LLM Group 1 Constitutional and Administrative Law National Security Public Order and Rule of Law 2019 Question Paper with Solutions

Legislative competence, which defines the outer scope. Entry 9 of List I gives Parliament exclusive power over preventive detention for reasons connected with defence, foreign affairs or the security of India. Entry 3 of List III gives the Union and the States concurrent power over preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community. A State law may therefore detain for public order but not for national defence, and this division is the first limitation on scope.

Who may detain, and for how long. The National Security Act, 1980 permits the Central or a State Government, or a District Magistrate or Commissioner of Police specially empowered, to detain for up to twelve months. COFEPOSA, 1974 permits detention for one year, or two years in relation to a smuggling affected area. The PITNDPS Act, 1988 covers narcotics. Most States have their own statutes under Entry 3 of List III, and these produce most of the litigation because they are used at district level against persons who are in substance ordinary criminals.

Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98, made that test usable. The question is not the gravity of the act but its potentiality: whether it disturbs the even tempo of the life of the community, or whether it wrongs only an individual leaving the tranquillity of society undisturbed. A murder may be a mere law and order problem; a comparatively minor act aimed at a community may affect public order. This is why a detaining authority cannot justify an order by accumulating the seriousness of the offences alleged.

The second limitation is time. Three months without an Advisory Board's report of sufficient cause, and a statutory maximum thereafter.

The third limitation is that the satisfaction must be genuine. An order made on the dictation of a superior, or by mechanically adopting a police proposal, is void for want of the subjective satisfaction the statute requires. And the "live and proximate link" doctrine invalidates an order founded on stale incidents, because an unexplained gap between the last prejudicial act and the detention shows the order to be punitive rather than preventive.

Judicial safeguards, which do the real work. Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318: where the order rests on several grounds and one is vague, the whole order is bad, because the court cannot know what weight the authority gave the defective ground and the right to an effective representation is impaired. Note the statutory counter measure, section 5A of COFEPOSA, which reverses this rule for that Act by making the grounds severable.

Jayanarayan Sukul v. State of West Bengal, (1970) 1 SCC 219: the authority must consider the representation itself, independently of the Board's opinion, as expeditiously as possible, and without delay showing that it was treated as an empty 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; non supply of relied upon material is today the commonest successful ground of challenge.

On relevant material and existing custody. In March 2025 the Court set aside a preventive detention order because the detaining authority had not considered the bail conditions already imposed by a magistrate for the same offence, on the principle that a satisfaction formed in ignorance of a material fact is no satisfaction at all.

On the live and proximate link, applied the other way. In April 2026, in a gold smuggling matter, the Court upheld COFEPOSA detentions, finding that evidence of prior disposals of foreign marked gold bars established a live and proximate link with the incident relied on, and holding that the non supply of a pen drive was not fatal where its contents had been displayed to the detenus and supplied to their representative. The pairing of this decision with the March 2025 one is worth making: the courts apply the doctrine in both directions and it is not a formula for release.

On the Advisory Board. Also in April 2026 the Court held that a COFEPOSA detenu cannot claim legal assistance before the Advisory Board as a matter of routine where an officer merely places the record and assists the Board on the detaining authority's behalf, which applies A.K. Roy's equality of arms principle rather than extending it.

The safeguards in clauses (4) to (7) are a closed Advisory Board, communication of grounds and an opportunity to represent, qualified by a power to withhold facts. What makes the regime tolerable comes almost entirely from the courts, and the recent trend confirms it: a law student's NSA detention quashed in June 2025 for resting on law and order, an order set aside in March 2025 for ignoring bail conditions, and COFEPOSA detentions upheld in April 2026 where the live and proximate link was proved. The safeguard the Constitution itself promised in 1978, two months and an Advisory Board chosen by the Chief Justice, has never been notified, and until it is, any account of Article 22 as a balance between liberty and security describes the text rather than the law in operation.

The premise needs correcting first

Article 358 is automatic and requires no Presidential order. It provides that while a Proclamation of Emergency declaring that the security of India or any part of it is threatened by war or external aggression is in operation, nothing in Article 19 shall restrict the power of the State to make any law or take any executive action which it would otherwise be competent to make or take. The moment a qualifying proclamation is made, Article 19 ceases to operate as a fetter. No order is required, no right is named, and there is nothing for the President to decide.

Article 359 is the power exercised by order, and it does something different: it suspends the right to move any court for the enforcement of specified Part III rights, except Articles 20 and 21, leaving the rights themselves intact.

So the correct formulation of the question is: how far is the exercise of emergency power affecting Article 19 justiciable? That resolves into three separate questions, and a good answer takes them in order.

Question one: is the proclamation itself justiciable?

This is the real issue, because Article 358 operates only if there is a valid proclamation.

S.R. Bommai v. Union of India, (1994) 3 SCC 1, worked the same doctrine out fully for Article 356 and its reasoning applies directly. Nine judges held that the President's satisfaction is justiciable; that the Court may examine whether the material was relevant and had a rational nexus with the action, but not its correctness, adequacy or sufficiency; that once a prima facie case is made out the burden shifts to the Union to produce the material on which it acted; that the proclamation may be struck down for mala fides or reliance on wholly extraneous grounds; and that the Court may restore a dismissed government. Rameshwar Prasad v. Union of India, (2006) 2 SCC 1, applied it to strike down the dissolution of the Bihar Assembly, though it declined to restore the Assembly because elections had intervened.

The general principle behind both. Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295, held that although the formation of an opinion is subjective, the existence of the circumstances on which it is founded is a condition precedent open to review, and that an opinion resting on no material, on wholly irrelevant material, or one that no reasonable person could form, will be set aside. That is the standard by which every subjective satisfaction in the Constitution is now tested.

State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170. This is the decision most candidates omit and it is decisive. Executive action restricting a person's movement and residence was taken during the 1962 emergency without any law authorising it. The Court held that Article 358 protects the State's power to make a law that 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 must be justified by legislative authority, and an emergency does not dispense with that requirement.

And after 1978 there are two further justiciable questions, created by the 44th Amendment: whether the proclamation was made on the ground of war or external aggression rather than armed rebellion, since Article 358 no longer applies to the latter; and whether the impugned law contains a recital that it is in relation to the Proclamation of Emergency, since without one the law remains fully subject to Article 19. Both are questions of record on which a court is fully competent, and they mean that Article 358's operation is now more reviewable than it was before 1978.

Critical assessment

The strength of the current position is that it locates the boundary of review correctly. Whether an emergency should be proclaimed involves prediction and intelligence assessment, which courts evaluate badly; whether there was any material, whether it was relevant to the constitutional ground, and whether the authority applied its mind are questions of record. Barium Chemicals, Minerva Mills and Bommai between them draw exactly that line. Comparative experience supports the caution: 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), repudiated only in Trump v. Hawaii, 585 US 667 (2018), both show what happens when courts do attempt merits review in wartime.

Conclusion. The premise of the question needs correction: the President has no power to suspend Article 19. Article 19 is suspended automatically by Article 358 on a proclamation made on the ground of war or external aggression, and what the President may suspend by order under Article 359 is the enforcement of other rights, never Articles 20 and 21. The justiciability question therefore has three parts, and the answer to each is that review is available but confined. The proclamation is reviewable for mala fides and wholly extraneous material after Minerva Mills, on the standard developed in Barium Chemicals and elaborated in Bommai, where the Court also held that the burden shifts to the Union to produce its material.

For full marks, cover: correct the dates first, with proof, because two of the three are wrong; then take each real proclamation and set out its consequences under the heads the question invites, rights, federal structure, institutions and the rule of law; then the 44th Amendment as the constitutional consequence; and conclude.

The dates, corrected with proof

There have been exactly three proclamations of national emergency under Article 352, and none was made in 1965 or 1970.

On the federal structure. Under Article 250 Parliament acquired power to legislate for a State on any State List matter; under Article 353 the Union's executive power extended to giving directions to a State on any matter; under Article 354 the President could modify the distribution of revenues between the Union and the States. The federation operated as a substantially unitary State for five years.

On the rule of law, and this is the positive consequence. 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 had no jurisdiction.

The reasoning, that an emergency suspends particular rights and not the rule of law, is the most valuable constitutional product of this period and it was directly available in 1975. 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.

Consequences of the 1975 emergency

On rights. Presidential orders under Article 359 suspended the enforcement of Articles 14, 21 and 22, and later Article 19. MISA was amended so that the grounds of detention need not be communicated at all, which removed the safeguard in Article 22(5) by statute, and detention could continue without reference to an Advisory Board.

On liberty and the press. About one hundred thousand people were detained, including most of the opposition leadership. Pre censorship of newspapers was imposed under the Defence and Internal Security of India Rules, news agencies were merged, and some newspapers printed blank editorial columns in protest.

On the Constitution itself. The Thirty eighth Amendment made the proclamation and the President's satisfaction non justiciable. The Thirty ninth Amendment placed the election of the Prime Minister and the Speaker 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: a provision that decides a pending dispute by declaring one party the winner is a legislative judgment and not law.

The Attorney General accepted in argument that on this reasoning a detenu shot dead without authority would have no remedy, and the majority did not disavow it. Khanna J. dissented, holding that Article 21 is not the sole repository, that the principle that nobody may be deprived of life or liberty without the authority of law is basic to any civilised legal system and 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.

On the institutions. The Shah Commission, appointed in 1977, found that the decision to proclaim was taken without any material before the Cabinet establishing a threat of internal disturbance, and that the Cabinet was informed after the proclamation had been signed.

The procedural failure, shown by 1975, where the proclamation was made on the advice of the Prime Minister alone without material before the Cabinet, is answered by the written Cabinet decision, the special parliamentary majority and the restoration of judicial review.

The institutional failure is not answered and cannot be. In 1975 Parliament passed the 38th, 39th and 42nd Amendments, the press was censored, and the Supreme Court decided ADM Jabalpur. The Constitution was equally clear before those events as after them. What the 44th Amendment removes is the textual excuse: a court in that position could no longer say that the Constitution itself had closed the door on Article 21. It cannot guarantee that a future court will reason as Khanna J. did rather than as the majority did.

The consequences of the third were a hundred thousand detentions, press censorship, MISA amended to abolish the duty to give grounds, four constitutional amendments designed to insulate the Government, and in ADM Jabalpur a holding that a person detained without any legal authority had no court to go to, against which Khanna J. dissented at the cost of his career. The constitutional consequence of all three was the 44th Amendment, which substituted armed rebellion for internal disturbance, required a written Cabinet decision and a special parliamentary majority, imposed a six month lapse, confined Article 358 to war emergencies, and placed Articles 20 and 21 permanently beyond the reach of Article 359.

Three, the proceeds are the purpose. A sentence that leaves the gains untouched is not a deterrent, which is why forfeiture rather than imprisonment is the operative sanction.

Four, the offender can outlast the trial, having the resources to litigate every interlocutory step.

The Supreme Court has repeatedly held that economic offences constitute a class apart requiring a different approach, 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 involving huge loss of public funds.

The legislative response has therefore taken three forms: prevention by detention, deprivation by forfeiture, and procedural alteration by presumptions and bail restrictions.

COFEPOSA: nature and scope

Nature. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is preventive, not punitive. It creates no offence and imposes no sentence. It authorises detention to prevent a person from doing certain things in future, and its constitutional source is Article 22(3) with Entry 9 of List I and Entry 3 of List III.

Section 5A is the provision that most distinguishes COFEPOSA from the general law and it must be mentioned: where an order is made on several grounds and one of them is vague, non existent, not relevant, not connected with the person, or invalid for any other reason, the order is not deemed invalid on that account, being treated as made separately on each ground. This is a statutory reversal, for this Act, of the rule in Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, that one bad ground vitiates the whole order.

SAFEMA: the forfeiture arm

The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 applies to persons convicted under the Sea Customs Act, the Customs Act or the Foreign Exchange Regulation Act, to persons detained under COFEPOSA, and to their relatives and associates and holders of property transferred by them. The Competent Authority may forfeit illegally acquired property, and the burden of proving that the property was lawfully acquired lies on the person affected. This is the deprivation limb, and it is what makes the scheme effective, because it reaches the proceeds rather than merely the person.

Two, placing the burden of showing lawful acquisition on the person affected is legitimate because the source of acquisition is a fact peculiarly within his knowledge, and requiring the State to prove a negative would defeat the statute. Three, a COFEPOSA detention order which has not been set aside is a valid foundation for SAFEMA proceedings, though where a detention has been quashed the foundation falls. Four, both Acts are within legislative competence, COFEPOSA under Entry 9 of List I and Entry 3 of List III and SAFEMA under the Union's residuary and taxation related entries.

Its significance. Amratlal Prajivandas is the decision that made the Indian model of economic crime control constitutionally secure: preventive detention plus reverse burden forfeiture, upheld by the largest Bench to consider it. Every later statute in this field, SAFEMA's successors down to the PMLA and the Fugitive Economic Offenders Act, rests on its reasoning.

Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, upheld nearly all of it: the twin conditions in section 45, the presumption in section 24, the power of arrest, provisional attachment, and the admissibility of statements under section 50 on the reasoning that an Enforcement Directorate officer is not a police officer, so section 25 of the Evidence Act does not apply. The decision has been strongly criticised, a review is pending, and later Benches have softened it in application by holding that the twin conditions must yield to Article 21 where the accused has suffered prolonged incarceration without trial, applying the reasoning of Union of India v. K.A. Najeeb, (2021) 3 SCC 713.

The recent decisions

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 formed without knowledge of a material fact is no satisfaction. In April 2026, in a gold smuggling matter, the Court upheld COFEPOSA detentions, finding a live and proximate link established by material showing prior disposals of foreign marked gold bars in India, and holding that non supply of a pen drive was not fatal where its contents had been displayed to the detenus and supplied to their representative; and in a related decision it held that a detenu cannot claim legal assistance before the Advisory Board as a matter of routine where an officer merely places the record on the detaining authority's behalf, applying A.K. Roy v. Union of India, (1982) 1 SCC 271.

Critical assessment

The justification is genuine and should be conceded before criticising. Smuggling and money laundering are continuing, organised, profit driven activities with no complaining victim, and a criminal justice system that takes years to convict cannot address them by prosecution alone.

Both were upheld by nine judges in Attorney General for India v. Amratlal Prajivandas, on the reasoning that the object is to reach illegally acquired property wherever it is held and that the source of acquisition is peculiarly within the holder's knowledge, and that decision is the foundation of every later statute in this field, from the Prevention of Money Laundering Act, 2002, upheld in Vijay Madanlal Choudhary and now under review, to the Fugitive Economic Offenders Act, 2018.

The recent trend shows the courts policing these powers through the Article 22 safeguards rather than doubting their validity, setting aside a detention in March 2025 for ignoring bail conditions and upholding COFEPOSA detentions in April 2026 where a live and proximate link was established. The framework is constitutionally secure and operationally dangerous, and the only effective constraint the courts have found on its harshest feature, indefinite custody pending trial, is Article 21 through K.A. Najeeb.

For children: Article 21A, inserted by the 86th Amendment, 2002, making free and compulsory education for children aged six to fourteen a fundamental right; Article 24, prohibiting employment of children below fourteen in factories, mines or hazardous employment; Article 39(e) and (f), requiring that the tender age of children is not abused and that children are given opportunities to develop in conditions of freedom and dignity and are protected against exploitation and moral and material abandonment; Article 45, requiring early childhood care and education below six; and Article 51A(k), making it a parental duty to provide educational opportunity.

The legislative dimension: women

Arrange by harm, not by date.

Domestic violence. The Protection of Women from Domestic Violence Act, 2005 defines domestic violence to include physical, sexual, verbal, emotional and economic abuse, and provides civil remedies through a Magistrate: protection orders, residence orders, monetary relief and custody orders, obtained through a Protection Officer without requiring prosecution. Its central innovation is the right to reside in the shared household irrespective of title, which addresses the practical reason women do not complain.

Work, pay and maternity. The Equal Remuneration Act, 1976, now in the Code on Wages, 2019; the Maternity Benefit Act, 1961, amended in 2017 to raise paid leave to twenty six weeks and require a creche where fifty or more are employed.

Reproductive autonomy and property. The Medical Termination of Pregnancy Act, 1971, amended in 2021 to extend the limit to twenty four weeks for specified categories; the PCPNDT Act, 1994; and the Hindu Succession (Amendment) Act, 2005, making a daughter a coparcener by birth.

Political representation. The 106th Amendment, 2023 reserves a third of Lok Sabha and Assembly seats for women. It came into force on 16 April 2026 and is still not operative, because Article 334A conditions it on a delimitation following the next census; the 131st Amendment Bill, 2026, which sought to advance its operation, was defeated in the Lok Sabha, receiving 298 of 528 votes against the 352 required.

Sexual offences. The Protection of Children from Sexual Offences Act, 2012, gender neutral as to victims, defining penetrative and aggravated sexual assault, sexual assault, sexual harassment and use of a child for pornographic purposes; requiring special courts, child friendly procedure with the statement recorded at the child's residence by a woman officer not in uniform, no aggressive questioning, and trial within a year; and creating a presumption of guilt in section 29 and of culpable mental state in section 30, together with mandatory reporting in sections 19 to 21.

Care and protection. The Juvenile Justice (Care and Protection of Children) Act, 2015, which deals with children in conflict with law and children in need of care and protection, creates Juvenile Justice Boards and Child Welfare Committees, and, controversially, permits a preliminary assessment by the Board to decide whether a child aged sixteen to eighteen accused of a heinous offence should be tried as an adult. Also the Prohibition of Child Marriage Act, 2006, the Commissions for Protection of Child Rights Act, 2005 creating the NCPCR and State Commissions, and the Immoral Traffic (Prevention) Act, 1956 on trafficking.

Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1, held that a daughter's coparcenary right under the 2005 amendment is by birth and therefore does not depend on the father being alive on 9 September 2005. Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, overruled S.R. Batra and held that a shared household includes a house belonging to the husband's relatives in which the woman has lived in a domestic relationship.

Aparna Bhat v. State of Madhya Pradesh, (2021) 2 SCC 324, set aside a bail condition requiring an accused to have a rakhi tied on him by the complainant, held that courts must not express stereotypes about women's conduct, dress or past sexual history, and directed gender sensitisation in judicial training, the Bar Council curriculum and the All India Bar Examination. State of Jharkhand v. Shailendra Kumar Rai, (2022) 14 SCC 299, held that any person conducting the two finger test is guilty of misconduct and directed its removal from medical curricula.

Unni Krishnan, J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645, read a right to education into Article 21 for children up to fourteen, drawing on Articles 41 and 45, which led directly to the 86th Amendment and Article 21A. Society for Un-aided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1, upheld the twenty five per cent reservation under the RTE Act as applicable to private unaided non minority schools; Pramati Educational and Cultural Trust v. Union of India, (2014) 8 SCC 1, then held the Act inapplicable to minority institutions, aided or unaided, because the quota would abrogate the Article 30 right.

Independent Thought v. Union of India, (2017) 10 SCC 800, is the most important child rights decision in this area. Exception 2 to section 375 of the Penal Code provided that sexual intercourse by a man with his own wife not being under fifteen years of age is not rape. The Court held this to be arbitrary, discriminatory and violative of Articles 14, 15 and 21, and read down the exception so that the age is eighteen, harmonising the Penal Code with POCSO, the Prohibition of Child Marriage Act and the Juvenile Justice Act, all of which define a child as a person under eighteen. It expressly left the question of marital rape of an adult woman open, and that question remains undecided, a two judge Bench having split in 2022.

Evaluation: what the State has and has not delivered

What has been delivered. The legislative framework is comprehensive and, for children, unusually so: education is a fundamental right with a delivery statute, child labour below fourteen is prohibited outright, POCSO is gender neutral with child friendly procedure and special courts, and the Juvenile Justice Act separates children in conflict with law from adult processes. For women, every major harm has a statute. The judicial contribution has been to fill gaps and to strike down provisions resting on stereotype, and Independent Thought and Vishaka are the clearest examples of courts doing what the legislature had failed to do.

Three structural criticisms. One, the State legislates and does not staff. A statute requiring a woman officer to record a statement, a special court to try a POCSO case in a year, and a Local Committee in every district assumes administrative capacity that does not exist. Two, criminalisation is the default instrument. Mandatory reporting under POCSO deters adolescents from seeking medical help; criminalising instantaneous triple talaq may leave the wife without maintenance; and the 2018 death penalty for rape of a girl under twelve has been criticised as creating an incentive to kill the victim. Three, protection is preferred to enablement. For women, the residence right under the 2005 Act and the coparcenary right in Vineeta Sharma do more practical work than several criminal provisions, because independence is what makes a right usable; for children, school attendance and mid day meals do more than prosecutions.

For full marks, cover: two notes of roughly twelve and a half marks each. Each needs a definition, at least two authorities worked out, a criticism and its own conclusion.

(a) Martial law

What it is. Martial law is not a body of law but the suspension of the ordinary law and its temporary 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 constantly confused with it: military law, the permanent statutory law governing members of the armed forces 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 position. The Constitution neither defines martial law nor confers a power to declare it, and 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 of a State, or any other person, in respect of 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 follow. One, Article 34 presupposes martial law rather than creating it, so the power, if it exists, is a common law power inherited to meet the failure of civil authority. Two, the indemnity must be by Parliament and by law, importing the English requirement of public parliamentary 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 "any sentence passed, punishment inflicted, forfeiture ordered" is the clearest textual indication that martial law in its full sense, with civilians tried by military tribunals, 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, 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.

Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109, upheld AFSPA but read it down: the disturbed area declaration must be for a limited period and periodically reviewed, the army's own "do's and don'ts" are binding, and an arrested person must be handed to the nearest police station with the least possible delay. Extra Judicial Execution Victim Families Association v. Union of India, (2016) 14 SCC 536, held there is no absolute immunity for excessive or retaliatory force even in a disturbed area and that every death caused by the armed forces there must be inquired into. As of the notifications effective 1 October 2025, AFSPA applies to most of Manipur excluding thirteen police station areas and to nine districts of Nagaland.

(b) Due process and special legislation

Due process. The phrase comes from the Fifth and Fourteenth Amendments to the United States Constitution. Procedural due process requires notice, a hearing before an impartial adjudicator, counsel, an opportunity to test the evidence, a reasoned decision and an appeal. Substantive due process asks whether the law itself is a reasonable exercise of legislative power, so that an arbitrary law is void whatever procedure it prescribes.

India's deliberate rejection. The framers refused the phrase. The draft article carried "due process of law"; after B.N. Rau's meeting with Justice Frankfurter, who warned that it conferred an undefined power over legislation, the Drafting Committee substituted "procedure established by law" in Article 21. A.K. Gopalan v. State of Madras, AIR 1950 SC 27, gave that choice full effect: procedure established by law means procedure enacted by a competent legislature; the Court may not ask whether it is fair; and Articles 19, 21 and 22 are mutually exclusive compartments.

The judicial response, and its limits. 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 section 15 workable: the confession to be recorded in a free atmosphere in the language in which it is made, the accused produced before a magistrate immediately afterwards, and any complaint of torture recorded and a medical examination ordered. 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 the current controversy. Section 124A of the Penal Code was directed to be kept in abeyance by the Supreme Court's order in S.G. Vombatkere v. Union of India of 11 May 2022. From 1 July 2024 the Penal Code has been replaced by the Bharatiya Nyaya Sanhita, 2023, whose section 152, acts endangering sovereignty, unity and integrity of India, is the successor provision. Challenges to section 152 are pending and clubbed with the sedition matters, the Court having indicated that it must be read consistently with Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955. Say it is undecided.

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 A.K. Gopalan enforced that exclusion, but Maneka Gandhi restored it in substance by holding that procedure must 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 component of a fair trial.

For full marks, cover: two notes of about twelve and a half marks each. For (a) the examiner wants the scale, the constitutional hooks, the Asiad Workers reasoning on Article 23, the statutory framework including the Labour Codes, and the gap. For (b) the examiner wants Articles 323A and 323B, Sampath Kumar to L. Chandra Kumar, the independence problem, and the distinction from special criminal courts.

The decisive case: People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235, the Asiad Workers case. Workers engaged through contractors on construction for the 1982 Asian Games in Delhi were paid below the statutory minimum wage, the intermediaries retaining part of it.

The Court held that payment of less than the minimum wage amounts to "forced labour" within Article 23, because a person driven by economic compulsion to work for less than the minimum wage does not work voluntarily, so the "force" in forced labour includes the force of economic circumstance; that Article 23 is enforceable against private persons, not merely the State; that where a public authority engages a contractor, non observance of the Equal Remuneration Act, the Contract Labour Act and the Inter State Migrant Workmen Act by that contractor is a matter for which the authority answers; and that a third party could bring the petition because the workers could not. This reasoning, that economic compulsion negates consent, is what makes Article 23 a usable protection rather than a prohibition on slavery alone.

The statutory framework. Sector specific first: the Minimum Wages Act, 1948, the Contract Labour (Regulation and Abolition) Act, 1970, the Inter State Migrant Workmen Act, 1979, the Building and Other Construction Workers Act, 1996 with its cess funded welfare boards. Then the Unorganised Workers' Social Security Act, 2008, creating National and State Social Security Boards and contemplating schemes for life and disability cover, health and maternity benefit and old age protection, but creating no enforceable individual entitlement.

Now the four Labour Codes: the Code on Wages, 2019, extending minimum wages and timely payment to all employments and creating 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 followed the Supreme Court's directions in In Re: Problems and Miseries of Migrant Labourers, (2021) SCC OnLine SC 1004, where the Court directed registration of unorganised workers, community kitchens and implementation of one nation one ration card.

The statutory framework has advanced from sector specific welfare funds to the 2008 Act and now to the Labour Codes, which extend minimum wages to all employments and bring gig and platform workers into social security for the first time. Its persistent weaknesses are that it creates schemes rather than entitlements, that the Codes remain substantially unimplemented, and that inspection cannot reach the workforce it governs.

(b) Special courts and tribunals

Why they exist. Expertise in technical fields; speed, since 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.

The constitutional basis. Articles 323A and 323B, inserted by the 42nd Amendment, 1976. Article 323A empowers Parliament alone to provide for administrative tribunals for disputes on recruitment and conditions of service of public servants; Article 323B empowers the appropriate legislature to provide for tribunals in an enumerated list including taxation, foreign exchange, industrial and labour disputes, land reforms, urban property ceilings, elections and rent. Both as enacted permitted exclusion of the jurisdiction of all courts except the Supreme Court under Article 136.

The independence problem. Union of India v. R. Gandhi, (2010) 11 SCC 1, on the National Company Law Tribunal: 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. 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.

Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1, struck down the Tribunal Rules 2017 for excessive executive control over appointments and short tenures. The Tribunals Reforms Act, 2021 followed the striking down of 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 search cum selection committees. The defect is structural: the executive is the principal litigant before most tribunals and simultaneously controls their members' appointment, tenure and service conditions.

Conclusion on (b). Special courts and tribunals answer genuine problems of expertise, congestion and access and are authorised by Articles 323A and 323B. The constitutional limit is settled by L. Chandra Kumar: 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, so tribunals operate as courts of first instance subject to review by a Division Bench and may supplement but never supplant the High Courts. What remains unresolved is independence, and the line from R. Gandhi through Rojer Mathew to November 2025 shows the Court repeatedly striking down provisions subordinating tribunals to the executive that litigates before them. Special criminal courts stand on a different footing altogether, tested under Article 14 as a classification of offences, which Kartar Singh upheld for TADA while reading down its harshest provisions.

For full marks, cover: the question names four things and each must be answered. Nature means what kind of protection Article 22 gives and what kind it withholds. Scope means how far the safeguards reach. In the context of statutory enactments is the phrase that distinguishes this question from every other preventive detention question on these papers, and it means you must show how the statutes implement, supplement and in one important instance reverse the constitutional safeguards. Recent judicial decisions means the last few years, not Gopalan.

The nature of the safeguards

Article 22 is the only fundamental right in the Constitution that expressly authorises imprisoning a person who has committed no offence, and its safeguards have to be understood against that.

The four constitutional safeguards

One, the three month rule 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 detaining authority must communicate the grounds to the detenu as soon as may be.

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

Four, clause (6) permits the authority to withhold facts it considers against the public interest to disclose. This limits the third safeguard and is not itself a safeguard, and a good answer says so.

The statutory dimension, which is what this question is really asking

The Constitution states the safeguards in general words. The statutes give them dates, and comparing two statutes side by side is the clearest way to show it.

One, the right to appear in person before the Advisory Board, which Article 22 nowhere requires. A.K. Roy v. Union of India, (1982) 1 SCC 271, held that there is no right to be represented by a lawyer, because clause (3) removes clause (1) and the statute excludes it, but that if the detaining authority appears through counsel or a legal adviser the detenu must be allowed the same facility, since the State cannot take an advantage it denies. In April 2026 the Court applied that limit rather than extending it, holding that a COFEPOSA detenu cannot claim legal assistance as a matter of routine where an officer merely places the record and assists the Board on the detaining authority's behalf.

Two, revocation. The statutes empower the Central Government to revoke a detention order at any time, independently of the Advisory Board's opinion, which is a continuing safeguard the Constitution does not mention.

Three, and most practically important, the reporting requirement at the level where the power is most often abused. Where the order is made by a District Magistrate or a Commissioner of Police rather than by the Government, the statutes require him to report forthwith to the State Government, and the order lapses within twelve days unless approved. Most detentions in India are made at that level, so this is a real check.

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

Grounds must be usable. 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, because clause (5) links the grounds to the making of a representation and grounds he cannot read cannot found one. 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.

And the structural point behind all of this. A.K. Gopalan v. State of Madras, AIR 1950 SC 27, had held Articles 19, 21 and 22 to be mutually exclusive compartments, so a detention law valid under Article 22 needed nothing further. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, held them to form a golden triangle, with the consequence that a preventive detention law must also satisfy Article 21 by prescribing a procedure that is right, just and fair. That is why the glosses above have constitutional force rather than being rules of statutory construction.

The recent judicial decisions

June 2025. The Supreme Court quashed the preventive detention of a law student from Betul in Madhya Pradesh, held under the National Security Act with the order extended four times, holding that preventive detention cannot be invoked for what is in substance a law and order problem rather than a disturbance of public order. That is Lohia and Arun Ghosh applied nearly sixty years on, and it confirms that the head of detention remains the most productive ground of challenge.

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 its composition out of executive hands. That section has never been brought into force: no government of any party has issued the commencement notification in almost fifty years, and A.K. Roy held that the Court cannot compel the executive by mandamus to bring a law into force. The three month rule and an executively constituted Board therefore continue to operate.

Assessment

What works is procedural and verifiable on the record: was a ground vague, was the representation decided promptly, was the relied upon document supplied, was the language one the detenu reads, is the link live, was the fact of existing custody considered. Courts are institutionally competent to answer those questions and quash detentions on them in large numbers.

The statutes then give those safeguards concrete content, fixing five days for grounds, three to five weeks for the reference and seven to eleven weeks for the Board's report, capping detention at twelve months or twenty four in a smuggling affected area, adding a right to appear in person, a revocation power and a twelve day approval requirement for orders made by a District Magistrate. But the statutes also cut the other way, and section 5A of COFEPOSA reverses the rule that one vague ground vitiates the whole order in precisely the class of case where detention is most used.

The judicial safeguards therefore carry the weight, and the recent decisions show both their reach and their limits: a law student's NSA detention quashed in June 2025 because the facts amounted to law and order, an order set aside in March 2025 for ignoring bail conditions, and COFEPOSA detentions upheld in April 2026 on a proved live and proximate link. The safeguard the Constitution itself promised in 1978, two months and an Advisory Board constituted on the Chief Justice's recommendation, has never been notified, and until it is, any account of Article 22 as a balance between liberty and security describes the text rather than the law as it operates.

The evaluation this wording asks for, stated in three propositions.

One, COFEPOSA works because it attacks the proceeds, not because it detains. The detention limb interrupts a business for a year; the forfeiture limb under SAFEMA removes the reason for the business. Since the proceeds are the purpose of an economic offence, deprivation is the sanction that bites, and the nine judge decision in Amratlal Prajivandas upholding the reverse burden is what made deprivation practicable, because requiring the State to prove the illegitimate origin of every asset would defeat the statute.

(b) TADA: implications on human rights in the light of the comments of the NHRC

What TADA did. The Terrorist and Disruptive Activities (Prevention) Act, enacted 1985 and re enacted in 1987, was temporary legislation renewed every two years.

Its four critical provisions were: section 3, defining a terrorist act by intent to overawe the Government, strike terror, or alienate a section of the people; section 4, creating the offence of "disruptive activity", defined to include any action, including by speech, questioning or disrupting the sovereignty and territorial integrity of India, which on its face reached political expression; section 15, making a confession recorded by a police officer of or above the rank of Superintendent admissible against the maker and a co accused, displacing sections 25 and 26 of the Evidence Act; and section 20(8), barring bail unless the court was satisfied there were reasonable grounds for believing the accused not guilty. Designated courts tried the offences, appeal lay only to the Supreme Court, trials could be in camera and the identity of witnesses withheld.

One, the Act was being used for offences unconnected with terrorism. The Commission recorded that TADA was invoked in States with no terrorist activity at all, and against ordinary crime, land disputes and political opponents. The single most telling figure is that of roughly seventy six thousand persons arrested under the Act, the conviction rate was about one per cent, and the great majority were never even charged.

Two, the ordinary law was adequate. The Commission's position was that the Penal Code, the Arms Act, the Explosive Substances Act and the ordinary law of conspiracy, with proper investigation, covered the conduct TADA addressed, and that the deficiency was in investigative capacity rather than in legal powers, so that special powers substituted for competence rather than supplementing it.

Three, the confession provision created an incentive to torture. Sections 25 and 26 of the Evidence Act exist because custodial confessions are unreliable and because their admissibility rewards coercion. The Commission's objection was that no set of guidelines can neutralise an incentive that the statute itself creates, which is a stronger objection than the one Kartar Singh answered.

What happened. TADA was allowed to lapse in 1995. Its successor, the Prevention of Terrorism Act, 2002, retained the confession provision with more safeguards and was upheld in People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, on the reasoning that the mere possibility of abuse is no ground for striking down a statute; it was repealed in 2004 after review committees found large scale misuse. Significantly, when POTA's substance was transferred to the Unlawful Activities (Prevention) Act, 1967, Parliament did not carry the confession provision with it, which is a legislative admission about section 15.

The implications for human rights, stated as a list. One, the presumption of innocence was inverted by section 20(8). Two, the protection against custodial coercion was removed by section 15. Three, the right to test the evidence was impaired by witness anonymity and in camera trial. Four, freedom of expression was endangered by the definition of disruptive activity in section 4. Five, and most importantly in practice, the combination of restricted bail with multi year trials made pre trial custody the punishment, which is what a one per cent conviction rate on seventy six thousand arrests actually means.

Conclusion on (b). TADA's implications for human rights were the inversion of the presumption of innocence, the removal of the protection against custodial coercion by making police confessions admissible, the impairment of cross examination through anonymous witnesses, the criminalisation of speech through the definition of disruptive activity, and above all the conversion of pre trial custody into punishment. The National Human Rights Commission, under Justice Ranganath Misra, opposed the Act's continuance on the grounds that it was being used in States with no terrorism and against ordinary crime and political opponents, that the ordinary law with competent investigation was sufficient, that section 15 created an incentive to torture no guideline could neutralise, and that its application was discriminatory; the figures it relied on, about seventy six thousand arrests and roughly one per cent convictions, remain the strongest empirical case against exceptional criminal legislation in Indian law.

For full marks, cover: the question has two halves and both must be answered properly. First define the two concepts, which means the three concentric circles and the cases fixing their content. Then Article 358: text, mechanism, the distinction from Article 359, the 44th Amendment's two limitations, the case law and the criticism. Then link them, because the link is what the examiner is testing: Article 358 operates only on a proclamation grounded in war or external aggression, which is the security of the State at its highest, and Article 19's own restriction clauses already use both expressions.

Security of the State, defined. Romesh Thappar v. State of Madras, AIR 1950 SC 124, held that the security of the State means nothing less than the endangering of the foundations of the State or the threatening of its overthrow, such as war, rebellion, insurrection or aiding an enemy, and is far graver than ordinary breaches of public order or public safety.

The Court struck down an order banning the circulation of a journal because the parent Act authorised restriction for the wider purpose of "public safety" and "public order", which were not grounds in Article 19(2) as it then stood, and a statute cannot be saved for the narrower purpose because it also covers it. That decision, with Brij Bhushan v. State of Delhi, AIR 1950 SC 129, produced the First Amendment, 1951, which added "public order" and "friendly relations with foreign States" to Article 19(2) and inserted the word "reasonable".

Where the concepts operate. Both appear in Article 19(2) to (4) as grounds of restriction; in Articles 25 and 26 limiting religious freedom; and, decisively for this subject, in the legislative entries. Entry 9 of List I gives Parliament exclusive power over preventive detention for reasons connected with defence, foreign affairs or the security of India; Entry 3 of List III gives concurrent power over detention connected with the security of a State, the maintenance of public order, or supplies and services essential to the community. The distinction therefore decides three things: legislative competence, the validity of an individual detention order, and how far speech and assembly may be restricted. Its continuing force is shown by the Supreme Court's decision in June 2025 quashing the preventive detention of a law student under the National Security Act because the facts amounted to law and order rather than public order.

And the speech cases complete the definition. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, upheld section 124A of the Penal Code but read it down so that only words having a tendency to incite violence or create public disorder amount to sedition, strong criticism of the Government being protected, since a wider construction would take the section outside Article 19(2).

One, it is automatic. Unlike Article 359, no Presidential order is required 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 examiner is testing. Article 358 puts the six freedoms in Article 19 out of operation as a restraint on the State; Article 359 leaves every Part III right in existence and bars only the right to move a court to enforce the specified ones. 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 permanently protects things already done under it, so no claim lies afterwards. Under Article 359 the right was never suspended and a claim revives.

Three, it touches only Article 19. Every other fundamental right continues to bind the State on its own terms.

Two, the law must recite its connection. The protection 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 without such a recital remains fully subject to Article 19 even during a war emergency.

The case law. Makhan Singh v. State of Punjab, AIR 1964 SC 381, held that Article 358 bars an Article 19 challenge but does not bar a challenge that the statute is beyond legislative competence, that the order is mala fide, that it does not comply with the rule under which it is made, or that the authority lacked jurisdiction: an emergency suspends particular rights and not the rule of law. State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170, fixed the outer limit: Article 358 protects the power to make a law and executive action under a law, and does not authorise executive action unsupported by any law at all; every act of the executive affecting a citizen must be justified by legislative authority, and an emergency does not dispense with that.

Conclusion. Security of the State and public order are the two inner circles of the threefold classification drawn in Ram Manohar Lohia: law and order at the circumference covering all ordinary crime, public order within it, and security of the State at the centre. Romesh Thappar confines security of the State to conduct endangering the foundations of the State or threatening its overthrow, and Arun Ghosh defines public order by the act's reach rather than its gravity, asking whether it disturbs the even tempo of community life. The distinction allocates legislative power between Entry 9 of List I and Entry 3 of List III, decides the validity of every preventive detention order, and limits restrictions on speech to incitement after Kedar Nath Singh and Shreya Singhal.

For full marks, cover: this question is broader than the usual 44th Amendment question, which asks only about Article 359. It asks about the changes the Amendment brought, so all of them must be covered: the emergency provisions, the right to property, and the miscellaneous safeguards. Then the judicial decisions, which is what the question specifically requires. Then a critical assessment of what worked and what did not.

Why the Amendment was passed

The Constitution (Forty fourth Amendment) Act, 1978 was enacted by the Janata Government after the 1977 election, with the declared object of undoing the distortions introduced during the 1975 Emergency by the 38th, 39th and 42nd Amendments, and of building safeguards so that the events of 1975 to 1977 could not recur. Its Statement of Objects and Reasons says in terms that recent experience had shown that the fundamental rights, including life and liberty, could be put in peril if a government had a transient majority, and that adequate safeguards were needed.

Six, clause (5) of Article 352, inserted by the 38th Amendment to make the President's satisfaction final and conclusive and non justiciable, was repealed.

Group two: the effect of an emergency on rights.

Seven, Article 358 was confined to proclamations made on the ground of war or external aggression, and its protection limited to laws reciting that they are in relation to the emergency.

Eight, Article 359 was amended so that the right to move a court for the enforcement of Articles 20 and 21 can never be suspended, and the order must specify the rights affected; Article 359(1A) was correspondingly confined.

Group three: the right to property.

Nine, Article 19(1)(f) and Article 31 were repealed, and the right to property was relocated as a constitutional but non fundamental right in Article 300A, which provides that no person shall be deprived of his property save by authority of law. Article 31A, 31B and 31C were retained, and clause (2) of Article 31 was carried into Article 300A in substance. The purpose was to remove the ground on which land reform legislation had been repeatedly obstructed, and to end the use of property as a fundamental right by those able to litigate.

Group four: miscellaneous safeguards.

And one change that was enacted and never brought into force. Section 3 of the 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. This must be stated, because it is the one safeguard in the Amendment directed at the ordinary, non emergency use of preventive detention, and it is dead.

The judicial decisions

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625. Decided two years after the Amendment, it struck down section 4 of the 42nd Amendment, which had widened Article 31C to protect any law giving effect to any Directive Principle, and section 55, which had inserted Article 368(4) and (5) purporting to place all amendments beyond challenge.

A.K. Roy v. Union of India, (1982) 1 SCC 271. A Constitution Bench upheld the National Security Act, 1980 and dealt directly with the unnotified section 3. It held that the Court cannot compel the executive by mandamus to bring a provision of a constitutional amendment into force, because commencement is a matter for the executive to which the amending body itself entrusted the decision. The consequence is that the two month safeguard remains inoperative and no judicial remedy exists.

Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1. Nine judges held that the majority judgments in ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, are seriously flawed and stand overruled, and that life and personal liberty are inalienable and not conferred by the Constitution. This completes what the Amendment began: the doctrine is now barred by text since 1978 and by precedent since 2017.

The exception of Articles 20 and 21 from Article 359 is a genuine structural change, not a formal one. It permanently restores the Makhan Singh route: a person may always move a court alleging that his detention is without the authority of law contrary to Article 21, and no Presidential order can bar it. Because Article 21 after Maneka Gandhi v. Union of India, (1978) 1 SCC 248, requires a procedure that is right, just and fair, the protected core is fair procedure and not merely legality. And it aligns Indian law with Article 4(2) of the International Covenant on Civil and Political Rights, to which India acceded in 1979, making the right to life, freedom from torture and the prohibition of retrospective criminal law non derogable in any emergency.

The procedural reforms to the proclamation are real. A written Cabinet decision creates a record identifying whose satisfaction it was; a special majority within one month raises the political threshold; a six month lapse forces periodic re justification; and the requisition right gives a minority a lever. Together they make a repetition of June 1975 politically far more difficult.

Article 361A answered censorship directly, and the restoration of the five year term answered the extension of the Lok Sabha's life.

Five, and most fundamentally, the institutional failure of 1975 is not addressed and cannot be. Parliament passed the offending amendments, the press was censored and the Supreme Court decided ADM Jabalpur under a Constitution that was already clear. What the Amendment removes is the textual excuse; it cannot guarantee that a future Court will reason as Khanna J. did.

Conclusion. The 44th Amendment rewrote the emergency provisions to make June 1975 constitutionally difficult to repeat: armed rebellion in place of internal disturbance, the written advice of the Cabinet, approval within one month by a majority of total membership and two thirds present and voting, lapse after six months, a requisition right for one tenth of the Lok Sabha, the repeal of the ouster of judicial review, the confinement of Article 358 to war emergencies and to laws reciting their connection, and, most importantly, the permanent exception of Articles 20 and 21 from Article 359. It also removed property from Part III to Article 300A, protected the reporting of legislative proceedings by Article 361A, restored the five year legislative term and made the President's power to return advice for reconsideration explicit.

For full marks, cover: the question links two things and the link is the answer. First state the constitutional philosophy so far as it concerns disadvantaged sections, which means the transformative reading of Part III and Part IV. Then explain why that philosophy required judicial activism to become operative, which is the analytical heart. Then the results, group by group, with cases worked out. Then the criticism. Then conclude.

The constitutional philosophy, so far as it concerns the disadvantaged

The Constitution was written for an unequal society and says so. A classical liberal bill of rights restrains the State so that an existing liberty survives. The Indian Constitution does that and something more: it was drafted for a society structured by caste, gender and destitution, in which formal equality would have preserved the existing distribution of advantage. Three features follow and they are the philosophy.

Three, the Preamble orders the values accordingly, resolving to secure justice social, economic and political in that order, placing social and economic justice ahead of political justice and treating redistribution as a precondition of liberty rather than an interference with it.

And Part IV supplies the programme. Article 38 on minimising inequalities of income, status and opportunity; Article 39(a), (d), (e) and (f); Article 39A on equal justice and free legal aid; Articles 41 to 43 on work, education, public assistance and a living wage; Article 46 on the weaker sections. These are unenforceable under Article 37.

Why the philosophy required judicial activism

This is the analytical core and it earns the most marks.

The philosophy created a mismatch. Part III is enforceable but requires a litigant who can reach a court: who can afford a lawyer, satisfy locus standi, plead a cause of action and prove it by evidence. Part IV addresses the disadvantaged but is expressly unenforceable. So the enforceable half was practically available to the articulate, and the half written for the disadvantaged was not available at all. A rights regime in that condition protects those who need it least.

The evidentiary and formal obstacle was removed by epistolary jurisdiction, treating a letter as a petition, and by the appointment of commissioners to gather facts, since an adversarial process assumes parties able to lead evidence. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, held expressly that a proceeding under Article 32 need not be adversarial and that the Court may appoint commissioners, and went further by reversing the burden of proof: where a person alleges he is a bonded labourer, the employer must prove otherwise, because a bonded labourer cannot lead evidence.

The results, group by group

Prisoners and detenus. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494: solitary confinement of a prisoner under sentence of death before finality is illegal, and bar fetters may be used only for the shortest period with recorded reasons; the principle is that imprisonment deprives a person of locomotion and nothing else. Sunil Batra (II), (1980) 3 SCC 488, began as a prisoner's letter about a warder torturing Prem Chand to extort money from his relatives and became a habeas corpus proceeding.

Victims of custodial wrong. Rudul Sah v. State of Bihar, (1983) 4 SCC 141: acquitted in 1968 and held a further fourteen years; a habeas corpus writ able only to order release would be an empty formality, so compensation was awarded in the writ jurisdiction, creating public law compensation. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746: sovereign immunity is no defence. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416: eleven mandatory arrest requirements, now largely in sections 47 to 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Women. Vishaka v. State of Rajasthan, (1997) 6 SCC 241: Bhanwari Devi, a saathin under a State development programme, was gang raped in 1992 in retaliation for trying to stop a child marriage, and the accused were acquitted; the Court held workplace sexual harassment to violate Articles 14, 15, 19(1)(g) and 21, drew on CEDAW to fill the legislative vacuum, and laid down binding guidelines under Article 141. Parliament took sixteen years.

The criticism

Legitimacy: an unelected court making policy has no mandate and cannot be removed if it errs. Competence: courts decide on affidavits, hear only those before them, cannot commission research and cannot cost their orders; directions about prison budgets or police strength require capacity a court lacks. Enforceability: Prakash Singh v. Union of India, (2006) 8 SCC 1, issued seven directions on police reform and after twenty years compliance is partial, several States having enacted laws that comply in form while removing the substance. Selectivity: the standard example is ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, decided in the very period when the Court's rhetoric of rights was strongest.

But the counter majoritarian objection cuts both ways, and that is the answer this question wants. Every beneficiary listed above, prisoners, undertrials, bonded labourers, Asiad construction workers, women failed by the police, child labourers, Scheduled Caste prisoners, belongs to a group with no electoral constituency. A justiciable bill of rights exists precisely for the case where the political process will not act. The objection has real force against judicial adventures into contested policy; it has very little against Hussainara Khatoon.

The results are concrete: Sunil Batra on prisoners' rights, Hussainara Khatoon freeing thousands of undertrials and making speedy trial and legal aid part of Article 21, the Asiad Workers case holding sub minimum wages to be forced labour, Rudul Sah and Nilabati Behera creating compensation for custodial wrong, Vishaka building a harassment regime sixteen years before Parliament, Independent Thought protecting married girls under eighteen, and Sukanya Shantha in 2024 requiring every prison manual in India to be rewritten to remove caste. The objections of legitimacy, competence and enforceability remain unanswered, and Prakash Singh shows their force; but measured against the alternative, a set of rights enforceable only by those already able to enforce them, activism is what made the constitutional philosophy operative for the people it was written for.

(a) 1975 Emergency and its effects

The declaration. The President proclaimed a national emergency on 25 June 1975 on the ground of internal disturbance, then a permissible ground under Article 352. It followed the judgment of the Allahabad High Court of 12 June 1975 setting aside the Prime Minister's election for electoral malpractice, and a period of large scale opposition agitation. It was the first proclamation not connected with a war, and it was made while the 1971 proclamation was still in force, so two emergencies ran concurrently. Both were revoked on 21 March 1977. The Shah Commission, appointed in 1977, found that the decision was taken without any material before the Cabinet establishing a threat of internal disturbance and that the Cabinet was informed after the proclamation had been signed.

Effect on rights. Article 358 automatically suspended Article 19. 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. The Maintenance of Internal Security Act, 1971 was amended so that the grounds of detention need not be communicated, removing the Article 22(5) safeguard by statute, and detention could continue without reference to an Advisory Board.

The Forty second Amendment, 1976, the most far reaching in the Constitution's history, added "socialist", "secular" and "integrity" to the Preamble, extended the life of the legislatures from five years to six, curtailed the writ jurisdiction, inserted Articles 323A and 323B on tribunals, widened Article 31C to give every Directive Principle primacy over Articles 14 and 19, added the Fundamental Duties in Article 51A, and inserted Article 368(4) and (5) purporting to place all amendments beyond challenge. Most of the last two were struck down 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 v. State of Punjab, AIR 1964 SC 381, that despite the Presidential order a detenu could still argue that his detention did not comply with MISA or was mala fide. 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 consequences. The emergency was lifted on 21 March 1977, elections were held and the government was defeated. The constitutional consequence was the 43rd and 44th Amendments: "internal disturbance" replaced by armed rebellion; the written advice of the Cabinet required; approval within one month by a majority of total membership and two thirds present and voting, with lapse after six months; a requisition right for one tenth of the Lok Sabha; Article 358 confined to war and external aggression and to laws reciting their connection; Articles 20 and 21 made permanently unsuspendable under Article 359; the ouster of judicial review repealed; the legislative term restored to five years; and Article 361A inserted to protect the reporting of legislative proceedings.

Conclusion on (a). The 1975 Emergency was proclaimed on 25 June on the ground of internal disturbance, while an external emergency from 1971 was still running, and the Shah Commission afterwards found there had been no material before the Cabinet. Its effects were the automatic suspension of Article 19, the suspension of the enforcement of Articles 14, 21 and 22, the amendment of MISA to abolish the duty to give grounds, about a hundred thousand detentions, pre censorship of the press, and four constitutional amendments culminating in the 42nd, which sought to place amendments themselves beyond challenge.

Conclusion on (b). Indian law protects the human rights of women through an equality code that now strikes at arbitrariness and at sex stereotyping, an express licence for protective discrimination in Article 15(3) that immunises special laws from an equality challenge, an Article 21 read to include dignity, reproductive choice, privacy and sexual autonomy, and a dense statutory framework covering domestic violence, dowry, sexual offences, workplace harassment, maternity, equal pay and inheritance.

The judicial contribution has been decisive where Parliament failed, in Vishaka, Shayara Bano, Joseph Shine and Vineeta Sharma. The failure is one of delivery rather than of law: a rape conviction rate around thirty per cent, Local Committees that exist on paper for more than ninety per cent of working women, a personal law regime still organised by religion with Narasu Appa Mali unoverruled, and a constitutional reservation that has been in force since April 2026 and cannot be applied. The full answer, covering women and children together, is at question 5 of form 69693, on the first page of this scan.

(a) Position of pre-Constitutional laws under Indian Constitution

Continuity: Article 372. Article 372(1) provides that all the law in force in the territory of India immediately before the commencement of the Constitution continues in force until altered, repealed or amended by a competent legislature or other competent authority. Article 372(2) empowered the President, for two years, to make adaptations and modifications to bring such laws into accord with the Constitution. Article 372A, inserted by the Seventh Amendment, 1956, gave a similar power consequent on the reorganisation of States. The reason is practical: on 26 January 1950 the entire corpus of Indian law was pre constitutional, and a Constitution that did not continue it would have left the Republic with no legal system at all.

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

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

The security laws in this subject. The inherited corpus included Regulation III of 1818, permitting detention for reasons of State; section 124A of the Penal Code, under which Tilak and Gandhi were tried, Gandhi describing it in 1922 as the prince among the political sections of the Code designed to suppress the liberty of the citizen; the Press Act, 1910 and the Indian Press (Emergency Powers) Act, 1931; the Rowlatt Act, 1919; and the Defence of India Act, 1939 with Rule 26.

The real change in 1950 was not that the colonial statutes disappeared, since most of them remain, but that they ceased to be unquestionable, and the contrast between Sibnath Banerjee in 1945 and Romesh Thappar five months after the commencement is the measure of it. Note also that the adaptation power was temporary and expired after two years, while the limitation in Article 13(1) is permanent, which is why so many colonial statutes in this subject, the Police Act, 1861 among them, survive in their original form and are governed by judicial glosses rather than legislative repair.

The wartime instrument: Regulation 18B. The Emergency Powers (Defence) Act 1939 authorised Defence Regulations, and Regulation 18B empowered the Home Secretary, where he had "reasonable cause to believe" a person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to public safety, to make an order detaining him. Around a thousand people were detained under it, and an Advisory Committee chaired by a judge heard objections, its recommendations being advisory only. The parallel with Article 22(4) and the Indian Advisory Board is exact and worth stating.

Liversidge v. Anderson, [1942] AC 206. Robert Liversidge was detained under Regulation 18B and sued the Home Secretary for false imprisonment, seeking particulars of the grounds. The House of Lords held, by four to one, that "reasonable cause to believe" meant only that the Home Secretary must think he had reasonable cause, so his belief was not examinable by a court and no particulars need be given. The majority reasoned from the wartime context and from the Home Secretary's political responsibility to Parliament.

The modern instance: the Belmarsh case. A v. Secretary of State for the Home Department, [2004] UKHL 56. Part 4 of the Anti terrorism, Crime and Security Act 2001, enacted after 11 September 2001, permitted the indefinite detention without trial of foreign nationals certified as suspected international terrorists who could not be deported. The United Kingdom had derogated from Article 5 of the European Convention on Human Rights under Article 15, on the footing of a public emergency threatening the life of the nation. The House of Lords held, by 8:1, that while the existence of a public emergency was a matter on which the Court would defer to the executive, the measure was disproportionate and discriminatory: it applied only to foreign nationals when the threat was equally posed by British nationals, and detention was not strictly required by the exigencies of the situation.

A declaration of incompatibility was made under section 4 of the Human Rights Act 1998 with Articles 5 and 14. Lord Hoffmann's separate reasoning is the passage usually quoted: the real threat to the life of the nation comes not from terrorism but from laws such as these, and that is the true measure of what terrorism may achieve. Parliament repealed Part 4 and substituted control orders under the Prevention of Terrorism Act 2005, later replaced by TPIMs under the Terrorism Prevention and Investigation Measures Act 2011.

The two conclusions the comparison supports, and both should be stated.

Conclusion on (b). English civil liberties were residual and rested on Dicey's rule of law and the ordinary courts, with no constitutional bar to detention without trial because Parliament is sovereign. Emergency detention was therefore always statutory and temporary: Regulation 18B during the war, under which about a thousand people were held subject to an advisory committee, and Part 4 of the Anti terrorism, Crime and Security Act 2001 afterwards. The judicial record shows the same weakness Indian law displayed in ADM Jabalpur: in Liversidge v. Anderson the House of Lords held the Home Secretary's satisfaction unexaminable, and only Lord Atkin dissented, insisting that amid the clash of arms the laws are not silent, a view now accepted as correct.