LLM Group 1 Constitutional and Administrative Law National Security Public Order and Rule of Law 2015 Question Paper with Solutions

For full marks, cover: what is meant by a constitutional philosophy of rights; the Preamble as the statement of that philosophy and its legal status; Fundamental Rights as the negative and enforceable half; Directive Principles as the positive and programmatic half; the history of the conflict between the two and its resolution through the basic structure doctrine; the mechanism by which the Directive Principles were made effective through Article 21; and an assessment.

The Preamble: the statement of the philosophy

The Preamble declares India a Sovereign Socialist Secular Democratic Republic and resolves to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

Two features of that text carry the philosophy. First, the order of the words: justice comes before liberty, and social and economic justice before political justice. That is a deliberate inversion of the classical liberal ordering and it commits the State to redistribution as a precondition of freedom rather than as an interference with it. Second, dignity of the individual is coupled with unity and integrity of the Nation in the same clause, which is the constitutional acknowledgement that this document is doing two things at once: securing individual rights and holding together a country that had just been partitioned. Every question in this subject about the balance between liberty and national security is a question about that coupling.

Fundamental Rights: the negative and enforceable half

Part III does two things. It restrains the State, and it arms the individual with a remedy. The second is what makes the first real. Article 13 makes any law inconsistent with Part III void to the extent of the inconsistency, whether pre constitutional under Article 13(1) or post constitutional under Article 13(2). Article 32 makes the right to move the Supreme Court for enforcement of Part III itself a fundamental right, which Ambedkar called the heart and soul of the Constitution, and Article 226 gives the High Courts a wider power still.

The rights themselves group into a scheme rather than a list. Articles 14 to 18 are the equality code, which does not merely forbid discrimination but abolishes untouchability in Article 17 and titles in Article 18. Articles 19 to 22 are the freedom code, and the placing of Article 22 among the freedoms while it authorises detention without trial is the sharpest tension in the document. Articles 23 and 24 forbid forced labour and child labour, and they run against private persons directly. Articles 25 to 28 are the religious freedom code, and Articles 29 and 30 the cultural and educational rights of minorities.

They express the social and economic content of the Preamble's promise: Article 38 on a social order in which justice informs all institutions and on minimising inequalities of income, status and opportunity; Article 39 on adequate means of livelihood, distribution of material resources to subserve the common good, prevention of concentration of wealth, equal pay for equal work and protection of children; Article 39A on equal justice and free legal aid; Articles 41 to 43 on work, education, public assistance, humane conditions of work and a living wage; Article 44 on a uniform civil code; Article 45 on early childhood care; Article 46 on the educational and economic interests of the weaker sections; and Article 47 on nutrition and public health.

Why make them unenforceable? Because they require resources and choices that courts cannot make. Ambedkar's answer in the Constituent Assembly was that they are not binding on courts but are binding on the electorate: a government that ignores them answers for it at an election. That is a political sanction, not a legal one, and the honest position is that it has worked unevenly.

Round three, the settlement. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, decided by thirteen judges, held that Parliament may amend any part of the Constitution including Part III but cannot destroy its basic structure. It upheld the first part of Article 31C and struck down the clause ousting judicial review of the declaration, because judicial review is basic. The Court also held that the Fundamental Rights and the Directive Principles are complementary, that neither is subordinate, and that they must be read harmoniously.

Round four, the attempt to invert the hierarchy. The Forty second Amendment, 1976 widened Article 31C to protect any law giving effect to all or any of the Directive Principles. In Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, the Court struck that widening down. Chandrachud C.J. held that the Indian Constitution is founded on the bedrock of the balance between Parts III and IV, and that to give absolute primacy to one over the other is to disturb the harmony of the Constitution, which is itself part of the basic structure.

So Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, held that the right to life includes the right to live with human dignity and the bare necessaries of life. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, held that the right to livelihood is part of the right to life, deriving it from Article 39(a). Unni Krishnan, J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645, read a right to education into Article 21 from Articles 41 and 45, which led to the Eighty sixth Amendment, 2002 inserting Article 21A.

Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81, read free legal aid and a speedy trial into Article 21, drawing on Article 39A. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, enforced Articles 23, 39(e) and 42 against bonded labour in the Faridabad quarries, holding that where a person alleges he is a bonded labourer the burden lies on the employer to prove otherwise, because a bonded labourer cannot lead evidence.

That is how a non justiciable principle becomes an enforceable right: not by making Part IV justiciable, which the Constitution forbids, but by using it to give content to a right that already is.

Conclusion. The constitutional philosophy for the protection of human rights in India is a philosophy of transformation constrained by legality. The Preamble states it, resolving to secure justice in its social and economic sense before its political sense, and coupling the dignity of the individual with the unity of the Nation. Part III gives that philosophy its enforceable, negative form and, through Article 32, a remedy that is itself a right. Part IV gives it its positive, programmatic form and accepts that its delivery is a matter for politics rather than adjudication.

The relationship between the two was contested for thirty years, from Champakam Dorairajan through Golak Nath to the settlement in Kesavananda Bharati and Minerva Mills, and the settled position is that neither Part is subordinate and that the balance between them is itself part of the basic structure. What made the philosophy operative was the reading of Part IV into Article 21 after Maneka Gandhi, which converted dignity, livelihood, education, legal aid and freedom from bondage from directives into rights. The Constitution's answer to the question this whole subject asks, how far liberty may be curtailed for security, is therefore not found in any single article but in that structure: rights may be restricted, but only by a law, only on the grounds the Constitution names, and only to an extent a court may test.