LLM Group 1 Constitutional and Administrative Law National Security Public Order and Rule of Law 2016 Question Paper with Solutions

For full marks, cover: two notes of roughly twelve and a half marks each. For (a) the examiner wants Articles 323A and 323B, the movement from Sampath Kumar to L. Chandra Kumar, and the independence problem; special criminal courts are a different animal and saying so earns marks. For (b) the examiner wants the deliberate rejection of due process by the framers, its return through Maneka Gandhi, and the specific devices by which special legislation displaces it.

(a) Special courts and Tribunals

Why they exist. Three justifications are offered and each is real. Expertise: taxation, service, company, securities and environmental disputes turn on technical material that a generalist judge acquires slowly and imperfectly. Speed: the regular courts are congested, and a dedicated forum with simplified procedure disposes faster. Access: tribunals are cheaper, are not bound by the Code of Civil Procedure or the Evidence Act, and may be approached without the formality of a suit.

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, reasoning that judicial review is undoubtedly part of the basic structure but that it is not destroyed if the excluded jurisdiction is vested in an effective alternative institutional mechanism of comparable competence and independence. It required amendments to the composition and appointment provisions, in particular a role for the Chief Justice of India in selection, to make the Tribunal such a substitute.

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261. A Bench of seven reconsidered Sampath Kumar and departed from it. It held that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be ousted, even by constitutional amendment; that clauses 323A(2)(d) and 323B(3)(d), so far as they permitted the exclusion of the High Courts' jurisdiction, are unconstitutional; that tribunals nevertheless act as courts of first instance in their fields, so a litigant may not bypass the tribunal and go straight to the High Court; and that tribunal decisions are subject to scrutiny by a Division Bench of the High Court within whose territorial jurisdiction the tribunal falls.

Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1, struck down the Tribunal Rules of 2017 for excessive executive control over appointment and for short tenures. The Tribunals Reforms Act, 2021 was passed 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 tenure, minimum age and the composition of search cum selection committees. The defect is structural rather than accidental: the Union is the largest litigant before most of these tribunals and simultaneously controls the appointment, tenure, salary and service conditions of their members.

Special criminal courts are different, and saying so earns marks. A special court is not a tribunal. It is a criminal court constituted by statute to try a defined class of offence, normally presided over by a sessions judge and applying the ordinary criminal procedure subject to statutory modification. In this subject the examples are the designated courts under TADA, and the special courts under the National Investigation Agency Act, 2008, the Prevention of Money Laundering Act, 2002, POCSO, 2012 and the Prevention of Corruption Act, 1988.

Conclusion on (a). Special courts and tribunals are the constitutional answer to expertise, congestion and access, authorised by Articles 323A and 323B. The constitutional limit on them is now settled: Sampath Kumar permitted the exclusion of the High Courts provided an effective alternative was substituted, and L. Chandra Kumar, by seven judges, held that the writ jurisdiction of the High Courts and of the Supreme Court 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. What remains unresolved is independence, and the line from R. Gandhi through Rojer Mathew to the November 2025 decision shows the Court repeatedly striking down provisions that subordinate tribunals to the executive that litigates before them. Special criminal courts stand on a different footing and are tested under Article 14 as a classification of offences.

Its return through the back door. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, held that Articles 14, 19 and 21 are not mutually exclusive but form a golden triangle, and that a procedure depriving a person of personal liberty must be right, just and fair, and not arbitrary, fanciful or oppressive; a procedure that is arbitrary is no procedure at all, because Article 14 strikes at arbitrariness and now informs Article 21. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, stated the result: though our Constitution has no due process clause, after Maneka Gandhi the consequence is the same. India therefore has substantive fairness review of procedure without the words.

What special legislation is, and how it displaces due process. Special legislation means a statute prescribing a distinct procedure for a defined class of offence, whether terrorism, economic crime, narcotics or offences against children. Each device it uses removes a component of fair procedure.

The judicial response, and why it is unsatisfying. 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, while laying down guidelines to make the confession provision under section 15 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 and that the remedy for abuse is action against the abuser.

Both statutes were nonetheless withdrawn: TADA lapsed in 1995 after roughly seventy six thousand arrests produced a conviction rate of about one per cent, with the National Human Rights Commission opposing its continuance; POTA was repealed in 2004 after review committees found widespread misuse, and Parliament pointedly declined to carry its confession provision into the UAPA. That record is the answer to the PUCL reasoning: where a power is exercised tens of thousands of times and convicts one in a hundred, misuse is the pattern of operation and not a possibility.

Conclusion on (b). Due process requires that both the procedure and the substance of a deprivation of liberty be fair. India deliberately wrote "procedure established by law" to exclude it and Gopalan enforced that exclusion, but Maneka Gandhi restored it in substance by requiring procedure to be right, just and fair. Special legislation is where the guarantee is thinnest, because admissible police confessions, presumptions of guilt, extended custody, restricted bail, protected witnesses and executive designation each subtract one element of a fair trial.

The courts have consistently declined to strike such statutes down, preferring to read them down and issue guidelines, and the reasoning in PUCL that misuse is no ground of invalidity sits badly with the TADA figures. The significant development is that through Najeeb and the cases following it the Court has held that no statutory bar on bail can survive a violation of the right to a speedy trial, which is due process reasserting itself at the one point where a special statute cannot exclude Article 21.

Three features of the mechanism must be understood together.

One, it is automatic and self executing. Unlike Article 359, no Presidential order is needed and no right is named. The moment a qualifying proclamation is made, Article 19 stops operating as a fetter on legislative and executive power.

Two, it suspends the RIGHT, not merely the remedy. This is the distinction the question is really about. Under Article 358 the six freedoms in Article 19 are themselves put out of operation; under Article 359 every right in Part III remains in existence and only the right to move a court for enforcement of specified rights is barred. The consequence appears when the emergency ends: a law made during the emergency in breach of Article 19 was valid when made, and the proviso protects things already done under it, so no claim lies afterwards. Under Article 359 the right was never suspended, so a claim revives once the order lapses.

Three, it touches only Article 19. Every other fundamental right continues to bind the State on its own terms, subject to whatever a Presidential order under Article 359 may do to enforceability.

One, the ground is restricted. Article 358 now applies only where the proclamation is on the ground of war or external aggression, and not where it is on the ground of armed rebellion. An internal emergency, which is what 1975 was, therefore no longer suspends Article 19 at all. This is the more significant change, because it removes the article from precisely the situation in which it was abused.

Two, the law must recite its connection with the emergency. The protection now extends only to a law which contains a recital that it is in relation to the Proclamation of Emergency in operation, and to executive action taken under such a law. A statute carrying no such recital remains fully subject to Article 19 even during a war emergency. This converts a blanket immunity into a targeted one and forces the legislature to say on the face of the Act that it is relying on the emergency.

State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170. This is the decision that fixes the outer limit of Article 358 and is the one most candidates omit. Executive action was taken against a person during the 1962 emergency restricting his movement and residence, without any law authorising it. The Court held that Article 358 protects the State's power to make a law which would otherwise offend Article 19, and executive action taken under such a law; it does not authorise executive action unsupported by any law at all. Every act of the executive affecting a citizen's rights must be justified by legislative authority, and an emergency does not dispense with that requirement. The reasoning is the same as Khanna J.'s in ADM Jabalpur and it was the law nine years earlier.

On the end of the emergency. The proviso saves "things done or omitted to be done" before the law ceased to have effect, so the emergency law dies prospectively: it can support no fresh action once the proclamation ends, but completed acts and accrued liabilities stand.

Three, saving past acts can produce lasting injustice. Because the right and not merely the remedy is suspended, a person whose publication was suppressed or whose business was closed during a war emergency has no claim afterwards, even if the measure was never necessary.

Four, the case for the article is nonetheless real. The alternative is that wartime measures are litigated as they are taken, with courts deciding questions of military necessity on affidavits during hostilities. Comparative experience counsels humility: Liversidge v. Anderson, [1942] AC 206, where the House of Lords declined to look behind a minister's satisfaction with Lord Atkin dissenting that amid the clash of arms the laws are not silent; and Korematsu v. United States, 323 US 214 (1944), upholding the internment of Japanese Americans, finally repudiated in Trump v. Hawaii, 585 US 667 (2018). Courts review wartime necessity badly, and Article 358 is an honest recognition of that, provided it is confined to war, which since 1978 it is.

For full marks, cover: the text and mechanism; the distinction from Article 358; Makhan Singh and what a Presidential order can never bar; ADM Jabalpur in full, since the question exists to test it; the changes the 44th Amendment made; Puttaswamy; and a critical assessment.

The text and the mechanism

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) provides 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.

What a Presidential order can never bar: Makhan Singh

Makhan Singh v. State of Punjab, AIR 1964 SC 381, is the essential limitation. During the 1962 emergency a Presidential order had suspended the enforcement of Articles 14, 21 and 22, and detenus under the Defence of India Rules nevertheless sought habeas corpus. A Constitution Bench held that the bar operates only where the petitioner's complaint is that one of the specified fundamental rights has been infringed, and that it does not bar a challenge on the grounds that the parent statute is beyond legislative competence; that the detention order is mala fide; that it does not comply with the statute or rule under which it purports to be made; that the authority had no jurisdiction; or that a right outside those specified has been infringed.

The reasoning is that Article 359 suspends the enforcement of named rights and does not suspend the ordinary jurisdiction of the courts, the requirement that executive action rest on legal authority, or the rule that a statutory power must be exercised within its terms. That distinction was directly available in 1975.

ADM Jabalpur, worked out

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

The reasoning fails in two places. It is inconsistent with Makhan Singh, which had held that grounds independent of the specified rights survive, and which the majority distinguished unconvincingly. And it equates a claim that the executive acted without any legal authority with a claim under Article 21, when the first asserts only that officers of the State must be able to point to a law, a proposition far older than the Constitution and confirmed nine years earlier in Bharat Singh.

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 no one may be deprived of either without the authority of law is basic to any civilised legal system and did not begin with the Constitution; and that the State has no such power even during an emergency. He was the senior most puisne judge, was superseded for the Chief Justiceship in January 1977, and resigned. That fact belongs in the answer.

Four, the surrounding architecture changed, and it matters because Article 359 operates only while a proclamation subsists: "internal disturbance" became armed rebellion; the proclamation requires the written advice of the Union Cabinet; both Houses must approve within one month by a majority of total membership and two thirds present and voting; it lapses after six months unless renewed; and one tenth of the Lok Sabha may requisition a sitting to move disapproval by simple majority. Article 358 was simultaneously confined to war and external aggression and to laws reciting a connection with the emergency. The 38th Amendment's ouster of judicial review of the proclamation was repealed, and Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, confirmed that a proclamation may be challenged for mala fides or on wholly extraneous material.

The formal end, and the assessment

Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, nine judges, held the majority judgments in ADM Jabalpur to be seriously flawed and overruled them, holding that life and personal liberty are inalienable and not conferred by the Constitution. Chandrachud J., whose father had been in the majority, wrote the passage.

Conclusion. Article 359 permits the President during an emergency to suspend the right to move any court for the enforcement of specified Part III rights. It is wider in reach than Article 358 but less drastic in kind, since it removes the remedy and leaves the right alive, which is why rights revive when the order lapses. Makhan Singh had confined it correctly to complaints founded on the specified rights, leaving untouched every challenge for want of competence, mala fides, non compliance or absence of jurisdiction; ADM Jabalpur abandoned that limitation and left a person detained without any legal authority with no court at all, Khanna J. dissenting at the cost of the Chief Justiceship.

The 44th Amendment made Articles 20 and 21 permanently unsuspendable, required the order to name the rights affected, and rebuilt the surrounding architecture so that a proclamation now needs armed rebellion, a written Cabinet decision and a special parliamentary majority; Puttaswamy completed the repair by overruling ADM Jabalpur in 2017. The precise holding of 1976 is therefore now impossible both as a matter of text and as a matter of precedent, but the power that remains is wide, most questionably as to Article 14, and its remaining controls are political rather than legal.

T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, an eleven judge Bench, answered it: since the reorganisation of States was on a linguistic basis, and education is in the Concurrent List, the unit for determining a linguistic or religious minority for the purposes of Article 30 is the State, not the country. So Hindus are a minority in Punjab, Kashmir, Nagaland, Mizoram and Meghalaya, and may claim Article 30 rights there. Bal Patil v. Union of India, (2005) 6 SCC 690, added that minority status is dynamic and that the notification of a community as a minority is a matter for the Government on relevant material.

The Union has notified six communities as minorities under section 2(c) of the National Commission for Minorities Act, 1992: Muslims, Christians, Sikhs, Buddhists, Parsis (Zoroastrians) and, added in 2014, Jains. A challenge to State wise identification is pending, and a candidate should note that the T.M.A. Pai holding on the State as the unit sits uneasily with a national notification.

Article 29(2) provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving State aid on grounds only of religion, race, caste, language or any of them. This is an individual right against exclusion, and it protects a member of the majority as much as a member of a minority. State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, struck down a communal reservation in admissions relying on it, and the reply was the First Amendment inserting Article 15(4).

Article 30(1) gives all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. Article 30(1A), added by the 44th Amendment, requires that on compulsory acquisition of the property of a minority educational institution the State must ensure that the compensation fixed does not restrict or abrogate the right. Article 30(2) forbids the State, in granting aid, from discriminating against any institution on the ground that it is under the management of a minority.

The right is not absolute, and regulation is permitted. In re The Kerala Education Bill, 1957, AIR 1958 SC 956, held that the State may impose regulations in the interest of excellence in education and the welfare of students and teachers, and that Article 30 does not confer a right to maladminister. Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717, held that regulations governing academic standards, qualifications of staff and conditions of service are permissible, but that provisions requiring university approval for the appointment or dismissal of a principal or teachers, or imposing outside representatives on the governing body, interfere with administration and are bad.

T.M.A. Pai Foundation, (2002) 8 SCC 481, is the most comprehensive statement. Eleven judges held that the right under Article 30 is subject to regulation for the maintenance of educational standards and excellence; that minority unaided institutions have the greatest autonomy, including in fee fixation and admissions, subject to the process being fair and transparent and admission being based on merit; that aided institutions may be required to admit a reasonable percentage of non minority students; and that the State may not impose its own quota or fee structure on unaided institutions.

Statutory and institutional framework

The National Commission for Minorities Act, 1992 created the NCM to evaluate the working of safeguards, make recommendations, look into complaints of deprivation of rights and study problems of discrimination. Its recommendations are not binding, which is its main weakness. The National Commission for Minority Educational Institutions Act, 2004 created a body to decide questions of minority status and to hear grievances about affiliation, with an appeal to the Supreme Court. The Protection of Human Rights Act, 1993 gives the NHRC jurisdiction over violations generally.

The Waqf Act, 1995, substantially amended in 2025, governs Muslim religious endowments, and the 2025 amendments are under challenge before the Supreme Court; a candidate should say the challenge is pending and not state an outcome. Article 350A requires every State to provide adequate facilities for instruction in the mother tongue at the primary stage to children belonging to linguistic minority groups, and Article 350B provides for a Special Officer for Linguistic Minorities appointed by the President to investigate all matters relating to the safeguards provided for them.

The first criticism is that Article 30 protects institutions rather than persons. It gives a community the right to run a school; it does nothing directly for a member of that community who suffers discrimination in employment, housing or policing. The bulk of minority disadvantage in India is of the second kind, and the constitutional scheme does not reach it.

The second is that the evidence of socio economic disadvantage has not produced a legal response. The Sachar Committee Report (2006) found that Muslims lagged behind on almost every development indicator, with representation in public employment far below population share, and the Ranganath Misra Commission (2007) recommended reservation. Neither has been implemented, and the constitutional obstacle is real: Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, permits reservation for backward classes and not on religious grounds as such, so a religion based quota is difficult to sustain. Members of minorities who are socially and educationally backward may be included in the OBC lists, and many are.

Conclusion. The Indian Constitution protects minorities through two distinct schemes: religious freedom in Articles 25 to 28, available to everyone, and cultural and educational rights in Articles 29 and 30, of which Article 30 is the operative provision, giving religious and linguistic minorities the right to establish and administer educational institutions of their choice, protected against discriminatory aid by Article 30(2), against inadequate compensation by Article 30(1A), and against the Right to Education quota by Pramati. The case law has settled the limits: regulation for excellence is permissible, maladministration is not protected, the State is the unit for determining minority status after T.M.A. Pai, and since Aligarh Muslim University v. Naresh Agarwal in November 2024 statutory incorporation no longer destroys minority character, the test being who established the institution.

For full marks, cover: a definition and its opposite; the doctrinal foundation in Maneka Gandhi; the three procedural techniques that made it possible; the human rights fields where it has produced results, each with a worked case; the criticism; and a conclusion that takes a position. The question says "cite relevant cases", so authorities must carry facts and holdings, not just names.

What judicial activism is

Judicial activism is the practice of a court going beyond the minimum necessary to decide the dispute before it, in order to give effect to constitutional values: by expanding the content of rights, by relaxing the procedural requirements for reaching the court, and by issuing and supervising directions to the executive. Its opposite is judicial restraint, the view that a court should decide no more than the case requires and leave policy to the elected branches, expressed by the Supreme Court itself in Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683.

The three techniques

One, relaxed 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 determinate class who by reason of poverty, helplessness, disability or a socially or economically disadvantaged position cannot approach the court, any member of the public acting bona fide may move it on their behalf. The reasoning is that a right without an accessible remedy is not a right, and that Article 32 speaks of "appropriate proceedings" without prescribing who may bring them.

Two, epistolary jurisdiction. A letter may be treated as a petition. Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488, began as a letter from a prisoner about a warder torturing a fellow inmate, Prem Chand, by inserting a rod into his anus to extort money from his relatives; the Court treated it as a habeas corpus petition. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96, began as a journalist's letter about custodial ill treatment of women prisoners. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, began as a mother's letter about her son's death in police custody.

This created public law compensation. Nilabati Behera, (1993) 2 SCC 746, held that sovereign immunity is no defence to such a claim and that the State must explain a death in custody. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, laid down eleven mandatory requirements for arrest and detention, now largely statutory in sections 47 to 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Prisons. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, held solitary confinement of a prisoner under sentence of death before the sentence became final to be illegal and bar fetters permissible only for the shortest period with recorded reasons, on the principle that imprisonment deprives a person of locomotion and nothing else. Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526, held routine handcuffing unconstitutional. Sukanya Shantha v. Union of India, decided 3 October 2024, held that prison manuals allocating labour by caste, segregating barracks by caste and discriminating against denotified tribes violate Articles 14, 15, 17, 21 and 23, ordered every State to revise its manual within three months, struck down the caste column in prison registers, and registered a suo motu case to monitor compliance.

Sexual harassment at work. Vishaka v. State of Rajasthan, (1997) 6 SCC 241: Bhanwari Devi, a saathin under a State development programme, tried in 1992 to stop the child marriage of an infant in an influential family and was gang raped in retaliation; the trial court acquitted the accused. Women's organisations petitioned for general protection. The Court held that such harassment violates Articles 14, 15, 19(1)(g) and 21; that in the absence of legislation it could draw on the Convention on the Elimination of All Forms of Discrimination against Women, ratified by India in 1993; and it laid down binding guidelines under Article 141. Parliament took sixteen years to enact the 2013 Act, which is both the strongest case for activism and the clearest evidence of its limits.

Environment and the right to a healthy life. M.C. Mehta v. Union of India, (1987) 1 SCC 395, the oleum gas leak from Shriram Foods and Fertiliser Industries in Delhi in December 1985, weeks after Bhopal. The Court declined to apply Rylands v. Fletcher, (1868) LR 3 HL 330, with its exceptions, and laid down absolute liability: an enterprise engaged in a hazardous activity owes an absolute and non delegable duty, and is liable for harm without any exception, the measure of damages being related to the magnitude and capacity of the enterprise so that it has a deterrent effect. It also expanded Article 32 to allow the Court to forge new remedies.

Three, enforceability. Orders that the executive will not implement devalue judicial authority. Prakash Singh v. Union of India, (2006) 8 SCC 1, issued seven directions on police reform, including a State Security Commission, a two year minimum tenure for the Director General and operational officers, separation of investigation from law and order, and Police Complaints Authorities; twenty years on, compliance is partial and several States have enacted laws that comply in form while removing the substance.

Four, selectivity. The Court's activism has been vigorous in some fields and absent in others, and the standard example is ADM Jabalpur, decided in the very period when its rhetoric of rights was strongest.

Five, the counter majoritarian objection cuts both ways. Activism protected prisoners, bonded labourers and women who had no political constituency, which is exactly what a rights guarantee is for. Where it has been most criticised is where it has decided contested policy questions with no clear rights dimension.

The objections of legitimacy, competence and enforceability are unanswered, and Prakash Singh shows what happens when a court orders what only a legislature can deliver. The defensible position is that activism has been most valuable where it enforced rights the political branches had already accepted in principle but failed to deliver to people without political voice, and least defensible where it substituted the Court's policy preference for a legislative choice.

Custodial violence and death. The structural cause is an incentive problem: the police are evaluated on detection, confession is the cheapest route to it, and sections 25 and 26 of the Evidence Act, now section 23 of the Bharatiya Sakshya Adhiniyam, 2023, make a confession to a police officer inadmissible. The incentive is therefore to extract information by force and then "discover" admissible evidence. Custodial deaths are reported annually by the National Crime Records Bureau and convictions of officers are very rare.

Illegal arrest and detention. Arrest without recorded reasons, failure to produce within twenty four hours, failure to inform a relative, and arrest as a routine first step rather than a considered one.

Extra judicial killings, particularly in areas under the Armed Forces (Special Powers) Act, 1958 and in States with organised crime.

Failure in cases of sexual violence: refusal to register a first information report, delay in medical examination, and investigation by officers untrained in dealing with survivors.

Part two: the safeguards

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

On arrest: D.K. Basu v. State of West Bengal, (1997) 1 SCC 416. Arising from a letter about custodial deaths in West Bengal, the Court laid down eleven requirements binding on every arrest: visible and accurate identification with name tags; a memo of arrest attested by a witness and countersigned by the arrestee with time and date; the right to have a friend or relative informed; entry of the arrest in a diary; recording of injuries in an inspection memo signed by both; a medical examination every forty eight hours by a doctor from an approved panel; 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. Breach was made punishable as contempt. Most are now in sections 47 to 58 of the BNSS.

On prisons: Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, and Sunil Batra (II), (1980) 3 SCC 488. Solitary confinement of a condemned prisoner before finality is illegal; bar fetters may be imposed only for the shortest period with recorded reasons and review. The governing principle is that imprisonment deprives a person of locomotion and nothing more. Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526: routine handcuffing is unconstitutional and permissible only on a clear and present danger of escape, with reasons recorded and justified to the court.

On undertrials: Hussainara Khatoon, (1980) 1 SCC 81, holding a speedy trial and free legal aid to be part of Article 21.

On caste in prisons: Sukanya Shantha v. Union of India, 3 October 2024, holding caste based allocation of labour and segregation of barracks to be untouchability under Article 17 and forced labour under Article 23, and directing every State and Union Territory to revise its prison manual within three months, striking down the caste column in prison registers, and registering In Re: Discrimination Inside Prisons in India to monitor compliance, with further time granted in January 2025.

Institutional. The Protection of Human Rights Act, 1993 created the NHRC and State Commissions, which may inquire into violations or negligence in their prevention, require every custodial death to be reported within twenty four hours, visit jails and recommend compensation; recommendations are not binding. Section 196 of the BNSS (formerly section 176(1A) of the Code) requires a judicial magistrate to inquire into every death, disappearance or rape in police custody. The Model Prison Manual, 2016 and the Model Prisons and Correctional Services Act, 2023 are advisory, prisons being a State subject under Entry 4 of List II. Section 479 of the BNSS requires release on bond of a first time offender who has served one third of the maximum sentence, placing the duty to apply on the jail superintendent, and the Supreme Court has held it applies retrospectively.

Four, implement Prakash Singh by non derogable statute. Most States have enacted Police Acts that comply formally while removing the substance, particularly on the composition of the State Security Commission and on tenure. A model law with the essential features made non derogable, and the 1861 Act repealed, is the necessary step.

Five, attack undertrial detention at its cause. Audit compliance with section 479 BNSS; expand release on personal bond without surety, since most undertrials are inside for want of a surety and not for want of bail; and post a full time legal services officer in every district jail, which section 12 of the Legal Services Authorities Act, 1987 already contemplates.

Six, complete Sukanya Shantha compliance in every State manual, with the suo motu proceeding used to audit it.

Seven, strengthen the NHRC. Make its recommendations binding, or at least require a reasoned government response laid before the legislature within a fixed period; and remove the restriction in section 19 of the 1993 Act, which confines the Commission to seeking a report from the Central Government in respect of the armed forces.

What is missing is not doctrine but delivery: Prakash Singh is substantially unimplemented after twenty years, the CCTV directions are incompletely obeyed, and India has neither ratified the Convention against Torture nor enacted the offence the Law Commission proposed in 2017. The steps that would actually change outcomes are legislative and administrative: a statutory offence of torture carrying a presumption against the officer having custody, enforced and consequential recording of interrogations, implementation of Prakash Singh by non derogable statute with the 1861 Act repealed, and aggressive use of section 479 of the BNSS to release people who have been convicted of nothing.

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 is recognised is the common law right and duty of every subject, soldier or civilian, 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 the fighting 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 conclusive. Protection comes afterwards by an Act of Indemnity, which is Dicey's point: the rule of law is not suspended but retrospectively excused, in public, by Parliament.

Distinguish an emergency. A proclamation under Article 352 is constitutional, made by the President on the written advice of the Cabinet, controlled by parliamentary approval within a month and six monthly renewal, applies to India or a specified part, leaves the courts open, and affects rights only through Articles 358 and 359, never Articles 20 and 21. Martial law is extra constitutional, arises from a fact rather than a decision, is confined to the disturbed area, and displaces the courts themselves.

The Indian instance and the modern substitutes. Martial law was proclaimed in the Punjab in April 1919; on 13 April General Dyer fired without warning on an unarmed gathering at Jallianwala Bagh, killing several hundred, after which summary military tribunals tried civilians and the "crawling order" was issued at Amritsar. The Hunter Committee censured Dyer and an Indemnity Act followed in 1919, which is precisely the pattern Article 34 contemplates. Independent India has never declared martial law.

Conclusion on (a). Martial law is the displacement of the 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 indemnifying him afterwards by Act of Parliament. India inherited that position and constitutionalised its last step in Article 34, which permits Parliament alone to indemnify and validate notwithstanding Part III. There is no Indian power to declare it, it has never been declared since 1950, and the situations that would call for it are governed 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 reach of the ordinary criminal courts.

Eclipse. Bhikaji Narain Dhakeshwar v. State of Madhya Pradesh, AIR 1955 SC 781: such a law is not wiped off the statute book but overshadowed, remaining operative against non citizens and as to past transactions; if the inconsistency is later removed by amendment, the shadow lifts and the law revives without re enactment. There a 1947 Act creating a State transport monopoly was inconsistent with Article 19(1)(g) and revived when the First Amendment amended Article 19(6). Contrast Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648, holding a post constitutional law violating a fundamental right void ab initio, qualified by State of Gujarat v. Shri Ambica Mills, (1974) 4 SCC 656, holding that such a law is not a nullity as against non citizens where the right is available only to citizens.

Severability. R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628: where the valid and invalid parts are distinct and the valid can stand alone, only the invalid part falls; where they are inextricably interwoven, the whole falls. The words "to the extent of such inconsistency" make the doctrine textually necessary.

Conclusion on (b). Pre independence laws survive under Article 372 because the Republic could not begin without a legal system, but they survive subject to Article 13(1), which makes each of them void to the extent it conflicts with Part III. The consequences are worked out in three doctrines: prospectivity in Keshavan Madhava Menon, eclipse in Bhikaji Narain, and severability in Chamarbaugwalla. The real change in 1950 was not that the old statutes went, since most stayed, but that they ceased to be unquestionable, and Romesh Thappar proved it within five months against the contrasting position confirmed by the Privy Council five years earlier in Sibnath Banerjee.

(c) Provisions of Article 22 regarding Preventive Detention

The structure. Article 22 contains two regimes. Clauses (1) and (2) give an arrested person the right to be informed of the grounds of arrest, to consult and be defended by a legal practitioner of his choice, and to be produced before the nearest magistrate within twenty four hours excluding journey time. Clause (3) provides that clauses (1) and (2) do not apply to an enemy alien or to a person detained under a preventive detention law. Clauses (4) to (7) supply what the preventive detenu gets instead.

The safeguard that was never given. Section 3 of the Constitution (Forty fourth Amendment) Act, 1978 would reduce three months to two and require the Board to be constituted on the recommendation of the Chief Justice of the appropriate High Court. It has never been notified in almost fifty years. The three month rule and an executively constituted Board therefore continue. This is the sharpest available comment on the article and most candidates do not know it.

The judicial glosses. Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318: one vague ground vitiates the whole order, because the court cannot know what weight it carried and the right to an effective representation is impaired; note that section 5A of COFEPOSA reverses this for that Act. Jayanarayan Sukul v. State of West Bengal, (1970) 1 SCC 219: the authority must consider the representation itself, independently of the Board, as expeditiously as possible, and without delay suggesting it was a formality. Harikisan v. State of Maharashtra, AIR 1962 SC 911: grounds must be communicated in a language the detenu understands, and the documents relied on must be supplied.

Conclusion on (c). Article 22 is both the constitutional authorisation of preventive detention and the only constitutional limit on it. Clause (3) strips the preventive detenu of counsel of choice, production before a magistrate and the twenty four hour rule, and clauses (4) to (7) substitute a three month leash, a closed Advisory Board, communication of grounds and an opportunity to represent.

What makes the article tolerable has come almost entirely from the courts: one vague ground destroys the order, unexplained delay in deciding a representation is itself unconstitutional, grounds must be usable and the material relied on supplied, the link must be live, and an order founded on law and order rather than public order is made under the wrong power. What the article still does not permit is any inquiry into whether the person should be detained at all. And the amendment that would have tightened it most, enacted in 1978, has never been brought into force.

For full marks, cover: two notes of roughly twelve and a half marks each. For (a) the examiner wants Articles 323A and 323B, the movement from Sampath Kumar to L. Chandra Kumar, the unresolved independence problem, and the point that special criminal courts are a different animal tested under Article 14. For (b) the examiner wants the framers' deliberate rejection of due process, its return through Maneka Gandhi, the specific devices by which special legislation displaces it, and the record that settles the argument.

(a) Special Courts and Tribunals

Why they exist. Three justifications are offered and each is genuine. Expertise: taxation, service, company, securities and environmental disputes turn on technical material a generalist judge acquires slowly and imperfectly. Speed: the regular courts are congested, and a dedicated forum with simplified procedure disposes faster. Access: tribunals are cheaper, are not bound by the Code of Civil Procedure or the Evidence Act, and can be approached without the formality of a suit.

S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124. The Administrative Tribunals Act, 1985 established the Central Administrative Tribunal and excluded the jurisdiction of the High Courts under Articles 226 and 227 in service matters. The Court upheld the Act. Its reasoning was that judicial review is undoubtedly part of the basic structure, but that the basic structure is not violated where the excluded jurisdiction is vested in an effective alternative institutional mechanism of comparable competence and independence; what the Constitution protects is the availability of review, not the identity of the forum. The Court required amendments to the composition and appointment provisions, in particular a role for the Chief Justice of India in selection, to make the Tribunal such a substitute.

The unresolved problem: independence. A long line of decisions has struck down provisions compromising it. Union of India v. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1, on the National Company Law Tribunal, held that where a jurisdiction is transferred from a court to a tribunal, the tribunal must possess the same standards of independence and its members the same qualifications as the judges they replace. Madras Bar Association v. Union of India, (2014) 10 SCC 1, struck down the National Tax Tribunal Act for permitting non judicial members to decide substantial questions of law previously decided by the High Courts.

Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1, struck down the Tribunal Rules of 2017 for excessive executive control over appointments and for 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 tenure, minimum age and the composition of search cum selection committees.

The constitutional question they raise is not judicial review but Article 14: is the classification of offences for a different procedure founded on an intelligible differentia bearing a rational nexus to the object of the statute? In re Special Courts Bill, 1978, (1979) 1 SCC 380, laid down the principles in an advisory opinion; Kartar Singh v. State of Punjab, (1994) 3 SCC 569, applied them to TADA, upholding the designated court structure and holding that Parliament may prescribe a different procedure for a different class of offence, while striking down section 22 and reading down the bail provision in section 20(8).

Criticism. Tribunalisation has fragmented adjudication into dozens of bodies of uneven quality and inconsistent procedure. Appeals from many tribunals lie directly to the Supreme Court, which both burdens that court and deprives the litigant of a first appeal on facts; L. Chandra Kumar addressed that only for tribunals under Articles 323A and 323B. Vacancies are chronic, so the speed that justified the model is frequently absent. And the independence problem has required judicial correction at least five times in fifteen years.

(b) Due Process and Special Legislation

What due process means. The phrase comes from the Fifth and Fourteenth Amendments to the United States Constitution, which forbid the deprivation of life, liberty or property without due process of law. It has two dimensions. Procedural due process asks whether the procedure by which a person is deprived was fair: notice of the case, a hearing before an impartial adjudicator, the right to counsel, the right to test the evidence against you, a reasoned decision and an appeal. Substantive due process asks a further and more intrusive question: whether the law itself, however fairly administered, is a reasonable exercise of legislative power, so that an arbitrary or oppressive law is void whatever procedure it prescribes.

India's deliberate rejection. The framers refused the phrase, and refused it with open eyes. The draft article carried "due process of law"; after B.N. Rau met Justice Frankfurter in the United States, who warned that the phrase conferred on judges an undefined power over legislation, the Drafting Committee substituted the Japanese formula "procedure established by law" in what is now Article 21, and the Constituent Assembly debates record the change.

Its return through the back door. Maneka Gandhi v. Union of India, (1978) 1 SCC 248. The petitioner's passport was impounded "in the public interest" without reasons under the Passports Act, 1967. The Court held that Articles 14, 19 and 21 are not mutually exclusive but constitute a golden triangle; that a law depriving a person of personal liberty must prescribe a procedure that is right, just and fair, and not arbitrary, fanciful or oppressive; and that a procedure which is arbitrary is no procedure at all, because Article 14 strikes at arbitrariness and now informs Article 21. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, stated the result plainly: though our Constitution has no due process clause, after Maneka Gandhi the consequence is the same. India therefore has substantive fairness review of procedure without the words.

What special legislation is, and how each device displaces due process. Special legislation means a statute prescribing a distinct procedure for a defined class of offence, whether terrorism, economic crime, narcotics or offences against children. Every device such statutes use removes one component of a fair trial.

The judicial response, and why it is unsatisfying. 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 intelligible and rationally connected to the object, while laying down guidelines to make the confession provision in section 15 workable: the confession to be recorded in a free atmosphere and in the language in which it is made, the accused to be produced before a magistrate immediately afterwards, and the magistrate to record any complaint of torture and order a medical examination. People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, upheld POTA on the reasoning that the mere possibility of abuse is no ground for striking down a statute, and that the remedy for abuse is action against the abuser rather than invalidation of the law.

The record is what settles the argument. Roughly seventy six thousand persons were arrested under TADA and the conviction rate was about one per cent; the great majority were never charged; the Act was used extensively in States with no terrorism problem and against ordinary criminal disputes and political opponents; the National Human Rights Commission opposed its continuance; and the Act was allowed to lapse in 1995.

Union of India v. K.A. Najeeb, (2021) 3 SCC 713, is the corrective: 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, and prolonged incarceration converts pre trial detention into punishment without conviction. Vernon v. State of Maharashtra, 2023 SCC OnLine SC 885, applied it and clarified that a surface level assessment of the probative value of the material remains permissible notwithstanding Watali.

And the current controversy. Section 124A of the Penal Code was directed to be kept in abeyance by the order in S.G. Vombatkere v. Union of India of 11 May 2022, and from 1 July 2024 its successor is section 152 of the Bharatiya Nyaya Sanhita, 2023. Challenges to section 152 are pending and clubbed with the sedition matters, to be read consistently with Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955. Say that it is undecided.

For full marks, cover: this question is about declaration, so all three kinds of emergency must be covered, not only Article 352. Give the grounds, the procedure, the duration and the parliamentary control for each; then the effects in outline, since the question is about declaration rather than consequences; then judicial review of a proclamation, which is where the marks are; and conclude.

The three emergencies

Part XVIII of the Constitution, Articles 352 to 360, provides for three distinct emergencies, and confusing them is the standard error.

National emergency: Article 352

Ground. The President may proclaim if satisfied that a grave emergency exists whereby the security of India or any part of it is threatened by war, external aggression or armed rebellion. A proclamation may be made before the actual occurrence, if the President is satisfied there is imminent danger. It may extend to the whole of India or to a part.

"Armed rebellion" replaced "internal disturbance" by the 44th Amendment, 1978, and this is the single most important change, because the 1975 proclamation was made on the ground of internal disturbance following a period of political agitation. Political disorder can no longer found a proclamation.

Procedure. The President may proclaim only on the written advice of the Union Cabinet, communicated as a decision of the Cabinet, not on the advice of the Prime Minister alone. This too is a 44th Amendment reform, and it responds directly to the Shah Commission's finding that in 1975 the Cabinet was informed after the proclamation had been signed.

Effect. The President may assume to himself all or any of the functions of the State Government and the powers of the Governor or any State authority other than the High Court; declare that the powers of the State legislature shall be exercisable by or under the authority of Parliament; and make incidental provisions. He may not assume any power vested in a High Court or suspend any provision relating to a High Court.

Duration and control. Approval by both Houses within two months by simple majority; then six months at a time up to a maximum of three years. The 44th Amendment added that beyond one year, President's rule may continue only if a national emergency is in operation in the whole or part of the State, and the Election Commission certifies that elections cannot be held.

Judicial control: S.R. Bommai v. Union of India, (1994) 3 SCC 1. This is the most important decision in the field and it must be worked out.

It also held secularism to be part of the basic structure, so that a State Government acting against secular principles may properly be dismissed. Rameshwar Prasad v. Union of India, (2006) 2 SCC 1, applied Bommai to hold the dissolution of the Bihar Assembly unconstitutional as based on irrelevant material, while declining to restore the Assembly because elections had intervened; and Nabam Rebia v. Deputy Speaker, (2016) 8 SCC 1, on the Arunachal Pradesh crisis, restored the earlier government.

Financial emergency: Article 360

Ground. The President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of its territory is threatened.

Effect. The Union may give directions to any State to observe canons of financial propriety; may direct the reduction of salaries and allowances of all or any class of persons serving the Union or a State, including judges of the Supreme Court and the High Courts; and may require all Money Bills and other financial Bills passed by a State legislature to be reserved for the President's consideration.

Never used. It has not been proclaimed once in seventy six years, including during the balance of payments crisis of 1991.

After 1978, in Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, the Court held that a proclamation of emergency is open to judicial review on the limited ground that it was made mala fide or on wholly extraneous or irrelevant facts, and that the Court is not powerless merely because the satisfaction is subjective. Bommai then developed the same approach for Article 356 in far greater detail, and its reasoning on the justiciability of subjective satisfaction, the relevance of material and the limits of the inquiry applies equally to Article 352.

The practical difficulty remains that a national emergency is proclaimed by a government commanding a special majority in both Houses, so the political control is only as strong as the opposition, and the judicial control is confined to mala fides and extraneous material, which are very hard to establish while the emergency is running.

Conclusion. The Constitution provides for three emergencies and they must be distinguished: a national emergency under Article 352 on the ground of war, external aggression or armed rebellion; President's rule under Article 356 on the failure of constitutional machinery in a State; and a financial emergency under Article 360, never once proclaimed.

For full marks, cover: the two regimes within one article and clause (3) as the pivot; the four safeguards individually; the Advisory Board and A.K. Roy; the judicial glosses that do the real work; the unnotified 44th Amendment provision; the statutes; and an assessment of "importance", which is the word the question uses. Note (c) of question 7 on page 1 of this scan sets the same topic as a note; this is the full essay treatment.

One article, two regimes

Article 22 is the only fundamental right that expressly authorises the imprisonment of a person who has committed no offence, and it does so from within Part III.

Clauses (1) and (2), for the ordinary arrestee. The right to be informed of the grounds of arrest as soon as may be; the right to consult and to be defended by a legal practitioner of his choice; production before the nearest magistrate within twenty four hours excluding journey time; and no detention beyond that without the magistrate's authority.

The four safeguards

One, three months and the Advisory Board, clause (4). No preventive detention law may authorise detention beyond three months unless an Advisory Board of persons who are, have been, or are qualified to be appointed as High Court judges reports, before the three months expire, that there is sufficient cause.

Two, communication of grounds, clause (5). The grounds must be communicated as soon as may be; the statutes fix five days, extendable to fifteen for reasons recorded.

Three, earliest opportunity of representation, clause (5). This is the safeguard most challenges turn on.

Four, non disclosure in the public interest, clause (6). A power to withhold facts, and therefore a limitation on the third safeguard rather than a safeguard.

Clause (7) permits Parliament to prescribe circumstances for detention beyond three months without a Board, the maximum period, and the Board's procedure.

The judicial glosses

One vague ground vitiates the order. Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318. Statutory severability clauses such as section 5A of COFEPOSA reverse this for particular Acts.

Delay in deciding the representation is itself a violation. Jayanarayan Sukul v. State of West Bengal, (1970) 1 SCC 219, and its four propositions.

Grounds must be usable. Harikisan v. State of Maharashtra, AIR 1962 SC 911, requiring a language the detenu understands, and the line of cases requiring supply of the documents relied on.

The satisfaction must be genuine and the link live. Orders passed on dictation or by mechanical adoption of a police proposal fail; an unexplained gap between the last prejudicial act and the order snaps the "live and proximate link".

Public order is not law and order. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, with the three concentric circles, and Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98, with the test of reach rather than gravity. In June 2025 the Supreme Court quashed the detention of a law student under the NSA on this basis.

The importance of Article 22

It is both source and limit. Without clause (3) and clauses (4) to (7), peacetime preventive detention would be unconstitutional, because the detainee could claim clauses (1) and (2) and, after Maneka Gandhi, a fair procedure under Article 21. And clauses (4) to (7) are the only constitutional limits on the power.

What works are the procedural safeguards, because they are verifiable on the record: was a ground vague, was the representation decided promptly, was the relied upon material supplied, was the language usable, is the link live. Courts are competent to answer these and quash detentions on them in large numbers.

What does not work is substantive protection, because the sufficiency of the satisfaction is not reviewable on merits and the Board tests no evidence. A procedurally impeccable but factually baseless detention will stand.

Almost everything that makes the article tolerable has come from the courts rather than from its text: the rule that one vague ground destroys the whole order, that unexplained delay in deciding a representation is unconstitutional, that grounds must be in a usable language with the documents relied on, that the satisfaction must be the authority's own and the link with the prejudicial act live, and that a detention founded on law and order rather than public order is made under the wrong head.

What the article still does not permit is any inquiry into whether the detention is justified on the merits. And section 3 of the 44th Amendment, which would have reduced the period to two months and taken the Advisory Board out of executive hands, was enacted in 1978 and has never been notified, which is the most eloquent available comment on how seriously the safeguards are taken.

Three features of the mechanism

One, it is automatic and self executing. Unlike Article 359, which requires a separate Presidential order specifying the rights affected, Article 358 operates the instant a qualifying proclamation is made. No order is issued, no right is named, and no authority applies its mind to which of the six freedoms in Article 19 actually needs to be curtailed.

Two, it suspends the RIGHT, not merely the REMEDY. This is the distinction the question exists to test. Under Article 358 the six freedoms in Article 19 are themselves put out of operation as a restraint on legislative and executive power. Under Article 359 every right in Part III remains in existence and only the right to move a court to enforce the ones named in the order is barred.

Why the article exists

The justification offered by the framers, and repeated by the Court, is that the freedoms in Article 19 are already subject to reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State and public order, so that the question during a war is not whether they may be restricted but by how much; and that in wartime the ordinary judicial calculus of reasonableness cannot sensibly be applied case by case to censorship, requisitioning of property and transport, restriction of movement in border areas, or control of assembly near military installations. Article 358 removes the litigation risk from wartime administration by pre empting the question rather than requiring a court to answer it under pressure and on affidavits.

The 44th Amendment: two limitations, and both are needed

Before 1978 Article 358 applied to an emergency proclaimed on any ground, including internal disturbance, and it protected any law made during the emergency, whether or not the law had anything to do with it. Both features were used in 1975 and 1976. The Constitution (Forty fourth Amendment) Act, 1978 imposed two limitations, and an answer giving only one is incomplete.

The case law

Makhan Singh v. State of Punjab, AIR 1964 SC 381. During the 1962 emergency, detenus held under Rule 30 of the Defence of India Rules sought habeas corpus. A Constitution Bench explained the architecture precisely: Article 358 suspends the operation of Article 19 while the emergency lasts, so a law that would otherwise be void for breach of Article 19 cannot be attacked on that ground; Article 359 does something narrower, barring the enforcement of the rights specified in the Presidential order; and neither provision prevents a detenu from arguing that the impugned order is outside the statute, or mala fide, or made by an authority without jurisdiction, or that the parent Act is beyond legislative competence, because none of those grounds depends on a fundamental right.

The proposition that emerges is the one to carry away: an emergency suspends particular rights, not the rule of law, and not the ordinary jurisdiction of the courts.

The position after 1978. Because Article 359 can no longer suspend the enforcement of Articles 20 and 21, and Article 358 touches only Article 19, a person deprived of life or personal liberty during any emergency on any ground may move a court under Article 21. The holding in Additional District Magistrate, Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, that a suspension of Article 21's enforcement left a detenu with no court at all, is therefore textually impossible today, and it was overruled in terms in Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, where nine judges held the majority judgments seriously flawed and life and liberty inalienable and not conferred by the Constitution.

The criticism

One, automatic operation remains objectionable in principle. No application of mind is required to which freedom needs curtailing and why. All six freedoms in Article 19 are suspended together, including freedoms with no conceivable connection to a war, such as the freedom to form associations for trade union purposes or the freedom to practise a profession. A proportionate provision would suspend the freedoms shown to obstruct the war effort, not the whole article, and modern proportionality analysis of the kind laid down in Puttaswamy would not tolerate the breadth.

In Korematsu v. United States, 323 US 214 (1944), the Supreme Court of the United States upheld the internment of Japanese Americans, a decision finally repudiated only in Trump v. Hawaii, 585 US 667 (2018). Courts perform badly as reviewers of wartime necessity, and Article 358 can be defended as an honest recognition of that, provided it is confined to war, which since 1978 it is.

Conclusion. Article 358 suspends Article 19 itself, automatically and without any Presidential order, for the duration of an emergency proclaimed on the ground of war or external aggression. It is a stronger measure than Article 359, which suspends only access to the courts and leaves the right intact, and the practical difference shows when the emergency ends: a law made under Article 358 was valid when made and the acts done under it are permanently protected, whereas rights whose enforcement was suspended under Article 359 revive. Its two worst features were removed in 1978. It no longer applies to an emergency proclaimed on the ground of armed rebellion, so the situation of 1975 can never again suspend the freedoms of speech, assembly and association; and it now protects only a law that recites its connection with the emergency.

For full marks, cover: who counts as a minority, since the Constitution does not define the word; the two distinct schemes, religious freedom and cultural and educational rights, which must not be confused; Article 30 worked out with the November 2024 decision that changed the law; the statutory and institutional framework, which is what the words "and legal framework" in this question are asking for; and a critical assessment. (The paper prints "Human Rigths"; its own spelling.)

Who is a minority

The Constitution uses the word "minority" in Articles 29 and 30 and nowhere defines it. The definition has come from the courts.

In re The Kerala Education Bill, 1957, AIR 1958 SC 956, indicated that a minority means a community numerically less than fifty per cent of the population. That leaves the crucial question: fifty per cent of what unit?

Two schemes, which must not be confused

Scheme one: religious freedom, Articles 25 to 28. These belong to all persons, not only to minorities, and they protect belief and practice. Article 25 guarantees freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health, to the other Part III rights, and to laws regulating secular activity or providing for social welfare and reform. Article 26 gives every religious denomination the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, and to own and administer property. Article 27 forbids compelling any person to pay taxes for the promotion of a particular religion. Article 28 regulates religious instruction in educational institutions.

Scheme two: cultural and educational rights, Articles 29 and 30. These are the minority specific provisions and they are where the litigation is.

Article 29(1) gives any section of citizens having a distinct language, script or culture of its own the right to conserve it. On its terms it is not confined to minorities, though it operates for them in practice.

Article 30 worked out

The right is to establish AND administer, and both words carry weight. In S. Azeez Basha v. Union of India, AIR 1968 SC 662, the Court held that Aligarh Muslim University was not established by the Muslim minority but by the Aligarh Muslim University Act, 1920, so that a body incorporated by statute is established by the statute and falls outside Article 30.

That decision has now been overruled. In Aligarh Muslim University v. Naresh Agarwal, decided 8 November 2024 by seven judges, 4:3, the Supreme Court overruled S. Azeez Basha. It held that statutory incorporation does not by itself destroy minority character; that the test is who established the institution, determined by examining the genesis of the institution, the ideation and purpose behind it, and who provided the funds, and by asking whether it was founded for the benefit of the minority; and that it is not necessary that administration vest in the minority for Article 30 to apply, since a minority may deliberately choose a secular or mixed administration and still retain the right.

T.M.A. Pai Foundation, (2002) 8 SCC 481, is the most comprehensive statement. Minority unaided institutions enjoy the greatest autonomy, including in fee fixation and admissions, subject to the process being fair, transparent and merit based; aided institutions may be required to admit a reasonable percentage of non minority students; and the State may not impose its own quota or fee structure on unaided institutions.

P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, held that the State cannot impose reservation in unaided professional institutions, minority or non minority, which produced the Ninety third Amendment, 2005 inserting Article 15(5) to permit reservation in private educational institutions excluding minority institutions. In Pramati Educational and Cultural Trust v. Union of India, (2014) 8 SCC 1, the Court upheld Article 15(5) and held that the Right of Children to Free and Compulsory Education Act, 2009 does not apply to minority institutions, aided or unaided, because a compulsory twenty five per cent admission quota would abrogate the Article 30 right.

The National Commission for Minority Educational Institutions Act, 2004 created a body to decide questions of minority status, to grant no objection certificates and to hear grievances about affiliation, with an appeal lying to the Supreme Court. It exists because minority status was being determined inconsistently by State authorities.

Article 350A requires every State and every local authority within it to endeavour to provide adequate facilities for instruction in the mother tongue at the primary stage to children belonging to linguistic minority groups. Article 350B provides for a Special Officer for Linguistic Minorities appointed by the President, to investigate all matters relating to the safeguards provided for linguistic minorities and to report to the President, the reports being laid before Parliament and sent to the State Governments.

The Waqf Act, 1995, substantially amended in 2025, governs Muslim religious endowments; the 2025 amendments are under challenge before the Supreme Court and a candidate should say the challenge is pending without stating an outcome.

First criticism: Article 30 protects institutions, not persons. It gives a community the right to run a school; it does nothing directly for a member of that community who suffers discrimination in employment, in housing or at the hands of the police. Most minority disadvantage in India is of the second kind, and the constitutional scheme does not reach it.

Second: the evidence of socio economic disadvantage has produced no legal response. The Sachar Committee Report (2006) found Muslims lagging on almost every development indicator, with representation in public employment far below population share, and the Ranganath Misra Commission (2007) recommended reservation. Neither has been implemented, and the constitutional obstacle is genuine: Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, permits reservation for socially and educationally backward classes and not on religious grounds as such, so a religion based quota is difficult to sustain. Members of minorities who are in fact backward may be, and many are, included in the OBC lists.

Conclusion. The Indian Constitution protects the human rights of minorities through two distinct schemes: religious freedom under Articles 25 to 28, which belongs to everyone, and cultural and educational rights under Articles 29 and 30, of which Article 30 is the operative guarantee, giving religious and linguistic minorities the right to establish and administer educational institutions of their choice, protected against discrimination in aid by Article 30(2), against inadequate compensation by Article 30(1A), and against the Right to Education quota by Pramati. The case law has settled that regulation for excellence is permissible while maladministration is not protected, that the State is the unit for determining minority status after T.M.A. Pai, and that since Aligarh Muslim University v. Naresh Agarwal in November 2024 statutory incorporation no longer destroys minority character, the test being who established the institution.

For full marks, cover: two notes of about twelve and a half marks each. Note (a) is set by question 7(a) of Q.P. Code 308301 on page 1 of this scan and answered in full there, so the marks plan is given here. Note (b) is new to this volume and is the more important of the two: it is the constitutional heart of this entire subject and should be written in full.

(a) Martial Law: marks plan

(b) Non-suspendability of Article 21

What the phrase means. Article 359(1), as amended by the Constitution (Forty fourth Amendment) Act, 1978, empowers the President during a proclamation of emergency to suspend by order the right to move any court for the enforcement of such of the rights in Part III "except Articles 20 and 21" as the order may specify. The right to move a court to complain of a deprivation of life or personal liberty therefore cannot be suspended at all, in any emergency, on any ground. Article 20, protecting against ex post facto laws, double jeopardy and compelled self incrimination, is equally protected. This is what is meant by the non suspendability of Article 21.

Why the provision exists: ADM Jabalpur. The amendment was a direct response to Additional District Magistrate, Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521. After the proclamation of 25 June 1975, Presidential orders suspended the enforcement of Articles 14, 21 and 22, and about a hundred thousand people were detained under the Maintenance of Internal Security Act, 1971. Detenus petitioned the High Courts under Article 226 on the grounds permitted by Makhan Singh v. State of Punjab, AIR 1964 SC 381, that the detention did not comply with MISA or was mala fide, and nine High Courts held such petitions maintainable.

The amendment. Section 40 of the 44th Amendment substituted the words "except Articles 20 and 21" in Article 359(1), and made corresponding changes to Article 359(1A) so that no law made during an emergency can claim immunity in respect of those articles. Article 358 was separately confined to Article 19, to war and external aggression emergencies, and to laws reciting their connection with the emergency. The combined effect is that no emergency instrument can now close the door of a court to a person complaining of unlawful deprivation of life or liberty.

Why this is a structural change and not a cosmetic one. Three reasons.

One, it restores Makhan Singh permanently. A detenu may always plead that his detention is without the authority of law and therefore contrary to Article 21, and no Presidential order can bar that plea. The precise holding of ADM Jabalpur is textually impossible today.

The formal burial of ADM Jabalpur. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, nine judges, held that the majority judgments in ADM Jabalpur are seriously flawed and stand overruled, and that life and personal liberty are inalienable and not conferred by the Constitution. Chandrachud J., whose father had been in the majority, wrote the passage. So the doctrine is now barred twice over, by text since 1978 and by precedent since 2017.

What is NOT protected, and this qualification earns marks. The non suspendability is of the right to move a court, and of Articles 20 and 21 alone. Three limits follow. First, the enforcement of Articles 14, 19, 22, 25 and the rest may still be suspended, so discriminatory administration during an emergency may be without remedy, which is the most questionable survival. Second, Article 358 continues to suspend Article 19 itself during a war emergency, and that is unaffected. Third, and most important in practice, the guarantee is a guarantee of access, not of outcome: a court must hear the detenu, but the substantive law it applies, including Article 22's authorisation of preventive detention, is unchanged. A detention that complies with a valid preventive detention statute will be upheld, emergency or no emergency.

For full marks, cover: two notes of roughly twelve and a half marks each, so about twenty five minutes on each. Note (a) needs a definition, the doctrinal foundation, the three procedural techniques, worked results and the criticism. Note (b) turns on Articles 372 and 13(1) with the three doctrines that work them out, and it must close by saying what actually changed in 1950.

Why it took this form in India. The Indian model answers a specific institutional mismatch. Part III is enforceable but assumes a litigant who can afford a lawyer, establish standing, plead a cause of action and prove it by evidence. Part IV addresses the poor and is expressly unenforceable under Article 37. So the enforceable half of the Constitution was practically available to the articulate, and the half written for the disadvantaged was not available at all. Public interest litigation was the response, and it developed after the Emergency, when the Court's own authority needed rebuilding.

The doctrinal foundation. Maneka Gandhi v. Union of India, (1978) 1 SCC 248. The petitioner's passport was impounded without reasons. The Court held that Articles 14, 19 and 21 form a golden triangle, that a procedure depriving a person of personal liberty must be right, just and fair and not arbitrary, fanciful or oppressive, and that a procedure which is arbitrary is no procedure at all. Article 21 thereby ceased to be a formal guarantee and became an open ended substantive one, which the Court then filled from Part IV. That is the mechanism by which a non justiciable directive becomes an enforceable right: not by making Part IV justiciable, which Article 37 forbids, but by using it to give content to a right that already is.

Sunil Batra v. Delhi Administration, (1978) 4 SCC 494: Batra, under sentence of death, complained of solitary confinement under section 30(2) of the Prisons Act, 1894 and of bar fetters under section 56. The Court held solitary confinement before the sentence became final and executable illegal, and bar fetters permissible only for the shortest period with recorded reasons subject to review, on the principle that imprisonment deprives a person of locomotion and nothing more. Sunil Batra (II), (1980) 3 SCC 488, began as Batra's letter about a warder torturing a fellow prisoner, Prem Chand, by inserting a rod into his anus to extort money from his relatives; the letter was treated as a habeas corpus petition and District Judges were appointed prison visitors.

Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81, 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 a State obligation flowing from Article 39A, and thousands were released.

Vishaka v. State of Rajasthan, (1997) 6 SCC 241: Bhanwari Devi, a saathin employed under a Rajasthan Government development programme, tried in 1992 to prevent the child marriage of a one year old girl in an influential family and was gang raped in retaliation by five men; the trial court acquitted them. Women's organisations petitioned not to reopen the acquittal but for general protection. The Court held workplace sexual harassment to violate Articles 14, 15, 19(1)(g) and 21, drew on the Convention on the Elimination of All Forms of Discrimination against Women ratified by India in 1993 to fill the legislative vacuum, and laid down binding guidelines under Article 141. Parliament took sixteen years to legislate.

Sukanya Shantha v. Union of India, decided 3 October 2024, arose from a journalist's petition showing that prison manuals across India allocated labour by caste, segregated barracks by caste and discriminated against denotified tribes. A Bench of three held the provisions unconstitutional under Articles 14, 15, 17, 21 and 23, holding caste based sanitation work to be untouchability under Article 17 and forced labour under Article 23, directed every State to revise its manual within three months, struck down the caste column in prison registers, and registered a suo motu case to monitor compliance.

Conclusion on (a). Judicial activism is the practice of a court expanding rights, relaxing access and supervising remedies, and in India it arose from a specific mismatch between broad constitutional guarantees and the people least able to invoke them. Its foundation is Maneka Gandhi, which made Article 21 substantive and allowed Part IV to be read into it, and its instruments are relaxed standing after S.P. Gupta, epistolary jurisdiction and continuing mandamus.

Its results in the fields this subject covers are concrete: Sunil Batra established that a prisoner keeps every right except free movement, Hussainara Khatoon freed thousands of undertrials and made speedy trial and legal aid part of Article 21, Bandhua Mukti Morcha reversed the burden of proof for bonded labour, Rudul Sah and Nilabati Behera created public law compensation and removed sovereign immunity as a defence, Vishaka built a workplace harassment regime sixteen years before Parliament did, and Sukanya Shantha in 2024 required every prison manual in India to be rewritten to remove caste. The objections of legitimacy, competence and enforceability are unanswered, and Prakash Singh shows their force; the defensible position is that activism has been most valuable where it enforced rights the political branches had already accepted in principle but failed to deliver to people without political voice.

Prospectivity. Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128: a prosecution begun before the commencement under the Indian Press (Emergency Powers) Act, 1931 was unaffected, because Article 13(1) has no retrospective operation and such a law is void only from 26 January 1950; the Constitution does not obliterate the past operation of the statute or rights and liabilities already accrued.

Eclipse. Bhikaji Narain Dhakeshwar v. State of Madhya Pradesh, AIR 1955 SC 781: a pre constitutional law inconsistent with a fundamental right is not wiped off the statute book but overshadowed; it remains dormant, remains fully operative as against non citizens, who cannot claim Article 19, and remains good for past transactions; and if the inconsistency is later removed by amendment the shadow lifts and the law revives without re enactment.

There a 1947 Act creating a State transport monopoly was inconsistent with Article 19(1)(g) and revived when the First Amendment amended Article 19(6). Contrast Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648, holding a post constitutional law violating a fundamental right void ab initio and still born, qualified by State of Gujarat v. Shri Ambica Mills, (1974) 4 SCC 656, which held such a law not a nullity as against non citizens where the right is available only to citizens.

Romesh Thappar v. State of Madras, AIR 1950 SC 124, shows the new: within five months of the commencement, an order banning the circulation of a journal, made under a valid and subsisting statute, was struck down because "public safety" and "public order" were not among the grounds permitted by Article 19(2) as it then stood. That decision, with Brij Bhushan v. State of Delhi, AIR 1950 SC 129, produced the First Amendment, 1951.

One consequence worth adding. The presidential adaptation power in Article 372(2) was temporary and expired after two years, while the limitation in Article 13(1) is permanent. A pre constitutional statute not since adapted or amended must therefore be read down by the courts to conform with Part III; the executive can no longer rewrite it. That is why so many colonial statutes in this subject survive unamended and are governed by judicial glosses, such as the directions in Prakash Singh v. Union of India, (2006) 8 SCC 1, on the Police Act, 1861, rather than by legislative repair.