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

What a constitutional philosophy of rights means

A constitution's philosophy of rights is the answer it gives to three questions: where do rights come from, what are they for, and against whom do they run. The Indian Constitution's answers are distinctive and a good answer states them at the outset. Rights are not gifts of the State: they are recognised, not created, which is why Puttaswamy in 2017 could hold that natural rights are inalienable and do not depend on the Constitution for their existence, and why ADM Jabalpur, which had held the opposite, was overruled in terms.

Rights are for the transformation of an unequal society, not merely for the protection of an existing liberty, which is why the Constitution permits protective discrimination in Articles 15(3), 15(4), 16(4) and 46. And they run primarily against the State, though some run against private persons as well, notably Articles 15(2), 17, 23 and 24, and since Kaushal Kishor v. State of Uttar Pradesh, (2023) 4 SCC 1, Articles 19 and 21 are enforceable against persons other than the State too.

The legal status of the Preamble must be stated accurately. In Berubari Union, In re, AIR 1960 SC 845, the Court said the Preamble is not part of the Constitution. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, that was corrected: the Preamble is part of the Constitution, is not a source of power or of limitation on power, but is a key to the mind of the framers and may be used to interpret ambiguous provisions.

In S.R. Bommai v. Union of India, (1994) 3 SCC 1, secularism as declared in the Preamble was held to be part of the basic structure and a ground on which a State Government could be dismissed. Most recently, in Dr. Balram Singh v. Union of India, decided 25 November 2024, the Supreme Court dismissed petitions challenging the insertion of "socialist" and "secular" by the 42nd Amendment, holding that both words as understood in India are consistent with the Constitution's basic features and that Parliament's amending power under Article 368 extends to the Preamble.

The philosophy shows in the qualifications. Every freedom in Article 19 is subject to reasonable restrictions in the interests of, among other things, the sovereignty and integrity of India, the security of the State and public order. That is not a defect: it is the constitutional recognition that rights are exercised within a State that must survive. The whole of this subject is an inquiry into whether the qualifications have swallowed the freedoms.

Directive Principles: the positive and programmatic half

Part IV declares principles fundamental in the governance of the country which it shall be the duty of the State to apply in making laws, but which under Article 37 are not enforceable by any court.

The conflict and its resolution: the most important part of this answer

The two Parts came into collision almost immediately because land reform legislation implementing Article 39(b) infringed the then fundamental right to property.

Round one, Fundamental Rights supreme. State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, struck down communal reservation in college admissions and held that the Directive Principles must conform and run subsidiary to the Fundamental Rights. Parliament replied with the First Amendment, 1951, adding Article 15(4) and Articles 31A and 31B with the Ninth Schedule.

Round two, the amending power. Golak Nath v. State of Punjab, AIR 1967 SC 1643, held by 6:5 that Parliament cannot amend Part III at all. Parliament replied with the Twenty fourth Amendment, and with the Twenty fifth Amendment, which inserted Article 31C providing that a law giving effect to Article 39(b) or (c) could not be challenged as violating Articles 14, 19 or 31, and that a declaration to that effect would be beyond judicial scrutiny.

The single sentence to remember is that the goals set out in Part IV are to be achieved without abrogating the means provided by Part III. In Property Owners Association v. State of Maharashtra, decided 5 November 2024 by nine judges, the Court revisited Article 39(b) and held that not every privately owned resource is a "material resource of the community", narrowing the earlier expansive view and restoring the balance Minerva Mills described.

The mechanism that made Part IV effective anyway

The most important development in this area is that the courts made the Directive Principles operate through Article 21 rather than as independent rights. Once Maneka Gandhi v. Union of India, (1978) 1 SCC 248, held that Articles 14, 19 and 21 form a golden triangle and that the procedure depriving a person of life or liberty must be right, just and fair, the content of Article 21 became open ended, and the Court filled it from Part IV.

Assessment

The strength of the scheme is that it refuses the false choice between liberty and welfare. A constitution with only Part III would have guaranteed formal freedom in a society where most people had no capacity to use it; one with only Part IV would have created a developmental State with no check on it. The basic structure doctrine, and the balance principle of Minerva Mills, hold the two together.

The weakness is enforcement asymmetry. Part III is enforced by courts on the application of individuals who can reach them; Part IV depends on political will. The result is that the liberty rights of the articulate are better protected than the social rights of the poor, and the corrective, public interest litigation, has itself been criticised for making the Court a policy maker without the institutional equipment for it.

For full marks, cover: the text and mechanism of Article 359; the critical distinction from Article 358; what a Presidential order can and cannot bar, with Makhan Singh; ADM Jabalpur worked out in full, since this question is really about it; the four changes the 44th Amendment made; the overruling in Puttaswamy; and a critical assessment.

Two, it suspends the REMEDY, not the right. This is the distinction the examiner is testing and it must be stated plainly. Article 358 suspends Article 19 itself as a fetter on State power; Article 359 leaves every right in Part III in existence and merely bars the door of the court. The consequences of that difference are real and appear the moment the order lapses: a right suspended as to enforcement revives, and a cause of action that accrued during the emergency can be sued upon afterwards, because the right was never gone. A law that violated Article 19 during a war emergency, by contrast, was valid when made.

Three, it can reach any Part III right except Articles 20 and 21, and it can be confined to a part of India. Its scope is therefore potentially far wider than Article 358, which touches only Article 19.

What a Presidential order can and cannot bar: Makhan Singh

The single most important limitation was laid down in Makhan Singh v. State of Punjab, AIR 1964 SC 381. During the 1962 emergency, persons detained under Rule 30 of the Defence of India Rules moved for habeas corpus. A Presidential order under Article 359 had suspended the right to move for enforcement of Articles 14, 21 and 22. The State argued that no petition lay at all.

Facts and posture. After the proclamation of 25 June 1975, the President made orders under Article 359 suspending the right to move any court for the enforcement of Articles 14, 21 and 22, and later Article 19. Thousands were detained under the Maintenance of Internal Security Act, 1971. Detenus petitioned the High Courts under Article 226, using the Makhan Singh grounds: that the detention orders did not comply with MISA, that they were mala fide, that the detaining authority had not applied its mind. Nine High Courts accepted that such petitions were maintainable. The Union appealed.

The holding. By four to one, the Supreme Court held that in view of the Presidential order suspending Article 21, no person had any locus standi to move any High Court under Article 226 for a writ of habeas corpus to challenge the legality of an order of detention, whether on the ground that it was not under or in compliance with the Act, or that it was mala fide.

Khanna J.'s dissent. He held that Article 21 is not the sole repository of the right to life and liberty; that the principle that nobody may be deprived of life or liberty without the authority of law is basic to any civilised legal system and existed long before the Constitution; that the sanctity of life and liberty was not the gift of the Constitution and could not be taken away by suspending its enforcement; and that the State has no power to deprive a person of life or liberty without legal authority even during an emergency. He wrote that even in the absence of Article 21 the State could not do so. He was the senior most puisne judge, was superseded for the Chief Justiceship in January 1977, and resigned. That fact belongs in the answer because it shows what the decision cost.

The 44th Amendment: four changes

The Constitution (Forty fourth Amendment) Act, 1978 was directed at precisely this. On Article 359 it made the following changes.

Four, the surrounding architecture was changed, which matters because Article 359 only operates while a proclamation is in force: "internal disturbance" in Article 352 became armed rebellion; the proclamation now requires the written advice of the Cabinet; approval by both Houses within one month by a majority of total membership and two thirds present and voting; lapse after six months without re approval; and a right in one tenth of the Lok Sabha to requisition a sitting to move disapproval by simple majority. Article 358 was simultaneously confined to war and external aggression emergencies and to laws reciting a connection with the emergency.

Critical assessment

What Article 359 still permits, and why it is defensible. Even now the President may suspend the enforcement of Articles 14, 19, 22, 25 and the rest during an armed rebellion or a war. That is a formidable power. The defence of it is that an emergency is by definition a situation in which the ordinary balance between individual claims and collective survival cannot be struck case by case, and that the alternative is either to give the executive an unwritten prerogative, which is worse because it is uncontrolled, or to require the courts to decide questions of military necessity under wartime pressure, which they do badly, as Liversidge v. Anderson, [1942] AC 206, and Korematsu v. United States, 323 US 214 (1944), both show.

Conclusion. Article 359 empowers the President, during a proclamation of emergency, to suspend the right to move any court for the enforcement of specified Part III rights, and it is more dangerous than Article 358 in reach though less drastic in kind, since it takes away the remedy while leaving the right alive. Makhan Singh had confined it correctly, holding that it bars only a complaint founded on the specified rights and leaves untouched every challenge based on want of legislative competence, mala fides, non compliance with the statute or absence of jurisdiction.

ADM Jabalpur abandoned that limitation and held that a suspension of Article 21 left a detenu with no court to go to at all, even against a detention admittedly without legal authority, and Khanna J.'s dissent, which cost him the Chief Justiceship, is now the law. The 44th Amendment made Articles 20 and 21 permanently unsuspendable, required the order to specify the rights affected, and rebuilt the surrounding emergency architecture so that a proclamation needs armed rebellion, a written Cabinet decision and a special parliamentary majority. Puttaswamy completed the repair in 2017 by overruling ADM Jabalpur in terms. What is left is a power that is now confined at its most dangerous point but remains wide, and whose remaining safeguards are political rather than legal.

The equality code applied to women

Article 14 guarantees equality before the law and the equal protection of the laws. The first limb is Dicey's negative idea, that no person is above the law; the second is positive and permits reasonable classification, provided the classification rests on an intelligible differentia and that differentia has a rational nexus with the object of the law. This is the doorway through which every law for women passes. After E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, and Maneka Gandhi, Article 14 additionally strikes at arbitrariness as such, which is the ground on which instantaneous triple talaq was invalidated.

Article 15(1) forbids the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The word "only" has been the site of most of the litigation: a law that discriminates on sex plus some other factor was once argued to fall outside it. That argument is now dead. In Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1, section 30 of the Punjab Excise Act, 1914, which prohibited the employment of women in any premises where liquor was consumed, was struck down.

Article 15(3) provides that nothing in Article 15 prevents the State from making any special provision for women and children. Two points must be made about it. First, it is not an exception to equality but an application of it: treating unequally situated persons alike perpetuates inequality, so a special provision for women is consistent with Article 14 and does not need Article 15(3) to survive an Article 14 challenge; Article 15(3) puts the matter beyond argument under Article 15. Second, and this is where criticism belongs, it says "special provision" without qualification, and the courts have historically read it to validate laws that restrict women in the name of protection as readily as laws that advance them. Anuj Garg is the corrective, holding that a provision claiming the benefit of Article 15(3) must actually operate for the benefit of women and not merely be labelled protective.

Article 21: the modern engine

After Maneka Gandhi, Article 21 requires that any procedure depriving a person of life or personal liberty be right, just and fair, and the right to life has been held to mean the right to live with human dignity (Francis Coralie Mullin, (1981) 1 SCC 608).

These are unenforceable under Article 37, but two of them have been given effect indirectly. Equal pay was read into Article 14 in Randhir Singh v. Union of India, (1982) 1 SCC 618, so that Article 39(d) is now enforceable in substance through the equality clause. Maternity relief under Article 42 was used in Municipal Corporation of Delhi v. Female Workers (Muster Roll), (2000) 3 SCC 224, to hold that maternity benefit must be extended to casual and muster roll workers, the Court reasoning that Article 42 read with Article 21 requires that a woman not be forced to choose between her employment and her child.

Article 51A(e) makes it a fundamental duty of every citizen to renounce practices derogatory to the dignity of women. It creates no cause of action but has been used as an interpretive aid, notably in Vishaka.

Political representation

Articles 243D and 243T, inserted by the 73rd and 74th Amendments, 1992, reserve not less than one third of the seats and of the offices of chairperson in Panchayats and Municipalities for women, with many States raising this to fifty per cent. This is the only women's reservation that has actually operated, and for over thirty years, which makes it the one place where the constitutional strategy can be evaluated on evidence rather than argument.

The Court held that such harassment violates Articles 14, 15, 19(1)(g) and 21; that where there is a vacuum in domestic law the Court may look to international conventions India has ratified, in this case the Convention on the Elimination of All Forms of Discrimination against Women, to give content to fundamental rights; and that it would lay down binding guidelines under Article 141 until Parliament legislated. Parliament took sixteen years. The case is the clearest demonstration in Indian law that a constitutional right can generate an enforceable regime where the legislature has provided none, and equally that judicial legislation is a poor substitute for the real thing.

Personal law and equality: Shayara Bano v. Union of India, (2017) 9 SCC 1. The petitioner was divorced after fifteen years by instantaneous triple talaq. A Bench of five, one from each of five faiths, held the practice invalid 3:2. The reasoning was not uniform and this matters. Nariman and Lalit JJ. held that the practice was given statutory recognition by section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, was therefore "law" within Article 13, and was manifestly arbitrary under Article 14 because it allows a marital tie to be broken capriciously without any attempt at reconciliation.

Custodial protection: Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96. A journalist's letter alleging custodial ill treatment of women prisoners in Bombay lock ups was treated as a writ petition. The Court directed that women suspects be held in separate lock ups guarded by women constables, that interrogation take place only in the presence of a woman police officer, that arrested persons be told of their right to legal aid, and that the police inform the nearest legal aid committee of every arrest. These directions were absorbed into D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, and then into statute, and are now found in sections 43(5) and 46 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which bar the arrest of a woman between sunset and sunrise save in exceptional circumstances with a magistrate's prior permission and require a woman officer to effect the arrest.

The second weakness is that the scheme runs against the State and only patchily against private power. Most discrimination against women occurs in the family, in the private workplace and in religious institutions. Article 15(2) reaches shops and public places; Articles 23 and 24 reach forced and child labour; and Kaushal Kishor (2023) has now held Articles 19 and 21 enforceable against private persons. But the primary constitutional guarantees still address a State that is not the principal violator.

The third weakness is personal law. Article 44 has produced almost nothing in seventy six years; Narasu Appa Mali still stands in the way of subjecting uncodified personal law to Part III; and Shayara Bano removed one practice on a statutory footing rather than establishing a principle. Uttarakhand's Uniform Civil Code came into force on 27 January 2025, the first State to enact one, and its live in relationship registration requirements are under challenge on Puttaswamy privacy grounds. Whether a State level code is the route to Article 44 is now a live question.

Judicial elaboration has been substantial, and Vishaka is the strongest example of a constitutional right generating a remedy where the legislature had provided none. The scheme's failures are equally clear: Article 15(3) has as often been used to keep women out of work as to advance them, the guarantees bind a State that is not the main site of discrimination, Article 44 remains a dead letter with Narasu Appa Mali still unoverruled, and the 106th Amendment stands in force and inapplicable. The constitutional text is not the constraint; the constraint is that the institutions charged with applying it reproduce the inequality it was written to remove.

The English position. Dicey's formulation is that martial law, in the sense of the suspension of ordinary law and the temporary government of a country by military tribunals, is unknown to the law of England. What English law recognises is the common law right and duty of every subject, soldier and civilian alike, to use such force as is reasonably necessary to suppress a riot or repel an invasion. The soldier therefore exercises no special power and remains answerable in the ordinary courts, as Cockburn C.J. directed in R. v. Nelson and Brand (1867) after the Jamaica rebellion.

While fighting actually rages the courts stand back: Ex parte Marais, [1902] AC 109, held that where war is actually raging the civil courts will not interfere with the acts of the military authority, and that the mere fact that the civil courts are sitting is not decisive. Protection comes afterwards, by an Act of Indemnity passed by Parliament for officers who acted in good faith, which is Dicey's point: the rule of law is not suspended, it is retrospectively excused, in public, by the legislature.

Distinguish it from an emergency. A proclamation under Article 352 is constitutional, made by the President on the written advice of the Cabinet, controlled by Parliament through approval within a month and six monthly renewal, and leaves the courts open; it suspends Article 19 through Article 358 and may suspend the enforcement of other rights through Article 359, never Articles 20 and 21. Martial law is extra constitutional, arises from the failure of civil government rather than from a decision to invoke a power, applies only to the disturbed area, and displaces the courts themselves.

The Indian instance. Martial law was proclaimed in the Punjab in April 1919, and on 13 April General Dyer fired without warning on an unarmed gathering at Jallianwala Bagh, killing several hundred. Summary military tribunals then tried civilians, and the "crawling order" was issued at Amritsar. The Hunter Committee censured Dyer and an Indemnity Act was passed in 1919, which is exactly the pattern Article 34 now contemplates and the reason Indian constitutional writing treats martial law with suspicion.

Conclusion on (a). Martial law is the displacement of ordinary law by military authority where civil government has failed. English law refuses to recognise it as a source of authority, treating the soldier as exercising only the citizen's common law right to use necessary force and protecting him afterwards by Act of Indemnity. India inherited that position and constitutionalised its last step in Article 34, which permits Parliament, and only Parliament, to indemnify and to validate notwithstanding Part III. There is no Indian power to declare martial law, it has never been declared since 1950, and the situations that would call for it are met instead by AFSPA and Chapter XI of the BNSS, both of which keep the armed forces within a statutory framework and, since Naga People's Movement and Extra Judicial Execution Victim Families, within the reach of the ordinary criminal courts.

COFEPOSA, 1974. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act is the principal preventive statute. Section 3 permits the Central or State Government, or a specially empowered officer, to detain a person with a view to preventing him from smuggling goods, abetting smuggling, engaging in transporting or concealing smuggled goods, dealing in smuggled goods, or harbouring smugglers.

The safeguards track Article 22: grounds must be communicated within five days, extendable to fifteen for reasons recorded; the Advisory Board must report within eleven weeks; the maximum period is one year, or two years for a person operating in a smuggling affected area. Section 5A is important and often missed: where a detention order is founded on several grounds and one is vague or irrelevant, the order is not invalidated as a whole, which is a statutory reversal of the rule in Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, for this Act.

In April 2026 the Supreme Court dismissed challenges to COFEPOSA detentions in a gold smuggling case, finding a live and proximate link established on the material and holding that the non supply of a pen drive was not fatal where its contents had been shown and supplied to the detenus' representative; and in a related decision it held that a detenu cannot claim legal assistance before the Advisory Board as a matter of routine where an officer merely places the record on the detaining authority's behalf, which is an application of A.K. Roy v. Union of India, (1982) 1 SCC 271. In March 2025 the Court set aside a preventive detention order for failure to consider the bail conditions already imposed by a magistrate for the same offence.

SAFEMA, 1976. The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act applies to persons convicted under the customs or foreign exchange laws and to persons detained under COFEPOSA, and to their relatives and associates. It permits the Competent Authority to forfeit illegally acquired property, and the person affected must prove that the property was lawfully acquired. Upheld in Amratlal Prajivandas.

That decision has been strongly criticised and a review is pending, and subsequent Benches have softened it in application, holding that the twin conditions must yield to Article 21 where the accused has suffered long incarceration without trial, applying the reasoning of Union of India v. K.A. Najeeb, (2021) 3 SCC 713. The Fugitive Economic Offenders Act, 2018 permits the confiscation of the property of a person against whom a warrant has issued for a scheduled offence involving one hundred crore rupees or more who has left India to avoid prosecution, and bars him from defending civil claims. The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 and the Benami Transactions (Prohibition) Amendment Act, 2016 complete the picture, the latter having been held in Ganpati Dealcom (2022) not to operate retrospectively for criminal liability.

Conclusion on (b). Exceptional legislation against economic offences is justified by the distinctive character of the offence: no complaining victim, organised and continuing conduct, proceeds that are the point of the crime, and offenders able to outlast a trial. India's response has three limbs, preventive detention under COFEPOSA, forfeiture of illegally acquired property under SAFEMA and now PMLA, and procedural change through special courts, presumptions and bail restrictions, and the nine judge Bench in Amratlal Prajivandas upheld the first two while Vijay Madanlal Choudhary upheld the third. The devices are defensible in principle and dangerous in operation, and the courts have kept them within bounds not by striking them down but by insisting on the Article 22 procedural safeguards in detention cases and, since Najeeb, on the primacy of Article 21 wherever a statutory bar on bail would otherwise produce indefinite incarceration.

(a) Position of pre-independence laws under the Indian constitution

Continuity: Article 372. Article 372(1) provides that all the law in force in the territory of India immediately before the commencement of the Constitution continues in force until altered, repealed or amended by a competent legislature or other competent authority. Article 372(2) empowered the President, for two years, to make adaptations and modifications to bring such laws into accord with the Constitution. The reason for the article is practical: on 26 January 1950 the entire corpus of Indian law, the Penal Code of 1860, the Contract Act of 1872, the Evidence Act of 1872, the Transfer of Property Act of 1882 and thousands of other enactments, was pre constitutional, and a Constitution that did not continue them would have left the country with no law at all.

The limit: Article 13(1). Continuity is subject to Article 13(1), which provides that all laws in force immediately before the commencement, in so far as they are inconsistent with the provisions of Part III, shall to the extent of such inconsistency be void. Three points follow.

There the Central Provinces and Berar Motor Vehicles Amendment Act, 1947, which created a State monopoly in transport, was inconsistent with Article 19(1)(g) as it stood, and revived when the First Amendment added clause (6). The doctrine applies to pre constitutional laws; the position of post constitutional laws is different, since Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648, held that a post constitutional law violating a fundamental right is void ab initio, though Bhikaji has been applied to such laws where the right in question is available only to citizens.

Three, severability. R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628, held that where the valid and invalid parts of a statute are so distinct and separate that the valid can stand independently, only the invalid part is void; where they are so interwoven that they cannot be separated, the whole falls. Article 13(1)'s phrase "to the extent of such inconsistency" is what makes the doctrine textually necessary.

The measure of the change. Before 1950 a court applied whatever the legislature enacted and could not hold an Act void for infringing a liberty, as the Privy Council confirmed in Emperor v. Sibnath Banerjee, AIR 1945 PC 156, restoring detention orders under Rule 26 of the Defence of India Rules that the Federal Court had scrutinised. After 1950 the same statute is answerable to Part III. That, and not the survival of the old statutes, is the real answer to this question: the laws continued, but they ceased to be unquestionable.

(b) Public order

The concept. Public order is the second of the three expressions the Constitution uses to describe degrees of disturbance. It appears as a ground of restriction in Articles 19(2), 19(3) and 19(4), as a ground for restricting religious freedom in Articles 25 and 26, and as a head of preventive detention in Entry 3 of List III, which gives the Union and the States concurrent power over preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community.

The refinement: reach, not gravity. Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98, is the case that makes the test usable. Arun Ghosh was detained after assaulting individuals, including molesting a woman. The Court held that the question is not the gravity of the act but its potentiality: whether the act disturbs the even tempo of the life of the community so as to amount to a disturbance of public order, or whether it merely affects an individual leaving the tranquillity of society undisturbed. A murder may be a mere law and order problem; a comparatively trivial act, if aimed at a community and capable of setting off wider disturbance, may affect public order. That is why a detaining authority cannot justify an order by piling up the seriousness of the offences.

Why it matters in practice. The distinction decides three questions. It decides legislative competence, since security of India falls under Entry 9 of List I and public order under Entry 3 of List III. It decides the validity of individual detention orders, and a recital of ordinary criminal conduct however grave is the commonest reason the Supreme Court quashes a detention; in a decision of 2025 the Court quashed the preventive detention of a law student precisely on the ground that preventive detention cannot be invoked for what is in truth a law and order problem. And it decides the limits of restriction on speech and assembly under Article 19(2) to (4).

What it means. Romesh Thappar v. State of Madras, AIR 1950 SC 124, held that the security of the State, in the unamended Article 19(2), meant something far graver than ordinary breaches of public order or public safety: it refers to nothing less than the endangering of the foundations of the State or the threatening of its overthrow, such as war, rebellion, insurrection or aiding an enemy. A statute authorising restriction for a wider purpose could not be saved because it also covered the narrower one, since the Court cannot rewrite a law to fit the permitted ground.

The speech cases. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, upheld section 124A of the Penal Code but read it down so that only words having a tendency to incite violence or to create public disorder amount to sedition, and strong criticism of the Government, however trenchant, does not; a construction that penalised disaffection without incitement would make the section fall outside Article 19(2). Shreya Singhal v. Union of India, (2015) 5 SCC 1, struck down section 66A of the Information Technology Act, 2000, distinguishing discussion and advocacy, which are protected, from incitement, which alone may be restricted, and holding a provision void for vagueness where a citizen cannot know what it forbids.

Conclusion on (c). Security of the State is the narrowest and gravest of the three expressions, confined since Romesh Thappar to conduct endangering the foundations of the State such as war, rebellion or insurrection. It allocates legislative power between Entry 9 of List I and Entry 3 of List III; it limits how far speech may be restricted, since Kedar Nath Singh and Shreya Singhal confine restriction to incitement; and together with public order it forms the framework within which every preventive detention order in this subject must be tested. The three circles of Ram Manohar Lohia are not a classroom device: they are the doctrine that keeps extraordinary powers attached to extraordinary facts.

Clause (3), the switch. Nothing in clauses (1) and (2) applies to an enemy alien or to a person arrested or detained under any law providing for preventive detention. So the detenu loses counsel of choice, production before a magistrate and the twenty four hour rule.

Clauses (4) to (7), the preventive regime. What the detenu gets instead is set out below.

Understanding the article as a single scheme of protection is the standard error. Its importance lies precisely in the fact that it is both a constitutional authorisation of preventive detention and the only constitutional limit on it. India is one of very few democracies to write preventive detention into its constitution in peacetime; the framers did so knowingly, in a country that had just seen partition, and the Constituent Assembly debates record Ambedkar's discomfort and his insistence that clauses (4) to (7) were the price of clause (3).

Clause (7) empowers Parliament to prescribe circumstances in which detention may exceed three months without an Advisory Board opinion, the maximum period, and the Board's procedure.

The Advisory Board and A.K. Roy

A.K. Roy v. Union of India, (1982) 1 SCC 271, a Constitution Bench, upheld the National Security Act, 1980 and settled the Board's character. It held that the detenu has no right to be represented by a lawyer before the Board, because clause (3) removes clause (1) and the statute excludes it; but that if the detaining authority appears through counsel or a legal adviser, the detenu must be given the same facility, since the State cannot take an advantage it denies. It refused to strike down expressions such as "security of the State", "public order" and "defence of India" for vagueness, holding them terms of settled judicial content. And it held that section 3 of the 44th Amendment, being unnotified, could not be enforced by mandamus, because bringing a law into force is for the executive.

Delay in considering the representation is itself unconstitutional. Jayanarayan Sukul v. State of West Bengal, (1970) 1 SCC 219, laid down four propositions: the authority must itself consider the representation; independently of the Board's opinion; as expeditiously as possible; and without the kind of delay that shows the representation was treated as a formality. The right in clause (5) is a right to have the representation considered, and consideration after the detention has run is no consideration.

Grounds must be usable. Harikisan v. State of Maharashtra, AIR 1962 SC 911: grounds served in English on a detenu who did not know English, with an oral explanation, were held insufficient, because communication of grounds means communication in a language he understands. The same reasoning requires supply of the documents relied on, and non supply of relied upon material is today the commonest successful ground.

The satisfaction must be genuine and the link must be live. An order made on the dictation of a superior, or by mechanically adopting a police proposal, fails for want of subjective satisfaction. An unexplained gap between the last prejudicial act and the order snaps the "live and proximate link" and the order is quashed as punitive in substance.

The safeguard that was promised and never given

Section 3 of the Constitution (Forty fourth Amendment) Act, 1978 amends Article 22 to reduce the three month period to two months and to require the Advisory Board to be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court, which would remove the Board's composition from executive control. That section has never been brought into force: no government of any party has issued the commencement notification in almost fifty years, and A.K. Roy held that the Court cannot compel it. The three month period and an executively constituted Board therefore continue. Say this: it is the sharpest available comment on the importance of Article 22 in practice, and most candidates do not know it.

The importance of Article 22: an assessment

Its importance is dual and the answer must say both things. It is the source of the power: without clause (3) and clauses (4) to (7), preventive detention in peacetime would be unconstitutional, because a person deprived of liberty could demand the protections of clauses (1) and (2) and, after Maneka Gandhi, a fair procedure under Article 21. And it is the only constitutional limit on that power: three months, an Advisory Board, grounds, and a representation.

What works. The procedural safeguards, because they are verifiable on the record. Was a ground vague? Was the representation decided promptly? Was the relied upon document supplied? Was the language one the detenu reads? On these questions courts are institutionally competent and they have quashed detentions in large numbers.

What does not. The substantive protection, because the sufficiency of the detaining authority's satisfaction is not reviewable on merits and the Advisory Board tests no evidence. A detention that is procedurally impeccable and substantively baseless will stand, and the only substantive control the courts have developed is the indirect one of insisting that the facts fit the head of detention relied on.

Within that narrow compass the Supreme Court has built a substantial body of law: one vague ground vitiates the whole order, unexplained delay in deciding a representation is itself a violation, grounds must be supplied in a usable language with the documents relied on, the satisfaction must be the authority's own and the link with the prejudicial act must be live, and an order founded on law and order rather than public order is made under the wrong power.

What the article does not do is allow any court to ask whether the person should be detained at all. And the safeguard that would have tightened it most, the two month period and a Board chosen on the Chief Justice's recommendation, was enacted in 1978 and has never been notified. The importance of Article 22 is therefore that it makes preventive detention constitutional; its limitation is that almost everything that makes it tolerable has come from the courts rather than from the text.

The Indian trajectory. Activism in India begins with the retreat from A.K. Gopalan. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, held that Articles 14, 19 and 21 are interlocking and that any procedure depriving a person of liberty must be right, just and fair, converting Article 21 from a formal protection into a substantive one. Everything after that is elaboration.

The three techniques. First, relaxing locus standi. S.P. Gupta v. Union of India, 1981 Supp SCC 87, held that where a legal wrong is caused to a person or a class who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court, any member of the public acting bona fide may move it.

Second, epistolary jurisdiction: a letter may be treated as a petition, as in Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488, where a prisoner's letter about a warder torturing a fellow inmate, Prem Chand, became a habeas corpus proceeding, and in Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96. Third, continuing mandamus and monitoring, as in Vineet Narain v. Union of India, (1998) 1 SCC 226, where the Court supervised the investigation of the Jain hawala case and issued directions on the autonomy of the CBI and the Enforcement Directorate.

The criticism, stated fairly. One, legitimacy: an unelected court making policy has no democratic mandate and cannot be removed if it is wrong. Two, competence: courts decide on affidavits, cannot commission studies, hear only the parties before them and cannot cost their orders. Three, enforcement: directions that the executive cannot or will not implement devalue judicial authority, and the sixteen year gap between Vishaka and the 2013 Act is an example. Four, selectivity: the Court's activism has been criticised as vigorous in some fields and absent in others, and the most cited example is ADM Jabalpur, decided during the very period when the Court's rhetoric of rights was strongest. The Court itself has warned against overreach, notably in Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, where it said that judges must exercise restraint and not encroach into the executive or legislative domain.

India's deliberate rejection, and its return. The framers replaced "due process of law" in the draft with "procedure established by law" after B.N. Rau's meeting with Frankfurter, precisely to keep the judiciary out of the reasonableness of legislation. A.K. Gopalan v. State of Madras, AIR 1950 SC 27, gave that effect: procedure established by law means procedure enacted by a competent legislature; the Court cannot ask whether it is fair; and Articles 19, 21 and 22 are separate compartments. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, reversed it, holding that the three articles form a golden triangle and that procedure must be right, just and fair and not arbitrary, fanciful or oppressive. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, put the result plainly: though our Constitution has no due process clause, after Maneka the consequence is the same.

The judicial response. Kartar Singh v. State of Punjab, (1994) 3 SCC 569, upheld TADA, holding that Parliament may prescribe a different procedure for a different class of offence provided the classification is rational, but laid down detailed guidelines to make the confession provision workable. People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, upheld POTA, holding that the mere possibility of abuse is no ground for striking down a statute. Both statutes were nonetheless withdrawn, TADA lapsing in 1995 with a conviction rate of about one per cent on roughly seventy six thousand arrests, and POTA being repealed in 2004 after review committees found widespread misuse. The record is the strongest argument against the PUCL reasoning: where a power is exercised tens of thousands of times and convicts one in a hundred, misuse is a pattern and not a possibility.

Conclusion on (b). India wrote "procedure established by law" to keep due process out and recovered it through Maneka Gandhi's requirement that procedure be right, just and fair. Special legislation is where that requirement is thinnest, because every device such statutes use, admissible police confessions, reversed burdens, extended custody, restricted bail and protected witnesses, subtracts one element of a fair trial. The courts have declined to strike these statutes down, preferring to read them down and to lay down guidelines; what they have done instead, and it is the significant development, is to hold through Najeeb and the cases following it that no statutory restriction on bail can survive a violation of the right to a speedy trial.

(c) Civil liberties

Meaning. Civil liberties are the freedoms of the individual against the State: personal liberty, freedom of speech and expression, assembly, association, movement, conscience and religion, and the procedural protections that make them enforceable. They are distinguished from civil rights, which are claims to equal treatment, and from social and economic rights, which require positive provision.

The Indian transformation. India rejected the residual model and wrote the liberties into Part III, made them enforceable through Articles 32 and 226, and made inconsistent laws void under Article 13. The difference is that in England, until 1998, Parliament could abolish a liberty by ordinary statute and no court could prevent it; in India a statute infringing a fundamental right is void, and since Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, even a constitutional amendment cannot destroy the basic structure.

The Indian content. Maneka Gandhi made personal liberty in Article 21 substantive. Puttaswamy v. Union of India, (2017) 10 SCC 1, held privacy to be a fundamental right, laying down the fourfold proportionality test, legality, legitimate aim, necessity and balancing, which is now the standard by which any restriction on liberty is tested. Shreya Singhal v. Union of India, (2015) 5 SCC 1, protected advocacy while permitting restriction of incitement and struck down section 66A for vagueness. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, gave the arrested person eleven enforceable requirements now embedded in the BNSS.

But the same Constitution authorises preventive detention in Article 22 and the suspension of rights in Articles 358 and 359, and the history of this subject is the history of those two provisions eroding what Part III declares. What has restored the balance since 1978 is a combination of the 44th Amendment, which put Articles 20 and 21 permanently beyond suspension, and a jurisprudence running from Maneka Gandhi through D.K. Basu to Puttaswamy which insists that any deprivation of liberty be by a fair procedure and satisfy proportionality.

For full marks, cover: the case for exceptional legislation stated at its strongest before criticising it; TADA's actual provisions and Kartar Singh; the record, which is what settles the argument; POTA and its repeal; the UAPA as it now stands including the 2019 amendment; the specific human rights objections taken one at a time; the bail jurisprudence; and a conclusion that takes a position.

The case for exceptional legislation, put at its strongest

An answer that begins by denouncing these statutes earns fewer marks than one that first explains why legislatures keep enacting them. The ordinary criminal law makes four assumptions that terrorism defeats.

One, it assumes a complaining victim and a willing witness. In terrorist offences witnesses are intimidated, often from within their own community, and the ordinary rules on the identity of witnesses guarantee that intimidation is possible.

Section 3 defined a terrorist act by reference to intent to overawe the Government, to strike terror in the people, or to alienate a section of the people. Section 4 created the offence of "disruptive activity", defined so widely as to include any action questioning, disrupting or intended to disrupt the sovereignty and territorial integrity of India, which on its face caught political speech.

Section 15 made a confession recorded by a police officer not below the rank of Superintendent admissible in the trial of the maker and of a co accused, displacing sections 25 and 26 of the Evidence Act, the oldest protection in Indian criminal law. Section 20(8) barred bail unless the public prosecutor had been heard and the court was satisfied that there were reasonable grounds for believing the accused not guilty, which requires the accused to prove a negative at the bail stage. Designated courts tried the offences, appeal lay only to the Supreme Court, and the identity of witnesses could be kept secret.

The record, which is what settles the argument

TADA's operation is the strongest available empirical case against exceptional legislation anywhere in Indian law.

Roughly seventy six thousand persons were arrested under it. The conviction rate was about one per cent. The overwhelming majority were never even charged, and the Act was used extensively in States with no terrorism problem at all, notably Gujarat, where large numbers of arrests were recorded; in some places it was applied to ordinary criminal disputes and to political opponents. The National Human Rights Commission, then chaired by Justice Ranganath Misra, formally opposed its continuance, taking the position that the ordinary law with strengthened investigation was sufficient and that the Act had produced widespread violation without commensurate security benefit. The Act was allowed to lapse in 1995.

That figure of one per cent is worth stating and explaining. It means the Act was functioning not as a prosecutorial instrument but as a detention instrument: the punishment was the period in custody before the case collapsed. This is precisely the objection captured in the phrase "the process is the punishment", and it is not a theoretical objection but a measured one.

It defines "terrorist act" in section 15 very widely. It permits detention for up to one hundred and eighty days before a charge sheet, against ninety under the ordinary Code. Section 43D(5) provides that bail shall not be granted if the court, on a perusal of the case diary or the police report, is of the opinion that there are reasonable grounds for believing that the accusation is prima facie true. Chapter VI permits the banning of organisations. And the 2019 amendment allows the Central Government to designate an individual as a terrorist, with only a departmental review committee by way of remedy, which is the sharpest current objection because it attaches a stigma with practical consequences without any adjudication or hearing.

The human rights objections, taken one at a time

One, definitional vagueness. "Terrorist act", and formerly "disruptive activity", are defined so broadly that ordinary crime and political speech fall within them. Vagueness in a penal statute is a due process failing in itself, because a citizen cannot know in advance what is forbidden, and Shreya Singhal v. Union of India, (2015) 5 SCC 1, struck down section 66A of the Information Technology Act on exactly that ground.

Six, discriminatory application. The evidence from both TADA and POTA is that these statutes were applied disproportionately to minorities and to political opponents, and a facially neutral law applied selectively is a violation of Article 14 in operation even where it is valid on its face.

Seven, permanence. TADA and POTA had sunset clauses and were allowed to lapse or were repealed. The UAPA has none, so the emergency measure has become the ordinary law, which is the deepest structural objection of all.

Where the courts have drawn the line

Watali, (2019) 5 SCC 1, made bail under section 43D(5) nearly unobtainable by holding that the court must take the prosecution's material at face value and must not analyse or weigh it. The correction came in Union of India v. K.A. Najeeb, (2021) 3 SCC 713: the respondent had been in custody more than five years with the trial nowhere near completion, and the Court held that the statutory embargo does not oust the constitutional court's power to grant bail where the right to a speedy trial under Article 21 has been violated, because the statutory bar and the constitutional right operate in different fields.

TADA produced roughly seventy six thousand arrests and a conviction rate of about one per cent, was used in States with no terrorism, was opposed by the National Human Rights Commission and was allowed to lapse; POTA was repealed within two years for the same reason, and Parliament pointedly declined to carry its confession provision into the UAPA. The objections, vague definitions, admissible police confessions, reversed presumptions, indefinite pre trial custody, executive designation and selective application, are all objections to devices that made those outcomes possible. The UAPA now embeds most of them permanently and without a sunset clause, and the only effective constraint on it has been the courts' insistence, from Najeeb onwards, that no statutory bar on bail can survive a violation of the right to a speedy trial under Article 21.

The proof is on the record and a candidate should give it. The 1962 proclamation, made on 26 October 1962 on the ground of external aggression by China, was not revoked until 10 January 1968. The 1965 war with Pakistan therefore took place while that emergency was still in force, which is exactly why no fresh proclamation was needed and none was made. The second proclamation was made on 3 December 1971 on the ground of external aggression when war with Pakistan broke out over Bangladesh. The third was made on 25 June 1975 on the ground of internal disturbance, while the 1971 proclamation was still in operation, so that two emergencies ran concurrently for twenty one months; both were revoked on 21 March 1977.

Confirmation from this subject's own papers. The 2025-26 paper of this subject asks about the emergencies of "1962, 1971, and 1975", which is the correct list. Two of the older papers in this folder use the wrong list. Answer on the three real proclamations, state the position in one sentence, and then answer the question as asked. Do not silently follow the paper's dates: the entire constitutional interest of the period lies in the fact that the 1962 emergency was allowed to run for more than five years after the fighting stopped, and that 1975 was proclaimed under a different head altogether.

Consequences. Two matter. First, the duration: the emergency continued for over five years, through the 1965 war and beyond, long after any military justification, and this is the origin of the criticism that emergency powers outlive their cause. Second, and more constructively, it produced Makhan Singh v. State of Punjab, AIR 1964 SC 381. Detenus under Rule 30 petitioned for habeas corpus.

A Constitution Bench held that a Presidential order under Article 359 bars only a complaint founded on the specified rights, and does not bar a challenge that the statute is beyond legislative competence, that the order is mala fide, that it does not comply with the rule under which it is made, or that the authority lacked jurisdiction. The reasoning is that Article 359 suspends the enforcement of named rights and not the rule of law. That distinction was the constitutional resource available in 1975 and it was not used.

The second emergency: 3 December 1971 to 21 March 1977

Need. War with Pakistan following the crisis in East Pakistan and the influx of about ten million refugees. India entered the war on 3 December 1971 and it ended on 16 December with the creation of Bangladesh.

The third emergency: 25 June 1975 to 21 March 1977

Need, or the absence of one. This is where an answer must be careful and factual. The stated ground was internal disturbance. The proclamation followed the judgment of the Allahabad High Court of 12 June 1975 setting aside the Prime Minister's election on grounds of electoral malpractice, and a period of large scale opposition agitation. It was the first proclamation unconnected with a war, and the Shah Commission, appointed in 1977 to inquire into the excesses, found that the decision was taken without any material before the Cabinet establishing a threat of internal disturbance and that the Cabinet was informed after the proclamation had been signed.

Declaration. The President proclaimed on the advice of the Prime Minister alone; the Cabinet met and ratified the following morning. Under the law as it then stood this was lawful, and it is precisely what the 44th Amendment later made impossible by requiring the written advice of the Union Cabinet.

Effect. This is the substance of the question and it should be organised by institution.

The Forty second Amendment, 1976 was the most far reaching in the Constitution's history: it added "socialist", "secular" and "integrity" to the Preamble, extended the life of the legislatures, curtailed the writ jurisdiction, inserted Articles 323A and 323B, gave the Directive Principles primacy over Articles 14 and 19 through a widened Article 31C, and inserted Article 368(4) and (5) purporting to place amendments wholly beyond challenge. Most of this was undone by Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, and by the 43rd and 44th Amendments.

On the rule of law: ADM Jabalpur. Additional District Magistrate, Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521. Nine High Courts had held that despite the Presidential order a detenu could still argue that his detention did not comply with MISA or was mala fide, following Makhan Singh. By four to one the Supreme Court reversed, holding that in view of the Presidential order suspending Article 21 no person had any locus standi to move any High Court for habeas corpus to challenge a detention on any ground, because Article 21 is the sole repository of the right to life and personal liberty.

The constitutional answer: the 44th Amendment, 1978

One, "internal disturbance" in Article 352 was replaced by armed rebellion, so political agitation can no longer found a proclamation. Two, the President may act only on the written advice of the Union Cabinet. Three, approval by both Houses is required within one month, by a majority of total membership and two thirds of those present and voting, and the proclamation lapses after six months unless re approved. Four, one tenth of the Lok Sabha may requisition a special sitting to move disapproval, which passes by simple majority.

Five, Article 358 was confined to emergencies on the ground of war or external aggression and to laws reciting a connection with the emergency. Six, Article 359 can never suspend the enforcement of Articles 20 and 21. Seven, the right to property was removed from Part III. Eight, judicial review of the proclamation was restored by repealing the 38th Amendment's ouster, and in Minerva Mills the Court confirmed that the proclamation is open to challenge on the ground of mala fides or wholly extraneous material.

The rule of law was restored by an election and then by the 44th Amendment, which substituted armed rebellion for internal disturbance, required a written Cabinet decision and a special parliamentary majority, and placed Articles 20 and 21 permanently beyond the reach of Article 359. Puttaswamy completed the repair in 2017. The durable lesson is Khanna J.'s: safeguards that depend on the restraint of the authority they bind are not safeguards, and only those that remove the matter from the executive altogether survive contact with a determined government.

Where Article 359 sits

Part XVIII gives the Union three emergency powers, and only two of them touch fundamental rights. Article 358 suspends Article 19 itself, automatically, on a proclamation grounded in war or external aggression. Article 359 does something different and, in reach, far larger: it empowers the President to close the courts to claims founded on named fundamental rights. Understanding that these are two separate machineries, doing different things by different routes, is the whole of this question.

The text

Article 359(1) provides that where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III, except Articles 20 and 21, as may be mentioned in the order, and all proceedings pending in any court for the enforcement of the rights so mentioned, shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified. Article 359(1A) supplies a parallel immunity for laws made while such an order operates, and Article 359(3) requires every order to be laid before each House of Parliament.

Three, the consequences of that distinction are practical, not verbal. Because the right survives an Article 359 order, it revives the moment the order lapses, and a cause of action that accrued during the emergency may be sued upon afterwards. Under Article 358 the opposite is true: a law made in breach of Article 19 was valid when made, and the proviso to the article permanently protects things done or omitted before the law ceased to have effect. A candidate who states the distinction without stating this consequence has answered half the question.

There is a fourth, quieter difference. Article 358 reaches one article only. Article 359 can reach almost the whole of Part III, and can be confined to part of India. Its potential scope is therefore very much wider, which is why the exception of Articles 20 and 21 matters so much.

What a Presidential order can never bar: Makhan Singh

Makhan Singh v. State of Punjab, AIR 1964 SC 381, is the decision that fixes the limits of the power, and it was decided in the first emergency, not the third.

Why that reasoning matters. Article 359 suspends the enforcement of named rights. It does not suspend the ordinary jurisdiction of the High Courts under Article 226, the rule that executive action must rest on legal authority, or the rule that a statutory power must be exercised within its own terms. An emergency, on this reasoning, suspends particular rights; it does not suspend the rule of law. The same proposition was applied to Article 358 three years later in State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170, where executive action restricting a man's movement and residence during the 1962 emergency, taken without any law authorising it, was held bad: the emergency articles protect the power to make a law and to act under a law, and never licence executive action unsupported by law.

So by 1967 the constitutional position was settled and it was protective. What happened in 1976 was not the discovery of a gap but the abandonment of a limit.

The collapse: ADM Jabalpur

Additional District Magistrate, Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.

The reasoning, and where it fails. The majority held that Article 21 is the sole repository of the right to life and personal liberty; that a petition complaining of unlawful detention is in substance a claim under Article 21 however it is framed; and that during an emergency Article 359, being itself part of the Constitution, is the rule of law. The Attorney General accepted in argument that on this reasoning a detenu shot dead without authority would have no remedy, and the majority did not disavow the concession.

The reasoning fails at two identifiable points, and a critical answer should name them. First, it cannot stand with Makhan Singh, a Constitution Bench decision directly in point which the majority distinguished unconvincingly; the High Courts in 1975 were applying binding authority, not inventing a route. Second, it treats a claim that the executive acted with no legal authority at all as though it were a claim to a fundamental right. It is not. It is the older and more basic proposition that an officer of the State must be able to point to a law, which Bharat Singh had affirmed nine years earlier and which does not depend on Part III for its existence.

Two, the order must specify the rights it suspends, so a blanket suspension of Part III is textually impossible.

Three, the legislative immunity in Article 359(1A) was correspondingly confined, so that no law made during an emergency can claim immunity in respect of Articles 20 and 21.

Four, the surrounding architecture was rebuilt, and this matters because Article 359 operates only while a proclamation subsists.

The formal end

Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1. A Bench of nine judges, holding privacy to be a fundamental right, addressed ADM Jabalpur in terms and held that the judgments rendered by the majority are seriously flawed and stand overruled, and that life and personal liberty are inalienable and do not depend on the Constitution for their existence. Chandrachud J., whose father Y.V. Chandrachud had been in the majority, wrote the passage. The doctrine of 1976 is therefore now barred twice over: by text since 1978 and by precedent since 2017.

What remains objectionable. Three things. First, the enforcement of Article 14 may still be suspended, so discriminatory administration during an emergency can be left without remedy, and no account of military necessity requires that result. Second, what is guaranteed is access to a court, not an outcome: the substantive law the court then applies, including Article 22's authorisation of preventive detention, is untouched, so a detention complying with a valid statute will be upheld emergency or no emergency. Third, the parliamentary safeguards are majoritarian. A government commanding a majority of the total membership and two thirds of those present in both Houses can proclaim and maintain an emergency by renewal, and it was exactly such a government that did so in 1975.

And the deepest point. The Constitution was no less clear in 1975 than it is now. What failed was not the text but every institution charged with applying it: a Parliament that passed the 38th, 39th and 42nd Amendments, a press under censorship, and a Court that decided ADM Jabalpur. The 44th Amendment removes the textual excuse, since no future court could say the Constitution itself had closed the door on Article 21. It cannot guarantee that a future court will reason as Khanna J. did.

ADM Jabalpur abandoned that limitation and left a person detained without any legal authority with no court to go to, Khanna J. dissenting at the cost of the Chief Justiceship. The 44th Amendment answered it by excepting Articles 20 and 21 from Article 359 altogether, requiring the order to name the rights affected, confining Article 359(1A), and rebuilding the conditions for proclaiming an emergency; Puttaswamy completed the repair in 2017 by overruling the decision in terms. What survives is a power that is now barred at its most dangerous point and remains wide elsewhere, most questionably as to Article 14, and whose remaining controls are political rather than legal.

Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1, supplies the limit, holding that a provision claiming its benefit must actually operate for women's benefit and not exclude them in the name of protection, and striking down a ban on women's employment where liquor was consumed. Article 21, after Maneka Gandhi, carries dignity, reproductive choice, privacy and sexual autonomy. Articles 39(a), 39(d), 42 and 46 in Part IV, and the Fundamental Duty in Article 51A(e). Articles 243D and 243T reserve a third of local government seats. The 106th Amendment is in force since 16 April 2026 and is still inoperative, because Article 334A ties it to a delimitation after the next census, and the 131st Amendment Bill, 2026 which would have advanced it was defeated in the Lok Sabha.

The statutory framework, arranged by the harm it addresses

Violence in the home. The Protection of Women from Domestic Violence Act, 2005 was the first Indian statute to define domestic violence to include physical, sexual, verbal, emotional and economic abuse. Its structure is civil, not criminal: a Magistrate may pass protection orders, residence orders, monetary relief and custody orders on an application made through a Protection Officer, so a woman may obtain relief without prosecuting her husband and without leaving home.

The Supreme Court's concern about misuse of section 498A led to directions in Rajesh Sharma v. State of Uttar Pradesh, (2018) 10 SCC 472, requiring scrutiny by family welfare committees before arrest, which were then substantially recalled in Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443, on the ground that the Court had legislated; the current position is that the safeguards are those in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, on arrest in offences punishable with less than seven years.

Sexual offences. The Criminal Law (Amendment) Act, 2013 followed the report of the Justice J.S. Verma Committee, constituted after the Delhi gang rape of December 2012 and reporting within thirty days. It widened rape beyond peno vaginal penetration, created offences of acid attack, sexual harassment, voyeurism, stalking and disrobing, enhanced punishment for rape causing death or a persistent vegetative state, and introduced procedural protections: the statement of a survivor to be recorded by a woman officer at her residence, trial in camera, a two month time limit for the trial, and a bar on questions about past sexual history.

Harassment at work. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, enacted sixteen years after Vishaka v. State of Rajasthan, (1997) 6 SCC 241, requires an Internal Committee in every workplace with ten or more employees, a Local Committee in each district for the unorganised sector and for complaints against employers, an inquiry within ninety days and a conciliation option at the aggrieved woman's request. In Aureliano Fernandes v. State of Goa, (2023) SCC OnLine SC 621, the Court recorded "serious lapses" in implementation across the country and directed the Union, States and Union Territories to verify that every government body, public authority and educational institution had constituted an Internal Committee.

Work, pay and maternity. The Equal Remuneration Act, 1976, now subsumed in the Code on Wages, 2019; the Maternity Benefit Act, 1961, amended in 2017 to raise paid leave from twelve to twenty six weeks, to give twelve weeks to commissioning and adopting mothers and to require a creche where fifty or more are employed; and the Factories Act, 1948 restrictions on night work, which are increasingly criticised for making women more expensive to employ and which several States have relaxed with conditions.

Critical assessment

The framework is dense and its delivery is thin. Reported crimes against women exceed four lakh a year and the conviction rate for rape has hovered around twenty seven to thirty per cent. Compliance with the 2013 Act's Internal Committee requirement is patchy in the private sector, and the Local Committee mechanism, which is the only route for the more than ninety per cent of working women in the unorganised sector, exists largely on paper, as Aureliano Fernandes recorded.

Protection rather than enablement. The scheme responds to violence after it occurs and restricts what women may do in the name of safety, rather than removing the structural barriers to economic independence. This matters because protection without independence leaves a woman dependent on the household she needs protection from, which is precisely why the residence right in the 2005 Act and the coparcenary right in Vineeta Sharma are worth more in practice than several criminal provisions. India's female labour force participation remains among the lowest for a country at its income level, and some protective legislation contributes to that.

Conclusion. The Indian framework for the human rights of women is constitutionally strong and statutorily dense. Articles 14, 15 and 16 supply equality and a bar on sex stereotyping; Article 15(3) authorises protective discrimination and immunises every special law from an equality challenge; Article 21 has been read to include dignity, reproductive choice, privacy and sexual autonomy; and on that base Parliament has built a framework covering domestic violence, dowry, sexual offences, workplace harassment, maternity, equal pay, reproductive choice and inheritance, with the courts filling gaps in Vishaka, Shayara Bano, Joseph Shine, Vineeta Sharma and X v. Principal Secretary.

The criticism is not that the law is absent but that it is protective where it should be enabling, criminal where a civil remedy would serve the woman better, and enforced through institutions that reproduce the discrimination it addresses: a thirty per cent conviction rate for rape, Local Committees that exist on paper for ninety per cent of working women, and a constitutional reservation that is in force and cannot be applied. The most useful reforms available are therefore not new offences but the ones that increase a woman's independent capacity, which is what the shared household right, the coparcenary right and the maternity provisions do.

Custodial violence and death. The structural cause is that the police are evaluated on detection and confession is the cheapest route to it, while sections 25 and 26 of the Evidence Act, now section 23 of the Bharatiya Sakshya Adhiniyam, make a confession to a police officer inadmissible, so the incentive is to obtain information by force and then discover the evidence independently. Custodial deaths are reported annually in the National Crime Records Bureau data and convictions of police officers for them are very rare, which is the concern.

Illegal arrest and detention. Arrest without recording reasons, non production within twenty four hours, and failure to inform relatives. India's undertrial population is the visible consequence.

Encounters and extra judicial killing, particularly in areas under AFSPA and in States with a history of organised crime.

Investigative failure in cases of sexual violence, including refusal to register a first information report, delay in medical examination, and the conduct of the investigation by officers with no training in dealing with survivors.

Part two: how the legal system addresses them

The constitutional base. Article 21 requires a fair, just and reasonable procedure for any deprivation of liberty; Article 20(3) protects against self incrimination; Article 22(1) and (2) require grounds of arrest, counsel of choice and production within twenty four hours; Article 14 and Article 15 forbid discriminatory treatment; and Article 39A requires free legal aid.

Arrest: D.K. Basu v. State of West Bengal, (1997) 1 SCC 416. Arising from a letter by the Legal Aid Services West Bengal about custodial deaths, the Court laid down eleven mandatory requirements applicable to every arrest and detention: accurate visible identification and name tags for the arresting officers; a memo of arrest attested by at least one witness and countersigned by the arrestee with the time and date; the right of the arrestee to have a friend or relative informed; entry of the arrest in a diary; examination of injuries at the time of arrest with an inspection memo signed by both; a medical examination by a trained doctor every forty eight hours during custody; copies of all documents to the magistrate; the right to meet a lawyer during interrogation though not throughout; and a police control room notice board.

Prisons: Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, and Sunil Batra (II), (1980) 3 SCC 488. The first held solitary confinement of a prisoner under sentence of death before the sentence became final to be illegal and bar fetters to be permissible only for the shortest period with recorded reasons; the second arose from Batra's letter about a warder torturing a prisoner, Prem Chand, to extort money from his relatives, and was treated as a habeas corpus petition. The governing principle is that imprisonment authorises the deprivation of locomotion and nothing more, so every other right survives unless its curtailment is a necessary consequence of custody. Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526, held routine handcuffing unconstitutional, permissible only on a clear and present danger of escape with recorded reasons justified to the court.

Undertrials: Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81. The petitions disclosed undertrials in Bihar held for periods longer than the maximum sentence for the offences charged. The Court held a speedy trial to be an essential ingredient of Article 21 and free legal aid to be a State obligation under Article 39A, and thousands were released.

Institutional machinery. The Protection of Human Rights Act, 1993 created the National Human Rights Commission and State Commissions, with the power to inquire into complaints of violation or of negligence in prevention by a public servant, to require every custodial death to be reported within twenty four hours, to visit jails, and to recommend compensation; its recommendations are not binding, which is its principal weakness. Section 176(1A) of the Code, now section 196 of the BNSS, requires a judicial magistrate to inquire into every death, disappearance or rape in police custody, in addition to any police inquiry.

The Model Prison Manual, 2016 and the Model Prisons and Correctional Services Act, 2023 are advisory because prisons are a State subject under Entry 4 of List II. Section 479 of the BNSS requires the release on bond of a first time offender who has served one third of the maximum sentence, and places the duty to apply on the jail superintendent rather than the prisoner; the Supreme Court has held it applies retrospectively.

One, ratify and implement the Convention against Torture. India signed in 1997 and has never ratified, because ratification requires a domestic offence of torture. The Law Commission's 273rd Report (2017) recommended a Prevention of Torture Bill defining torture as a distinct offence with enhanced punishment where committed by a public servant, and a presumption that injuries sustained in custody were caused by the officer having custody. Enacting it would convert custodial violence from an assault prosecuted by the same force into a distinct offence with a shifted burden.

Two, make section 196 BNSS inquiries meaningful. Judicial inquiry into custodial death exists on paper; its findings should be published, and prosecution should follow automatically where the inquiry finds a prima facie case, without the sanction requirement operating as a filter.

Three, mandatory audio video recording of interrogation, which the Supreme Court directed in Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184, requiring CCTV with night vision and audio in every police station, in interrogation rooms and lock ups, with recordings preserved for eighteen months, and oversight committees at State and district level. Compliance is incomplete and enforcing it would do more than any new right.

Eight, structural separation and capacity. Separate investigation from law and order as Prakash Singh directed; increase the police to population ratio, which remains below the United Nations recommended figure; and invest in forensic capacity, since the demand for confession is a function of the inability to prove a case otherwise.

Conclusion. The human rights problems in policing and prisons are structural rather than incidental: the police are measured by detection while the law makes their most convenient evidence inadmissible, and prisons hold three undertrials for every convict at over 120 per cent occupancy under an administrative culture inherited from an Act of 1894. The legal system has responded substantially through Article 21, with D.K. Basu and Arnesh Kumar disciplining arrest, Nilabati Behera and Rudul Sah creating public law compensation and removing sovereign immunity, Sunil Batra and Prem Shankar Shukla establishing that a prisoner keeps every right except free movement, Hussainara Khatoon making a speedy trial and legal aid part of Article 21, and Sukanya Shantha in 2024 requiring every prison manual in India to be rewritten to remove caste.

For full marks, cover: two notes of roughly twelve and a half marks each, so give each about twenty five minutes. Note (a) needs the three concentric circles, the meaning fixed in Romesh Thappar, the legislative entries and the speech cases. Note (b) needs Articles 372 and 13(1) together with the three doctrines that work them out, and it must end by saying what actually changed in 1950.

(a) Security of State

The concept. "Security of the State" is the gravest of the three expressions the Constitution uses to describe degrees of disturbance, and its whole function is to mark the point at which the State may take its most serious powers against the individual. It is not defined anywhere in the Constitution, and its content has been supplied entirely by the courts.

The three concentric circles. The governing authority is Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740. Lohia was detained under a rule permitting detention to prevent acts prejudicial to the maintenance of "law and order", where the parent Defence of India Rules authorised detention only on the ground of "public order". Hidayatullah J. distinguished the expressions by imagining three concentric circles: law and order is the largest, covering the whole field of ordinary crime; public order is a smaller circle within it; and security of the State is the smallest and innermost.

Every act endangering the security of the State also disturbs public order and law and order, but the converse does not follow. His illustration is the one to reproduce: a stabbing arising from a private quarrel is a law and order matter; the same stabbing in the course of a communal riot affects public order; an act aimed at overthrowing the Government or assisting a foreign enemy touches the security of the State. Because the rule permitted detention on a wider ground than the statute allowed, the detention was quashed.

What it means. Romesh Thappar v. State of Madras, AIR 1950 SC 124, decided within months of the commencement, fixed the content. An order banning the circulation of the journal Cross Roads had been made under the Madras Maintenance of Public Order Act, 1949.

The speech cases, which complete the definition. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, upheld section 124A of the Penal Code but read it down, holding that only words having a tendency to incite violence or create public disorder amount to sedition, and that criticism of the Government however strong does not; a construction penalising disaffection without incitement would take the section outside Article 19(2) altogether. Shreya Singhal v. Union of India, (2015) 5 SCC 1, struck down section 66A of the Information Technology Act, 2000, distinguishing discussion and advocacy, which are protected, from incitement, which alone may be restricted, and holding a penal provision void for vagueness where a citizen cannot know in advance what it forbids.

Challenges to section 152 are pending before the Supreme Court and have been clubbed with the sedition matters, and the Court has indicated that the section must be read consistently with Kedar Nath Singh. Say that it is undecided and do not state a conclusion the Court has not reached. The punitive counterparts of the preventive power sit alongside it: Chapter VII of the Bharatiya Nyaya Sanhita, offences against the State, in which section 152 is placed, and the Official Secrets Act, 1923.

Conclusion on (a). Security of the State is the innermost and gravest of the three concentric circles drawn in Ram Manohar Lohia, confined since Romesh Thappar to conduct endangering the foundations of the State or threatening its overthrow. The distinction it marks is not academic: it allocates legislative power between Entry 9 of List I and Entry 3 of List III, it invalidates every detention order founded on facts that reach only law and order, as the June 2025 decision shows, and it confines restrictions on speech to incitement after Kedar Nath Singh and Shreya Singhal. Whether section 152 of the Bharatiya Nyaya Sanhita respects that boundary is now before the Supreme Court.

The limit: Article 13(1). All laws in force immediately before the commencement, in so far as they are inconsistent with the provisions of Part III, are void to the extent of the inconsistency. Three doctrines work that sentence out.

Prospectivity. Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128. A prosecution had been begun before the commencement under the Indian Press (Emergency Powers) Act, 1931, and the accused argued that the Act was void under Article 13(1) so the prosecution must fall. The Court held that Article 13(1) has no retrospective operation: an inconsistent pre constitutional law is void only from 26 January 1950, it is not obliterated from the statute book for the period before that date, and rights and liabilities already accrued are unaffected. The Constitution looks forward.

Eclipse. Bhikaji Narain Dhakeshwar v. State of Madhya Pradesh, AIR 1955 SC 781. The Central Provinces and Berar Motor Vehicles (Amendment) Act, 1947, created a State monopoly in road transport, which was inconsistent with Article 19(1)(g) as it stood in 1950. The Court held that such a law is not wiped off the statute book but is overshadowed by the fundamental right: it remains dormant, remains fully operative as against non citizens, who cannot claim Article 19, and remains effective for past transactions.

What actually happened to the security laws. Some of the inherited corpus fell, some was adapted, and much survived. Section 124A of the Penal Code, under which Tilak was convicted and under which Gandhi was tried in 1922, describing it as the prince among the political sections of the Code designed to suppress the liberty of the citizen, survived and was read down rather than struck out in Kedar Nath Singh. The Police Act, 1861 survives to this day in its original form. Regulation III of 1818 and the Rowlatt Act did not.

The measure of the change, which is the point of the note. The change in 1950 was not that the colonial statutes disappeared, because most of them did not. It was that they ceased to be unquestionable. The contrast is exact. Emperor v. Sibnath Banerjee, AIR 1945 PC 156, shows the old position: the Federal Court had scrutinised whether the Governor had personally applied his mind to detention orders made under Rule 26 of the Defence of India Rules, and the Privy Council reversed, holding the Rule intra vires the parent Act and the requirement of satisfaction discharged by the ordinary rules of business under which a Secretary could act on the Government's behalf.

Conclusion on (b). Pre independence laws continue in force under Article 372, because the Republic could not have begun without a legal system, but they continue subject to Article 13(1), which makes each of them void to the extent of any inconsistency with Part III. The consequences are worked out in three doctrines: Keshavan Madhava Menon holds Article 13(1) prospective, so past transactions stand; Bhikaji Narain holds the inconsistent law eclipsed rather than dead, operative against non citizens and capable of reviving if the inconsistency is later removed; and Chamarbaugwalla holds that only the offending part falls where the rest can stand alone.

The real change of 1950 was not the disappearance of the colonial statutes but the end of their immunity, and the distance travelled is measured exactly by the five years between the Privy Council restoring detention orders in Sibnath Banerjee and the Supreme Court striking down a press ban in Romesh Thappar.

(a) Safeguards against misuse of preventive detention

Start by naming the misuses, because the safeguards only make sense against them. Preventive detention is misused in five identifiable ways: detention for what is really ordinary crime, dressed up as a threat to public order; detention as a substitute for prosecution, where the evidence would not sustain a charge; detention to defeat bail, where a court has released the person and the executive re detains him; stale detention, based on incidents long past, which is punishment rather than prevention; and mechanical detention, where the authority signs a police proposal without applying its mind.

The constitutional safeguards, in Article 22(4) to (7). Detention beyond three months requires a report of sufficient cause from an Advisory Board of persons qualified to be High Court judges. The grounds must be communicated as soon as may be, fixed by the statutes at five days extendable to fifteen for reasons recorded. The detenu must have the earliest opportunity of making a representation. Against these, clause (6) permits the authority to withhold facts it considers against the public interest to disclose, which is a limitation rather than a safeguard.

Against vague or irrelevant grounds: Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, holding that where the order rests on several grounds and one is vague the whole order is bad, because the court cannot know what weight the authority gave the defective ground and the right to an effective representation is impaired. Note the statutory counter measure: section 5A of COFEPOSA and the corresponding provisions of the NSA reverse this rule for those Acts by making the grounds severable.

Against delay: Jayanarayan Sukul v. State of West Bengal, (1970) 1 SCC 219, the four propositions, that the authority must itself consider the representation, independently of the Board, as expeditiously as possible, and without delay suggesting the representation was a formality. Unexplained delays of a fortnight have vitiated detentions.

Against unusable grounds: Harikisan v. State of Maharashtra, AIR 1962 SC 911, requiring communication in a language the detenu understands, and the line of cases requiring supply of the documents relied on, non supply of which is today the commonest successful challenge.

Assessment. The safeguards that work are procedural and verifiable on the record: was a ground vague, was the representation decided promptly, was the relied upon document supplied, is the link live. Courts are institutionally competent to answer those, and they quash detentions on them in large numbers. The safeguards that do not work are substantive, because the sufficiency of the satisfaction is not reviewable on merits and the Advisory Board tests no evidence in closed proceedings without counsel. The result is that a detention which is procedurally impeccable and factually baseless will stand.

Conclusion on (a). The Constitution's safeguards against the misuse of preventive detention are a three month leash, an Advisory Board, communication of grounds and an opportunity to represent, qualified by a power to withhold facts in the public interest. Almost everything that makes the power tolerable has come from the courts: the rule that one vague ground destroys the order, the rule that unexplained delay in deciding a representation is itself unconstitutional, the requirement of grounds in a usable language with the material relied on, the live and proximate link, and the insistence through Lohia and Arun Ghosh that public order is not law and order.

The constitutional basis. Articles 323A and 323B were inserted by the Forty second Amendment, 1976. Article 323A empowers Parliament to provide by law for administrative tribunals for disputes concerning recruitment and conditions of service of public servants. Article 323B empowers the appropriate legislature, Parliament or a State legislature, to provide for tribunals for matters in an enumerated list including taxation, foreign exchange, industrial and labour disputes, land reforms, ceiling on urban property, elections to the legislatures, food supplies and rent. Both articles as enacted permitted the exclusion of the jurisdiction of all courts except the Supreme Court under Article 136, which is where the constitutional difficulty arose.

The two decisions that matter.

S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124. The Administrative Tribunals Act, 1985 excluded the High Courts' jurisdiction under Articles 226 and 227 in service matters. The Court upheld the Act, holding that judicial review is part of the basic structure but that it is not violated if the ousted jurisdiction is vested in an effective alternative institutional mechanism of comparable competence, and it required amendments to the appointment and composition provisions, in particular a Chief Justice's role in selection, to make the Tribunal such a substitute.

The continuing problem of independence. A long line of cases has struck down provisions compromising tribunal independence: Union of India v. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1, on the National Company Law Tribunal, holding that when a jurisdiction is transferred from a court to a tribunal the tribunal must possess the same standards of independence and the members the same qualifications; Madras Bar Association v. Union of India, (2014) 10 SCC 1, on the National Tax Tribunal, striking it down for permitting non judicial members to decide substantial questions of law; and Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1, striking down the Tribunal Rules of 2017 for excessive executive control over appointments and short tenures.

The Tribunals Reforms Act, 2021 was enacted after the Court had struck down an ordinance containing the same provisions, and in Madras Bar Association v. Union of India, decided 19 November 2025, the Court again addressed the tenure, age and appointment provisions. The recurring defect is that the executive is the largest litigant before these tribunals and also controls the appointment, tenure and service conditions of their members.

Criticism. One, tribunalisation has fragmented the judicial system into dozens of bodies with inconsistent procedures and varying quality. Two, appeals from many tribunals lie directly to the Supreme Court, which both burdens it and deprives the litigant of a first appeal on facts, and Chandra Kumar addressed this only for Article 323A and 323B tribunals. Three, vacancies are chronic, so the speed that justified the model is frequently absent. Four, the independence problem is not accidental but structural, since the parent ministry is usually the principal litigant.

Conclusion on (b). Special courts and tribunals are the constitutional response to the expertise, congestion and access problems of the ordinary courts, and they are authorised by Articles 323A and 323B inserted by the 42nd Amendment. Their history is a sustained argument about how far adjudication may be moved out of the regular judiciary. Sampath Kumar allowed the exclusion of the High Courts provided an effective alternative mechanism was substituted; L. Chandra Kumar, by seven judges, held that the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is part of the basic structure and cannot be excluded at all, so tribunals are courts of first instance whose decisions go to a Division Bench of the High Court.