LAW FOR ENGINEERS COURSE CODE 111

MODULE 1 INTRODUCTION OF LAW AND LAW MAKING

MEANING, NATURE, CONCEPT, DIFINATION,

SCOPEAND SOURCES OF LAW

Definition-Difficulties
The problem of the definition of law is as old as Greek and Roman philosophy itself.
There have been conflicting and divergent views of the jurists regarding the nature, concept,
basis and functions of law. Dean Pound himself has given no less than twelve concepts of law.
Law has been regarded as a divinely ordained rule or a tradition of the old customs or recorded
wisdom of the wisemen or a philosophically discovered system of principles which expresses the
nature of things or as a body of ascertainments and declaration of an eternal and immutable
moral code, or as a body of agreements of men in politically organized society, or as reflection of
divine reason or as a body of commands of the sovereign, or as a body of rules discovered by
human experience, or as a body of rules developed through juristic writings and judicial decision
or as body of rules imposed on men in society by a dominant class, or as body of rules in terms
of economic and social goals of the individuals.

Law can also be defined from the point of view of philosophers, theologians, historians
and social scientists. As there are different approaches of the various schools, to the study of
jurisprudence so there is no general definition of law which includes all the aspects of law. In
fact every jurists definition of law is tainted by the approach of particular school to which the
propounder of the definition belongs. Indeed no definition of law can suit all times, all places and
all societies. Again law can be defined firstly, by its basis in nature, reason, religion or ethics:
secondly by its source-in custom, precedent or legislation, thirdly, by its effects-on the life of
society, fourthly, by the method-of its formal expression or authoritative application; fifthly by
the ends that it seeks to achieve. Therefore, it is not desirable to adhere rigidly to anyone
definition for the law is a social institution which like society changes according to changing
needs of society. Law as a body of rules for social control has also to be distinguished2 from the
rules of ethics or positive morality. Ethics differs from law in as much as the former is a study of
the supreme good. Ethics attempts to lay down rules for supreme human conduct considered
necessary at a particular time and place. Ethics further stresses upon individual excellence
whereas law concentrates on social or general good of the community. Ethics tries to emphasize
upon inner motive or inner conduct of the individual, law on the other hand concerns with overt
acts or external conduct. However, this difference between ethics and law cannot be stretched
beyond a particular point. Law in fact cannot be devoid of ethics. Indeed. ethical values of a
society directly influence the nature of law. Of course the object of ethics is to make individual
perfectly good in every sense of the term whereas law attempts to make individuals socially
useful. Therefore, law derives inspiration from ethics for shaping human values. Law itself, as
such, has been described as having minimum ethics. So all the rules of ethics are not the rules of
law or vice versa. Yet law and ethics; cannot be separated or isolated in the absolute sense of the
term. Law is always dependent upon ethics for its continuance and justification.

Law also may be distinguished from positive morality. Positive morality, like law,
emphasizes upon actual human conduct rather than ideal abstract notions. However, there are
some differences between the two concepts. A rule of law is enacted, enforced and imposed by
the State, a rule of positive morality is not imposed by the State. Secondly, there is no sanction
behind the rules of morality as is behind the rules of law. They also differ in their content. The
rules of law contain matters which are deemed absolutely desirable or necessary for the good of
the community. The rule of morality contains all the things which ought to be for the good of the
individual or society. However, law and morality are interdependent upon each other. Generally
speaking it is true morality perfects law but sometimes it is law which creates social morality.
For instance in India through social legislation concerning untouchables, backward classes and
women a new social morality has evolved in due course of time which has favorably changed the
attitude of the dominant groups towards the weaker sections of the Indian society.
 In other words, law is inextricably mixed with ethics, morality and other socio-economic
phenomenon of the society. Law of course cannot be defined in strait-jacket fashion nor can it be
defined in absolute terms. However, scientific and workable definition is necessary for logical
understanding of law. It cannot be studied as a brooding omniscience in the void. It has to take
into consideration the social values and other practical norms for regulating human behaviour in
terms of human needs and other social requirements. In fact before John Austin the concept of
law was not clear, certain and definite. It was mingled with other disciplines like metaphysics,
natural sciences, philosophy and theology. So its exact definition, meaning and scope was vague
and unascertainable. The credit of defining law systematically for the first time goes to John
Austin (1790-1859) who in his Province of Jurisprudence Determined took pains to distinguish
positive law from positive morality and other laws.

Imperative Concept of Law

Austins Definition of Law
The work of the English Jurist John Austin (1790-1859) who expounded the concept of
Analytical Positivism making law as a command of the sovereign is as epoch-making for English
legal theory as Newtons theory of law of gravitation to physical scientists. Austin developed
logically a structure of legal system in which he gave no place to values, morality, idealism and
justice. He vigorously, rigidly and scientifically created a legal system-a science of jurisprudence
centered around sovereign, command, duty and sanction.

a. Law and Society-Austin:

Austins main concern was to give a logically coherent definition of law as distinguished
from divine law and positive morality. Therefore, he sought the basis of his law with reference
to a society which could be said to be political and independent as distinguished from all other
societies-traditional, feudal or any other form of primitive groupings of a people. In other words,
Austin is mainly interested in maturer, ampler or developed societies-a society consisting of a
body of men who habitually obey some determinate person or number of persons who
themselves are not in the habit of obedience to any other human authority. The Austinian system
of law, therefore, presupposes the existence of such a society.
 Austin accordingly defines law as a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him. He divides Law under two classes. First,
law properly so called and the second, law improperly so-called. The law properly so-
called are described as commands of the sovereign and all the rules emanating from the political
superior are species of commands. However, there are laws which resemble like laws are styled
by Austin as laws improperly so-called or laws by analogy or metaphor or positive morality for
such laws are not commands of the sovereign. They are not set by men as political superiors for
human conduct and are merely opinions or sentiments held or felt by men in regard to regulation
of human conduct. So such laws can be conveniently termed as positive morality or positive
moral rules, e.g., the rules of the club, fashion, public opinion, international law, the rules of
utility and religion, etc. The science of jurisprudence as such is concerned with law properly or
strictly so-called without regard to their goodness or badness.

b. Laws properly so-called-Distinguished:

As stated above, Austin as an analyst wanted to exclude from the scope of law other
various forms of so-called laws described by Austin as laws improperly so-called in order to
determine the exact nature of law to be binding upon the people irrespective of any consideration
or value judgment. He, therefore, disengaged and divorced all other so-called laws in order to
build a logically self justifying and self-sufficient system unmingled and unaffected by other
disciplines or philosophy. As such he divides law in three parts: first, law of God, i.e., law made
by God to his creatures; second, law made by man to man and third, laws of physical nature or
scientific laws, e.g., laws of gravitation, relativity, biological laws of human body etc. As regards
the law of God is concerned, Austin says what should be the relationship between God and his
creatures is not the concern of law or jurisprudence. This is something other-worldly. So he
rejects the metaphysical concept of law from the purview of his jurisprudence. As regards the
third type of laws is concerned, Austin says such laws are improperly so-called for they do not
immediately and directly concern with. human conduct. The term law is extended to them by
caprice or fancy. According to Austin the rules of animal breathing or rules of blood circulation
or natural species cannot be equated with rules for human conduct in a society. So he describes
such scientific laws as laws improperly so-called or laws by analogy or metaphor.
 The second type of laws, as stated above, were divided by Austin in two categories: (a)
laws made by men in their sovereign political capacity to men who are subjects or political
inferiors and (b) laws made by men in their private individual capacity to men as private persons.
The former type of laws are termed by Austin as positive laws or laws strictly so-called and the
latter type of laws are described by him as positive morality. The positive law or laws strictly so-
called are obligatory and legally binding upon the subjects for they are in the nature of
commands backed by sanction. The laws of positive morality are not legally binding upon the
individuals and are unaccompanied by sanction of the sovereign. Such laws depend for their
enforcement upon overwhelming majority sentiments or public opinion only. As such rules of
positive morality too are excluded from Austin's definition of law.

Law and Morality

Austin further a tempted to separate law from morality. He was of the view that law is
law because it is made by the sovereign and it has nothing to do with its historical origin, ethical
significance or moral validity. He excluded the notion of goodness and badness from the purview
of his law. For him law is neither concerned with abstract natural ideal nor with social reform,
social welfare and social progress which is the concern of the science of legislation but not of
law of the sovereign. Buckland has correctly subsumed5 the Austinian concept of law as law is
law since it is made by the Sovereign, the Sovereign is Sovereign because he makes the law.

Law and International Law

Austinian concept of law is at once irreconcilable with international law. For Austin
international law is positive morality because it does not emanate from the determinate sovereign
and so is not binding on the people. Conversely the sovereign itself is not bound by any law, it
recognizes no authority whether internal or external superior to itself. As international law
cannot be defined as command over and above the sovereign, international law at best is a
positive morality-depending on the choice of the sovereign to abide or not to abide by such law.
It lacks also sanction. So international law is not law properly so-called and, therefore, excluded
by Austin from the scope of jurisprudence.

Hollands Definition of Law

 The next important jurist who followed John Austins concept and nature of law is
Thomas Erskine Holland. He wrote Elements of Jurisprudence in 1880 in which he attempted
to define law more scientifically and analytically than Austin himself. According to him Law is
a general rule of external human action enforced by a political sovereign. Holland also measures
or defines law with preference to sovereign devoid of moral, ethical or ideal elements which are
foreign to law and jurisprudence.

Definition Analysed
1. General rule of external human action:
According to Holland law of the sovereign deals with the external human conduct. It is
not at all concerned with inner motives or feelings like fear which were overemphasized by
Austin. Such laws are not only declared but also enforced by a determinate sovereign and the
transgressor of law is exposed to ridicule, hatred or coercion. As such law differs from the laws
of fashion or honour for the latter depend for their observance not upon the authority of the
sovereign but indeterminate and varying sentiments or feeling of a community.
Further, law has to be essentially general in character. It cannot be particular or
applicable to one individual. Law has to be general, universal and not like Austin's commands
which may be both general and particular.

2. Sovereign-Political authority:
Law must come from a determinate political authority which is either a superhuman or a
body of persons. However, by the terms sovereign political authority Holland meant the State
as a political institution both sovereign and independent of any other State or institution. Rules
set by such authority are called laws properly so-called.
Austin had only emphasized on the promulgatory aspect of law. Holland takes first step
in pointing out the enforcement aspect of law and thus widens the concept of Austin's definition
of law. However, Holland's approach to law is in keeping with Austinian concept of law and so
the Same criticism which is levelled against Austin can be levelled against Holland also.

3. Definition of Law-Gray:
 Another important follower of Austin is John Chipman Gray of the United States of
America. He says Law of the State or of any organized body of men is composed of the rules
which the courts, that is, the judicial organs of that body, lay down for the determination of legal
rights and duties. In other words, law is what the courts lay down in determining legal rights and
duties of the citizens. Gray is not an Austinian. He is more or less a functionalist defining law in
terms of judicial process. However, one can find Austins sovereign in the Supreme Court of
United States of America which alone could declare the acts or statutes of the Congress as
constitutional or unconstitutional. In fact the Supreme Court of America emerged one of the
supreme powers on the American political scene-especially during 1930s. It declared the
National Industrial (Recovery) Act, 1933 ultra vires of the Constitution and violative of due
process clause of the Constitution. Thus statute law was not law until it had been interpreted by
the courts-thereby pointing out that law is law because it is laid down by the Supreme Court. In
other words, law is what half a dozen old gentlemen judges say, for these half a dozen old
gentlemen form the highest judicial tribunal of the country-a simple variation of Austins
concept of law.

Salmond's Definition of Law

Another important jurist of the Imperative School of Jurisprudence is Sir John Salmond
from New Zealand. He like Gray defines law in terms of judicial process. He has also substituted
for the political sovereign the courts of law as real source of law. He says in England much of the
law is made by the courts besides the legislature. But all law, however, made is recognized and
administered by the courts, and no rules are recognized and administered by the courts which are
not rules of law. To understand the nature of law one should go to courts and not to the
legislature. So Salmond observes The law may be defined as the body of principles recognized
and applied by the State in the administration of justice. In other words, the law consists of the
rules recognized and acted on by the courts of justice.

Salmond-If Austinian
Before we consider Salmond's definition of law it would be appropriate to discuss how
far he is Austinian. Salmond is Austinian in the sense that he correlates law with the State as the
source of law although he avoids the controversy as to legal and political sovereignty. He only
emphasizes the authority of the State-especially the courts who act upon the rules of law. It is in
the judge that we find Austins sovereign. However, to some extent he departs from Austin. He
does not say law is a command of the sovereign nor he rejects the notion or purpose of law-the
administration of justice. In fact he improved the variety of the definition of law of the
Analytical School of Jurisprudence. Salmond associated law with the element of right or justice,
an aspect totally excluded by Austin. Salmonds definition of law indeed attempts to remove all
the shortcomings of the definition of law propounded by Austin and his followers.

Elements of Salmonds Law

1. Meaning of the term 'Law':

The expression Law as defined by Salmond means the civil law i.e. the law of the State,
or law of the country or law of the lawyers and the courts. Law is defined with reference to State.
It is not an ideal or abstract law. It is positive and actual law with which the ordinary lawyers are
concerned with, i.e., the law of the land. In other words, law consists whole body of legal system
or legal order which actually governed legal relationship between individuals in the
administration of justice.

2. Recognized and Applied:

Salmond emphasizes that law must be recognized and applied by the State, i.e., courts in
the administration of justice. However, there are laws which are only recognized. but not
enforced. According to Salmond such laws are not laws. He is of the view that laws are laws
because they are recognised and applied by the courts. But this is not a correct view. There are
laws e.g. the prohibition laws in the United States of America, and India, the Indian Dowry Act,
1961 the Directive Principles of State Policy under the Indian Constitutor., the decree of the
restitution of conjugal rights, the Child Marriage Restraint Act, 1929 are some examples of law
which cannot be enforced because of prevailing social situation or lack of ready social
acceptance of such new norms of human behaviour. Yet they are all laws. In this respect
Salmond's definition of law is defective as much as it envisages like that of Austinian law is law
because it is recognized and applied by the State and does not take into consideration the social
disapprobation as an important factor for non-enforcement of law.
H.L.A. Hard Definition of Law
There is a gap of almost of a century between John Austin (1790-1859) and Professor
H.L.A. Hart who is the leading legal philosopher of positivistic theory of law in contemporary
England. In his key work The Concept of Law, 1961 Professor Hart has re - determined the
contours of positive law which were determined by John Austin in his classic work Province of
Jurisprudence Determined 1832. The main theme of Professor Hartss The Concept of Law is to
pin-point certain glaring shot comings and defects which Austin himself could not foresee or
which he could not resolve. Harts main objective of focussing on such inadequacies of Austins
theory of law is aimed at our further understanding of law, coercion and morality which also
form the basic rubric of positivistic theory of law in the twentieth century.

Austins Inadequacies
(1) According to John Austin the notion of law as command carries with it threat,
physical coercion or intimidation necessary for compliance. Professor Hart says the picture of
law that Austin wants to convey is more like the case of a gunman making demand backed by
threat than a sergeant giving an order to a subordinate. He says law is not a gun-man situation
like handover the money or will shoot you; (2) Austin's concept of law, says Hart, is in the
nature of penal or criminal statute or with laws that impose penal duties. Whereas according to
Hart there are sometimes power conferring law or rules like that of marriage, will or contract
which do not impose penal duty; (3) Professor Hart also rejects the view of John Austin who
treats nullity as sanction. Hart says sanction can be distinguished from nullity because unlike
nullity sanction is intended to discourage or suppress certain behaviour. However, Hart says
nullity could never fit in this model; (4) Another anomaly of Austin, according to Hart, is that
sovereign is considered above law with unlimited and illimitable power. On the other hand, he
says, in all legal systems particularly in federal countries like US, Australia and India where
sovereignty is divided and the sovereign is subject to or bound by the Constitution, by law and
moral, social and external compulsions.

Hart-Law Defined
 As already observed Hart gives an alternate notion of law as substitute to that of John
Austin avoiding his pit-falls and projecting a definition more sociological and realistic in spirit
which the so-called father of analytical jurisprudence denied and decried. Hart on the other hand
has sensitised the twentieth century positivists of the need of linking law with social ethos and
values without making it purely formal in form and coercive in content. As to the central
question as to what the law is Hart first rejects Austins concept of law as command which
Austin considered Key to the science of jurisprudence. On the other hand, Hart in his The
Concept of Law says that law is a system of rules-the primary and the secondary rules their
union or combination may justly be regarded as the essence of law. Thus a union of primary and
secondary rules is the most important feature or essence of a legal system. The two types of rules
the union of which Hart claims provides the key to the science of jurisprudence are described
by him as primary rules and secondary rules-the former duty imposing and the latter power
conferring rules.
(a) Primary and Secondary Rules
Hart conceives the picture of a primitive community without legislature, courts or
officials. Such a society is living what Hart calls pre-legal state where social control is based on
a regime of unofficial rules. Such form of social control in primitive society suffer from three
defects which require supplementation. The first is uncertainty as to what the rules are or their
scope. The second defect of such rules is that they are static in character as there is no method to
change such rules according to changing circumstances either eliminating old rules and
introducing new ones. The third defect of the regime of primary rules of primitive society suffer
from inefficiency the diffuse social pressure by which rules are maintained.
(b) Rule of Recognition
Professor Harts thesis that a rule of recognition exists in every legal system is the central
feature of his positivistic legal theory. It is the rule of recognition, Hart asserts, that distinguishes
which things are law and which are not and that the criteria or means for identifying the valid
law. The rule of recognition, Hart argues, is the ultimate-in the sense the validity of other rules is
to be determined in the rule of recognition itself. The rule of recognition Hart concludes exists
only as a complex but normally concordant, practice of courts, officials and private persons in
identifying the law by reference to certain criteria. Its existence is a matter of fact. In short, what
Hart has done here is to make the rule of recognition sovereign in a way which is strictly
analogous to the sovereignty of the determinate persons constituting the Austinian sovereign.
Rules of recognition like Austinian sovereign just exist while the latter die the former fade away
into disuse.

(d) Law and Morality

As to relationship between law and morality Hart's position is that every viable legal
system must satisfy certain minimal moral requirements. Hart in his The Concept of Law stresses
that law and moral rules must satisfy minimal content of natural law: These are: (i) human
vulnerability i.e. the basic character of law and morals is to restrict use of violence in killing or
inflicting bodily harm; (ii) approximate equality, i.e., human beings are approximately equal in
strength, and intelligence; (iii) limited altruism i.e. human beings are
. not predominantly selfish nor altruistic but a bit of each; (iv) limited resources which makes the
institution of property necessary and (v) limited understanding and strength of will making
sanction necessary. These are natural facts for, survival and both law and morality must have
certain content of it.

Definition of Law in terms of Social Ends or Interests

As already stated that law can be defined not only in terms of command or judicial
process but in terms of needs of the community life. In the twentieth and twenty-first centuries
we see the beginning of functional and relativist approach. With the advance of science and
technology the, theory of law has been secularized and has become more pragmatic and realistic
in terms of material needs .of human. beings. Old definitions, concepts, and theories of law are
being discarded as unnecessary, undesirable and incorrect for resolving new situations and
conditions. A functional theory of law is not concerned with the ideal or nature or basis of law. It
is more concerned how it works in resolving conflicting interests. As such, law is considered as a
social institution to satisfy social wants-the claims, demands and expectations involved in the
existence of civilized society. No formal definition of law, therefore, is necessary or desirable or
even possible. For instance, Dean Pound defines law in terms of maximum satisfaction of human
wants, demands and interests. Even before Dean Pound, Bentham, Ehrlich, and Ihering defined
law in terms of social ends without bothering for a formal definition.
Definition of Law in Terms of Abstract Ideals
The law has also been studied in terms of higher ideals and abstract values since the times
of ancient Greeks, Romans and Hindus. The jurists in different legal systems emphasized the
ethical or moral view and tried to set up an ideal of human conduct. As such law has been
defined in terms of ideal natural law or physical law by the Greeks, in terms of human reason by
the Romans and in terms of Dharma by the Hindus. Thus, a philosophy of law in terms of ideal
values of eternal immutable and everlasting character emerged to maintain or change existing
legal and political institutions. Cicero, Grotius, St. Aquinas, Duguit, Locke, Rousseau, Kant, and
in modern times Stammler and Radbruch have given a formal definition of law to suit the
exigencies of each period and time. The quest for justice, equality and ethical values as ultimate
ends of law has been the theme of these various jurists.

Conclusion:
The above manifold aspects of the definition of law are correct in so far as each aspect
embodies the accepted values and goals of human society at different periods and in different
countries. Hence the study of every aspect becomes not only necessary but useful also for a
clearer and broader understanding of the basic perspectives of law. To define law with reference
to one aspect is not only incorrect but also inadequate for law is a dynamic institution for
achieving the set-social goals. Hence the above approaches are complementary and
supplementary to each other.
However, in the words of Levy-Ullmann a definition of law should have two aims;
Firstly to make precise the meaning of law, and secondly, to call up in the mind of the reader a
true picture of law and its operation. Thus Paton gives a more sociological and pragmatic
enunciation of the concept and meaning of law. He says
the existence of law pre-supposes a community, implies in the community is the acceptance of a
set of values dealing with fundamental issues on which the existence of that society depends.
Fundamental Rights
1. General Arts. 12 and 13 which respectively define the State and law

2. Rights to Equality Arts 14 to 18.

3. (a) Equality before law, Art 14.
4. (b) Prohibition of discrimination on the grounds of religion race, caste, sex or place of
Birth Art 15.
5. (c) Equality of opportunity in matters of public employment, Art 16.
6. (d) Abolition of untouchability Art 17.
7. (e) Abolition of titles, Art 18.
8. 3. Rights to freedom Art 19 to 22
9. A. Right to freedom Art 19 provides the following 8 freedoms
10. (A) Right to freedom of speech and expression.
11. (b) Right to assemble peaceably and without arms,
12. (c) Right to form associations or unions.
13. (d) Right to move freely throughout the territory of India.
14. (e) Right to reside and settle in any part of the territory of India.
15. (f) Right to acquire, hold and dispose of property (Now this right is made only an ordinary
right under Art 300 A of Constitution.
16. (g) Right to practice any profession or to carry on any occupation trade or business.
17. B. Protection in respect of conviction for offences Art 20.
18. C. Protection of life and personal liberty Art 21.
19. D. Protection against arrest and detention in certain cases Art 22.
20. 4. Rights against Exploitation Art 23 and 24
21. (A) Prohibition of traffic in human beings and forced labour.
22. (B) Prohibition of employment of children in factories
 23. 5. Rights to freedom of Religion Art 25 to 28
24. (A) Freedom of conscience and free profession, practice and propagation of religion Art
25.
25. (B) Freedom to manage religious affairs Art 26.
26. (C) Freedom as to payment of taxes for promotion of any particular religion Art 27.
27. (D) Freedom as to attendance at religious instructions or religious worship in certain
educational Institutions Art 28.
28. (6) Cultural and Educational Rights -
29. (A) Protection of interest of Minorities Art 29
30. (B) Right of Minorities to establish and administer educational institutions Art 30.
31. (7) Right of Property It is no longer a fundamental Right but an ordinary constitutional
right provided U/A 300 A
32. (8) Right to constitutional remedies Art, 32 to 35.

Right to Equality
Right to Equality Art 14 to 18 of the Indian Constitution guarantee the right to equality to
every citizen of India, Art 14 provides the general Principles of equality before the law and
prohibits unreasonable discrimination between persons. Art 14 contains the idea of equality
expressed in the preamble. Art.14 says that the State shall not deny to any person equality
before the law or the Equal protection of the laws within the territory of India.

Art 14 uses two expressions.

(1) Equality before the law

(2) Equal Protection of the laws

(1) Equality before law The concept of equality does not mean absolute equality among
human beings which is physically no possible to achieve. It is a concept implying absence of any
special privilege by reason of birth. Creed or the like in favor of any individual, and also the
equal subject of all individuals and classes to the ordinary law of the land.

Dr.Jennings- says that Equality before the law means that among equals the law should be
quall and should be equally administered, that like should be treated alike, the right to sue and be
sued, to prosecute and be prosecuted for the same kind of action should be the same for all
citizens wealth, social status or Political influence.

Rule of law The guarantee of equality before the law. is an aspect of what Dicey Calls the
rule of law. In England. It means that no man is above the law and that every person, whatever
be his rank or conditions, is subject to the jurisdiction of ordinary courts.

Dicey the Rule of Law has three distinct meaning

(1) Supremacy of the law

(2) Equality before the flaw

(3) The Constitution is the result of the ordinary law of the land.

(2) Equal Protection of the Laws The guarantee of equal protection of laws is similar to one
Embodied in the 14th Amendment to the American Constitution. This has been interpreted to
mean subjection to equal law, applying to all in the same circumstances. It only means that all
persons similarly circumstance shall be treated alike both in the privileges conferred and
liabilities imposed by the law equal law should be applied to all in the same situation and there
should be no discrimination between one person and another.

The words any person. In Art 14 of the constitution denotes that the guarantee of the equal
protection of laws is available to any person who includes any company or association or body of
individuals. The protection of Art 14 extends to both citizens and non-citizens and to natural
persons as well as legal persons. The equality before the law is guaranteed to all without regard
to race, color or nationality. Corporations being juristic persons are also entitled to the benefit of
Art 14.

Test of Reasonable classification Art 14 class legislation, it does not forbids class legislation,
it does not forbid reasonable classification of persons, objects and transactions by the legislature
for the purpose of achieving specific ends. But classification must not be arbitrary, artificial or
evasive. It must always rest upon some real and substantial distinction bearing a just and
reasonable relation to the object sought to be achieved by the legislature, classification to be
reasonable must fulfill the following two conditions

(1) The classification must be founded on an intelligible differentia. Which distinguishes?

Persons or things that are grouped together from others left out of the group.

(2) The differentia must have a rational relation to the object sought to be achieved by the

Act (refer in this case)

- K.Thimmappa v. Chairman Central Board of Directors SBI: AIR 2001 S.C.467

- Basis of Classification (refer case) Ram Krishna Dalmia vs. J. Tandulkar AIR 1957.

New Concept of Equality: Protection against arbitrariness

In E.P.Royappa v. State of Tamil Nadu AIR 1974 S.C. 555 the new concept of equality in the
following words Equality is a dynamic concept with many aspects and dimensions and it
cannot be cribbed, Cabined and confined Within traditional and doctrinaire limits from a
positivistic point of view, equality is antithesis to arbitrariness. In fact equality and arbitrariness
are sworn enemies, one belong to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarchy. Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and is therefore violation of Art.14.

Menaka Gandhi v. Union of India 1978 S.C. 597

R.D.Shetty v. Airport Authority, AIR 1979 SC 1628.

D.S.Nakara v. Union of India AIR 1983 SC 130

Mithu v. State of Punjab AIR 1983 SC 473

Exceptions to the equality before law- Art 361 of the Constitution permits the following

Exceptions to this rule

(1) The President or the Governor of a State shall not be answerable to any court for the court for
the exercise and performance of the powers and duties of his office or for any act done or
purporting to be done by him in the exercise and performance of those powers and duties.

(2) No criminal proceeding whatsoever shall be instituted or continued against the President or a
Governor in any court during his term of office.

(3) No Civil Proceeding in which relief is claimed against the President or the Governor of a
state shall be instituted during his term of office in any Court in respect of any act done or
purporting to be done by him in his personal capacity. Whether before or after he entered upon
his office as President or Governor of such State, until the expiration of two months next after
notice in writing has been delivered to the President or the Governor, as the case may be.

(i) Impeachment Proceeding against the President

(ii) Suits or other appropriate Proceeding against the Government of India or the Government of
a State.

Case

(i) Chiranjit Lal vs. Union of India AIR 1961

(ii) J & K State vs. Bakshi Gulam Mohd. AIR 1967

(iii) Danial Latifi v. Union of India AIR 2001 S.C. 3262

(iv) Javed v. State of Haryana AIR 2003 S.C. 305

Freedom of Speech And Expression

- Right to freedom Article (19 22) defined in Part III rd of the Indian Constitution, and Art
19-22 defined the personal liberty and called the back bone of the fundamental right.

Article 19(i) defines six freedoms

(i) Freedom of speech and expression

(ii) Freedom of Assembly

(iii) Freedom to from Association

(iv) Freedom of Movement

(v) Freedom to reside and to settle

Art 300 A (Amended by 44th Constitution Amendment 1978)

(vi) Freedom of Profession, occupation, trade or business.

These six freedom are however not absolute, the restriction on these freedom are provided in
clause 2 to 6. These restrictions should be reasonable.

(i) Security of the State

(ii) Friendly relation with foreign states

(iii) Public order [1st Amendment Act 1951]

(iv) Decency and Morality

(v) Contempt of Court

(vi) Defamation

(vii) Incitement to an offence [1st Amendment Act 1951

(viii) Sovereignty and Integrity of India [16th Amendment Act 1963]

19(1) (a) Meaning of freedom of speech and expression

The freedom of speech and expression, Guarantee, U/A 19(1) (a) means the right to speak and to
express ones opinions by words of mouth. Writing, printing, pictures or in any other manner. It
includes publication also, which includes inherent freedom of press.

The liberty of circulation is vested in liberty of publication.

Right to know: - the fundamental right principally Principal involved here is the peoples right
to know.
In Prabhu Datt vs. Union of India AIR 1982 Supreme Court held that right to know news and
information about the functioning of the Govt., is included in the freedom of Press

In Union of India vs. Association for Democratic Reforms AIR 2002 Supreme Court held that
people have right to know about the candidate before voting. Thus, the law preventing the
Election Commission from asking for a candidates wealth. Assets, liabilities education and other
such information is invalid.

In Tata Press Ltd. vs. M.T.N.L. (1995) the Supreme Court held that commercial speech
(Advertisement) is a part of freedom of speech and expression U/A 19(1) (a)

In Union of India V. Naveen Jindal AIR 2004 Supreme Court 1559

The Court held that Flying National Flag. Is fundamental Right U/A 19(1) (a)

Freedom of Silence Right not to speak

In Bijoe emmanual Vs. State of Kerala (1986)

In Om Prakash vs. State of U.P. (2004) the Court held that Prohibition of eggs selling

Municipal limits is reasonable restriction U/A 19(6)

Freedom of the Press - the freedom of press defined in the Indian Constitution U/A 19(1) (a)

In Indian Express news paper Vs. Union of India (1985) the Court observed the expression

Freedom of the Press has not been used in Art 19.

Pre-censorship Invalid In Ramesh Thapper vs. State of Madras (1950)

In express Newspaper vs. Union of India (1958) the Supreme Court held that a law which
imposes Pre-censorship or curtails circulation or prevents newspaper from being started or
require the Govt. to seek Govt aid in order to survive was violative of Art 19 (1) (a)

In Sakal Chand Papers Ltd. vs. Union of India (1962)

Prior Restraint on Publication In R.Raja Gopal vs. State of T.N (1994) The Supreme Court
held that the Govt. has no authority in law to impose a prior restraint upon publication of
defamatory material against its officials.

Abuse of freedom of press In M.P.Lohia v.State of W.B. & ORS AIR 2005 S. C. 790

In Union of India vs. Naveen Jindal AIR 2010 the Supreme Court held that Flying National
Flag in Night. is a fundamental right of freedom of speech and expression.

Right to Information Secretary General Supreme Court of India vs. Subhash Chandra
Agarwal AIR 2010 DEL

In S.Khushboo v. Kanniammal sons AIR 2010 S.C.3196 the Supreme Court held that freedom of
speech and expression is not absolute.

Case

(1) State of Gujrat v. Mirzapur Moti Kureshi Kasab Jamat, AIR 2006 SC 212

(2) Union of India v. Association for Democratic Reforms AIR 2002 SC 2112

(3) Ajai Goswami v. Union of India AIR 2007 Sc 493

(4) Rajneesh Kapoor v. Union of India AIR 2007 SC 204

(5) Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat AIR 2008 SC 1892.

Protection in respect of conviction for

offences (Article 20):
Conviction for certain form of offences. It is available to all individuals (citizens and non-
citizens). It contains
three kinds of protection to individual against the State;

I. Retrospective Criminal Legislation (Ex-Post factor Criminal Legislation) Article 20(1)

Article 20(1) state that no person shall be convicted of any offence except for the violation of a
law in

force at the time of the commission of the offence.

i. This means that an individual can be punished for the commission of an act only it the said act
had

been declared by a law as an offence at the time of commission of an offence

ii. An act which was originally a non-criminal act cannot be made into a criminal offence
subsequent

to punish an individual for that.

iii. Therefore Article 20(1) prohibits the State from enacting ex-post-facto criminal legislation.
So, it

means a criminal legislation cannot be given a retrospective effect.

II. Double Jeopardy Article 20(2)

Article 20(2) states that no person shall be prosecuted and punished for the same offence more
than once.

Thus Article 20(2) prohibits double jeopardy. Under the Doctrine of Double Jeopardy - a
person can be

punished for an offence only at one time. However, it applies only to punishment given by a
judicial body.

It does not apply for the punishments given by a non-judicial body. Therefore, a civil servant
prosecuted
and convicted by a court of law can be punished under departmental proceedings for the same
offence.

Likewise a person punished departmentally may be prosecuted in a court of law. Again, since the
operation

of Article 20(2) is confined to indictment before a criminal court, it does not ban proceedings
before a civil

court for disobedience of an injunction along with criminal proceeding.

III. Prohibition against self-Incrimination Article 20(3)

No person who is accused under any offence shall be compelled by the State to be a witness
against

himself. This clause applies only in cases where confession is made to a police officer whether
voluntarily

of under compulsion.

Under the frame of criminal jurisprudence, a person is presumed to be innocent and it is for the
prosecution

to establish his guilt. A person accused of an offence need not make any statement against his
will. If an

accused makes a confession voluntarily before the Judicial Magistrate then it will be allowed as
evidence in

a court of law.

3. Protection of Life and Per

Right to Life and Personal Liberty

No person shall be deprived of his life or personal liberty except according to Procedure
Established by law.

In A.K.Gopalan V.State of Madras AIR 1950 the Court held that Art 21 guaranteed the right to
life and personal liberty to citizen only against the arbitrary action of the executive and not from
legislative action and further held that Personal liberty in Art 21. Means nothing more than the
liberty at the physical body i.e. freedom from arrest and detention without the authority of law.

In Kharak Singh V. state at U.P (1968)

In Maneka Gandhi v. Union at India AIR 1978 S.C 597. The Court has given the Widest Possible
interpretation of Personal liberty. Thus Art 21 requires the following Conditions to be fulfilled
before a Person is deprived of Personal liberty.

There must me a valid law.

The law must provide a Procedure.
The Procedure must be (just, fair and Reasonable) ensuring Natural Justice.
The law must satisfy the Requirements of Art 14 & 19.

The Court over ruled the A.K.Gopalan.s decision and held that life is not merely confined to
Physical existence. But it includes within its ambit the right to live with Human dignity.

In Confederation of Ex-Servicemen Association v. Union of India (2006) 8 SCC 399.

The S.C. held that the right to life defines not only physical existence but the quality of life.

Right to Travel abroad.

Right to livelihood
Right to Shelter
 Right to Privacy
Right to Health & Medical Assistance.
Right to die
Protection of Ecology and Environmental Pollution
Right to education
Prisoners Right
Right to free Legal Aid
Right to speedy Trial
Right Against Handcuffing
Right against Delayed Execution.
Right to food
Right to Marriage
Right to Reputation.
Right to Travel Abroad In Satwant Singh v. Assistant Passport officer. New Delhi
(1967) the S.C. further extended the scope of Art 21 and held that the Right to travel
abroad was part of a persons Personal liberty.

Right to livelihood In D.K.Yadav v. J.M.A Industries (1993) the S.C. held that right to life
includes the right to livelihood.

Right to Shelter In Chameli Singh v. State of U.P.(1996) the Court held that right to shelter.
Is a fundamental Right U/A 21 of the Indian Constitution.

Right to Privacy In R.Raja Gopal v. State of T.N. (1994) the S.C. held that Right to Privacy is
fundamental Right in Art 21.

In Peoples Union for Civil Liberties v Union of India (1997) known as Telephone Tapping.,
the S.C. held that telephone tapping is a serious invasion of an individuals right to Privacy
which is part of the right to life and personal liberty.

Right to Die In State of Maharashtra v. Maruty Sripati Dubal (1987) the Court held that right
to life includes right to die and struck down S-309 of I.P.C. (overruled later on)
In P.Rathiram v. Union of India 1994- The Court held that right to live. Under Art 21 includes
right Not to live. Gian Kour v. State of Punjab 1996 The Constitutional Bench of Supreme
Court held that right to life. Under Article 21 does not include right to die.

Right to Education In Mohini Jain v. State of Karnataka AIR 1992 also known as
Captivation fee case the S.C. held that Right to education is a fundamental Right U/A 21.

In Unni Krishnan v. State of A.P (1993) the Court Partly upheld the Mohini jain decision and
held that right to education is fundamental Right U/A 21 as it directly flows from right to life and
partly overruled this case and held that the right to free education is available only to children,
Until they complete the age of 14 year.

86th Indian Constitutional (Amendment) Act 2002.

Art 21-A was added by this Amendment which define The State shall provide free and
compulsory education to all children of the age 6 to 14 years The Right of children to free and
compulsory education Act 2009.

Protection Against illegal and Custodial Death the Court held that if the Prisoner died
due to beating by Police Officer, his family is entitled to compensation.

In Bhodhisathawa Gautam v. Subhra Chakravati AIR (1996) 1 SCC 490 The S.C. awarded an
interim compensation of Rs.1000 per month to the victim of the rape until her charges of rape are
decided by the trial Court. Because violation of the fundamental right harms the right to life
contained in Art 21.

In Vishaka v. State of Rajasthan AIR 1997 The Court held that to Prevent sexual harassment of
working women in places of their work until legislature enacts legislation in this regard certain
guideline were issue for the employer/

Right to Marriage In Lata Singh v. State of U.P. & others AIR 2006 S.C. 2522

Right to Reputation The Court held that Art 21 includes right to Protection of Reputation thus
it can be protected under Art 21.

Case:
(1) In M.C. Mehta v. Union of India, AIR 2004 SC 4016

(2) In a landmark judgment in Intellectual forum Tirupathi v. State at Andhra Pradesh AIR

2006 SC 1350

(3) In Moses Wilson V. Kasturba AIR 2008 SC 379

(4) In a significant decision in R.D.Upadhyay v. State of Andhra Pradesh AIR 2006 SC 1946.

(5) In Swapan Kumar Saha v. South Paint Montessary High School and others AIR 2008

(NOC) 236 (Gau)

Protection Against Arrest and Detention

in certain cases (Article 22):

safeguards against arbitrary arrest and detection. It is applicable to all individuals (Citizens and
non-citizens). It

does not confer a Fundamental Right on an individual against arrest and detention. It only
extends certain

procedural safeguards in case of arrest of individual. Thus it comes into play only after a person
has been

arrested. Its object is to prevent arbitrary arrest and detention by the State. Article 22 confers
following
safeguards in case of arrest and detention;

Article 22 (1)

No person who is arrested shall be detained in custody without being informed as soon as
possible of the

grounds for such arrest. Further he shall not be denied the right to consult and be defended by an
advocate of his

choice.

Article 22 (2)

The arrested person shall be produced before the nearest judicial magistrate within 24 hours of
his arrest. While

calculating the 24 hours the time taken to travel from place to detention to the Court and by
intervening

holidays shall not be taken into consideration.

Article 22(3)

No person shall be detained in the custody beyond the period for which his detention has been
authorized by the

Judicial Magistrate.

The above safeguards are not available to

i. Enemy aliensii. The persons who are arrested under Preventive Detention Laws such NSA
(National Security Act 1980),

COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities) Act

1974, POTA

(Prevention of Terrorism Act 2002) etc.

There are two types of detentions;

Punitive Detention Punitive detention means detention after a proper trial. In such cases the
arrested person

is informed of his ground of arrest. He has been given a reasonable opportunity to defend himself
and the

prosecution has succeeded on his guilt and the court has punished him with a sentence.

Preventive Detention Preventive Detention means detention without trial. In such cases,
crimes may not

have had happened and one of the objective is to prevent an individual from proceeding further
commit a crime.

Therefore a person can be arrested merely on the ground of suspicion. The rights of such arrested
person

RIGHT AGAINST EXPLOITATION (ARTICLE 23-24)

1. Prohibition of Traffic in Human Beings and Forced Labour (Article 23): It prohibits traffic in
human beings

and begar and other similar forms of forced labour. Traffic in human beings means forcing
people into slavery,

servitude and forcing women, children and crippled persons into immoral activities. Begar or
Bandhua means

forced labour with or without payment.

Article 23(1)
This Article authorizes the State to provide by law prescribing punishment for violation of this
right. The

Parliament has enacted the Immoral Traffic Prevention Act 1956, as amended in 1986, which
prescribes

punishment for violation of Article 23.

Article 23(2)

It authorizes the State to provide by law enforcing compulsory services on individual provided
general interest

of the State shall not make any discrimination on rate, religion, caste or class or any of them. For
example

during a natural calamity, people can be compelled to provide services to help others.

2. Prohibition of Employment of Children in Factories etc (Article 24): It prohibits the

employment of children

below the age of 14 years in any factory or mine or any hazardous employment. The prohibition
is absolute and

does not admit any exception for the employment of children in a factory or a mine etc.

The Parliament has enacted Child Labor (Prohibition and Regulation) Act 1986. This act
classified 14 industries

under hazardous industries.

Freedom of Religion
 Synopsis
Ambit of freedom of religion

What is religion

. Freedom of conscience and freedom to profess practise and propagate religion

Restrictions

Articles 25 and 26Difference

Freedom to manage religious affairs (Rights of Religious Denomination). (Article 26)

Right to establish and maintain institutions for religious and charitable purposes.

)Right to manage its own affairs in matters of religion

Articles 25 and 26Difference

Freedom as to payment of taxes for promotion of any particular religion. (Article 27).

Freedom as to the attendance at religious worship in educational institutions. (Article 28).

Ambit of Freedom of Religion
The citizen in a secular State may have any religion he likes or no religion at all. Thus, in case of secular
State there, is no State religion. In a case, Santosh kumar v. Secy. Ministry of Human Resources
Development, AIR 1995 SC 293.

What is religion?

The term religion has not been defined in the Constitution of India. The Supreme Court has observed
that religion is a matter of faith with individuals or communities. Religion is not necessarily theistic. No
doubt religion has its basis in a system of beliefs or doctrines which are regarded by those who profess
that religion is conducive to their spiritual well being but it is not correct to say that it is nothing else but
a doctrine or belief. The religion, thus, may lay down a code of ethical rules for its followers to accept
and also prescribe rituals, ceremonies and modes of worship which are regarded as integral parts of
religion. Commr. H.E.R. v. L.T. Swamiar, AIR 1954 SC 282.

In the case of A.S. Narayan Deekshitalu v. State of A.P., the Supreme Court has thoroughly
examined the meaning of religion and Hindu Dharma and also their objects. The Court has observed that
the term Dharma or Hindu Dharma devotes upholding, supporting nourishing that which upholds
nourishes or supports the stability of the society maintaining social order and general well-being and
progress of mankind, whatever conduces to the fulfilment of these objects is Dharma, it is Hindu
Dharma and ultimately Sarva Dharma Sambhava.
 I. Freedom of conscience and the right to profess, practise and propagate religion (Article 25).
II. Freedom to manage religious affairs (Article 26).
III. Freedom to payment of taxes for promotion of any particular religion (Art. 27).
IV. Freedom as to attendance at religious worship in certain educational
institutions (Article 28).

1. Freedom of conscience and freedom to profess, practise and propagate religion.

(Article 25)

According to Article 25(1) subject to public order, morality and health and to the other provision
relating to the fundamental rights all persons are equally entitled to freedom of conscience and the right
freely to profess, practice and propagate religion.

Article 25(1), thus, guarantees to every person: (i) the freedom of conscience, (ii) the right freely
to profess and practise his religion and, (iii) the right to propagate his religion. These are subject to
public order, morality and health. The State can regulate economic, financial, political or other secular
activities which may be associated with religious practice.

Tandav Dance in Public-Not essential and integral part of Anand Margi faith

In Police Commissioner v. Acharya Jagdishwaran and Avavadhuta, the

Supreme Court has held that the essential part of the religion means the core beliefs upon which a
religion is founded. Essential practice means those practices that are fundamental to follow a religious
belief.

In a case the Supreme Court has made it clear that a person can refuse to sing the National
Anthem, if there is genuine conscientious religious objection. If a person shows proper respect to the
National Anthem, does not prevent the singing of the National Anthem and does not cause any
disturbance to the assembly in the singing of the National Anthem, he can neither be punished for
violation of fundamental duties laid down under Article 51A nor for any offence under the Prevention of
Insult to National Honour Act, 1971.

Restrictions

1. Public Order, Morality and Health.Freedom of religion guaranteed by Article 25 is subject

to public order, morality and health. Preventing a person is not violative of Article 25. Its reason is that
forcible conversion may disturb the public order and therefore it may be prohibited in the interest of
public order.

2. Other provisions relating to the Fundamental Rights.Freedom of religion guaranteed by

Article 25 is subject to the other provisions relating to the Fundamental Rights.

3. Regulation of economic, financial, political and secular activities.The provision of Article

25 shall not affect the operation of any existing law or prevent the State from making any law regulating
or restricting any economic, financial, political or other secular activity which may be associated with
religious practice.The secular activity which may be associated with religious may be regulated by the
State.

In Sarla Mudgal v. Union of India, Justice Kuldip Singh has observed that marriage, succession
and like matters of a secular character cannot be brought within the guarantee enshrined under Articles
25, 26 and 27.

4. Social Reform, Social Welfare and throwing open of Hindu religious institutions.The
provisions of Article 25 do not affect the operation of any existing law or prevent the State from making
any law providing for social welfare and reform or the throwing open of Hindu religious institution of a
public character to all classes and sections of Hindus. For this purpose the word Hindu includes Sikhs,
Jams or Buddhists.

II. Freedom to manage religious affairs (Rights of Religious Denomination). (Article 26)

Article 25 confers the particular right on all persons while Article 26 is confined to religious
denominations on any section thereof. Article 26, thus, guarantees certain rights to every religious
denomination or any section thereof, however, the rights so guaranteed are subject to public order,
morality and health.

(i) Right to establish and maintain institutions for religious and charitable purposes.
According to Article 26(a) every religious denomination and a section thereof, shall have right to
establish and maintain institutions for religious and charitable purposes. The words establish and
maintain should be read conjunctively and consequently, the right to maintain the institution can be
claimed only by the religious denomination which has established or brought into existence the
institution.

Right to maintain the institute includes the right to administer it.

Right to establish and maintain educational institution has been conferred by Article 26(a) on
every religious denomination or section thereof, be it of majority religious community or of minority
religious community. This Article, thus, confers the right to establish and maintain educational
institution on every religious denomination or section thereof including the majority religious
community. Therefore, the religious denomination or sections thereof which do not fall within the
special categories carved out of Articles 29(1) and 30(1) have the right to establish and maintain
religious and educational institutions. Under Article 26(a), thus, the religious denomination of the
majority religious community has right to establish and maintain educational institution but this right is
subject to public order, morality and health.

(ii) Right to manage its own affairs in matters of religion. According to Article 26(b) every
religious denomination or any section thereof has the right to manage its own affairs in matters of
religion and the State cannot interfere in these affairs, unless it exercises its right so as to interfere with
public order, morality or health.

Articles 25 and 26Difference

Article 25 confers the particular right on all persons, while Article 26 guarantees certain rights
only to religious denomination or a section thereof. Article 26 is subject to public order, morality and
health while Article 25 is subject to public order, morality and health and also subject to the other
provision relating to the fundamental rights.

III. Freedom as to payment of taxes for promotion of any particular religion. (Article 27).

According to Article 27, no person shall be compelled to pay any taxes, the proceed of which are
specifically appropriated in payment of expenses for the promotion or maintenance of any particular
religion or religious denomination.

If places of worship are destroyed due to communal riot and the State grants money so as to
restore these places to the pre-riot condition, it cannot be said that the State is making payment for the
promotion of a particular religion or religious denomination and consequently such grant by the State
will not be violative of Article 27

IV. Freedom as to the attendance at religious worship in educational institutions. (Article 28).

Article 28 mentions three types of educational institutions :

(i) Educational institutions wholly maintained out of State funds.-Article 28 makes it clear that
no religious instruction shall be provided in any educational institution wholly maintained out of State
funds.

Article 28 prohibits religious instruction and it does not prohibit moral education dissociated
from any doctrine of religious denomination. Provisions for the academic study of the life, teaching and
philosophy of any great saint of India and their impact on the Indian and world civilisation cannot be
regarded as provision for religious instruction. Religious instruction should be taken to mean the
instruction which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and
modes of worship of a particular sect or denomination.

(ii) Educational institutions administered by the State but established under any endowment
or trust.Article 28 does not prohibit religious instructions in the educational institution administered
by the State but established under any endowment or trust which requires that religious instruction
shall be imparted in the institution.

(iii) Educational institutions recognised the State or receiving aid out of the State fund.No
person attending any educational institution recognised by the State or receiving aid out of State funds
shall be required to take part in any religious instruction that may be imparted in such institution or to
attend any religious worship that may be conducted in such institution or in any premises attached
thereto under such person or if such person is minor, his guardian has given his consent thereto.

In Aruna Roy v. Union of India, the Supreme Court has held that the entire emphasis of Article
28 is against imparting religious instruction or performing of religious worship. There is no prohibition
for having study of religious philosophy and culture, particularly for having value based social life in a
society which is degenerating for power, post or property.

Cultural and Educational Rights (Rights of Minorities)

Introduction

Article 29(1) guarantees to any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own, the right to conserve the same. Article
29(2) makes it clear that no citizen shall be denied admission into any educational institution maintained
by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any
of them. Article 30(1) guarantees to all minorities (whether based on religion or language) the right to
establish and administer educational institutions of their choice. Article 30(1A) guarantees to the
minorities the right to compensation in case of acquisition of their property by the State. Article 30(2)
guarantees to them the right against discrimination in matters of granting aid to the educational
institutions.

1. Minorities right to conserve language script or culture [Article 29(1)]

 According to Article 29(1) any section of citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
The right guaranteed by Article29(1) is available to any section of citizens, whether they belong to the
minority or majority, provided such section has a distinct language, script or culture of its own.

The word minority is not defined in the Indian Constitution. It is determined in relation to the
particular legislation which is sought to be impugned. If the legislation sought to be impugned is the
State legislation it is determined in relation to the population of the State and in case the legislation
sought to be impugned is the Central Legislation it is to be determined on the basis of the population of
the whole country. It is to be noted that the right to conserve the language includes the right to agitate
for the protection of the language. The Supreme Court has made it clear that unlike Article 19(1), Article
29(1) is not subject to any reasonable restriction.

2. Right against discrimination in matters of admission to educational institution [Article 29(2)1

According to Article 29(2) no citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them. The right guaranteed by Article 29(2) is available to the citizen as such while
the right guaranteed by Article 29(1) is available to a section of the citizen. The protection of Article
29(2) is available to all citizens, whether they belong to a majority or minority group.

In St. Stephens College, etc. v. University of Delhi, the Supreme Court has held that the
minority aided educational institutions are entitled to prepare their community candidates to maintain
the minority character of the institution but they are required to make available at least 50% of the
annual admission to members of the communities other than the minority community. If the
educational institution established and administered by the minority receiving aid out of the State fund,
they would be subject to the rigour of Article 29(2) and it cannot deny admission on ground only of
religion, race, caste, language or any of them and will fall in line equally with all other educational
institution in the matter of admitting students in such institutions and cannot prefer or reserve any seats
for students of its own religion.
 In the case of T.M.A. Pai Foundation v. State of Karnataka, the Supreme Court has held that the
basic ratio laid down in St. Stephen v. University of Delhi, is correct but the rigid percentage cannot be
stipulated. It must be left to the authorities to prescribe a reasonable percentage having regard to the
type of the institution, population and educational needs of the minorities.

3. Minorities right to establish and administer educational institutions [Article 30(1)]

(i) Right to establish an educational institution of their choice; and

(ii) Right to administer the educational institutions so established by them.

The minorities cannot claim the right to administer the educational institution which has not been
established by them but by some one else. The words established and administered should be read
conjunctively and therefore the religious or linguistic minority can claim the right to administer the
educational institutions only when it has established it. The word establish should be taken to mean to
bring into existence. Ram Krishna Religion is not distinct and separate from the Hindu Religion and
therefore not minority religion and is not entitled to the protection under Article 30(1). Brahmchari
Sidheswar v. State of W.B., AIR 1995 SC 2089.

Following communities are also minorities based on religion :

(i) Brahmo Samaj

(ii) Jain

(iii) Sikh

(iv) Arya Samajis

(v) Ramkrishnaites

However, Theosophical Society is not a minority based on religion.

In St. Stephens College, etc. v. The University of Delhi,

In St. Stephens College Case the court held that the minority aided educational institutions are required
to make available at least 50 per cent of the annual admission to members of the communities other
than the minority community.

4. Right against discrimination in matters of granting aid to educational institutions[Article 30(2)]

Article 30(2), the State shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether based on
religion or language. The State, can impose reasonable conditions for the grant of aid to the educational
institutions, but the conditions should not be such as to destroy the minority character of the institution.
In the garb of giving grant the State cannot ask the minority community to surrender the administration
of the educational institution. Where the government ordered a minority-run-educational institution to
have 80 per cent reservation for governments nominees, it was also made clear in the order that in the
case of refusal, the recognition of the educational institutions would be withheld and aid granted to the
institution would be stopped the order was held to be violative of Article 30(1). The condition for
granting aid should not be such as to take away the minoritys right to establish and administer
educational institution of their choice guaranteed by Article 30(2).

5. Right to compensation in case of compulsory acquisition of the property of the educational

institutions[Article 30(1A)]

Clause (1A) has been inserted by the Constitution (44th Amendment) Act, 1978 in Article 30.
According to Clause (1A) of Article 30, in making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a minority, referred in Clause (1)
of Article 30, the State shall ensure that the amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict or abrogate the right guaranteed under clause
(1) of Article 30. The educational institution established and administered by minority (whether religious
or linguistic) still have the fundamental right to property and compensation in a case of compulsory
acquisition of its property by the State, but the educational institutions belonging to majority has no
such fundamental right. If the property of the educational institution belonging to the minority
community is acquired, the law of acquisition or compensation fixed therein may be challenged on the
ground that it is such as to restrict or abrogate the right guaranteed by Article 30(1). This means that if
the State seeks to acquire property belonging to a minority educational institution, the relevant law
must provide for such compensation as would enable the minority community to replace the acquired
institution by a new one comparable to the acquired one as regards site, size and shape. This cost of
reproduction, to say the least, must not be less than the market value of the acquired property, and in
the case of scarcity of land and cost of construction, it may even be higher than the market value of the
acquired property.

Writs under Article 32 (constitutional

remedies)

Synopsis

Introduction

The writs, which may be issued by the Supreme Court and High Court for the enforcement of the
fundamental rights under Article 32 and Article 226 confers more wider writ jurisdiction on the High
Courts.

Writ of Habeas Corpus

 Habeas Corpus is a Latin term which means you may have the body. This writ is, in form, an
order, issued by the Court calling upon the person by whom another person is detained, to bring that
person before the Court and to let the Court know, by what authority, he has detained that person. If
the detention is found to be without legal justification, the person is ordered to be released. The main
object of the writ is to provide a quick and immediate remedy for the release of the person from
unlawful detention.
Writ of Mandamus

The term Mandamus means the order. The writ is thus a command issued by a Court asking a
public authority to perform a public duty belonging to its office. It is issued against a public authority
who is under a legal duty to do or forbear to do something, in the performance of which the petitioner
has a legal right.

Where the issuance of mandamus directing the investigating agencies to investigate into
offences was found futile, the Court forged out a new tool of continuing mandamus, requiring the
agencies to report the progress to the Court so that monitoring by the Court, could ensure continuance
of the investigation.

Writ of Prohibition

The writ of prohibition is issued primarily to prevent an inferior Court or tribunal from exceeding
its jurisdiction. It is to prohibit the inferior courts or tribunals from exercising power or authority not
vested in them. The writ is issued against judicial or quasi-judicial authorities, on the ground of excess of
jurisdiction, absence of jurisdiction or for acting in violation of the principles of natural justice. It is a
prohibitive writ and forbids the authority from continuing the proceedings beyond its jurisdiction. It is a
jurisdictional writ.

Writ of Certiorari

Certiorari literally means to certify . Like prohibition, the writ of certiorari is also a jurisdictional
writ and is issued against judicial or quasi-judicial authorities, on similar grounds, i.e., excess of
jurisdiction, want of jurisdiction or violation of the principles of natural justice. Certiorari is a remedial
writ and is issued to quash an order or decision which has been made without jurisdiction or in violation
of the principles of natural justice. It is, therefore, issued after the completion of the proceeding.

Writ of Quo Warranto

Quo Warranto means what is your authority. The writ is issued to call upon the holder of a
public office to show to the Court, under what authority he is holding that office. The purpose of the
writ is to prevent a person from holding an office, which he is not legally entitled to hold. It is issued
against the usurper of an office.

Directions, Orders, in the nature of

 Clause (2) of Article 32 is of wide amplitude. It does not confine the power of the Supreme Court
to the issuance of the named writs, but the Court may issue any direction or order, whichever may be
appropriate for the enforcement of the fundamental rights.

Again, Clause (2) of Article 32 does not require the Court to observe all procedural technicalities
which were relevant for the issuance of writs under English Law. Therefore, even if the conditions for
issue of any of the writs are not fulfilled, the Court may still issue a writ in an appropriate case. However,
the Court would not be justified in interfering in the matters of Government policy.

In Murli S. Deora v. U.O.I., ((2001) 8 SCC 765), realizing the gravity of the

situation and considering the adverse effect of smoking on smokers and passive smokers the court
directed and prohibited smoking in public places and issued direction to the Union of India, State
Governments and UTs to take effective steps to ensure prohibiting smoking in public places.

In Guruvayoor Devaswom Managing Committee v. C. K. Rajan, ((2003) 7 SCC 546), the apex
court sketched the development of PIL. There was initial activist mode when the scope of the Supreme
Court intervention in this area was enlarged. Later a need felt that greater care be exercised before
intervening due to abuse of PIL for settling of private disputes or garnering publicity.

CASE LAW

S.P. Gupta v. Union of India,6

AIR 1982 SC 149

Article 226

Article 226 provides that notwithstanding anything in Art 32, every High Court shall have power,
throughout the territorial limits in relation to, which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases any government, orders or writs, including writs in the nature
of Habeus corpus, mandamus, prohibition, quo warranto and certiorari, for:

(i) Enforcement of any of the rights conferred by Part III, and

(ii) For any other purpose

 Thus the jurisdiction of a High Court is not limited to the protection of the fundamental rights
only but also to other legal rights.

Even if the petitioner moved the court in private interest and for redressal of his personal grievances,
court can proceed to enquire the state of affairs of the subject of the litigation in the interest of justice
and in furtherance of public interest. Ashok Lanka v. Rishi Dixit, [(2005) 5 SCC 598]. Q.3. A burst of
judicial activism has taken place in the area of fundamental right to freedom of speecsh and
expression guaranteed under article 19(1) A. What the aforesaid freedom includes or excluded?
Cite recent cases in support of your answer.

Directive Principles of State Policy

The D.P.S.P. contained in Part IV of the Constitution set out aims and objective to
be taken up by the States in the governance of the country. This feature of the Constitution is
borrowed from the Constitution can Ireland. The idea of a welfare State established by our
constitution can only be achieved if the States try to implement them with a high sense of moral
duty. The main object in enacting the directive principles appears is to set standard of
achievement before the legislature and the executive, the local and other authorities, by which
their success or failure can be judge.

(i) Directive for social order based on justice Art 38(1) requires the State to try and promote
the welfare of the people by securing a social order in which everyone is assured social,
economic and political justice.

(ii) Directives in the nature of non-justifiable right of every citizen

(i) Right to adequate means of livelihood Art 39 (a),

(ii) Right of both sexes to equal pay for equal work Art 39 (b)

(iii) Right against economic exploitation. Art 39 (e)

(iv) Equitable justice and free legal aid, Art 39 (A)

(V) Right of work. Art 41

(iii) Directives in shaping the policy of the State -

(i) To establish economic democracy and justice by securing certain economic rights.

(ii) To secure a uniform civil code for the Citizen (Art 44)

(iii) To provide consumption

(iv) To prohibit consumption of liquors and intoxicating drug except for medical purposes.

(Art 47)

(v) To develop cottage industries. (Art 43)

(VI) Participation of workers in management of industries, (Art 43A)

(VII) To organize agriculture and animal husbandry on modern lines.

(VIII) Protection and improvement of environment and safeguarding of forests and wild life, (art

48A)

(IX) To organize village Panchayats as units of self-government (Art. 40)

(X) To protect and maintain places of historic, and artistic interest. (Art 49)

(XI) To separate judiciary from executive (Art 50)

(XII) To promote with special care the educational and economic interests of the weaker section
of the People. (Art. 51)

Relation between fundamental rights &

D.P.S.P.
D.P.S.P contained in Part IVth of the Constitution. These are defined in Art 36 to 51 set out the
aims and objectives to be taken up by the State in the Governance of the country. The D.P.S.P. is
borrowed from the Constitution of Ireland. The D.P.S.P. is not justifiable.
 Fundamental Rights are contained in Part IIIrd of the Constitution. These are defined in Art
12

To 35. These rights are provided for to every person of India and it can be enforced by the Court.

In rekerala education Bill 1958. The Supreme Court observed that the Court should use the
Principle of harmonious construction and should give effect to both.

In Kesvanand Bharti v. State of Kerala AIR 1973. The Supreme Court held that the fundamental
right & D.P.S.P. aim is the same goal of bringing about a social revaluation and establishment of
a welfare state and they can be interpreted and applied together.

In Sanjeev coke manufacturing co. v. Bharat cooking call Ltd. 1983.

In Unni Krishnan v. State of A.P. 1993. The court held that Fundamental Right & D.P.S.P. are

Supplementary and complementary to each other.

Fundamental Duties (Art 51-A)

It was added by the 42nd Amendment Act 1976, originally 10 duties was introduced for
citizen and the 11th (K) was introduced thereafter.

(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the
national Anthem

(b) To Cherish and follow the noble ideals which inspired our National Struggle for freedom.

(c) To uphold and protect the Sovereignty Unity and integrity of India.

(d) To defend the Country and render National Service when called upon to do so.

(e) To promote harmony and the spirit of common brotherhood amongst all the people of India.
Transcending, religious, linguistic and regional or Sectional diversities: to renounce Practices
derogatory to the dignity of woman.

(f) To value and presence the rich heritage of our composite culture.
(g)To protect and improve the Natural, environment, Including forests, lakes, rivers and wild life,
to have compassion for living creatures.

(h) To develop the scientific temper, humanism and the spirit of inquiry and reform.

(i) To safeguard public property and to abjure violence.

(j) 10. To strive towards excellence in all sphere of individual and collective activity. So that the
nation constantly rises to higher levels of Endeavour and achievement.

(k) Who is Parent or Guardian to provide opportunities for education to his child or as the case is
ward between the age of six and fourteen years.
Fundamental Duties (Art 51-A)

It was added by the 42nd Amendment Act 1976, originally 10 duties was introduced for
citizen and the 11th (K) was introduced thereafter.

(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the
national Anthem

(b) To Cherish and follow the noble ideals which inspired our National Struggle for freedom.

(c) To uphold and protect the Sovereignty Unity and integrity of India.

(d) To defend the Country and render National Service when called upon to do so.

(e) To promote harmony and the spirit of common brotherhood amongst all the people of India.
Transcending, religious, linguistic and regional or Sectional diversities: to renounce Practices
derogatory to the dignity of woman.

(f) To value and presence the rich heritage of our composite culture.

(g)To protect and improve the Natural, environment, Including forests, lakes, rivers and wild life,
to have compassion for living creatures.

(h) To develop the scientific temper, humanism and the spirit of inquiry and reform.

(i) To safeguard public property and to abjure violence.

(j) 10. To strive towards excellence in all sphere of individual and collective activity. So that the
nation constantly rises to higher levels of Endeavour and achievement.

(k) Who is Parent or Guardian to provide opportunities for education to his child or as the case is
ward between the age of six and fourteen years.
Fundamental Duties (Art 51-A)

It was added by the 42nd Amendment Act 1976, originally 10 duties was introduced for
citizen and the 11th (K) was introduced thereafter.

(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the
national Anthem

(b) To Cherish and follow the noble ideals which inspired our National Struggle for freedom.

(c) To uphold and protect the Sovereignty Unity and integrity of India.

(d) To defend the Country and render National Service when called upon to do so.

(e) To promote harmony and the spirit of common brotherhood amongst all the people of India.
Transcending, religious, linguistic and regional or Sectional diversities: to renounce Practices
derogatory to the dignity of woman.

(f) To value and presence the rich heritage of our composite culture.

(g)To protect and improve the Natural, environment, Including forests, lakes, rivers and wild life,
to have compassion for living creatures.

(h) To develop the scientific temper, humanism and the spirit of inquiry and reform.

(i) To safeguard public property and to abjure violence.

(j) 10. To strive towards excellence in all sphere of individual and collective activity. So that the
nation constantly rises to higher levels of Endeavour and achievement.

(k) Who is Parent or Guardian to provide opportunities for education to his child or as the case is
ward between the age of six and fourteen years.
 Important Question
Q.1. Right to life means not merely the right to the continuance of a persons animal existence.
Discuss above statement in the light of Manika Gandhi v/s Union of India judgement.

Q.2. The idea of secularism is implicit in the several provisions of the constituent. Discuss.
Explain the scope of freedom of Conscience and free profession practise and propagation of
religion cite recent cases.

Q.3.Like should be treated alike is the meaning of equality unlike should be treated alike is not
the meaning of equality. Discuss this statement.

Q.4. how does the Indian Constitution project the Cultural and Educational rights of Minorities.

Q.5.Describe the restriction imposed upon the freedom of trade. Commerce and Intercourse.
What is the difference between art 19(1) G and Article 301?

Q.6. what are different kind of writs which may be issued by the Supreme Court?

Q.7.What are the fundamental duties enumerated in the Indian constitution?

Law making in india

Introduction

The basic function of Parliament is to make laws, amend them or repeal them. The process of
lawmaking or the legislative process, in relation to Parliament, may be defined as the process by
which a legislative proposal brought before it, is translated into the law of the land. All legislative
proposals are brought before Parliament in the form of Bills. A Bill is a statute in the draft form and
cannot become law unless it has received the approval of both the Houses of Parliament and the
assent of the President of India.

The process of law making begins with the introduction of a Bill in either House of
Parliament. A Bill can be introduced either by a Minister or a Member other than a Minister. In the
former case, it is known as a Government Bill and in the latter case, it is known as a Private
Members Bill.

GOVERNMENT BILLS Notice of Bill

A Minister who desires to introduce a Bill has to give seven days notice in writing of his intention
to move for leave to introduce the Bill. The Speaker may, however, allow the motion to be moved at a
shorter notice.
Circulation of Bill
A Bill is not included in the list of business for introduction until copies thereof have been
made available for the use of members atleast two days before the day on which the Bill is
proposed to be introduced. This requirement of prior circulation, however, does not apply to
Appropriation Bills, Finance Bills and such secret Bills as are not included in the list of business. The
Speaker may, however, permit the introduction of a Bill without prior circulation or after circulation
for a period shorter than two days if the Minister concerned gives adequate reasons in aMemorandum
for consideration of the Speaker as to why the Bill is proposed to be introduced earlier than two days
after circulation of copies or without prior circulation.
Passage of Government Bills

A Bill undergoes three readings in each House, ie., the Lok Sabha and the Rajya Sabha, before it
is submitted to the President for assent.

First Reading

The First Reading refers to the motion for leave to introduce a Bill in the House on the adoption
of which the Bill is introduced.

In the case of a Bill originated in and passed by Rajya Sabha, the first reading may be said to
refer to the laying on the Table of the House of the Bill, as passed by Rajya Sabha.
Procedure regarding opposing the introduction of a Bill

Motion for leave to introduce a Bill may be opposed by any member on general grounds or
on the ground that the Bill initiates legislation outside the legislative competence of the House. Any
member desirous of opposing the introduction of a Bill has to give a notice to that effect specifying
clearly and precisely the objections to be raised by 1000 hours on the day on which the Bill is
included in the list of business for introduction.

If the motion for leave to introduce a Bill is opposed, the Speaker may allow brief statement
from the member who opposes the motion and the Minister who moved the motion. Thereafter, the
motion is put to the vote of the House. However, if the motion is opposed on the ground of
legislative competence, the Speaker may permit a full discussion thereon.

It is an accepted practice in Lok Sabha that the Speaker does not give any ruling on the point
whether a Bill is constitutionally within the legislative competence of the House or not. The
House also does not take a decision on the specific question of vires of a Bill. After debate, the
motion for leave to introduce a Bill is put to vote of the House by the Speaker.

Publication of Bills in the Gazette

After a Bill has been introduced, it is published in the Gazette of India.

A Bill may, however, be published in the Gazette of India even before its introduction in the
House if on a request made by the Minister-in-charge of the Bill, the Speaker permits such
publication. If a Bill has been published in the Gazette before introduction, members cannot later
on, oppose its introduction in the House. It is not necessary to move a motion for leave to
introduce a Bill which has already been published in the Gazette under the orders of
theSpeaker. The next stage in respect of such a Bill is for introduction as distinct from leave to
introduce. However, if changes are made in the Bill after it has been published in the Gazette, it
becomes a new Bill and the motion for leave to introduce the Bill has to be moved as in the case of
any other Bill.

Bills which can be introduced only in Lok Sabha

A Bill may be introduced in either House of Parliament. However, a Money Bill cannot
beintroduced in Rajya Sabha. It can only be introduced in Lok Sabha with prior recommendation
of the President for its introduction in Lok Sabha. If any question arises whether a Bill is a Money
Bill or not, the decision of the Speaker thereon is final.

Like Money Bills, Bills which, inter alia, contain provisions for any of the matters attracting sub-
clauses (a) to (f) of clause (1) of article 110 can also not be introduced in Rajya Sabha. They can be
introduced only in Lok Sabha on the recommendation of the President. However, other
restrictions in regard to Money Bills do not apply to such Bills.

Reference of Bills to Departmentally Related Standing Committees

O n e o f t h e i m p o r t a n t f u n c t i o n s o f t h e Departmentally Related Standing Committees is
toexamine such Bills introduced in either House as are referred to them by the Chairman, Rajya Sabha or
the Speaker, Lok Sabha, as the case may be, and make report thereon in the given time. Normally, a
time period of three months is given to the Committees for presentation of report.

As per prevailing practice, normally all Government Bills, except Bills to replace Ordinances, Bills
repealing obsolete laws, Appropriation Bills, Finance Bills and Bills of technical or trivial nature, are
referred to the concerned Departmentally Related Standing Committees for examination and
report.

The reports of the Standing Committees have persuasive value and are treated as considered
advice by the Government. In case, the Government accepts any of the recommendations of the
Committee, it may bring forward official amendments at the consideration stage of the Bill or may
withdraw the Bill reported by the Standing Committee and bring forward a new comprehensive Bill
after incorporating such of the recommendations of the Standing Committee as are acceptable to the
Government.

Second Reading
The Second Reading of the Bill consists of two stages.
First Stage of Second Reading

The First Stage constitutes discussion on the principles of the Bill and its provisions generally
on any of the following motionsthat the Bill be taken into consideration; or that the Bill be
referred to a Select Committee of the House; or that the Bill be referred to a Joint Committee of the
Houses with the concurrence of the other House; or that the Bill be circulated for the purpose of
eliciting opinion thereon. A Money Bill, however, cannot be referred to a Joint Committee of the
Houses.

At this stage amendments may also be moved by any member to the motion moved by the
Minister as per the provisions of Rule 75 of Rules of Procedure and Conduct of Business in Lok
Sabha.
 In the case of a Bill originated in and passed by Rajya Sabha, the motion that the Bill, as passed
by Rajya Sabha, be taken into consideration, can only be moved. In this case, any member may, if the
Bill has not already been referred to a Joint Committee of both the Houses, move as an amendment
that the Bill be referred to a Select Committee of the House.

Bills before a Select/Joint Committee

If a Bill is referred to a Select or a Joint Committee, it considers the Bill clause-by-clause just as the
House does. Amendments can be moved to various clauses by the members of the Committee.

A Select Committee or a Joint Committee of both the Houses entrusted with the consideration of a
Bill issues a press communique and invites memoranda from the public at large as well as from
specialised interest groups to place materials and points of view before the Committee. The Committee
may also hear expert evidence and representatives of special interest groups affected by the measure.

Circulation of a Bill for eliciting public opinion

If a Bill is circulated for the purpose of eliciting public opinion thereon, such opinions are
obtained through the agency of the State Government.

Where a Bill has been circulated for eliciting opinion and opinions have been received and laid
on the Table of the House, the next motion in regard to such a Bill must be for its reference to a
Select or a Joint Committee. It is not ordinarily permissible at this stage to move a motion for
consideration of the Bill, unless the Speaker allows.

Petitions on Bills before Parliament

The Parliamentary device of petitions on Bills provides a democratic touch to the process
oflegislation. Petitions from public on Bills before the Houses are examined by the Committee on
Petitions and may be circulated to the members of the House inextensoor in a summary form so
that the members may be aware of the public views on a particular legislative proposal.

Second Stage of Second Reading

The Second Stage of the Second Reading consists of clause-by-clause consideration of the Bill,
as introduced in Lok Sabha or as reported by a Select or a Joint Committee or as passed by Rajya
Sabha, as the case may be. Discussion takes place on each clause of the Bill and amendments can
be moved at this stage. Each amendment and each clause is put to the vote of the House. The
amendments become part of the Bill if they are accepted by a majority of members present and
voting. After the clause(s), the schedules, if any, clause one, the Enacting Formula and the Long Title
of the Bill have been adopted with o r wi th ou t am en dm e n ts b y th e H ou s e, th e Second
Reading is deemed to be over.
Third Reading

The Third Reading refers to the discussion on the motion that the Bill or the Bill, as amended, be
passed. At this stage, debate is confined to arguments either in support or rejection of the Bill
without referring to the details thereof further than is necessary for the purpose of arguments.
Only formal, verbal or consequential amendments are allowed at this stage.

Bills in the other House

After a Bill has been passed by Lok Sabha, it is transmitted to the Rajya Sabha for concurrence with
a message to that effect. On receipt of the message, the Bill is first laid on the Table of Rajya
Sabha, which is deemed as the First Reading stage of the Bill in that House. Thereafter, the Bill again
goes through the same stages, viz., the Second Reading stage comprising either the discussion
on the motion that the Bill be taken into consideration or its reference to a Select Committee of
that House and the Third Reading stage. Rajya Sabha may either agree to the Bill, as passed by
Lok Sabha, or return the Bill with amendments to Lok Sabha for its concurrence.

Rajya Sabha is, however, required to return a Money Bill passed and transmitted by Lok Sabha
within a period of 14 days from the date of its receipt. Rajya Sabha may return a Money Bill
transmitted to it with or without recommendations. It is open to Lok Sabha to accept or reject
all or any of the recommendations of Rajya Sabha.

However, if Rajya Sabha does not return a Money Bill within the prescribed period of 14 days, the
Bill is deemed to have been passed by both the Houses of Parliament at the expiry of the said period
of 14 days in the form in which it was passed by Lok Sabha.

After the Bill has been agreed to by both the Houses, either without amendment or with
suchamendments only as are agreed to by the House, it is submitted to the President for his assent.

Constitution Amendment Bills

The Constitution vests in Parliament the power to amend the Constitution. Constitution Amendment
Bills can be introduced in either House of Parliament. While motions for introduction of Constitution
Amendment Bills are adopted by simple majority, a majority of the total membership of the House
and a majority of not less than two-thirds of the members present and voting is required for the
adoption of effective clauses and motions for consideration and passing of these Bills. Constitution
Amendment Bills affecting vital issues as enlisted in the proviso to article 368(2) of
theConstitution, after having been passed by the Houses of Parliament, have also to be ratified by
not less than one half of the State Legislatures.

[For details, please refer to Parliamentary Procedure Abstracts Series No. 8]

Withdrawal of Bills

The Minister-in-charge of a Bill, who has introduced the Bill in Lok Sabha, may at any stage
of the Bill move for leave to withdraw the Bill on the ground that:

(a) the legislative proposal contained in the Bill is to be dropped; or

(b) the Bill is to be replaced subsequently by a new Bill which substantially alters
theprovisions contained therein; or

(c) a Bill is to be replaced subsequently by another Bill which includes all or any of
itsprovisions in addition to other provisions.
and if such leave is granted, no further motion is made with reference to the Bill.
If a Bill passed by Rajya Sabha is pending in Lok Sabha, a motion recommending withdrawal of
the Bill, on being adopted by the House, is transmitted to Rajya Sabha for concurrence. If Rajya Sabha
concurs in the motion, the motion for withdrawal of the Bill is moved in Lok Sabha and proceeded with
in the usual manner and when the motion is adopted, a message to that affect is sent to Rajya Sabha.
Similar procedure is followed in Rajya Sabha in the case of a Bill passed by Lok Sabha and pending in
Rajya Sabha.
Joint Sitting
If a Bill passed by one House is rejected by the other House, or the Houses have finally disagreed
as to the amendments to be made in the Bill, or more than six months lapse from the date of
receipt of the Bill by the other House without the Bill being passed by it, the President may, unless
the Bill has lapsed by reason of dissolution of Lok Sabha, call a Joint sitting of the two Houses to
resolve the deadlock.

The President, after consultation with the Chairman, Rajya Sabha and the Speaker, Lok
Sabha, has made the Houses of Parliament (Joint Sitting and Communications) Rules in terms of
clause (3) of article 118 of the Constitution to regulate the procedure with regard to Joint sitting of
the Houses.

The Bill is deemed to have been passed by both the Houses in the form it is passed by a majority
of the total number of members of both the Houses present and voting at the Joint sitting.
There cannot be a Joint sitting of both Houses on a Money Bill or a Constitution Amendment Bill.
The Constitution empowers the President to take steps for resolving a deadlock on a Bill between
the two Houses but it is not obligatory upon him to summon the Houses to meet at a Joint Sitting.
However, once the President has notified his intention to summon the Houses for a Joint Sitting, even
the subsequent dissolution of Lok Sabha does not stand in the way of proceeding with the Bill. There
is no time limit as to when the Joint Sitting should take place. It may take place at any time
subsequent to the notification.

Assent of the President

The Secretariat of the House which is last in possession of a Bill initiates action for obtaining
the assent of the President thereon. In the case of a Money Bill or a Bill passed at a Joint sitting of the
Houses, the Lok Sabha Secretariat obtains the assent of the President. The Bill becomes an Act after the
Presidents assent has been given.

The President can give his assent or withhold his assent to a Bill. The President can also return the
Bill, if it is not a Money Bill, with his recommendations to the Houses for reconsideration, and if the
Houses pass the Bill again with or without amendments, the President can not withhold his
assent to a such a Bill. The President is bound to give his assent to a Constitution Amendment
Bill presented to him for assent.

[Legislative process in regard to Government Bills is governed by various provisions of

theConstitution, the Rules of Procedure and Conduct of Business in Lok Sabha and the
Directions bythe Speaker, which include, inter alia, provisions contained in Articles 107 to 111,
117, 245 to 255and 274 of the Constitution, Rules 64 to 159, 218, 219, 331E, 331H and 335
of the Rules ofProcedure and Directions 19A to 26 and 31 to 37 of the Directions by the
Speaker.]