LLM Group 1 Constitutional and Administrative Law National Security Public Order and Rule of Law 2018 Question Paper with Solutions

For full marks, cover: the constitutional authorisation in Article 22 and the legislative competence entries; the statutes themselves, arranged rather than listed; the safeguards constitutional, statutory and judicial, taken separately; the safeguard that was enacted and never notified; and an assessment. The question says "laws and safeguards", so both halves need real weight.

The constitutional authorisation

Article 22 is the source. Clauses (1) and (2) give an arrested person the right to be told 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. Clause (3) switches all of that off for a person detained under a preventive detention law. Clauses (4) to (7) supply the substitute regime.

The general detention statutes. The Preventive Detention Act, 1950, the first, upheld in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, though section 14, which barred a detenu from disclosing the grounds to a court, was struck down as it made the right to a representation illusory. It lapsed in 1969. The Maintenance of Internal Security Act, 1971 replaced it, became the instrument of the 1975 Emergency, was amended during it so that grounds need not be communicated at all, and was repealed in 1978. The National Security Act, 1980 is the general statute today, permitting detention for up to twelve months on grounds of the defence of India, relations with foreign powers, the security of India, the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community.

The economic offence statutes. COFEPOSA, 1974, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, permits detention to prevent smuggling, abetment of smuggling, transporting or concealing smuggled goods, dealing in them or harbouring smugglers; the maximum is one year, or two years for a person operating in a smuggling affected area. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 does the same for narcotics.

Three, the earliest opportunity of making a representation.

Four, clause (6) permits the authority to withhold facts it considers against the public interest to disclose, which is a limitation on the third safeguard rather than a safeguard.

Statutory. Each Act adds detail: time limits for reference to the Board and for its report, usually seven weeks and eleven weeks under the NSA and COFEPOSA; the maximum period of detention; the right to appear in person before the Board; and revocation powers in the Central Government. Note the counter measures too: section 5A of COFEPOSA provides that where an order is founded on several grounds and one is vague or irrelevant, the order is not thereby invalidated, which reverses the judicial rule in Ram Krishan Bhardwaj for that Act.

Judicial, and this is where the real protection lies.

Harikisan v. State of Maharashtra, AIR 1962 SC 911. Grounds served in English on a detenu who did not read English, with an oral explanation, were held insufficient. Communication of grounds means communication in a language the detenu understands, because clause (5) ties the grounds to the making of a representation. The same reasoning requires supply of the documents relied on, and non supply of relied upon material is today the commonest successful ground of challenge.

Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, and Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98. Hidayatullah J.'s three concentric circles: law and order the widest, public order within it, security of the State innermost. Arun Ghosh supplies the test: not the gravity of the act but its potentiality, whether it disturbs the even tempo of the life of the community or wrongs only an individual. A detention order reciting ordinary crime, however serious, is made under the wrong head. In June 2025 the Supreme Court quashed the preventive detention of a law student in Madhya Pradesh under the NSA on exactly this ground.

The safeguard that was enacted 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 take the Board's composition out of executive hands. That section has never been brought into force: the commencement notification has not been issued by any government of any party in almost fifty years, and A.K. Roy held that the Court cannot compel the executive to bring a law into force. The three month rule and an executively constituted Board therefore continue to operate. Say this in the exam.

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, was the language usable, is the link live, was the fact of custody considered. Courts are institutionally competent to answer these questions and quash detentions on them in large numbers.

Conclusion. Preventive detention in India rests on Article 22, which authorises it in clause (3) by removing the ordinary protections of clauses (1) and (2), and limits it in clauses (4) to (7) by a three month leash, an Advisory Board, communication of grounds and an opportunity to represent. The statutes operating under it are the National Security Act, 1980 as the general law, COFEPOSA and the NDPS detention Act for economic and narcotic offences, and State Goonda Acts under Entry 3 of List III.

The safeguards that matter in practice are almost all judicial: one vague ground destroys the whole order, unexplained delay in deciding a representation is itself unconstitutional, grounds must be supplied in a language the detenu reads together with the material relied on, the link between the prejudicial act and the order must be live, the satisfaction must be the authority's own and must take account of existing custody or bail, and a detention founded on law and order rather than public order is made under the wrong power.

What the Constitution does not permit any court to ask is whether the person should be detained at all. And the safeguard that would have tightened the regime most, the two month period with an Advisory Board chosen on the Chief Justice's recommendation, was enacted in 1978 and has never been notified, which is the plainest measure of how the safeguards are regarded by those they bind.

It is not the same thing as judicial review, which is the ordinary power to test the validity of State action. Activism is a matter of degree and of method.

Why it took the form it did in India

The Indian model is distinctive because it was driven by a specific problem: the persons whose rights were most often violated were the least able to reach a court. A guarantee enforceable only by those who can afford a lawyer, draft a petition and prove locus is a guarantee for the articulate. Public interest litigation was the answer, and it developed after the Emergency, when the Court's authority needed rebuilding.

The doctrinal foundation is Maneka Gandhi v. Union of India, (1978) 1 SCC 248, holding that Articles 14, 19 and 21 form a golden triangle and that any procedure depriving a person of personal liberty must be right, just and fair, and not arbitrary, fanciful or oppressive. Article 21 thereby became open ended, and every subsequent expansion is worked out of it.

The results, by group protected

Prisoners. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494: solitary confinement of a prisoner under sentence of death before the sentence became final is illegal, and bar fetters may be imposed only for the shortest period with recorded reasons, on the principle that imprisonment deprives a person of locomotion and nothing else. 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 Court treated the letter as a habeas corpus petition and appointed District Judges as prison visitors. Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526: routine handcuffing is unconstitutional, permissible only on a clear and present danger of escape with reasons recorded and justified to the court.

Undertrials. 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 that a speedy trial is an essential ingredient of Article 21 and that free legal aid is a State obligation flowing from Article 39A, and thousands were released. This remains the single largest liberation of prisoners by judicial order in Indian history.

Women. 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 that workplace sexual 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 legislate.

Children and the destitute. M.C. Mehta v. State of Tamil Nadu, (1996) 6 SCC 756, on child labour in the Sivakasi match factories, directed employers to pay compensation into a welfare fund and the State to provide employment to an adult member of the family. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545, held the right to livelihood to be part of the right to life, so that pavement dwellers could not be evicted without a hearing, though it permitted eviction after one.

Sub classification within the Scheduled Castes. State of Punjab v. Davinder Singh, decided 1 August 2024 by seven judges, 6:1, overruled E.V. Chinnaiah and held that States may sub classify within the Scheduled Castes to give preference to the more disadvantaged among them, on the reasoning that the Scheduled Castes are not a homogeneous class and that substantive equality permits differentiation within a protected group. Four judges would extend the creamy layer principle to Scheduled Castes and Tribes.

Children. Just Rights for Children Alliance v. S. Harish, decided 23 September 2024, held that viewing or storing child sexual exploitative and abuse material without deleting or reporting it is an offence under section 15 of POCSO on the basis of constructive possession, and directed that the term "child pornography" be replaced by "child sexual exploitative and abuse material".

Undertrials again. The Court has held that section 479 of the BNSS, requiring release on bond of a first time offender who has served one third of the maximum sentence and placing the duty to apply on the jail superintendent, applies retrospectively, which is a direct benefit to the poorest section of the prison population.

But the counter majoritarian objection cuts both ways, and this is the point to make in an answer about weaker sections. The beneficiaries in every case above, prisoners, undertrials, bonded labourers, women failed by the police, child labourers, pavement dwellers, Scheduled Caste prisoners, are precisely the groups with no electoral constituency. A justiciable bill of rights exists for exactly that situation. The objection has real force against judicial adventures into contested policy; it has very little force against Hussainara Khatoon.

The recent trend continues it: Sukanya Shantha in October 2024 required every prison manual in India to be rewritten to remove caste, holding caste based labour to be untouchability and forced labour; Davinder Singh in August 2024 permitted sub classification within the Scheduled Castes; and the Najeeb line has kept Article 21 above statutory bars on bail. The objections of legitimacy, competence and enforceability remain unanswered, and Prakash Singh shows their force. But measured against the alternative, which is a set of rights enforceable only by those already able to enforce them, the Indian model has been justified in exactly the field this question asks about.

Three features. It requires a separate order naming the rights, unlike Article 358 which operates automatically. It suspends the remedy and not the right, so that when the order lapses the rights revive and causes of action accruing during the emergency may be pursued; Article 358 by contrast suspends Article 19 itself and its proviso permanently protects things done. Its reach is potentially the whole of Part III, where Article 358 touches only Article 19.

What was already settled before 1975: Makhan Singh

Makhan Singh v. State of Punjab, AIR 1964 SC 381. During the 1962 emergency a Presidential order 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 complaint is that a specified right has been infringed, and that it leaves untouched a challenge that the parent statute is beyond legislative competence, that the order is mala fide, that it does not comply with the statute or rule under which it is made, that the authority lacked jurisdiction, or that some right outside the order has been infringed.

Holding. By 4:1 the Supreme Court held that in view of the order suspending Article 21, no person had any locus standi to move any High Court under Article 226 for habeas corpus to challenge the legality of a detention order on any ground, including that it did not comply with MISA or was mala fide.

Reasoning, and where it fails. The majority held that Article 21 is the sole repository of the right to life and personal liberty; that any complaint of unlawful detention is in substance a claim under Article 21 however framed; and that during an emergency Article 359, being part of the Constitution, is itself the rule of law. The Attorney General accepted in argument that a detenu shot dead without authority would have no remedy, and the majority did not disavow it. The reasoning is inconsistent with Makhan Singh, distinguished unconvincingly, and it conflates a claim that the executive acted without legal authority, which asserts only that officers of the State must point to a law, with a claim to a fundamental right.

To the surrounding architecture, which matters because Article 359 operates only while a proclamation subsists.

Four, "internal disturbance" in Article 352 was replaced by armed rebellion, so political agitation can no longer found a proclamation.

Five, the President may proclaim only on the written advice of the Union Cabinet, a direct answer to the Shah Commission's finding that in 1975 the Cabinet was informed after the proclamation was signed.

Six, both Houses must approve within one month by a majority of the total membership and two thirds of those present and voting; the proclamation lapses after six months unless renewed by the same majority; and one tenth of the Lok Sabha may requisition a special sitting to move a resolution of disapproval, which passes by simple majority.

Seven, Article 358 was confined to emergencies on the ground of war or external aggression, and to laws reciting their connection with the emergency.

Critical assessment

What the amendment genuinely achieved. The exception of Articles 20 and 21 is structural, not cosmetic. It permanently restores the Makhan Singh route: a detenu may always plead that his detention is without the authority of law and therefore violates Article 21, and no Presidential order can bar the plea. Because Article 21 after Maneka Gandhi requires a procedure that is right, just and fair, the protected core is not merely the right to be dealt with under some law but the right to fair procedure. And the change aligns Indian law with Article 4(2) of the International Covenant on Civil and Political Rights, to which India acceded in 1979, which makes the right to life, freedom from torture, freedom from slavery and the prohibition of retrospective criminal law non derogable in any public emergency.

What it did not achieve. One, the enforcement of Article 14 may still be suspended, so discriminatory administration during an emergency can be without remedy, and no account of military necessity requires that. Two, Article 358 still suspends Article 19 itself in a war emergency, and the recital requirement is a weak filter since the same government drafts the proclamation and the law.

Conclusion. The 44th Amendment's effect on Article 359 was to except Articles 20 and 21 from suspension altogether, to require the Presidential order to specify the rights affected, and to confine the parallel legislative immunity in Article 359(1A) accordingly. It was enacted for one reason: ADM Jabalpur had held that a suspension of Article 21 left a person detained without any legal authority with no court to go to, abandoning the limits Makhan Singh had laid down fourteen years earlier and drawing Khanna J.'s dissent, which cost him the Chief Justiceship.

Around that central change the amendment rebuilt the emergency architecture: armed rebellion in place of internal disturbance, a written Cabinet decision, approval by a special majority within one month, lapse after six months, a right in one tenth of the Lok Sabha to force a disapproval motion, the confinement of Article 358 to war emergencies and to laws reciting their connection, and the repeal of the ouster of judicial review. Puttaswamy completed it by overruling ADM Jabalpur in terms. The amendment has made the precise holding of 1976 impossible, and it has aligned India with the non derogable rights of the ICCPR. What it has not done is narrow the power to suspend the enforcement of Article 14, alter the substantive law a court will apply once it hears the detenu, or replace a political safeguard with a legal one.

And it is committed by persons with the resources to delay a trial indefinitely. The Supreme Court has repeatedly held that economic offences constitute a class apart requiring a different approach to bail, most fully in Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, and Nimmagadda Prasad v. CBI, (2013) 7 SCC 466, which speak of deep rooted conspiracies and huge loss of public funds. The legislative response is therefore prevention through detention and deprivation through forfeiture, rather than punishment alone.

For terrorism, the argument is about the failure of ordinary procedure. The ordinary criminal law assumes a willing witness, a completed offence, an investigation completable in ninety days and an individual offender. Terrorism defeats all four: witnesses are intimidated, the object is prevention rather than prosecution, conspiracies are transnational and require mutual legal assistance, and the offender is an organisation. The response is therefore procedural: altered rules of evidence, extended custody, restricted bail, protected witnesses and proscription of organisations.

Stating both arguments before criticising them is what distinguishes a good answer.

Section 5A is the provision that most distinguishes COFEPOSA from the general law: where an order is founded on several grounds and one is vague, non existent, irrelevant or invalid, the order is not deemed invalid on that account, since it is to be treated as made separately on each ground. This is a statutory reversal of Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, for this Act.

Section 7 permits action against an absconding person, and section 10 governs the computation of the detention period.

The companion forfeiture statute is the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA), which applies to persons convicted under the customs or foreign exchange laws and to persons detained under COFEPOSA, and to their relatives and associates, and permits forfeiture of illegally acquired property, the burden of showing lawful acquisition lying on the person affected.

TADA, 1987: salient features

The Terrorist and Disruptive Activities (Prevention) Act, enacted 1985 and re enacted with wider scope in 1987, was temporary legislation renewed every two years.

Recent judicial trend

On COFEPOSA and forfeiture. Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54, a nine judge Bench, upheld both COFEPOSA and SAFEMA. It held that the object of forfeiture legislation is to reach the illegally acquired properties of smugglers and foreign exchange manipulators, including properties held in the names of relatives and associates, and that placing the burden of proving lawful acquisition on the affected person is legitimate because the facts are peculiarly within his knowledge. Against that, detentions continue to be quashed on the ordinary Article 22 grounds. In March 2025 the Supreme Court set aside a preventive detention order for failure to consider the bail conditions imposed by a magistrate for the same offence, holding that a satisfaction reached in ignorance of that fact is no satisfaction.

On TADA. Kartar Singh v. State of Punjab, (1994) 3 SCC 569, a Constitution Bench, upheld the Act. On competence it held that terrorism falls within Entry 1 of List I and the residuary entry rather than merely public order in List II. On Article 14 it held that Parliament may prescribe a different procedure for a different class of offence provided the classification is intelligible and rationally connected to the object. On section 15 it upheld admissibility but laid down guidelines: the confession must be recorded in a free atmosphere and in the language in which it is made, the accused must be produced before a magistrate immediately afterwards, and the magistrate must record any complaint of torture and order medical examination. Section 22 was struck down and section 20(8) read down.

National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, read section 43D(5) strictly, requiring the court to take the prosecution material at face value; Union of India v. K.A. Najeeb, (2021) 3 SCC 713, held that the statutory bar does not oust the constitutional power to grant bail where the right to a speedy trial under Article 21 has been violated, since the two operate in different fields; and Vernon v. State of Maharashtra, 2023 SCC OnLine SC 885, applied it while clarifying that a surface level assessment of probative value is permitted.

For economic offences, the Prevention of Money Laundering Act, 2002 now does most of the work, with attachment under section 5, a presumption under section 24 and twin bail conditions under section 45, all upheld in Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, a decision under review and softened in application by later Benches applying Najeeb; together with the Fugitive Economic Offenders Act, 2018 and the Black Money Act, 2015.

The structural criticism common to both. TADA and POTA carried sunset clauses and were allowed to lapse or were repealed. The UAPA has none, so what was justified as an exceptional and temporary response has become permanent ordinary law, and the same is now true of the PMLA regime for economic offences. The only effective constraint the courts have found is Article 21, through the Najeeb line, which is a constraint on duration of custody rather than on the substance of the statutes.

Conclusion. COFEPOSA and TADA answer different problems with different techniques. COFEPOSA responds to the character of economic crime, which has no complaining victim, continues while a trial proceeds and exists for its proceeds, by permitting preventive detention for up to one or two years and, through SAFEMA, forfeiture of illegally acquired property with the burden on the holder, a scheme upheld by nine judges in Amratlal Prajivandas. TADA responded to the failure of ordinary procedure against terrorism by making police confessions admissible under section 15, defining disruptive activity so widely as to reach speech, inverting the bail test in section 20(8) and creating designated courts, and it was upheld in Kartar Singh with guidelines.

For full marks, cover: two notes of roughly twelve and a half marks each. These are the two concepts the whole subject is named after, so the examiner expects precision. For (a) give Dicey's three limbs, the criticism of each, and the Indian position with the basic structure point. For (b) define it, distinguish it from public order, and give the legal machinery.

(a) Rule of Law

Origin and meaning. The phrase is associated with A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885), though the idea is older, running back through Aristotle's preference for the rule of law over the rule of men, Bracton's proposition that the King is under God and the law, and Coke's use of it against James I. Dicey gave it three meanings.

The classic illustration is Entick v. Carrington (1765) 19 St Tr 1029, where the Secretary of State issued a general warrant to search Entick's house and seize his papers. The court held the warrant void because no statute and no precedent authorised it, and observed that if it is law it will be found in our books, and if it is not to be found there it is not law. That is the first limb in operation: an official needs positive legal authority for what he does to a citizen.

Criticism of Dicey. His second limb is historically inaccurate: English officials always enjoyed some special protections, and droit administratif is now generally regarded as giving stronger control over administration than the English common law then did. His first limb is inconsistent with the modern administrative state, which cannot function without discretionary power; the answer developed since is not to abolish discretion but to structure and control it, through reasons, hearings, guidelines and judicial review. His third limb describes an English peculiarity rather than a universal requirement, and a written bill of rights is a stronger protection, not a weaker one, since it binds the legislature itself.

Its constitutional status is the point that earns the mark. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, the rule of law was identified as part of the basic structure which even a constitutional amendment cannot destroy. In Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, the Court struck down clause (4) of Article 329A, which had placed the Prime Minister's election beyond the reach of any court, on the ground that it violated the rule of law and free and fair elections, both part of the basic structure: a provision that decides a dispute by declaring one party the winner is not law but a legislative judgment.

In E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, the Court held that equality is antithetic to arbitrariness, and in A.L. Kraipak v. Union of India, (1969) 2 SCC 262, that the distinction between administrative and quasi judicial functions is thin and that natural justice applies to both.

(b) National security

The concept. National security is not defined in the Constitution. It is the condition in which the State is secure against threats to its existence, its territorial integrity, its constitutional order and its capacity to govern. In Indian constitutional usage it corresponds to the innermost of the three concentric circles drawn in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740: law and order is the widest, public order is narrower and within it, and security of the State is the narrowest and innermost. Hidayatullah J.'s illustration is the one to give: a stabbing arising from a private quarrel is a law and order matter; the same stabbing in a communal riot affects public order; an act aimed at overthrowing the Government or aiding a foreign enemy touches the security of the State.

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 with a tendency to incite violence or create public disorder amount to sedition, strong criticism of the Government being protected. Shreya Singhal v. Union of India, (2015) 5 SCC 1, struck down section 66A of the Information Technology Act, 2000, distinguishing advocacy, which is protected, from incitement, which alone may be restricted, and holding a vague penal provision void for that reason alone.

The machinery. Preventive: the National Security Act, 1980; COFEPOSA, 1974. Punitive: Chapter VII of the Bharatiya Nyaya Sanhita, 2023, offences against the State, of which section 152, acts endangering sovereignty, unity and integrity of India, replaced section 124A from 1 July 2024; the Unlawful Activities (Prevention) Act, 1967; the Official Secrets Act, 1923. Institutional: the armed forces under Article 246 and List I, the central armed police forces, the National Investigation Agency under the NIA Act, 2008, and the National Security Council.

The tension, which is the whole subject. National security is the ground on which the Constitution permits its most serious inroads into liberty: detention without trial, suspension of rights, restriction of speech, and the removal of fundamental rights from the armed forces under Article 33. The judicial technique for containing it has been definitional rather than substantive: the courts do not ask whether a security measure is wise, they ask whether the facts relied on actually reach the level of security of the State rather than merely public order or law and order. That is why the three concentric circles matter so much and why Romesh Thappar, Lohia and Kedar Nath Singh remain the controlling authorities.

Conclusion on (b). National security is the innermost and gravest of the three circles the Constitution uses, confined since Romesh Thappar to conduct endangering the foundations of the State or threatening its overthrow. It is the constitutional justification for preventive detention under Article 22, emergency under Articles 352, 358 and 359, restrictions on speech under Article 19(2), the abrogation of the fundamental rights of the armed forces under Article 33, and statutory regimes from the NSA and the UAPA to AFSPA.

For full marks, cover: two notes of roughly twelve and a half marks each. In (b) the dates as printed are not accurate and a candidate who says so with proof will be credited; correct them in one sentence and then answer on the three real proclamations.

(a) Martial Law

What it is. Martial law is not a body of law but the suspension of the ordinary law and its replacement by the will of the military commander in an area where civil authority has broken down, with civilians tried by military tribunals. Distinguish two things it is confused with: military law, the permanent statutory law governing soldiers under the Army Act, 1950, administered by courts martial; and the use of the armed forces in aid of the civil power, where the army acts under a magistrate's direction and the ordinary law continues to apply.

Article 34. The Indian Constitution neither defines martial law nor confers a power to declare it; the expression appears in one article only. Article 34 provides that notwithstanding anything in Part III, Parliament may by law indemnify any person in the service of the Union or a State, or any other person, for any act done in connection with the maintenance or restoration of order in any area where martial law was in force, or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

Four consequences. One, it presupposes martial law rather than creating it, so the power, if it exists, is a common law power arising from the failure of civil authority. Two, the indemnity must be by Parliament and by law, importing public justification. Three, it is an exception to the whole of Part III, which is why an Act validating a military tribunal's sentence on a civilian survives Articles 14, 20, 21 and 22. Four, the power to validate sentences and punishments is the clearest textual indication that martial law in the full sense was contemplated.

The work is done by Chapter XI of the Bharatiya Nagarik Suraksha Sanhita, 2023, under which an Executive Magistrate may require the armed forces to disperse an unlawful assembly, the officer acting under his direction with minimum force and prosecution requiring government sanction; and by the Armed Forces (Special Powers) Act, 1958, upheld and read down in Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109, and further limited in Extra Judicial Execution Victim Families Association v. Union of India, (2016) 14 SCC 536.

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 indemnifying him afterwards by Act of Parliament. India inherited that position and constitutionalised its final step in Article 34, which permits Parliament alone to indemnify and to validate, notwithstanding the whole of Part III. There is no Indian power to declare martial law, it has never been declared since 1950, and the situations that would once have called for it are met by AFSPA and Chapter XI of the BNSS, which keep the armed forces within a statutory framework and within reach of the ordinary criminal courts.

Effect of the 1962 emergency. Article 358 automatically suspended Article 19. The Defence of India Act, 1962 and Rules were enacted, Rule 30 authorising detention on executive satisfaction. A Presidential order under Article 359 suspended the right to move any court for enforcement of Articles 14, 21 and 22. Parliament could legislate on State subjects under Article 250 and the Union could direct States under Article 353. The lasting constitutional product was Makhan Singh v. State of Punjab, AIR 1964 SC 381, holding that a Presidential order bars only complaints founded on the specified rights and leaves available challenges for want of legislative competence, mala fides, non compliance with the rule, or absence of jurisdiction: an emergency suspends particular rights and not the rule of law. The criticism of this emergency is its duration, over five years, long after the military justification lapsed.

Effect of the 1971 emergency. Article 358 again suspended Article 19; the Defence of India Act, 1971 was enacted; and the Maintenance of Internal Security Act, 1971 became the principal detention statute. It was not revoked when the war ended in December 1971 and ran for more than five years, and its continuance is what made the 1975 proclamation constitutionally straightforward, since the machinery of Articles 358 and 359 was already engaged.

On the rule of law: ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, held 4:1 that with Article 21's enforcement suspended no person had locus to seek habeas corpus on any ground, the Attorney General conceding that a detenu shot dead without authority would have no remedy; Khanna J. dissented, was superseded for the Chief Justiceship in January 1977 and resigned. The Shah Commission later found that the decision to proclaim was taken without material before the Cabinet and that the Cabinet was informed after the proclamation was signed.

The constitutional answer. The 44th Amendment, 1978 replaced "internal disturbance" with armed rebellion; required the written advice of the Cabinet; required approval by both Houses within one month by a majority of total membership and two thirds present and voting, with lapse after six months unless renewed and a right in one tenth of the Lok Sabha to requisition a disapproval motion; confined Article 358 to war and external aggression emergencies and to laws reciting their connection; made Articles 20 and 21 permanently unsuspendable under Article 359; repealed the 38th Amendment's ouster of judicial review; and removed the right to property from Part III. Puttaswamy (2017) overruled ADM Jabalpur in terms.

For full marks, cover: two notes of about twelve and a half marks each. For (a) the examiner wants the residual character of English liberties, Dicey, the leading cases, the change made by the Human Rights Act 1998, and a comparison with India. For (b) Articles 323A and 323B, Sampath Kumar to L. Chandra Kumar, the independence problem, and the distinction from special criminal courts.

(a) Civil liberties in England

The residual principle. The defining feature of English civil liberties, at least until 1998, is that they were residual and negative: there was no charter declaring what a person might do; a person was free to do anything the law did not forbid, and the liberty was the space left over after the prohibitions. Freedom of speech was not a right to speak but the absence of a law forbidding a particular speech; freedom of assembly was what remained after the law of public nuisance, obstruction of the highway and unlawful assembly had taken their share.

The cases. Entick v. Carrington (1765) 19 St Tr 1029: the Secretary of State issued a general warrant to enter Entick's house and seize his papers; the court held it void because no statute or precedent authorised it, and said that if it is law it will be found in our books and if it is not to be found there it is not law. That is the first limb in action: an official must point to positive legal authority. Habeas corpus, developed at common law and regulated by the Habeas Corpus Act 1679, was the remedy that made personal liberty enforceable, and the Bill of Rights 1689 limited the Crown's power to keep a standing army in peacetime without Parliament's consent, to suspend laws and to levy money.

The weakness of the model, and it must be stated. Because Parliament is sovereign, any liberty could be abolished by ordinary statute and no court could prevent it. Wartime practice proved the point. Regulation 18B of the Defence (General) Regulations 1939 permitted the Home Secretary to detain a person he had "reasonable cause to believe" to be of hostile origin or associations. In Liversidge v. Anderson, [1942] AC 206, the House of Lords held by a majority that the phrase meant only that the Secretary of State must think he had reasonable cause, so his belief was not examinable.

The change: the Human Rights Act 1998. The Act, in force from 2 October 2000, gives further effect to the European Convention on Human Rights in domestic law. Section 3 requires legislation to be read and given effect, so far as possible, compatibly with Convention rights. Section 4 permits the higher courts to make a declaration of incompatibility, which does not invalidate the statute but places the matter before Parliament, preserving parliamentary sovereignty in form. Section 6 makes it unlawful for a public authority to act incompatibly with a Convention right.

English civil liberties are therefore no longer purely residual, though the model remains weaker than the Indian one because a statute cannot be struck down. A v. Secretary of State for the Home Department, [2004] UKHL 56, the Belmarsh case, is the leading illustration: indefinite detention without trial of foreign national terrorist suspects under Part 4 of the Anti terrorism, Crime and Security Act 2001 was held incompatible with Articles 5 and 14 of the Convention because it discriminated between nationals and non nationals and was disproportionate; Parliament responded with control orders.

Conclusion on (a). English civil liberties were classically residual: freedoms defined by what the law did not forbid, protected by the ordinary courts through remedies such as habeas corpus, and secured by Dicey's rule of law rather than by any charter. Entick v. Carrington shows the model's strength, that an official must point to legal authority; Liversidge v. Anderson and Malone show its weakness, that Parliament may abolish a liberty and that what is not forbidden to the executive is permitted to it. The Human Rights Act 1998 changed this by requiring compatible interpretation, permitting declarations of incompatibility and binding public authorities, as the Belmarsh case demonstrates, though Parliament remains sovereign in form. India took the opposite route in 1950, declaring the liberties and making inconsistent laws void, which is a stronger protection on paper and was shown to be so in Romesh Thappar.

(b) Special courts and tribunals

Why they exist. Expertise in technical fields; speed, because the regular courts are congested; and access, since tribunals are cheaper and are not bound by the Code of Civil Procedure or the Evidence Act.

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, a Bench of seven, departed from it: the writ 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 even by constitutional amendment; Articles 323A(2)(d) and 323B(3)(d) are unconstitutional so far as they permit it; tribunals nevertheless remain courts of first instance whose jurisdiction a litigant may not bypass; their decisions are reviewable by a Division Bench of the relevant High Court; and they cannot decide the constitutional validity of their parent statutes. The governing distinction is that a tribunal may supplement the High Courts but may not supplant them.

Special criminal courts are different. A special court is a criminal court constituted by statute to try a defined class of offence, usually presided over by a sessions judge and applying the ordinary criminal procedure as modified. In this subject: the designated courts under TADA, and the special courts under the NIA Act, 2008, the PMLA, 2002, POCSO, 2012 and the Prevention of Corruption Act, 1988. The constitutional question is not judicial review but Article 14: whether the classification of offences for a special procedure rests on an intelligible differentia with a rational nexus to the object. In re Special Courts Bill, 1978, (1979) 1 SCC 380, laid down the principles; Kartar Singh v. State of Punjab, (1994) 3 SCC 569, applied them to TADA, upholding the structure while striking down section 22 and reading down section 20(8).

Criticism. Fragmentation into dozens of bodies of uneven quality; appeals from many tribunals lying directly to the Supreme Court, burdening it and denying a first appeal on facts; chronic vacancies defeating the speed rationale; and the recurring independence problem.

Two consequences follow and both should be stated, because they are the practical content of the distinction.

First, when a Presidential order under Article 359 lapses, the right is enforceable again and a cause of action that accrued during the emergency may be sued upon, because it was never extinguished. Under Article 358 the opposite holds: a law made in breach of Article 19 was valid when made, and the proviso permanently protects things done or omitted under it before it ceased to have effect.

Second, because the right survives an Article 359 order, the obligation to obey it survives too. That is why Makhan Singh could hold that an officer must still act within his statute, and why State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170, could hold that Article 358 protects the power to make a law and action under a law but never authorises executive action unsupported by law at all.

The accurate formulation of what the 44th Amendment did is therefore that it narrowed the class of rights whose enforcement may be suspended, by excepting Articles 20 and 21 permanently, and separately narrowed Article 358, the provision that really does suspend a right.

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 be exercised within its terms.

So the constitutional resource existed, and it was a decision of five judges directly in point. What happened in 1976 was not the discovery of a gap but the abandonment of a limit.

ADM Jabalpur, which is why the amendment exists

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

Facts. After the proclamation of 25 June 1975, Presidential orders under Article 359 suspended the right to move any court for the enforcement of Articles 14, 21 and 22, and later Article 19. About one hundred thousand people were detained under the Maintenance of Internal Security Act, 1971, which had itself been amended so that the grounds of detention need not be communicated at all. Detenus petitioned the High Courts under Article 226 on the Makhan Singh grounds, and nine High Courts held such petitions maintainable. The Union appealed.

Khanna J.'s dissent. Article 21 is not the sole repository of the right to life and liberty; the principle that no person may be deprived of either without the authority of law is basic to every civilised legal system and did not owe its origin to the Constitution; and the State has no such power even during an emergency. He was the senior most puisne judge, was superseded for the office of Chief Justice in January 1977, and resigned.

What the 44th Amendment did

To Article 359 itself.

One, Articles 20 and 21 are permanently excepted. Article 359(1) now empowers suspension of the right to move a court for the enforcement of Part III rights "except Articles 20 and 21". No emergency on any ground can ever again bar a person from moving a court to complain of an unlawful deprivation of life or personal liberty, or of a breach of the protections against ex post facto laws, double jeopardy and compelled self incrimination. This removes the constitutional foundation of ADM Jabalpur directly.

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

Seven, Article 358 was confined to emergencies on the ground of war or external aggression and to laws reciting their connection with the emergency. Eight, clause (5) of Article 352, inserted by the 38th Amendment to make the President's satisfaction final and non justiciable, was repealed, and Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, confirmed that a proclamation is open to review for mala fides or wholly extraneous material. Nine, the right to property was removed from Part III to Article 300A.

And one change that was enacted and never brought into force. Section 3 of the same Amendment would amend Article 22 to reduce the maximum period of detention without an Advisory Board's report from three months to two months, and to require the Board to be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court. The commencement notification has never been issued by any government of any party in almost fifty years, and A.K. Roy v. Union of India, (1982) 1 SCC 271, held that the Court cannot compel the executive by mandamus to bring a provision into force, because commencement is a matter the amending body entrusted to the executive. It is the only safeguard in the Amendment aimed at the ordinary, non emergency use of preventive detention, and it is dead.

What it did not achieve. One, 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. Two, 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 unchanged, so a detention complying with a valid statute will be upheld.

Three, the parliamentary safeguards are majoritarian: a government commanding a majority of total membership and two thirds of those present in both Houses can proclaim and maintain an emergency by renewal, and it was such a government that did so in 1975; the real protection is political cost, not a legal barrier. Four, judicial review is confined and comes late; Minerva Mills permits it only for mala fides or wholly extraneous facts, and Rameshwar Prasad v. Union of India, (2006) 2 SCC 1, shows that relief granted years afterwards may be futile. Five, section 3 was never notified, so the Amendment's one safeguard against everyday preventive detention is a dead letter that no court can revive.

Around that central change the Amendment rebuilt the emergency architecture: armed rebellion in place of internal disturbance, a written Cabinet decision, approval within one month by a special majority, lapse after six months, a requisition right for one tenth of the Lok Sabha, Article 358 confined to war and to reciting laws, and the repeal of the ouster of judicial review. What survives is the power to suspend the enforcement of Article 14 and the other Part III rights, which is the most questionable remainder; the fact that what is now guaranteed is access rather than any particular outcome; and the unnotified section 3, which shows how far the political will to restrain this power actually extended.

The consequence of a subjective formula is that the court does not substitute its own view on the merits. The consequence is not that the court has no role at all, and the whole development of Indian administrative law in this field has been to work out what remains.

Why constitutions use it. Three reasons, and giving them earns marks. Emergencies and security decisions turn on material a court cannot evaluate, including intelligence assessments. They require speed, incompatible with a trial of the facts. And they involve prediction rather than proof: preventive detention asks what a person is likely to do, and no court can find that as a past fact.

Where the Constitution uses it in this subject

Article 352(1): the President may proclaim a national emergency "if the President is satisfied that a grave emergency exists" whereby the security of India is threatened by war, external aggression or armed rebellion, and the proviso permits a proclamation on satisfaction of imminent danger before the event.

Article 356(1): the President may act "if the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution".

A.K. Gopalan v. State of Madras, AIR 1950 SC 27, took the Indian law to its most deferential point: procedure established by law means procedure enacted by a competent legislature, the Court may not ask whether it is reasonable, and Articles 19, 21 and 22 are mutually exclusive. On that view a subjective satisfaction was effectively unreviewable.

The turn: Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295. An investigation was ordered under section 237(b) of the Companies Act, 1956, where the authority was "of the opinion" that there were circumstances suggesting fraud. The Court held that although the formation of opinion is subjective, the existence of circumstances on which the opinion is founded is a condition precedent and is open to judicial review; that the circumstances must be relevant to the matters specified in the section; and that if the opinion is based on no material, or on material wholly irrelevant, or is such that no reasonable person could have formed it, the court will interfere. That is the modern position and it applies across the field.

Article 356, and this is where the doctrine was worked out fully: S.R. Bommai v. Union of India, (1994) 3 SCC 1. A Bench of nine held that the President's satisfaction is justiciable; that the Court may examine whether the material on which it was based was relevant and had a rational nexus with the action taken, though not its correctness, adequacy or sufficiency; that the proclamation may be struck down for mala fides or reliance on wholly extraneous or irrelevant grounds; that once a prima facie case is made out the burden shifts to the Union to produce the material on which it acted, and the Court may call for it, though it will not compel disclosure of material genuinely protected; that the majority of a government is to be tested on the floor of the House and not by the Governor's subjective assessment; that the Assembly should not be dissolved until both Houses have approved, because dissolution is irreversible; and that if the proclamation is found invalid the Court may restore the dismissed government and revive the Assembly.

Rameshwar Prasad v. Union of India, (2006) 2 SCC 1, applied Bommai to hold the dissolution of the Bihar Assembly unconstitutional as founded on irrelevant material, and Nabam Rebia v. Deputy Speaker, (2016) 8 SCC 1, restored the Arunachal Pradesh government.

It must rest on relevant material. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, and Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98: an order made on facts amounting only to law and order, when the power is to detain for public order, rests on material irrelevant to the head relied on. The test is the act's potentiality, whether it disturbs the even tempo of the life of the community, not its gravity. In June 2025 the Supreme Court quashed a law student's detention under the NSA on precisely this ground.

One irrelevant or vague ground vitiates the whole. Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, because the court cannot know what weight the defective ground carried in the authority's mind, which is a direct application of the subjective character of the satisfaction: precisely because the court cannot enter the authority's mind, it cannot sever.

The link must be live. An unexplained gap between the last prejudicial act and the order snaps the "live and proximate link" and shows that no genuine preventive satisfaction was reached. Conversely, in April 2026 the Supreme Court upheld COFEPOSA detentions where evidence of prior disposals of foreign marked gold bars established such a link.

Its weakness is threefold. One, the distinction between the sufficiency of material, which is closed, and its relevance, which is open, is easy to state and hard to apply, and it gives a court wide latitude to defer or to intervene as it chooses. Two, judicial review after the event is a poor remedy for an emergency: a proclamation challenged in 1976 would have been heard years later, and Rameshwar Prasad itself declined to restore the Assembly because elections had intervened. Three, the doctrine failed completely when it was most needed. In 1975 the satisfaction was, as the Shah Commission later found, reached without material before the Cabinet, and the Cabinet was informed after the proclamation was signed; yet no court set it aside, and the 38th Amendment then made it non justiciable outright.

The safeguards that answer these weaknesses are not judicial. The 44th Amendment's requirement of the written advice of the Cabinet creates a record of the satisfaction and identifies whose it was; the requirement of parliamentary approval within one month by a special majority tests it politically; and the six month lapse forces it to be re formed periodically. Those are stronger controls on a subjective satisfaction than any standard of review, because they operate before and during rather than after.

In preventive detention the same principle produces the daily working rules: the satisfaction must be the authority's own, founded on material relevant to the head relied on, with a live and proximate link, taking account of existing custody or bail, and one vague ground destroys the whole order because the court cannot enter the authority's mind to sever it. What the doctrine cannot do is test sufficiency, and it failed altogether in 1975, which is why the 44th Amendment's real answer was procedural and political, a written Cabinet decision, a special parliamentary majority and a six month lapse, rather than a new standard of judicial review.

The proof, which should be given. The 1962 proclamation was not revoked until January 1968, so the 1965 war with Pakistan fell within a subsisting emergency and required no fresh proclamation, which is exactly why none was made. The third proclamation was made while the second was still in force, so two emergencies ran concurrently for twenty one months and were revoked together. And the 2025-26 paper of this very subject asks about "1962, 1971, and 1975", which is the correct list. Say this in one short paragraph, then answer on the three real proclamations. Do not silently adopt the paper's dates: the constitutional interest of the period lies precisely in the facts that the 1962 emergency ran for more than five years after the fighting stopped and that 1975 was proclaimed under a wholly different head.

The positive consequence is Makhan Singh v. State of Punjab, AIR 1964 SC 381. Detenus under Rule 30 sought 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 parent statute is beyond legislative competence, that the order is mala fide, that it does not comply with the rule under which it was made, or that the authority lacked jurisdiction.

The reasoning, that Article 359 suspends the enforcement of named rights and not the ordinary jurisdiction of the courts nor the requirement that executive action rest on legal authority, is the most important constitutional product of this emergency and it was directly available eleven years later. State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170, decided during the same emergency, added that Article 358 protects the power to make a law and action under a law, and never authorises executive action unsupported by law at all.

The 1971 emergency: effect and consequences

Effect. Article 358 again suspended Article 19; the Defence of India Act, 1971 was enacted; and the Maintenance of Internal Security Act, 1971, passed in July 1971 before the war, became the principal detention statute and was progressively strengthened.

Effect on the Constitution itself. The 38th Amendment made the proclamation and the President's satisfaction non justiciable. The 39th Amendment placed the election of the Prime Minister beyond the jurisdiction of any court, retrospectively, and was struck down in part in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, as violating the rule of law and free and fair elections, both part of the basic structure. The 42nd Amendment, 1976 extended the life of the legislatures, curtailed the writ jurisdiction, inserted Articles 323A and 323B, gave the Directive Principles primacy through a widened Article 31C, and inserted Article 368(4) and (5) purporting to place all amendments beyond challenge; most of this fell in Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

Effect on the rule of law: ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521. Nine High Courts had held, following Makhan Singh, that a detenu could still argue non compliance with MISA or mala fides. By 4:1 the Supreme Court reversed, holding that with the enforcement of Article 21 suspended no person had any locus standi to move any High Court for habeas corpus on any ground, because Article 21 is the sole repository of the right to life and personal liberty.

The 44th Amendment, and a critical assessment

The amendment replaced "internal disturbance" with armed rebellion; required the written advice of the Cabinet; required approval by both Houses within one month by a majority of total membership and two thirds present and voting, with lapse after six months unless renewed and a right in one tenth of the Lok Sabha to requisition a disapproval motion carried by simple majority; confined Article 358 to war and external aggression emergencies and to laws reciting their connection with the emergency; made Articles 20 and 21 permanently unsuspendable under Article 359; repealed the 38th Amendment's ouster of judicial review; and removed the right to property from Part III.

Conclusion. The premise of the question must be corrected before it is answered: there were emergencies in 1962, 1971 and 1975, not in 1965 or 1970, the 1965 war having fallen inside the subsisting 1962 emergency, and the 2025-26 paper of this subject confirms the correct list. The 1962 emergency suspended Article 19 automatically, produced the Defence of India Act and Rule 30 detentions, and ran for over five years, but it also produced Makhan Singh, which held that an emergency suspends particular rights and not the rule of law, and Bharat Singh, which held that it never licenses executive action without legal authority.

The 1971 emergency likewise outlived its war by five years and left the emergency machinery running, which is what made 1975 constitutionally easy. The 1975 emergency detained a hundred thousand people, censored the press, amended MISA to abolish the duty to give grounds, and produced in ADM Jabalpur a decision that a person detained without any legal authority had no court to go to, against Khanna J.'s dissent. The 44th Amendment answered the duration failure with a six month lapse and the procedural failure with a written Cabinet decision, a special majority and the permanent exception of Articles 20 and 21 from Article 359; what it could not answer is the institutional failure of every body that was supposed to apply a text that was already clear.

What gender sensitisation means

Gender sensitisation is the process of making individuals and institutions aware of how gender based assumptions shape their conduct and decisions, so that those assumptions cease to operate unconsciously. It is not the same as gender equality, which is the legal norm, nor gender justice, which is the outcome. It is a method, directed at the discretionary space that every legal system leaves to the people who operate it: the police officer deciding whether to register a first information report, the doctor conducting a medical examination, the prosecutor deciding what to lead, the judge deciding what a survivor's conduct signifies, and the employer constituting an Internal Committee.

The reason it matters in a law examination is that Indian women's rights law is dense and its delivery is poor, and much of the gap sits precisely in that discretionary space.

The case for it, proved from the judgments

Judicial stereotyping is documented, not alleged. The Supreme Court has itself repeatedly set aside decisions founded on stereotype, which is the strongest evidence available.

The Handbook. In August 2023 the Supreme Court released the Handbook on Combating Gender Stereotypes, which identifies stereotyped language used in judgments and supplies alternatives: not "concubine" but "woman with whom a man has had a relationship outside marriage", not "eve teasing" but "street sexual harassment", not "chaste woman" or "woman of easy virtue" at all. Its stated purpose is that language shapes reasoning, and that a judgment which describes a woman in stereotyped terms has usually reasoned in stereotyped terms.

In employment. Secretary, Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469: the denial of permanent commission to women Army officers rested on submissions about physiological limitations, motherhood and the reluctance of troops to accept women commanders. The Court held that these are stereotypes, that the argument about troop acceptance is itself a reason to change the culture rather than to defer to it, and that a policy resting on such assumptions violates Article 14. Union of India v. Lt. Cdr. Annie Nagaraja, (2020) 13 SCC 1, applied it to the Navy. Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1, struck down a prohibition on employing women where liquor was consumed, holding that protective legislation must not become a self fulfilling justification for exclusion and that legislation infringing autonomy on the ground of sex attracts strict scrutiny.

What has actually been institutionalised: the recent trends

In the judiciary: gender sensitisation modules in the National Judicial Academy and State academies pursuant to Aparna Bhat; the 2023 Handbook; and Gender Sensitisation and Internal Complaints Committees in the Supreme Court and High Courts under the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013, made following Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297.

In the workplace: the Sexual Harassment of Women at Workplace Act, 2013 requires the employer to organise workshops and awareness programmes at regular intervals and to sensitise employees, which makes sensitisation a statutory duty and not merely good practice. In Aureliano Fernandes v. State of Goa, 2023 SCC OnLine SC 621, the Court recorded serious lapses in implementation nationally and directed the Union, States and Union Territories to verify that every government body, public authority and educational institution had constituted an Internal Committee, and directed the development of training modules.

Two, it does not supply capacity. A survivor's statement recorded by a woman officer requires that a woman officer be posted; women remain a small minority of the police in most States. A forensic examination requires a functioning laboratory. Sensitisation without capacity produces officers who know what they should do and cannot do it.

Three, it does not reach the economics. The single greatest determinant of a woman's ability to leave a violent household is whether she can support herself, which is why the shared household right under the Protection of Women from Domestic Violence Act, 2005, confirmed in Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, and the coparcenary right by birth confirmed in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1, do more practical work than most criminal provisions. India's female labour force participation remains among the lowest for its income level, and no training programme addresses that.

Four, it is unmeasured. Programmes are counted by workshops held, not by outcomes changed. Against that, the measurable facts are that reported crimes against women exceed four lakh a year and that the conviction rate for rape has hovered around twenty seven to thirty per cent. There is no published evaluation establishing that sensitisation training has moved either figure.

Conclusion. Gender sensitisation will help, and it will not be sufficient. It is the only instrument that reaches the discretionary space in which most violations of women's rights in India actually occur: the decision whether to register a complaint, how to conduct a medical examination, what to infer from a survivor's conduct, and whether a woman officer can command troops. That this space is where the failure lies is not asserted but demonstrated by the Supreme Court's own record, from Anuj Garg through Babita Puniya and Joseph Shine to Aparna Bhat, which set aside a bail condition requiring a survivor to tie a rakhi on her assailant and responded by directing gender sensitisation in judicial training, in the Bar Council curriculum and in the All India Bar Examination, followed by the 2023 Handbook on Combating Gender Stereotypes and by the directions in Aureliano Fernandes on the 2013 Act.

For full marks, cover: two notes of roughly twelve and a half marks each. Note (a) is set as a full essay at question 4 of Q.P. Code 34170 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 should be written in full: it asks for the philosophy underlying the Constitution's treatment of human rights, which is the framework the whole subject sits inside.

(a) COFEPOSA and TADA: Exceptional Legislation: marks plan

What rights are for: transformation, not merely restraint. A classical liberal bill of rights restrains the State so that an existing liberty is preserved. The Indian Constitution does that and something more: it was written for a society structured by caste, gender and poverty, in which formal equality would have preserved the existing distribution. Hence the express provisions for protective discrimination: Article 15(3) for women and children, Article 15(4) and (5) and Article 16(4) for backward classes and the Scheduled Castes and Tribes, Article 46 in Part IV.

Hence also the rights that run against private persons: Article 15(2) on access to shops, wells, tanks and roads; Article 17 abolishing untouchability, the only article of the Constitution that abolishes a social practice outright; and Articles 23 and 24 against forced and child labour. Ambedkar's account of Article 17 is the clearest statement of the transformative philosophy: the Constitution had to abolish a practice that no State had created and that no State could be trusted to end.

Against whom rights run. Primarily the State, defined in Article 12 and extended by Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111, to bodies under the financial, functional and administrative control of Government. But the horizontal rights named above run against everyone, and Kaushal Kishor v. State of Uttar Pradesh, (2023) 4 SCC 1, held by 4:1 that Articles 19 and 21 may be enforced against persons other than the State, and that the State has a positive duty to protect a person's Article 21 rights even against a private threat.

The two halves of the scheme, and their relationship. Part III is negative, enforceable and individual; Part IV is positive, non justiciable under Article 37 and programmatic. Their relationship was contested for thirty years, from State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, holding Part IV subsidiary, through Golak Nath and the 24th, 25th and 42nd Amendments, to the settlement in Kesavananda Bharati that neither is subordinate and in Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, that the balance between them is itself part of the basic structure, the goals of Part IV to be achieved without abrogating the means of Part III.

Conclusion on (b). The constitutional philosophy of human rights in India holds that rights are recognised rather than conferred, a proposition contested in ADM Jabalpur and settled by nine judges in Puttaswamy; that they exist to transform an unequal society and not merely to restrain the State, which is why the Constitution both permits protective discrimination and abolishes untouchability outright; and that they run principally against the State but, in specific instances and now under Kaushal Kishor, against private persons too.

The Preamble states that philosophy by placing social and economic justice ahead of liberty and by coupling the dignity of the individual with the unity and integrity of the Nation, and Parts III and IV between them give it an enforceable and a programmatic form whose balance is, after Minerva Mills, part of the basic structure. The same philosophy contains its own qualification, since the Constitution expressly authorises preventive detention and the suspension of rights; and the measure of whether the qualification has stayed within the philosophy is the 44th Amendment, which after 1975 placed Articles 20 and 21 permanently beyond the reach of any emergency.

(a) Martial Laws in England and India

What martial law is. Martial law is not a body of law at all. It is the suspension of the ordinary law and its temporary replacement by the will of the military commander in an area where the civil authority has broken down, together with the trial of civilians by military tribunals. Two things are constantly confused with it and both must be excluded. Military law is the permanent statutory law governing members of the armed forces, contained in the Army Act, 1950 and its counterparts and administered by courts martial; it has nothing to do with martial law. The use of the armed forces in aid of the civil power is the deployment of troops under a magistrate's direction while the ordinary law continues to apply; that is not martial law either, though it is often loosely so called.

England. Dicey's formulation is the starting point: 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. The doctrine rests on three propositions.

Three, protection comes afterwards by an Act of Indemnity. Because the soldier remains liable in the ordinary courts, Parliament passes an Act of Indemnity after the emergency to protect officers who acted in good faith. Dicey treats this as the characteristic English solution: the rule of law is not suspended, it is retrospectively excused, publicly, by Parliament, and the passage of the Bill is itself the occasion for scrutiny of what was done.

India, and Article 34. The Constitution neither defines martial law nor confers any power to declare it. The expression appears in exactly one article. Article 34 provides that notwithstanding anything in Part III, Parliament may by law indemnify any person in the service of the Union or of a State, or any other person, in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force, or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

The Indian instance and the modern substitutes. Martial law was proclaimed in the Punjab in April 1919; on 13 April 1919 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 imposed at Amritsar. The Hunter Committee censured Dyer and an Indemnity Act followed in 1919, which is precisely the pattern Article 34 now contemplates and the reason Indian constitutional writing treats martial law with suspicion rather than as a neutral tool. Independent India has never declared it.

The work is done instead by Chapter XI of the Bharatiya Nagarik Suraksha Sanhita, 2023, under which an Executive Magistrate may require the armed forces to disperse an unlawful assembly, the officer acting under his direction and using as little force as possible, with prosecution requiring government sanction; and by the Armed Forces (Special Powers) Act, 1958, which in a declared disturbed area permits an officer under section 4 to fire even to the causing of death on a person contravening an order against assembly, and to arrest and search without warrant, with section 6 barring prosecution without the Central Government's sanction.

The difference is one of form: India constitutionalised the last step in Article 34, permitting Parliament alone, by law and notwithstanding the whole of Part III, to indemnify and to validate, which is an acknowledgement and a constraint at the same time. In practice the occasion has never arisen since 1950, because AFSPA and Chapter XI of the BNSS supply extensive military powers inside a statutory framework under civil authority and, after Naga People's Movement and Extra Judicial Execution Victim Families, within reach of the ordinary criminal courts.

(b) Preventive Detention Laws: Laws and Safeguards

The constitutional authorisation. Article 22 contains two regimes. Clauses (1) and (2) give an arrested person the right to be told 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. Clause (3) provides that neither applies to an enemy alien or to a person detained under a preventive detention law. Clauses (4) to (7) supply the substitute regime. India is one of very few democracies to write peacetime preventive detention into its constitution, and the Constituent Assembly did so knowingly after Partition, Ambedkar defending clauses (4) to (7) as the price of clause (3).

The general statutes. The Preventive Detention Act, 1950 was the first, upheld in A.K. Gopalan v. State of Madras, AIR 1950 SC 27, though section 14, which barred a detenu from disclosing the grounds to a court, was struck down because it made the right to make a representation illusory; the Act lapsed in 1969. The Maintenance of Internal Security Act, 1971 replaced it, became the instrument of the 1975 Emergency, was amended during it so that grounds need not be communicated at all, and was repealed in 1978. The National Security Act, 1980 is the general statute today, permitting detention for up to twelve months on grounds of the defence of India, relations with foreign powers, the security of India, the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community.

The economic offence statutes. COFEPOSA, 1974 permits detention to prevent smuggling, abetment of smuggling, transporting concealing or keeping smuggled goods, dealing in them, or harbouring smugglers; the maximum is one year, or two years where the detention relates to a smuggling affected area under section 9. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 does the same for narcotics.

Statutory, giving those safeguards concrete content. Under the NSA the grounds must be communicated within five days, extendable to ten for reasons recorded, the reference to the Board must be made within three weeks and the Board must report within seven weeks of detention. Under COFEPOSA the grounds go within five days, extendable to fifteen, the reference within five weeks and the report within eleven weeks.

Both Acts allow the detenu to appear in person before the Board, permit revocation by the Government at any time, and require an order made by a District Magistrate or Commissioner of Police to be reported to the State Government, lapsing within twelve days unless approved. But note the counter measure: section 5A of COFEPOSA provides that where an order rests on several grounds and one is vague, non existent, irrelevant or otherwise invalid, the order is not thereby invalidated, which statutorily reverses the most productive judicial safeguard for the very statute in which multiple grounds are the norm.

Harikisan v. State of Maharashtra, AIR 1962 SC 911: grounds served in English on a detenu who did not read English, with an oral explanation, were insufficient; communication means communication in a language he understands, and the same reasoning requires supply of the documents relied on, non supply of which is today the commonest successful challenge. 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, keep detention attached to its proper head. The live and proximate link doctrine invalidates stale orders, and the satisfaction must be the authority's own and must take account of the fact that the detenu is already in custody or on bail.

The Advisory Board and its limits. A.K. Roy v. Union of India, (1982) 1 SCC 271, a Constitution Bench, upheld the NSA and held that the detenu has no right to counsel before the Board, but that if the detaining authority appears through a lawyer or legal adviser the detenu must be given the same facility. The Board's proceedings are closed, no evidence is tested, there is no cross examination, its report is confidential except for the opinion, and it operates in one direction only. It is an internal review by judicially qualified persons, not an adjudication.

Conclusion on (b). Preventive detention in India rests on Article 22, which authorises it in clause (3) by stripping the detenu of counsel of choice and production before a magistrate, and limits it in clauses (4) to (7) by a three month leash, an Advisory Board, communication of grounds and an opportunity to represent. The laws operating under it are the National Security Act, 1980 as the general statute, COFEPOSA and the NDPS detention Act for economic and narcotic offences, and State Goonda Acts under Entry 3 of List III, and the statutes give the constitutional safeguards concrete timelines while section 5A of COFEPOSA takes one of them away.

What makes the regime tolerable is almost entirely judicial: one vague ground destroys the whole order, unexplained delay in deciding a representation is itself unconstitutional, grounds must be supplied in a usable language with the material relied on, the link with the prejudicial act must be live, the satisfaction must be the authority's own, and an order founded on law and order rather than public order is made under the wrong power. What the Constitution permits no court to ask is whether the person should be detained at all, and the amendment that would have tightened the regime most has sat unnotified since 1978.

(a) Unorganized Labour

Definition and scale. The Unorganised Workers' Social Security Act, 2008 defines an unorganised worker as a home based worker, a self employed worker or a wage worker in the unorganised sector, and includes a worker in the organised sector who is not covered by the principal labour welfare statutes. The unorganised sector is defined as an enterprise owned by an individual or self employed workers engaged in the production or sale of goods or services, employing fewer than ten workers. On the estimates of the National Commission for Enterprises in the Unorganised Sector, chaired by Arjun Sengupta (2007), roughly ninety three per cent of India's workforce is unorganised, and the sector includes agricultural labourers, construction workers, domestic workers, beedi workers, street vendors, head loaders, rag pickers, migrant workers and, increasingly, platform and gig workers.

Why it matters constitutionally. Almost the whole apparatus of Indian labour law, industrial disputes, provident fund, gratuity, factory regulation, was built for the organised sector. The result is that the constitutional promises in Articles 39(a) and (e), 41, 42 and 43 apply to the workers least able to invoke them, and the delivery mechanism does not reach them.

The Court held that payment of less than the minimum wage amounts to "forced labour" under Article 23, because a person who is compelled by economic circumstance to work for less than the minimum wage is not working voluntarily; that Article 23 is enforceable against private persons and not merely the State; that non observance of the Equal Remuneration Act, the Contract Labour Act and the Inter State Migrant Workmen Act by a contractor engaged by a public authority is a violation for which the authority is answerable; and that a third party may bring the petition because the workers could not. This is the single most important decision for unorganised labour and its reasoning, that economic compulsion negates consent, is what makes Article 23 useful.

Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, on bonded labour in the stone quarries of Faridabad: Article 21 read with Articles 23, 39(e) and 42 requires humane conditions; a petition under Article 32 need not be adversarial and commissioners may gather facts; and where a person alleges he is a bonded labourer, the burden lies on the employer to prove otherwise, because a bonded labourer cannot lead evidence. That burden shift is why the case had practical effect.

The four Labour Codes consolidate the field: the Code on Wages, 2019, which extends minimum wages and timely payment to all employments including the unorganised sector and creates a statutory floor wage; the Code on Social Security, 2020, which for the first time defines gig worker and platform worker and requires aggregators to contribute one to two per cent of turnover, capped at five per cent of payments to workers, to a social security fund; the Industrial Relations Code, 2020; and the Occupational Safety, Health and Working Conditions Code, 2020.

The e-Shram portal, launched in 2021 pursuant to the Supreme Court's directions in the suo motu migrant workers matter during the pandemic, In Re: Problems and Miseries of Migrant Labourers, (2021) SCC OnLine SC 1004, registers unorganised workers so that benefits can be targeted; the Court there directed the Union and States to complete registration, to run community kitchens and to implement one nation one ration card.

Conclusion on (a). Unorganised labour is about ninety three per cent of the Indian workforce and it sits almost entirely outside the labour law built for the organised sector. The constitutional protection comes from Article 23, which prohibits forced labour and binds private persons, from Article 24, and from the Directive Principles in Articles 39, 41, 42 and 43 read into Article 21. The judicial contribution has been decisive: the Asiad Workers case held that payment below the minimum wage is itself forced labour under Article 23 because economic compulsion negates consent, Bandhua Mukti Morcha placed the burden of disproving bondage on the employer, Neeraja Chaudhary made rehabilitation a constitutional obligation, and Olga Tellis made livelihood part of the right to life.

The statutory framework has moved from sector specific welfare funds to the Unorganised Workers' Social Security Act, 2008 and now to the four Labour Codes, which for the first time bring gig and platform workers into social security and extend minimum wages to all employments. The persistent weakness is that these create schemes rather than enforceable entitlements, that the Codes remain substantially unimplemented, and that inspection cannot reach a dispersed and unregistered workforce, which is why the constitutional remedies have mattered more than the statutory ones.

A Bench of nine held, by 6:3, that the twenty seven per cent reservation for other backward classes was valid; that caste may be a relevant criterion for identifying a socially and educationally backward class, since in India caste is itself a social class, but that backwardness must be social and educational and not merely economic; that the creamy layer among the backward classes must be excluded, because those who have risen socially and educationally no longer share the backwardness that justifies the preference; that total reservation should ordinarily not exceed fifty per cent, save in extraordinary situations; that reservation in promotions is not permissible under Article 16(4), a holding reversed by the 77th Amendment inserting Article 16(4A); that a separate reservation on economic criteria alone is impermissible under Article 16(4); and, critically for this note, that the Government should constitute a permanent statutory body to examine complaints of over inclusion and under inclusion in the lists of backward classes.

Article 342A provided that the President, in consultation with the Governor, may specify the socially and educationally backward classes for a State, and that Parliament alone may thereafter include or exclude from that list. Article 366(26C) defined socially and educationally backward classes.

The crisis, and the 105th Amendment, 2021. In Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, the Maratha reservation case, a Constitution Bench struck down the Maharashtra reservation for Marathas for exceeding the fifty per cent ceiling and declined to revisit Indra Sawhney; and by a majority it held that after the 102nd Amendment the States had lost the power to identify socially and educationally backward classes for their own purposes, that power now vesting in the President and Parliament under Article 342A.

That reading, though textually available, deprived every State of a function it had exercised since 1993. Parliament responded within months with the Constitution (One Hundred and Fifth Amendment) Act, 2021, which amended Articles 338B, 342A and 366(26C) to restore the power of the States and Union Territories to prepare and maintain their own lists of socially and educationally backward classes, creating a dual list system: a central list for central purposes maintained under Article 342A, and State lists maintained by the States.

Conclusion on (b). The National Commission for Backward Classes originates in Article 340 and in the direction given by the Supreme Court in Indra Sawhney, which upheld twenty seven per cent reservation for other backward classes, required exclusion of the creamy layer, fixed a fifty per cent ceiling, and told the Government to create a permanent body to examine inclusion and exclusion. Parliament created it as a statutory body by the Act of 1993 with jurisdiction over the central list, and conferred constitutional status on it by the 102nd Amendment, 2018, inserting Article 338B with duties of investigation, monitoring, inquiry into complaints and mandatory consultation on major policy, and the powers of a civil court, alongside Article 342A on the central list.

When the Maratha reservation judgment read the 102nd Amendment as depriving the States of the power to identify their own backward classes, the 105th Amendment, 2021 restored it, producing the present dual list system. The Commission's continuing weaknesses are that its advice is not binding, that it works without a published caste enumeration of the other backward classes, and that the creamy layer principle it administers is now itself in flux after Davinder Singh in 2024.