student can write in an exam: the rights of linguistic minorities rest on two sets of provisions. Articles 29 and 30 in Part III give a section of citizens with a distinct language the right to conserve it and give every linguistic minority the right to establish and administer educational institutions of its choice. Part XVII adds three non-fundamental but enforceable directives: article 347, under which the President may direct official recognition of a language spoken by a substantial proportion of a State's population; article 350A, which makes it the endeavour of every State and local authority to provide adequate facilities for instruction in the mother tongue at the primary stage to children of linguistic minority groups; and article 350B, which creates a Special Officer for linguistic minorities appointed by the President. For article 30, the unit for determining who is a linguistic minority is the State and not the country, as T.M.A. Pai Foundation v. State of Karnataka, decided on 31 October 2002, held. MU set the rights of linguistic minorities as a short note in 2025.

Why the Constitution protects a language at all

India was not divided into States on lines of language when the Constitution came into force. It was reorganised on those lines by the States Reorganisation Act of 1956, and the same Parliament that redrew the map inserted articles 350A and 350B in the same year.

That is not a coincidence, and it is the whole explanation. If you draw a State around a language, you create, inside every State, a group whose language is now a minority language in the place where it lives. A Kannada speaker in Maharashtra, a Marathi speaker in Karnataka, a Bengali speaker in Bihar. Redrawing the map solves a problem for the majority and creates one for everybody left on the wrong side of the line. Articles 350A and 350B were the answer, and TMA Pai says so: the amendments show "that protection was conferred not only to religious minorities but also to linguistic minorities on basis of their number in a State (unit) where they intend to establish an institution of their choice."

The three provisions

Each is quoted from the Constitution's own text. Article 347 sits in Chapter II of Part XVII, on regional languages; articles 350A and 350B sit in Chapter IV, headed Special Directives, next to article 350, which entitles every person to submit a representation for redress of a grievance in any language used in the Union or the State.

In one line

Indian secularism does not mean the State keeps away from religion; it means the State has no religion of its own and owes the same treatment to every religion, which is why our Constitution both guarantees religious freedom and lets the State legislate about temples.

In the wording a student can write in an exam: secularism in India is neither the American separation of church and State nor the English establishment of one church. It is the constitutional requirement that the State have no religion of its own and treat all religions equally, drawn from the Preamble read with articles 25 to 28. The word "secular" entered the Preamble only by the Constitution (Forty-second Amendment) Act, 1976, with effect from 3 January 1977, but the concept was in the Constitution from the start; as Dr. M. Ismail Faruqui v. Union of India, AIR 1995 SUPREME COURT 605, 1994 (6) SCC 360, put it, the constitutional scheme "guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasising that there is no religion of the State itself". In S.R. Bommai v. Union of India, AIR 1994 SC 1918, (1994) 3 SCC 1, nine judges held that "Secularism is one of the basic features of the Constitution", that "in matters of State, religion has no place", and that a State Government pursuing unsecular policies "renders itself amenable to action under Article 356".

Why the word was not there to begin with

Two attempts to put "secular" into the Constitution failed in the Constituent Assembly. Bommai records that fact, quoting Setalvad, and it is the answer to the objection that secularism was smuggled in during the Emergency.

The reason the Assembly hesitated is worth stating, because it is also the reason the Indian model is what it is. In its ordinary European sense the word carries a suggestion that religion is to be pushed out of public life. That is not what a Constitution had to do in a country where a Hindu Code Bill was pending, where temple entry was a live political demand, and where the State was expected to legislate on religious endowments. The framers wrote what they wanted instead of naming it. Ahmadi J. in Bommai put it in one line, quoted in Faruqui: "By this amendment what was implicit was made explicit."

So a good answer separates two questions. When did the word arrive? 1976, in force 1977. When did the concept arrive? With the Constitution.

The Preamble and its footnote

The Preamble now resolves to constitute India into a "SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC". The Constitution's own footnote to those words records that they were substituted by the Constitution (Forty-second Amendment) Act, 1976, section 2, for "SOVEREIGN DEMOCRATIC REPUBLIC", with effect from 3 January 1977.

In one line

Article 25 protects the individual believer and article 26 the organised religious body, and the two are not restricted on the same terms: article 25 must give way to the other fundamental rights, article 26 need not.

In the wording a student can write in an exam: article 25(1) guarantees to all persons, subject to public order, morality and health and to the other provisions of this Part, freedom of conscience and the right freely to profess, practise and propagate religion, subject further to the State's saved powers in clause (2). Article 26 guarantees to every religious denomination or section thereof, subject to public order, morality and health only, four rights: to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire property, and to administer it in accordance with law. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282, 1954 SCR 1005, held that "what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself", and that while the right under article 26(b) to manage affairs in matters of religion "is a fundamental right which no legislature can take away", the right under article 26(d) to administer property "can be regulated by laws which the legislature can validly impose".

Why there are two articles

Religion is practised by people and organised by institutions, and a Constitution protecting only the first would leave a State free to destroy the second by taking over its management. That is not hypothetical: both cases here arose from statutes putting a State officer in charge of religious endowments.

So the two articles have different holders. Article 25 speaks of "all persons", meaning every human being and not only citizens, as Ratilal notes; article 26 speaks of a "religious denomination or any section thereof", and makes the claimant prove it is one. They protect different things too: belief and its outward expression, against the running of an institution and its property.

Article 25 in its own words

Article 25, headed Freedom of conscience and free profession, practice and propagation of religion, opens: "Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion."

Clause (2): "Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus."

In one line

A court will protect a religious practice only if that practice is essential to the religion, and it is the court, not the believer, that decides whether it is.

In the wording a student can write in an exam: articles 25 and 26 protect not merely religious opinion but acts done in pursuance of belief, and not everything a claimant calls religious is protected. In Shirur Mutt the Supreme Court held that "what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself". In Durgah Committee it added that protection "must be confined to such religious practices as are an essential and an integral part of it and no other". That is the essential religious practices doctrine, and it works as a threshold: a practice that fails it is not protected at all, so no question of reasonable restriction arises.

Why the law has this at all

Article 25(2) forces the question on the courts. Clause (a) preserves the State's power to regulate any "secular activity which may be associated with religious practice", clause (b) its power to legislate for social welfare and reform. Both assume a line between what is religion and what is merely attached to it, and only a court can draw it.

The second reason is practical. Without a threshold the guarantee becomes a veto: any law could be met by asserting that the conduct it forbids is somebody's religion. Durgah Committee names the worry exactly, that secular practices "are apt to be clothed with a religious form".

The provision

Article 25(1) is set out in [Articles 25 and 26]. Two clauses do the work here.

Article 25(2) preserves any existing law and any law the State makes "(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus."

Article 26 gives every religious denomination the right "(b) to manage its own affairs in matters of religion" and "(d) to administer such property in accordance with law."

Read (b) against (d). Managing its own affairs in matters of religion carries no qualification; administering property is expressly "in accordance with law". A legislature may regulate a temple's property and may not regulate its worship, and every case below turns on which side of that line the impugned provision falls.

Where the doctrine begins

Facts. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282, 1954 SCR 1005, decided 16 April 1954. The Madras Hindu Religious and Charitable Endowments Act 1951 gave the Commissioner extensive control over the Shirur Mutt, a Hindu monastic institution, including power to settle a scheme, to require budgets, and by section 76(1) to levy an annual contribution. Its head challenged those provisions under articles 19(1)(f), 25 and 26.

In one line

The State may not make you pay for somebody's religion, and it may not teach religion in a school it pays for entirely.

In the wording a student can write in an exam: article 27 provides that 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 religion or religious denomination. Each expression narrows the article, and the first decides most cases: a fee is outside article 27 altogether, because a fee is charged for a service rendered and a tax is not. Article 28 deals with the school rather than the treasury, and distinguishes four kinds of educational institution: one wholly maintained out of State funds, where religious instruction is forbidden outright; one administered by the State but established under an endowment or trust requiring religious instruction, which is taken out of that prohibition; and the recognised and the aided, in which instruction may be given but nobody may be compelled to attend without consent.

Why the law has this at all

A State with no religion of its own has two obvious ways of acquiring one. It can pay for a religion out of taxes everybody pays, and it can teach a religion to children in schools everybody pays for. Articles 27 and 28 close both routes, and they are the operative machinery behind the word "secular": see [What Secularism Means Here].

Both are drafted narrowly, deliberately. Neither forbids the State to have anything to do with religion. Article 27 stops compelled contribution to the promotion of a particular faith, not the regulation of religious endowments. Article 28 stops religious instruction, not the academic study of religions. Missing those two limits is how answers on this topic lose marks.

The provisions

Article 27 is one sentence: "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 religion or religious denomination."

Article 28 has three clauses. "(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds. (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. (3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto."

In one line

Secularism is not merely one policy among others that a majority may reverse: Parliament cannot amend it out of the Constitution, and a State government that abandons it can be dismissed.

In the wording a student can write in an exam: in Kesavananda Bharati the Supreme Court held that the power to amend under article 368 does not extend to damaging or destroying the basic structure of the Constitution, and Sikri C.J. listed among that structure the "Secular character of the Constitution". In S.R. Bommai a nine-judge Bench applied that holding to article 356 and concluded that "Secularism is one of the basic features of the Constitution", that "In matters of State, religion has no place", and that "Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356". Two consequences follow, one for Parliament and one for a State government, and an answer that gives only the first has given half the topic.

Why the law has this at all

Every constitutional guarantee is worth exactly as much as the difficulty of removing it. Articles 25 to 28 could in principle be amended away by the majorities article 368 requires, and if that were so, the freedom of religion would last only as long as the political will to keep it. The basic structure doctrine is the answer to that problem, and this chapter is about what happens when the doctrine is applied to secularism in particular.

The second half of the topic is different and is often missed. The doctrine restrains Parliament. It says nothing, by itself, about a State government that stays within the law but governs on religious lines. Article 356 is the provision that reaches that case, and Bommai is the decision that connected the two.

The provisions

Article 368(1) provides: "Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article." On its face the power has no subject-matter limit at all. The basic structure doctrine is a limit the Court found in the word "amend", and the reasoning belongs to [The Amending Power] and [The Basic Structure].

Article 356(1) provides that if the President, "on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution", he may by Proclamation assume the functions of the State Government, declare that the powers of the State Legislature shall be exercisable by Parliament, and make incidental provisions. The mechanics are in [President's Rule].

In one line

The law can void an election won by an appeal to religion, punish a speech that sets one community against another, and dismiss a State government that governs on religious lines; what it cannot do is change what anybody believes.

In the wording a student can write in an exam: "religious fanaticism" is the University's own printed wording in topic 8, and the constitutional answer to it has three limbs. First, election law: section 123(3) of the Representation of the People Act 1951 makes it a corrupt practice to appeal for votes on the ground of a candidate's religion, and section 123(3A) to promote feelings of enmity or hatred between classes of citizens on grounds of religion, both upheld in Prabhoo as reasonable restrictions saved by article 19(2). Second, the criminal law, which punishes the promotion of enmity between groups. Third, secularism as a basic feature: on S.R. Bommai, "No political party can simultaneously be a religious party", and a State Government pursuing an unsecular course of action "renders itself amenable to action under Article 356". Each limb has a real limit, and stating those limits separates a good answer from a list.

MU's word, and why this chapter keeps it

The printed label is "Secularism and religious fanaticism". The second half is not a term of art and appears in no statute, so the chapter answers the question the University set rather than renaming it: what does the Constitution do about religion used as a weapon between communities? The label names a problem; it does not supply a legal test.

The provisions

Article 19(1)(a) guarantees to all citizens the right "to freedom of speech and expression". Article 19(2) permits any law imposing "reasonable restrictions ... in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."

Article 25(1) guarantees freedom of conscience and the right freely to profess, practise and propagate religion, but expressly "Subject to public order, morality and health and to the other provisions of this Part". Those opening words matter more here than anywhere else in the topic: a religious motive is not an answer to a public order law, which is how the anti-conversion statutes were upheld in Stainislaus, worked in [Religious Taxation and Religious Instruction].

In the criminal law, section 196 of the Bharatiya Nyaya Sanhita 2023 punishes whoever, by words spoken or written or through electronic communication, "promotes or attempts to promote, on grounds of religion ... or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities", or commits an act prejudicial to the maintenance of harmony which disturbs or is likely to disturb the public tranquillity. The punishment is up to three years, and up to five in a place of worship. Section 197 punishes imputations prejudicial to national integration. Both are read from the Gazette text of the Sanhita held in this repository.

In one line

The Constitution tells the State to try to secure one civil law for everybody, but does not say when, cannot be enforced in a court, and no court has ordered Parliament to enact it.

In the wording a student can write in an exam: article 44 provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." It sits in Part IV, so article 37 applies: those provisions "shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country". Every statement of the Supreme Court urging a code has been an observation made while deciding something else, in Shah Bano, in Sarla Mudgal and in John Vallamattom. No decision has held a rule of personal law void for offending article 44, and none has directed Parliament to legislate. The only Indian legislature to have enacted such a code is Uttarakhand, in 2024, and its own section 2 excludes the Scheduled Tribes from it.

The provision, and its neighbour

Article 44: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." Three words control it. "Endeavour" imposes an effort, not a result. "Uniform" means one law for all citizens, not one per community. "Throughout the territory of India" means a national code, which is why a State code raises a question of its own.

Article 25(1), set out in [Articles 25 and 26], guarantees freedom of religion subject to public order, morality and health and to the other provisions of Part III. John Vallamattom put the relationship directly: article 25 "guarantees religious freedom whereas the latter divests religion from social relations and personal law".

Why the article reads as it does

India inherited a system in which crime, contract, property, evidence and procedure were uniform, while marriage, divorce, maintenance, guardianship and succession followed the religion of the parties. The framers chose neither to abolish that split nor to guarantee it. Draft article 35, which became article 44, was debated on 23 November 1948; the record is at ops/notes/LLM/Constitutionalism-Pluralism-and-Federalism/authorities/cad-draft-article-35.txt.

Three provisos were moved, by Mohammad Ismail Khan, Naziruddin Ahmad and Mahboob Ali Baig, each protecting personal law from the article in some form. Only two were put to the vote and both were negatived; Mahboob Ali Baig's was moved and never put, so it is wrong to write that three amendments were defeated. Article 35 was then adopted without amendment.

K.M. Munshi answered the objection that a code would be tyranny over a minority by pointing at the majority's own law: if inheritance and succession are part of religion, "you can never give, for instance, equality to women", and "we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation".

In one line

Government does three different things, it makes rules, it carries them out, and it decides quarrels about them, and the doctrine says those three jobs should be in three different sets of hands, so that nobody both writes a rule and sits in judgment on it.

In the wording a student can write in an exam: the doctrine of separation of powers requires that the legislative, the executive and the judicial functions of the State be vested in three distinct organs, that no organ exercise a function which essentially belongs to another, and that no person be a member of more than one organ at the same time. It is a doctrine of liberty and not of efficiency: its purpose is to prevent the accumulation of power in a single authority. In its rigid American form it is a rule of constitutional law enforced by courts. In its British form it is not a rule at all, because the executive is drawn from and answerable to the legislature. India follows neither, and the Supreme Court said so in Rai Sahib Ram Jawaya Kapur v. State of Punjab: the Constitution "has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated".

Why the law has this at all

The problem is very old and very simple. A ruler who can make a law, apply it to a man he dislikes, and then decide the case himself is not governed by law at all. He is governed by his own will, and the law is only the name he gives to it. Nothing in the wording of the law prevents this. What prevents it is that the three steps are taken by three different people who do not answer to each other.

That is why the doctrine is about structure rather than about rights. A bill of rights tells the State what it may not do. The separation of powers arranges the State so that doing it is difficult. The two work together, and neither is enough alone.

The words Montesquieu used, in Book XI, chapter 6 of The Spirit of Laws, are quoted in our own reports in this form: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. . . Again, there is no liberty, if the judicial power be not separated from the legislative and executive." He was writing in 1748, describing what he took the English constitution to be. He was wrong about England, as later writers pointed out, but the description became a prescription and was written into the constitutions that followed.

In one line

India copied neither the American wall between the three organs nor the British habit of having no wall at all: it gave each organ a described job, joined the executive to the legislature on purpose, kept the judiciary apart, and armed each organ with a few weapons against the others.

In the wording a student can write in an exam: the Constitution does not enact the doctrine in its rigid form, but it does effect a clear demarcation of functions. In Rai Sahib Ram Jawaya Kapur v. State of Punjab the Court held that it "has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated", so that it "does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another". In Kesavananda Bharati v. State of Kerala Sikri C.J. listed "Separation of powers between the Legislature, the executive and the judiciary" among the five features making up the basic structure, and Shelat and Grover JJ. held that the Constitution "creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others". The doctrine here is therefore not enforceable as a free-standing rule, but it is enforceable against a constitutional amendment.

Where the Constitution does the demarcating

No article says "the three powers shall be separate". The separation is done by vesting, and a good answer points to the vesting articles rather than to a slogan.

• The executive power. Article 53(1): the executive power of the Union "shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him". Article 154(1) says the same for a State and the Governor.
• The legislative power. Article 245(1): "Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State." Article 246 then divides the subjects by the three Lists, worked out in [The Legislative Lists].
• The judicial power. Articles 124 onwards constitute the Supreme Court and articles 214 onwards the High Courts, and articles 32 and 226 place enforcement of the Constitution in their hands.

That demarcation is real. What it is not is a wall, because the same Constitution deliberately joins two of the three organs.

The join, and the article that keeps one gap open

Article 74(1) requires a Council of Ministers "to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice", and article 75(3) makes that Council "collectively responsible to the House of the People". The real executive therefore sits in the legislature and survives only while it commands a majority there. That is the British arrangement, adopted on purpose.

In one line

Parliament cannot write every rule the country needs, so it passes an Act saying what it wants and leaves a Minister or a board to write the detail; a court asks only whether Parliament kept the deciding for itself.

In the wording a student can write in an exam: delegated legislation, also called subordinate legislation, is law made by an executive or other authority under a power conferred by a statute. It is permitted, because the legislative power in articles 245 and 246 carries a power to delegate what is ancillary. It is limited by the doctrine of excessive delegation: a legislature may not part with its essential legislative function, which is to declare the legislative policy, lay down a standard, and enact that policy as a binding rule of conduct. Delegation beyond that is abdication and the parent provision is void. The doctrine was settled in In re The Delhi Laws Act, 1912 and restated in Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd v. Assistant Commissioner of Sales Tax: "an unlimited right of delegation is not inherent in the legislative power itself".

Why the law has this at all

A legislature meets for a limited number of days. The State it governs runs water systems, drug approvals, air safety and pension schemes. No House can settle in a statute the permitted level of a contaminant or the format of a return.

Gwalior Rayon put the justification in these terms. "The growth of the legislative power of the executive is a significant development of the twentieth century." Legislatures "because of limitation imposed upon by the time factor hardly go into matters of detail", so provision is made for delegated legislation "to obtain flexibility, elasticity, expedition and opportunity for experimentation". Mathew J. added competence: many subjects "require expertise, technical knowledge and a degree of adaptability to changing situations" a Parliament does not possess.

It is therefore not a defect to be tolerated but the ordinary machinery of government, and equally the standing strain on the separation of powers described in [The Indian Scheme].

The provisions, and four words

The parent Act, or enabling Act, confers the power. What is made under it, the rules, regulations, bye-laws, notifications and schemes, is delegated legislation: it binds, but draws its force from that Act. Excessive delegation is the vice of a parent provision that gives away too much, so the challenge is to the section of the Act. Ultra vires, Latin for "beyond the powers", is the vice of a rule going outside the parent Act, so the challenge is to the rule; that doctrine is [Ultra Vires].

The Constitution says nothing about delegation. What it says is where the legislative power sits. Article 245(1): "Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State." Article 246 divides the subject matter by the three Lists.

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If Parliament or a Government does something the Constitution does not allow, a court can say so and refuse to give the act effect, and in India that power is written into the Constitution rather than invented by the judges.

In the wording a student can write in an exam: judicial review is the power of the superior courts to examine the validity of legislative and executive action against the Constitution, and to declare void what does not conform. Its source in India is textual: article 13 makes a law inconsistent with Part III void, article 32 guarantees the right to move the Supreme Court for the enforcement of Part III, and article 226 empowers every High Court to issue writs for that purpose "and for any other purpose". It is not an implication drawn from a supremacy clause, as in the United States. In Kesavananda Bharati v. State of Kerala Shelat and Grover JJ. described "the judicial review provided expressly in our Constitution by means of Article 226 and 32" as "one of the features upon which hinges the system of checks and balances", and in L. Chandra Kumar v. Union of India seven judges held that this power is "an integral and essential feature of the Constitution, constituting part of its basic structure", so that it can never be ousted by statute.

Why the law has this at all

A written constitution that limits power is a promise, and a promise needs somebody to enforce it. Article 13(2) says that a law taking away a fundamental right shall be void. If no court could say which laws are void, the sentence would be advice.

The alternative was not theoretical. In the United Kingdom there is no such power, because Parliament is sovereign and a statute cannot be unconstitutional. In the United States the Constitution does not confer the power either: it rests on a decision of the Supreme Court in 1803, Marbury v. Madison, whose report has not been read for this book, so it is named without a citation. India chose neither route. The makers put the power in the text, and put it in three places, so that its existence could never turn on an inference.

The provisions

Article 13(1) deals with pre-Constitution law: "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."

Article 13(2) deals with law made after it: "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."

In one line

Ultra vires is Latin: ultra means beyond and vires means powers, so the phrase means beyond the powers. Every public body holds a power that somebody gave it, and every such power has an edge; if the body steps over the edge, what it has done has no legal force, however sensible it was.

In the wording a student can write in an exam: the doctrine of ultra vires is the ground of review on which an act, a rule or a statute is held void because its maker had no power to make it, or did not exercise the power in the manner prescribed. It has two limbs. Substantive ultra vires goes to content: what was done lies outside the power conferred. Procedural ultra vires goes to manner: the power existed, but a mandatory condition attached to its exercise was not observed. The doctrine works at two levels. Against a statute it asks whether the legislature was competent and whether it transgressed a constitutional limit, and that was the very question referred in In re The Delhi Laws Act, 1912: "Was section 7 of the Delhi Laws Act, 1912 ... ultra vires the Legislature which passed the said Act?" Against a subordinate instrument it asks whether the rule stays inside its parent Act and inside the Constitution. The opposite of ultra vires is intra vires, within the powers.

MU set this in 2019, and the answer it looks for names both limbs and applies each.

Why the law has this at all

In a country with a written constitution nobody has original power. Parliament has the powers article 246 and the Union List give it; a State Legislature has its own; a Minister has what a statute gives him; a municipality has what its Act gives it. Power is always traced back to a grant.

If that is so, then the only question that ever needs asking about an official act is: where does the power come from, and does the act fit inside it? Ultra vires is the name for the answer being no. It is the most practical doctrine in the whole of public law, because it does not require a fundamental right to have been broken, or a policy to be shown unwise. It asks a question of authority, and an authority that does not exist cannot be supplied by good intentions.

The provisions

There is no article called "ultra vires". The doctrine is carried by two.

Article 13(2) supplies the consequence when a fundamental right is in issue: "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." And article 13(3)(a) makes the doctrine reach subordinate instruments, because for this purpose "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law".

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Parliament may change the Constitution, and it took four decisions across twenty-two years to settle whether it may change the part that protects the citizen against Parliament.

In the wording a student can write in an exam: article 368 confers on Parliament a constituent power to amend the Constitution "by way of addition, variation or repeal", by a special majority in each House and, for the matters the proviso lists, only with ratification by the legislatures of not less than half the States. Whether that power reaches Part III was answered four times, and differently. Sri Sankari Prasad Singh Deo v. Union of India and Sajjan Singh v. State of Rajasthan held that "law" in article 13(2) means ordinary law and not a constitutional amendment, so an amendment abridging a fundamental right stands. I.C. Golaknath v. State of Punjab, by six to five, held the opposite. Kesavananda Bharati v. State of Kerala, by seven to six, overruled Golak Nath and held that the power does reach every provision, Part III included, but cannot be used to damage or destroy the basic structure of the Constitution.

Why the Constitution has this at all

A constitution that cannot be changed is not preserved by its rigidity. It is broken, because a country that cannot amend its highest law will eventually go round it. But the same power, if unlimited, empties Part III: the State's own legislature would decide how much of the guarantee against the State to leave standing. The drafters answered by making the power difficult rather than limited. Everything here turns on one question. Are those procedural hurdles the only limits, or are there limits of substance too?

The provision

Article 368 is headed "Power of Parliament to amend the Constitution and procedure therefor". The heading itself was substituted by the Constitution (Twenty-fourth Amendment) Act 1971, with effect from 5 November 1971, which also inserted clause (1): "Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article."

Constituent power means the power to make or remake a constitution, as against ordinary legislative power, the power to make laws under one that already exists. That distinction is the whole of the reasoning in the first two cases.

Clause (2) carries the procedure: "An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill".

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Parliament may amend any article of the Constitution, but not so as to destroy what makes the Constitution that Constitution, and a court will say when it has.

In the wording a student can write in an exam: the basic structure doctrine, laid down in Kesavananda Bharati v. State of Kerala, is that article 368 confers a power to amend and not a power to destroy, so no amendment may damage or destroy the basic structure of the Constitution. It limits constituent power itself, so it binds a Parliament acting with a two-thirds majority and the ratification of half the States. In Minerva Mills Ltd v. Union of India it struck down clauses (4) and (5) of article 368 and the amended article 31C, the Court holding that "a limited amending power is one of the basic features of Indian Constitution". In Waman Rao v. Union of India it got a date: amendments putting laws into the Ninth Schedule on or after 24 April 1973 are open to challenge. In I.R. Coelho v. State of Tamil Nadu it became an impact test, applied through article 21 read with articles 14 and 19.

Why the law has this at all

[The Amending Power] ends with a settled proposition: article 368 reaches every article, Part III included. Follow it to the end. A Parliament with the numbers could delete article 32, abolish the States, or provide that no further election need be held. Each step is an "amendment" in the literal sense, and on the literal reading each is lawful. The doctrine exists because the framers gave Parliament a power over the Constitution and gave nobody a power over the country.

The provision

Article 368(1) says Parliament "may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution". The doctrine hangs on that one word. The Forty-second Amendment 1976 tried to close the argument by adding two clauses. Clause (4): no amendment "shall be called in question in any court on any ground". Clause (5): "there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article." Both are still printed, and their footnote records that the section that inserted them "has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others AIR 1980 SC 1789".

Article 32 is the other half. Clause (1) guarantees "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part", and clause (4) says that right "shall not be suspended except as otherwise provided for by this Constitution". A limit on amendment is worth nothing without a court to hear the complaint, which is what clause (4) of article 368 was written to remove.

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The Constitution says the President appoints judges "after consultation with" the Chief Justice of India, and the Supreme Court has read those four words to mean that the Chief Justice, advised by his senior colleagues, effectively decides.

In the wording a student can write in an exam: articles 124(2) and 217(1) vest the power of appointment in the President and require consultation with named constitutional functionaries. In S.P. Gupta v. President of India, the First Judges case, a Bench of seven held that consultation is not concurrence, that the power "resides solely and exclusively in the Central Government", and that the opinion of the Chief Justice of India enjoys no primacy. In the Second Judges case, Supreme Court Advocates-on-Record Association v. Union of India, a Bench of nine reversed that: the opinion of the judiciary "symbolised by the view of the Chief Justice of India" has primacy, and "No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India." The Third Judges case then settled how that opinion is to be formed, and the body that forms it is called the collegium.

Why the law has this at all

Somebody has to choose judges, and every method of choosing is objectionable in a different way. If the executive chooses alone, the judges who will decide cases against the executive are its appointees. If the judges choose themselves, an unelected body renews itself with no accountability to anyone. If a legislature chooses, appointment becomes a political contest.

The Constitution answered by dividing the job: the executive appoints, and must consult the judiciary before it does. That is a workable compromise only if "consult" carries real weight, and the whole of this chapter is the argument about how much.

The provisions, and a warning about the printed text

The official text of the Constitution prints articles 124(2), 217(1), 222(1), 224 and 224A in the form the Constitution (Ninety-ninth Amendment) Act 2014 gave them, which speaks throughout of the National Judicial Appointments Commission. Those substitutions were struck down. The words in force are the earlier words, which the Legislative Department preserves in the footnotes. That is dealt with in [The National Judicial Appointments Commission]; here the operative text is given.

Article 124(1). There shall be a Supreme Court "consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges". Parliament has prescribed a larger number, and the footnote records it as "Now 'thirty-three' vide the Supreme Court (Number of Judges) Amendment Act, 2019".

Article 124(2). Every Judge of the Supreme Court "shall be appointed by the President by warrant under his hand and seal" "after consultation with such of the Judges of the Supreme Court and of the High Court in the States as the President may deem necessary for the purpose", and shall hold office until sixty-five. The proviso restored by the strike-down reads: "Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted".

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Parliament amended the Constitution to replace the collegium with a six member Commission, and the Supreme Court struck the amendment down as destroying the independence of the judiciary.

In the wording a student can write in an exam: the Constitution (Ninety-ninth Amendment) Act 2014, brought into force on 13 April 2015, inserted articles 124A, 124B and 124C and rewrote articles 124(2), 217(1), 222(1), 224 and 224A so that appointments and transfers were to be made "on the recommendation of the National Judicial Appointments Commission". The Commission was to consist of the Chief Justice of India as Chairperson, the two next senior judges of the Supreme Court, the Union Law Minister, and two eminent persons. In Supreme Court Advocates-on-Record Association v. Union of India the amendment and the National Judicial Appointments Commission Act 2014 were held void, on the ground that by altering the process of appointment they struck at the independence of the judiciary, which is part of the basic structure. The collegium described in [The Appointment of Judges] therefore revived.

The warning that matters most

Articles 124A, 124B and 124C are still printed in the official text of the Constitution. They are void and no part of them is in force. So are the words about the Commission which the same Amendment put into articles 124(2), 217(1), 222(1), 224(1), 224(2) and 224A.

A student reading the bare Constitution will find these articles set out in full, in ordinary type, exactly like every article that is in force. Nothing in the body of the text marks them as dead. What marks them is a footnote, and the footnote to article 124A reads: this amendment "has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another Vs Union of India in its judgment dated 16-10-2015". The same footnote is repeated under each of the other articles the Amendment touched.

Two practical consequences. First, an answer that describes the Commission as the law is wrong, however faithfully it copies the printed article. Second, article 217(1) as printed reads ungrammatically, because the Amendment substituted only part of its consultation clause and left the remainder standing. The words in force are the pre-2015 words, set out in [The Appointment of Judges].

Why Parliament tried this

The collegium was not created by the Constitution. It was created by interpretation, in 1993 and 1998, and three objections to it can be read off the very judgments that made it.

It has no textual home. Articles 124(2) and 217(1) say "consultation", and the Second Judges case gave consultation the force of concurrence: "No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India."

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A judge can be moved to another High Court without being asked, but can be put out of office only by both Houses of Parliament after a judicial inquiry, and the gap between the two explains most of the argument about judicial independence.

In the wording a student can write in an exam: article 222(1) empowers the President, after consultation with the Chief Justice of India, to transfer a judge from one High Court to any other. In Union of India v. Sankalchand Himatlal Sheth the Supreme Court refused to read a requirement of consent into that article, but held that a transfer may be made only in public interest and never as punishment, and that consultation there "means full and effective, not formal or unproductive, consultation". S.P. Gupta v. President of India carried that meaning across to appointment under articles 124(2) and 217(1). Removal is governed by article 124(4), applied to High Courts by article 218: an address by each House, by special majority, in the same session, "on the ground of proved misbehaviour or incapacity", the procedure of proof coming from the Judges (Inquiry) Act 1968. In K. Veeraswami v. Union of India the Court held that a judge is also a public servant who may be prosecuted, subject to the President's sanction and consultation with the Chief Justice of India.

Why the law has this at all

A judge who can be moved or removed at will is not independent. A judge who can never be moved or removed is not accountable. The Constitution answers the first worry by making removal extremely hard, and leaves transfer comparatively easy because transfer is an administrative necessity.

The trouble is that the two can be substituted for each other. A government that cannot remove an inconvenient judge can transfer him a thousand miles away. That is why the transfer cases were fought.

The provisions

Transfer. Article 222(1): "The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court." Those are the words in force; the printed text substitutes a reference to the National Judicial Appointments Commission, and that is void. Clause (2) gives a transferred judge a compensatory allowance.

Article 217(1)(c) supplies the consequence: a judge's office "shall be vacated by his being appointed ... to be a Judge of the Supreme Court or by his being transferred ... to any other High Court".

Removal. Article 124(4): "A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity." Clause (5) adds that Parliament "may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4)".

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A judge is independent not because the Constitution announces that he should be, but because narrow, unglamorous provisions make it hard for anybody to reward or punish him for how he decides a case.

In the wording a student can write in an exam: judicial independence is secured by four mechanisms in the text and not by any single declaration. Tenure: a Judge of the Supreme Court holds office until sixty-five and of a High Court until sixty-two, removable only by the address procedure in article 124(4). Remuneration: articles 125 and 221 fix salaries by law and forbid any variation of allowances, leave or pension to a Judge's disadvantage after appointment, and articles 112(3)(d) and 202(3)(d) charge judicial salaries on the Consolidated Fund so that under articles 113(1) and 203(1) they escape the legislature's vote. Insulation from legislative attack: articles 121 and 211 forbid discussion in Parliament or a State legislature of a Judge's conduct in the discharge of his duties. Administrative autonomy: article 146 gives the Chief Justice of India the Court's own officers and servants and charges its administrative expenses on the Consolidated Fund of India.

Why the law has this at all

A court decides against the government roughly as often as it decides for it. If the government could then cut the judge's pay, have his conduct debated in the House, move him to a distant court or take away his registry staff, he would learn quickly which answers are cheap and which expensive. He would not need to be threatened. He would only need to know that the power existed.

The problem is anticipated retaliation: the quiet adjustment of judgment by a person who knows who controls his conditions of work. The answer is to take those conditions out of the hands of the organs he has to decide against. That is why the guarantees below are so dull. A rule that a particular sum may not be reduced by a particular body is worth far more than a general promise.

No discussion in the legislature

Article 121, headed Restriction on discussion in Parliament, provides: "No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided." Article 211, headed Restriction on discussion in the Legislature, provides: "No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties."

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Everything in the last chapter makes a judge hard to touch, which creates this chapter's problem: the only formal sanction is enormous, so almost everything that actually happens to a misbehaving judge happens below it.

In the wording a student can write in an exam: article 124(4) permits removal only on proved misbehaviour or incapacity, by order of the President after an address by each House supported by the prescribed majorities, and article 124(5) leaves Parliament to regulate the investigation and proof, which it did by the Judges (Inquiry) Act, 1968. Article 218 applies both clauses to a High Court Judge, and article 235 vests control over district courts and courts subordinate thereto in the High Court. In K. Veeraswami v. Union of India the Supreme Court held that a Judge of a High Court or of the Supreme Court is a "public servant" liable to prosecution for corruption, subject to safeguards requiring consultation with the Chief Justice of India. In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee it held that the space between bad behaviour and impeachable misbehaviour must be filled by self-regulation, not by pressure from the Bar.

Why the law has this at all

Accountability and independence are usually presented as opposites. They are not. A judge who can be removed easily is not independent; one who cannot be touched at all loses the public confidence on which the institution depends. Veeraswami put that starkly: "The judiciary has no power of the purse or the sword. It survives only by public confidence."

The design problem is the size of the only formal sanction. Removal under article 124(4) needs a political majority assembled in two chambers against a judge. It is available for grave misconduct and unavailable for anything less. Ravichandran Iyer named the consequence: "impeachment is meant to be a drastic remedy and needs to be used in serious cases. But there must exist some other means to ensure that Judges do not abuse the trust the society has in them."

The provisions

Article 124(4) provides that a Judge of the Supreme Court "shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity."

Four cumulative conditions: an address by each House; a majority of the total membership, not merely of those voting; two thirds of those present and voting; both addresses in the same session. The ground is proved misbehaviour or incapacity, and "proved" is doing work: a finding must precede the vote, which is what article 124(5) provides for.

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The three words are not three moods. They mark three relationships between a court and the organ whose job it is doing, and what separates them is whether the court makes another body perform its function or performs it instead.

In the wording a student can write in an exam: judicial activism is the exercise of an existing jurisdiction to give an established right an effective remedy the text does not spell out, leaving the field open to the legislature. Judicial restraint is the deliberate non-exercise of a power the court possesses, because the question belongs to another organ or a statute occupies the field. Judicial overreach is the exercise of a power belonging to another organ: choosing among policy options, displacing an express statutory provision, or performing another body's function rather than compelling it to perform. Vishaka v. State of Rajasthan and Vineet Narain v. Union of India are the standard examples of activism, both resting on article 32 read with articles 141, 142 and 144 and both expressly temporary until the legislature acts. Supreme Court Bar Association v. Union of India is the standard example of the Court limiting itself: article 142 "cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject".

The three words, defined so they can be applied

Most answers use the words as praise and blame. Give them content taken from what the Court actually does with the case.

Activism. Three features together. A right or duty that already exists independently of the court. A remedy or machinery that is missing. An intervention the legislature can displace by legislating. Vishaka has all three: the rights were in articles 14, 15, 19(1)(g) and 21; there was no statute; and the guidelines were to operate "until a legislation is enacted for the purpose".

Restraint. A court has jurisdiction and declines to use it, or uses it narrowly, because the choice belongs elsewhere. It is not deciding for the government and not timidity: it is a court saying on the record that the question is not for it. Vineet Narain is an example even though it is filed under activism, because the Court monitored investigations while refusing to "direct or channel those investigations".

Overreach. Any one of three things is enough. The court makes a policy choice between options that are all lawful. It acts against an express statutory provision on the subject. Or it takes over a statutory body's function and performs it, instead of ordering that body to perform. The third is the test the Supreme Court Bar Association case supplies, and it is the sharpest.

The working question is therefore not "did the court go too far" but whose function was performed, and by whom? Supervision is activism, substitution is overreach.

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A House of the legislature holds powers no other body holds, including the power to punish for contempt of itself, and the hard question is not whether they exist but how far a court may examine the way they are used.

In the wording a student can write in an exam: articles 105 and 194 confer three distinct things. Freedom of speech in the House. An immunity, under clauses (2), by which no member is liable to any proceedings in any court "in respect of anything said or any vote given by him" in the House or a committee. And, under clauses (3), the other powers, privileges and immunities the House had immediately before the Forty-fourth Amendment, until defined by law, which is the source of the power to punish for contempt. Articles 122 and 212 bar a court from questioning proceedings "on the ground of any alleged irregularity of procedure", and no further, so in Raja Ram Pal an expulsion was held reviewable for illegality though not for irregularity. In Sita Soren a Bench of seven overruled the majority in P.V. Narasimha Rao and held that a legislator who accepts a bribe to vote or to speak has no immunity under article 105(2) or 194(2).

Why the law has this at all

A legislature that could be sued for what is said in it would not debate freely, and one that could not control disorder in its chamber could not sit. Privilege exists to make the House work, not to advantage the people in it. That produces the modern test, because a privilege claimed for something unconnected with the House's functioning is not a privilege at all.

The provisions

Article 105(1): "Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament." Note the qualifications at the front: this is not article 19(1)(a) and is not subject to article 19(2), but a separate freedom limited by the Constitution and the House's rules.

Article 105(2): "No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings." Two immunities in one clause, the member's and the publisher's, the second limited to publication by or under the authority of a House. A newspaper's own report falls under article 361A: see [The Press and the Legislature].

Article 105(3): the other powers, privileges and immunities are "such as may from time to time be defined by Parliament by law, and, until so defined", those the House and its members and committees had "immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978". Article 194 makes identical provision for a State legislature, and clause (4) of each extends the protection to persons entitled to speak in the House without being members. Because no such law has ever been made, the residue is still fixed by the practice of the House of Commons, an inheritance Sita Soren was careful about: India "does not have 'ancient and undoubted' privileges which were vested after a struggle between Parliament and the King."

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The President may ask the Supreme Court a legal question before anybody has been hurt by the answer, and what the Court writes is not a judgment but a report.

In the wording a student can write in an exam: article 143(1) empowers the President, where it appears to him that a question of law or fact has arisen or is likely to arise which is of such public importance that it is expedient to obtain the Court's opinion, to refer it to the Supreme Court, and "the Court may, after such hearing as it thinks fit, report to the President its opinion thereon". Article 143(2) covers a dispute of the kind excluded from article 131 by its proviso, and there the Court "shall" report. Article 145(3) requires a minimum of five Judges for a reference under article 143, and article 145(4) requires the opinion to be delivered in open court. In In re The Kerala Education Bill, 1957 the Court held that under clause (1) it "has a discretion in the matter and may in a proper case and for good reasons decline to express any opinion", while under clause (2) it is obligatory to entertain the reference and report.

Why the Constitution has this at all

Courts normally decide disputes between parties, after the event, on facts. That is a good rule with a cost: a government unsure whether a Bill is constitutional must either abandon it or enact it and wait years to find out.

The framers borrowed a solution. Kerala Education traces the wording of article 143(1) to section 213(1) of the Government of India Act, 1935, reproduced "word for word, except as to the name of the court", under which the Governor-General could consult the Federal Court. Clause (2) is new. The judgment also records what was rejected: there is no such provision in the Constitution of the United States or of Australia, and the courts there "have declined to give advisory opinions to the executive or legislative branches of the State".

That comparison answers the standard essay question. Advisory jurisdiction is not an inherent judicial power but a deliberate choice to let one organ ask another for guidance before a dispute exists, and every difficulty here follows from it.

The provision, clause by clause

Article 143(1): "If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon."

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The Supreme Court may make whatever order a case actually needs, including an order no statute provides for, but it may not use that power to push aside a statute which deals with the very subject.

In the wording a student can write in an exam: article 142(1) empowers the Supreme Court, in the exercise of its jurisdiction, to "pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it". The power is plenary and residual; it exists independently of any statute and cannot be controlled by one. It is not a power to legislate, and not a power to displace substantive law. In Supreme Court Bar Association v. Union of India a Constitution Bench held that the powers conferred by article 142 "being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant", and that the article "cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly."

Why the law has this at all

A court that can give only the reliefs a statute names will sometimes be unable to do justice at all. The wrong may be proved and the remedy missing. Ordinary courts live with that, because their powers come from the statutes that create them. The framers did not want the highest court in the country to be in that position, so they gave it a power defined not by a list of orders it may pass but by a purpose: whatever is necessary for doing complete justice.

That is a large gift, and it carries an obvious danger. A court which may do whatever justice requires can, if it forgets itself, do whatever it thinks best. The modern law of article 142 is about that danger, which is why the article belongs to a module on the stresses and strains of the separation of powers.

The provision

Article 142 is headed Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc. and has two clauses.

Clause (1). The Supreme Court "in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it", and any such decree or order "shall be enforceable throughout the territory of India" in the manner Parliament prescribes or, until it does, in the manner the President prescribes by order.

Clause (2). "Subject to the provisions of any law made in this behalf by Parliament", the Supreme Court has "all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself."