This article is written by Arya Mittal from Hidayatullah National Law University. This article seeks to provide and analyse a list of the most important articles of the Indian Constitution. The list is based on the author’s perspective.
This article has been published by Sneha Mahawar.
The Indian Constitution is the fundamental law of the country. In other words, the Constitution of India can be regarded as the ‘suprema lex’ of India. It is the longest written constitution in the world. The Constitution of India was drafted in 2 years 11 months and 18 days and was adopted by the citizens of India on 26th January 1950.
The Constitution acts as a guideline for every law that is enforced in India. It includes the basic structure of governance in the country. On commencement, the Constitution included 395 Articles divided into 8 Schedules and 22 Parts. Currently, the Constitution of India consists of 470 Articles divided into 12 Schedules and 25 Parts and has been amended 104 times.
Article 12 – Definition of the State
Article 12 of the Constitution marks the inception of Part III of the Constitution, which deals with the fundamental rights of the citizens. The fundamental rights range from Article 12 to Article 35. The objective of Part III of the Constitution is that the State shall not deny these rights to any citizen in any situation save for the procedure established by law. In this context, the term “State” has been provided with a wide meaning by the framers. The provision provides that for the purpose of Part III, the term “State” shall include the Government and the Parliament of India, the Government and the Legislature of the States, and all local and other authorities within the territory of India or under the control of the Government of India.
The Parliament and legislature of States are considered to be a part of the “State” as their acts are considered to be the acts of the Government. In addition to this, the expression “local and other authorities” has been provided with a large scope by the judiciary. Local authorities include authorities such as municipalities, district boards, panchayats, etc. On the other hand, the other authorities even include private bodies, provided that the violation of the fundamental rights of a person are grave and affects the conscience of the public. One of the most celebrated judgments in this aspect is Vishaka v. State of Rajasthan (1997), through which the judiciary declared the POSH guidelines.
Even in the cases of environmental degradation, the actions of private entities have been considered to be included under the expression “other authorities”, as was held in M.C. Mehta v. Kamal Nath (1996). Even the judiciary considered itself to be a part of the expression, clearly distinguishing between the judicial and the administrative functions. This was held in the case of Riju Prasad Sharma v. State of Assam (2015).
Thus, the term “State” has been provided with a great scope so as to ensure the protection of the fundamental rights of a large number of people.
Article 13 – Laws in derogation with the fundamental rights
The provision that provides paramountcy to the fundamental rights of the citizens is Article 13 of the Constitution. It states that if a law is inconsistent with or in derogation with the fundamental rights of the citizens, it shall be deemed to be void. The nature and importance of the provision lie within the interpretation by the judiciary. The provision states that any law already in existence, as well as prospective laws to be enacted by the Parliament or the legislature, shall be void to the extent of their inconsistency with Part III.
One of the most important interpretations of Article 13 was whether any law, which has been declared void for the reason of it being in contravention with Part III of the Constitution, shall be considered to be abrogated for once and for all, or whether it shall revive with relevant amendments so as to bring it in harmony with the fundamental rights. Analysing this issue, the Hon’ble Supreme Court, in the case of Bhikaji Narain Dhakras v. the State of M.P. (1955), evolved the “Doctrine of Eclipse”. According to the doctrine, any law which was in existence before the enforcement of the Constitution, and is declared to be void for being inconsistent with fundamental rights, such law shall not be dead altogether, rather it shall be “eclipsed” until relevant amendments are made to it.
Another crucial aspect interpreted by the judiciary was whether an ordinance or an amendment shall be considered to be a ‘law’ under Article 13. Article 13 (3)(a) states that the expression “law” would be inclusive of ordinances, orders, bye-laws, customs and usage, notifications, and regulations that are applicable on the territory of India. A conflict between the judiciary and legislature was based on the inclusion of amendments under Article 368 of the Constitution within the expression “law in force”. The judiciary was of the opinion that amendments shall be included under the expression, as it was held in I.C. Golak Nath v. the State of Punjab (1967). However, Article 13(4) was introduced through the Constitution (24th Amendment) Act, 1971, which excluded the amendments from the expression altogether. The validity of the amendment was upheld by the Hon’ble Supreme Court in Kesavananda Bharati v. the State of Kerala (1970).
Article 14 – Right to Equality
Article 14 states that “the State shall not deny to any person equality before the law and equal protection of the laws within the territory of India.” The principle of equality is considered as a golden thread that runs along the whole of the Constitution. The notion is supported by the fact that whenever a fundamental right of a person is violated, Article 14 is also violated. The nature of the right provided under Article 14 is that the equals shall be treated alike. In this context, the equals include those who are in substantially similar situations. Article 14 guarantees that the equals shall not be discriminated against in any manner by the State.
Article 14 is applicable to “any person” and is not limited to the citizens only. The interpretation of the expression has provided that even juristic persons are protected under the provision. In order to ensure the same, the principle of Rule of Law has been incorporated under the Constitution. The principle states that no person shall be above the law in any manner whatsoever. In Maya Devi v. Raj Kumari Batra (2010), the Hon’ble Supreme Court held that “In a system governed by the rule of law, there is nothing like absolute or unbridled power exercisable at the whims and fancies of the repository of such power. Discretion has to be exercised with well recognized and sound juristic principles with a view to promote fairness and aid equity.”
However, the provision allows a reasonable classification between people that are subjected to different classes or sections. Thus, in a case where the State classifies the different classes of people and treats them differently by enacting a law, the same shall not be struck down for the reason of violating the principle of equality under Article 14 of the Constitution. In R.K. Garg v. the Union of India (1982), the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Act, 1981, provided for the classification of people on the grounds of possession of black money. However, the classification shall be subjected to reasonable nexus and intelligible differentia. In K. Thimmappa v. State Bank of India (2000), the Court held that to create a valid classification, there shall be an intelligible differentia between those that are separated from the group and those who are left out; and that such intelligible differentia must have a reasonable nexus, so as to achieve the objective of the legislation.
Article 15 – Prohibition of discrimination
Article 15 prohibits discrimination only on the grounds of religion, race, caste, sex, place of birth or any of them. Article 15 is considered to be a specific application of the right to equality. This right is only provided to the citizens of India, unlike Article 14, which extends to every person.
In Kathi Raning Rawat v. the State of Saurashtra (1952), the Court interpreted clauses (1) and (2) of Article 15. It was held that the crucial words in Article 15 are “discrimination” and “only”. The State is prohibited from discriminating between individuals only on the grounds mentioned therein. The interpretation of the words under Article 15 provides that any discrimination only on the grounds mentioned therein shall make any act or law unconstitutional. However, if any classification is made on any other grounds along with these grounds, the law shall be deemed valid.
In Nain Sukh Das v. the State of U.P. (1953), the law for an election of a local body was held to be unconstitutional as it made a classification that was based solely on religious grounds. The law was held violative of Article 15(1) of the Constitution. Similarly, in M.R. Balaji v. the State of Mysore (1963), the orders of the State of Mysore that classified backward classes on the basis of caste and excluded Brahmins from such classification, in order to further provide reservation in colleges and other educational institutions, were quashed by the Hon’ble Supreme Court of India on the grounds of being violative of Article 15(1).
It is pertinent to note that clause (3) of the provision empowers the State to create any special provision for women and children. In Vijay Lakshmi v. Punjab University (2003), the provision which provided for reservation for a woman candidate for the post of the principal was not held to be violative of Articles 14, 15 and 16.
Article 16 – Equality in opportunities for public employment
Article 16(1) of the Constitution provides that there shall be equality in opportunity for employment under the public employment for every citizen. The purpose of Article 16 is to provide equal opportunity to every citizen without classifying them into different groups a priori. It is an affirmative right provided to the citizens and promotes the notion of equality. However, clause (1) does not prohibit any sort of classification altogether. On the contrary, the scope of classification under Article 16 is wider than that under Article 14. The Courts have upheld various classifications on various occasions. In State of Bihar v. Bihar State (Plus 2) Lecturers Association (2008), the Court held that there is a clear distinction between a trained teacher and an untrained teacher. Thus, for the purpose of Article 16, such a distinction can be classified and the same shall be valid on the grounds of having intelligible differentia.
Article 16(2) states that “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.” Thus, clause (2) is incorporated to avoid any kind of discrimination for the purpose of providing an opportunity for public employment at an office of the State.
Article 16(3) provides the Parliament with the power to enact special laws to prescribe the requirement of residence for purpose of employment or appointment.
Article 19 – Right to Freedom
Article 19 of the Constitution provides certain liberties to the citizens which are fundamental to human existence. Article 19 (1) provides that all the citizens shall have the right to:
- Freedom of speech and expression;
- Peaceful assembly without any arms;
- Formation of associations or unions;
- Free movement across the nation;
- To reside and settle in any part of the territory of India;
- Practice any profession, or carry any occupation, trade or business.
Prior to 1978, Article 19 included the right to acquire and dispose of property under clause (f). However, the right was shifted from the chapter on the fundamental rights under Part III to Chapter IV of Part XII under Article 300A, which shall be discussed in the subsequent chapters.
The rights provided under Article 19 are not absolute and uncontrolled. Rather, the State can impose reasonable restrictions on these rights of the individuals. Such reasonable restrictions strike a balance between fundamental rights and social order. In State of Bombay v. F. N. Balsara (1951), the Court observed that restrictions placed in order to achieve the directive principles or fundamental duties shall be reasonable restrictions.
Article 21 – Right to Life and Personal Liberty
The right to life and personal liberty provided under Article 21 is one of the most important rights of every individual. Article 21 provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” One of the most important features of the right to life under Article 21 is that it is available to every person, which means that it even extends to foreigners while they reside in the territory of India. It is also pertinent to note that the right to life and personal liberty is available only against the State and cannot be enforced against another individual. This was held in the case of Sabeeha Faikage v. the Union of India (2012).
The right to life under Article 21 is not mere animal existence. This was held by the Hon’ble Supreme Court in the case of Kharak Singh v. the State of Uttar Pradesh (1962), paying reliance upon the American case of Munn v. Illinois (1876). In the words of Justice Field, “By the term “‘life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world”.
Given the above observation of the Court, the right to life is inclusive of the right to live with human dignity as it was held in Maneka Gandhi v. the Union of India (1978) and upheld by the Court in Francis Coralie Mullin v. the Administrator, UT of Delhi (1981).
Finally, the question of whether the right to life under Article 21 includes the right to die was answered by the Hon’ble Supreme Court in Gian Kaur v. the State of Punjab (1996), wherein it was observed that the right to life includes the right to die with dignity. However, it does not amount to a person deliberately ending his or her life in an unnatural manner.
The debates around the right to life and the right to die with dignity often involved the constitutional validity of euthanasia in India. In Aruna Shanbaugh v. the Union of India (2011), the Hon’ble Supreme Court laid down the guidelines for allowing passive euthanasia in India. The guidelines are as follows:
- “A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
- Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned.”
In the most celebrated judgement of Common Cause v. the Union of India (2018), the Hon’ble Supreme Court held that the right to life envisaged under Article 21 includes the right to die with dignity. While allowing passive euthanasia, the Court was of the opinion that where a patient is uncertain when his eventual death is going to take place, his right to live with dignity would corrode if he has to live in a state of suffering and pain. However, the State must protect the most basic fundamental right provided to every citizen by the Constitution of India, and that is the right to live with dignity.
Article 21A – the Right to Education
The right to education is a great example of judicial creativity in India. The extended meaning of the right to life and personal liberty has enabled the judiciary to analyse various unenumerated rights under Article 21. In Mohini Jain v. the State of Karnataka (1992), the issue before the Hon’ble Supreme Court was the constitutionality of capitation fee. The single-judge bench rejected the constitutional validity of the capitation fee and exercised judicial creativity to create the new fundamental right, the right to education. Later, in Unni Krishnan v. the State of Andhra Pradesh (1993), the correctness of Mohini Jain’s case was questioned before the Constitutional Bench of the Hon’ble Supreme Court. The decision was partly upheld and it was held that the right to life under Article 21 includes the right to free education. However, the decision was also partly overruled and the Court observed that the right to free and compulsory education could be availed only till the age of 14 after which it shall be subject to the economic capacity of the State.
Through these decisions, Article 21A paved its way in the Constitution by the Constitution (86th Amendment) Act, 2002. In order to ensure better enforcement of the right, the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009. The constitutional validity of the statute was upheld by the Hon’ble Supreme Court in Society for Unaided Private Schools of Rajasthan v. the Union of India (2012).
Article 22 – Protection against arrest and detention
Article 22 of the Constitution provides protection against arrest and detention. It provides the minimum procedural requirements that must be followed on account of the arrest of a person. Article 22 (1) provides that the person who is arrested shall be informed about the reason for such arrest as soon as he or she is arrested. It also provides that the person has the right to consult and be defended by a legal practitioner of his or her own choice. Clause (2) of the provision provides that every person arrested shall be produced before the nearest magistrate within twenty-four hours. However, the provision shall not be considered as an absolute right by the citizens. Clause (3) provides for the exception of this right. It states that “Nothing in clauses (1) and (2) shall apply— (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.”
Even preventive detention made under any law shall not exceed a period of three months unless approved by an Advisory Board of persons who have been or are qualified for being a judge of a High Court. The provision has also provided that the Parliament shall prescribe the maximum period of preventive detention of a person by enacting appropriate laws.
Article 23 – Prohibition of human trafficking and forced labour
Article 23 of the Constitution provides for the prohibition of human trafficking, beggary and other forms of forced labour. An exception to this right has been provided under Article 23 (2), which states that the State is entitled to impose compulsory service for a public purpose if it is required to do so. The purpose behind the provision is to enhance the dignity of human beings and prevent them from being treated as chattels. The Immoral Traffic (Prevention) Act, 1956 has been enacted in consonance with Article 23 of the Constitution.
The Hon’ble Supreme Court, in the celebrated judgement of People’s Union for Democratic Rights v. the Union of India (1982), observed that forced labour may arise in various ways – it may be physical force, deteriorated living conditions, hunger, poverty, want or destitution.
Article 32 – Remedies for enforcement of fundamental rights
Article 32 is referred to as the heart and soul of the Indian Constitution. It was Dr. B.R. Ambedkar who referred to Article 32 as the most important provision of the Constitution. During one of the constitutional debates, Dr. B.R. Ambedkar iterated “If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it.” The reason for the prime importance of the provision is that it guarantees the right to constitutional remedies through the writs. The writs are invested with the Hon’ble Supreme Court in order to provide security to every citizen.
There are five types of writs that are provided under Article 32 of the Constitution – habeas corpus, mandamus, quo warranto, prohibition and certiorari. The citizens can approach the Apex Court to enforce any of these writs in order to safeguard their rights. While performing the duties provided by the Constitution, the Hon’ble Supreme Court is considered to be on qui vive, which is the Latin phrase for vigilant.
The issue of hate speech was raised in the case of Pravasi Bhalai Sangathan v. the Union of India (2014), wherein the petitioner sought to get some directions from the Hon’ble Supreme Court. However, the Court held that the power under Article 32 does not amount to the legislative powers of the Court. These powers can only be exercised in cases where a law does not exist on any matter. There are sufficient statutes and laws in relation to curbing the practice of hate speech.
In Subhash Popatlal Dave v. the Union of India (2013), it was held that in order to enforce a right under Article 32, the aggrieved person must first allow the due operation and implementation of the law and exhaust the remedies available. Article 32 and Article 226 have to be treated as the last resort as these rights must be used sparingly and in circumstances where no other efficacious remedy is available.
Directive Principles of State Policy
Article 38 – Social order and promotion of welfare
Article 38 provides that “the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life”. The 44th Constitutional Amendment enlarged the scope of Article 38. It incorporated clause (2) to Article 38, which provides that the State shall strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities. These inequalities are to be eliminated not only amongst the individuals but groups of people residing in different areas or engaged in different vocations.
Although the provision is not enforceable in a court of law, it still holds much importance in the governance of the country. In Air India Statutory Corporation v. United Labour Union (1997), the Hon’ble Supreme Court, while commenting on the concept of social justice, held that it consists of diverse principles essential for the orderly growth and development of the personality of every citizen. Article 38 provides a duty to the State to promote social justice through laws and incorporate it in the governance of the country.
Article 41 – Right to work, education and public assistance
Article 41 provides that, “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” It provides that the State shall ensure the protection of the right to work, right to education and right to public assistance. However, all these rights shall be subject to the economic constraints of the State, and hence, a Court cannot direct the State to make mandatory provisions. In M.C. Mehta v. the State of Tamil Nadu (1996), the Court held that Article 41 shall be interpreted in a manner to ensure that every child receives an opportunity to develop in a healthy environment. In Unni Krishnan v. the State of Andhra Pradesh (1993), the Court held that the right to education is a fundamental right, but the right to work shall be subjected to the economic limitations of the State. The State shall ensure just and humane conditions of work.
Article 42 – Conditions of work and maternity benefits
Article 42 of the Constitution states that the State shall ensure just and humane conditions of work and provide schemes for maternity benefit. The question for maternity benefit often raised before the Court is whether temporary employees shall receive the benefits of maternity benefits under the Maternity Benefit Act, 1961 as well as Article 42 of the Constitution of India. The most celebrated judgement on this aspect is the Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000).
In this case, the Hon’ble Supreme Court was of the opinion that the State shall ensure the protection of maternity benefits of every woman employed, as most of the women are compelled to work due to sheer poverty. There is no reason why the State should differentiate between a regular employee and a temporary employee, as it would be prejudicial to deny temporary employees benefits which would help them during their pregnancy. In the words of Justice S. Saghir Ahmad, “there is no justification for denying the benefit of this Act to casual workers or workers employed on a daily wage basis.”
Article 46 – Promotion of interests of reserved classes
Article 46 provides that the State shall promote the educational and economic interests of the Scheduled Castes and Scheduled Tribes in order to protect them from social injustice and exploitation. The purpose of the provision is to ensure that the backward classes such as the Scheduled Castes and Scheduled Tribes shall have enough opportunities to cope with others and shall receive better education and opportunities of employment. Article 46 is often read with Article 16 while the Parliament enacts laws related to employment in public sectors, and a reservation is provided to the weaker section of the society.
In Shantistar Builders v. Narayan Khimalal Totame (1990), the Hon’ble Supreme Court directed the Central Government to lay down appropriate guidelines for defining the expression “weaker section of the society”. In Vishwas Anna Sawant v. Municipal Corporation of Greater Bombay (1994), an employee belonging to the backward classes had a fundamental right to receive promotion under Article 16 read with Article 46. On being denied promotion, the employee, who belonged to a backward class approached the High Court. It was held that promotion cannot be denied to an employee who is similarly placed.
Article 47 – Duty of State to increase nutrition level etc.
Article 47 of the Constitution provides that the State is required to raise the level of nutrition, the standard of living and improve public health. It also provides that the State shall endeavour to prohibit the use and consumption of drugs and drinks which are injurious to health except for medical usage. In Dabur India Ltd. v. the State of U.P. (1988), the Hon’ble Supreme Court held that the State has the power to regulate the possession or consumption of medicinal preparation containing a high percentage of alcohol under the Excise Act. The Court stated that Article 47 does not indicate that the medicinal preparation containing alcohol should be excluded in the enforcement of prohibition even though it contains a high percentage of alcohol. This expression has to be construed in the light of directive principles of state policy of bringing about the prohibition of intoxicating drinks and drugs which are injurious to health.
In the State of Bombay v. F.N. Balsara (1951), the validity of the Bombay Prohibition Act, 1949 was challenged before the Court. The Act provided for the prohibition of alcohol in the State of Bombay. The Court held that the State Legislative Assembly was competent to enforce such law as it is provided under Entries 6 & 8 of List II of the Seventh Schedule to the Constitution, read with Article 47.
Article 52 & 53 – President of India
Article 52 of the Constitution states that there shall be a President of India. Article 53 is the provision that confers powers to the President of India. Article 53(1) provides that “The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution” The term “executive power” has not been defined under the Constitution. The answer to the question of “what are the executive powers?”, was provided by the Hon’ble Supreme Court in Ram Jawaya Kapur v. the State of Punjab (1955), where it was held that it (executive powers) connotes the residue of the governmental functions after the legislative and the judiciary. It comprises the determination and execution of policies. Maintenance of law and order, promotion of social and economic welfare are a part of the executive powers.
Article 72 – Power of President to grant pardon
Article 72 provides one of the most important powers to the President of India. It states that the President shall have the power to grant pardon to the persons convicted (i) by the Court Martial; (ii) under any law to which the executive power extends; and (iii) with the death penalty.
In Devendra Pal Singh Bhullar v. the State (NCT of Delhi) (2013), the issue before the Hon’ble Supreme Court was to explain the nature and scope of power to grant mercy vested under the President of India under Article 72 and vested under the Governor of a State under Article 161. The Court clarified that the power is not a matter of grace or privilege, rather it is a crucial duty provided to the President and the Governor keeping in view the consideration of larger public interest and welfare of the people.
Article 74 & 75 – Council of Ministers and related provisions
Article 74 of the Constitution provides that the President of India shall be assisted and aided by the Council of Ministers, who shall be appointed under Article 75 by the President himself on the advice of the Prime Minister of India. The President shall be obliged to follow the advice provided to him or her by the Council of Ministers. Proviso to Article 74(1), added by the Constitution (Forty-Fourth Amendment) Act, 1978, provides that the President may require the Council to reconsider its advice, and shall be obliged by the advice after the reconsideration. Further, clause (2) of the provision provides that the questions pertaining to the advice rendered to the President by the Council shall not be inquired in any court of law.
Article 75(1A) provides that the strength of the Council of Ministers, including the Prime Minister, shall not exceed fifteen per cent of the total members of the Lok Sabha. The total number of members that can be elected in the Lok Sabha is 550. Thus, the Council of Ministers shall not exceed 72 members, including the Prime Minister.
It is the Prime Minister and the Council of Ministers who are in power de facto, as the President of India cannot decline the advice of the Council of Ministers, as stated above. Even the Courts are prohibited from questioning such advice and hence the governance of India is of a ministerial nature functioning through the Parliament.
Article 124 – Establishment of the Supreme Court
Article 124 of the Constitution provides that there shall be a Supreme Court of India which shall consist of a Chief Justice of India along with thirty-three other judges. The maximum number of judges initially was seven. However, in 2019, it was increased to thirty-three. The Chief Justice of India is selected on the basis of the seniority of the judges. The judges of the Hon’ble Supreme Court are appointed by the President of India and cannot be removed save through the process of impeachment.
Article 136 – Special Leave Petition
In cases that involve a question of general public importance, which may affect the public at large, the Hon’ble Supreme Court entertains such cases under its appellate jurisdiction as per Article 136. These appeals are termed special leave petitions. A petition for special leave may be filed against any judgement, decree, order or sentence passed by any Court or Tribunal. In Reena Suresh Alhat v. the State of Maharashtra (2017), it was held that the discretionary power of the Supreme Court needs it to focus on significant and important issues, and where any alternative remedy is available to the parties, such cases would increase the burden on the Court. Thus, the availability of alternative remedies along with mounting pendency of cases and relatively insignificant legal injuries must be the factors to be kept in mind before filing a Special Leave Petition under Article 136.
Article 142 – Enforcement of decrees and orders of Supreme Court
Article 142(1) provides that, “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.” It empowers the Supreme Court to issue directions in cases where it is necessary. This power is recognized and exercised, if needed, by issuing necessary directions to fill in the vacuum till such time the legislature steps in to fill it up or the executive discharges its roles.
Thus, Article 32 read with Article 142 has been used by the Hon’ble Supreme Court in cases where it believes that it is necessary to intervene. These matters are complex and crucial matters related to the environment, history and religion and the current laws were insufficient for the current scenario.
Article 142 was invoked in the Bhopal Gas Tragedy case (1989) wherein the Hon’ble Supreme Court provided relief to the thousands of people who were affected during the black night of Bhopal Gas Tragedy. In the said judgement, the Hon’ble Supreme Court while awarding the compensation of $470 million to victims observed that to do “complete justice”, it could even override the laws made by Parliament. In the State of Tamil Nadu v. K. Balu (2017), the Court issued guidelines to put a ban on the sale of alcohol within an area of 500 metres from the State as well as national highways.
Article 225 – Jurisdiction of the High Courts
Article 225 provides the jurisdiction of the High Courts, which are established under Article 214 of the Constitution. Every High Court existing at the time of the commencement of the Constitution could by its own rules provide for its jurisdiction, both original and appellate by the virtue of a single-judge bench or a divisional bench. The power to decide the benches rests with the Chief Justice of each High Court.
In R. Rathinam v. State (2000), an association of 75 advocates practising in various High Courts addressed the Chief Justice of Madras High Court for cancellation of various bails granted to certain persons, filed two petitions regarding the same. The Chief Justice directed the petitions to a divisional bench which held that the petitions were not maintainable under Article 225 of the Constitution. On appeal, the Hon’ble Supreme Court held that it is improper to refuse to look into the petitions by providing the reason that they are not maintainable under the law. It was further held that it is necessary to remind all concerned of the legal principles that the Chief Justice is the master of the roster.
Article 226 – Power of the High Court to issue writs
Article 226 empowers the High Courts to exercise the power of issuing writ petitions. The powers of the High Courts under Article 226 are more than that of the Supreme Court under Article 32, as the latter is available only for the enforcement of the fundamental rights, whereas the prior can issue writs in any matter concerning any law.
In the landmark judgement of ADM Jabalpur v. Shivkant Shukla (1976), the Hon’ble Supreme Court was approached with the question that whether a person can approach the High Court under Article 226 in a state of emergency, wherein the fundamental rights of the citizens are suspended. It was held that a citizen has no locus standi in a state of emergency and hence the High Court cannot be approached under Article 226.
Similar to that of the Supreme Court, the High Courts’ power to issue writs is a discretionary power and shall not be triggered unless there are no alternative remedies available. In Firm Har Prasad Sheodutt Rai v. STO (1958), the Allahabad High Court refused to issue a writ where the petitioner had an alternative remedy against the State Tax Officer under the Appellate Tribunal.
Provisions related to Emergency
Article 352 – National emergency
Article 352 of the Constitution deals with the conditions for proclaiming a national emergency. The President of India is empowered to proclaim an emergency under a situation wherein the security of the nation or any part thereof is under threat either by war, external aggression, or armed rebellion. Such proclamation can be made on the whole of India or any territory under such threat. However, the President shall not proclaim an emergency unless he receives a written communication by the Union Cabinet headed by the Prime Minister of India, as provided under Article 352(3). In addition to this, clause (4) of the provision mandates any proclamation, other than a proclamation revoking emergency, to be approved by both the houses of the Parliament within one month. In case both the houses of the Parliament do not approve the proclamation, it shall cease to exist.
The emergency provisions have been amended thrice. By the Constitution (38th Amendment) Act, 1975, the President of India was provided with the power to proclaim emergency under each of the heads provided under the provision, despite any prior proclamation already existing. Additionally, the amendment brought about the exclusion of the decision of the President to proclaim an emergency from the scope of judicial review, which was later removed by the Constitution (44th Amendment) Act, 1978
Other changes brought about through the 44th amendment are enlisted as follows:
- The proclamation could be made by the President only after receiving a written communication by the Union Council;
- The mandatory approval by the houses of the Parliament;
- Such approval by both the houses shall be through a special resolution;
- Proclamation to be expired after six months unless approved by both the houses;
- The words “internal disturbance” were replaced by “armed rebellion”;
- Article 20 and Article 21 could not be suspended during the proclamation of emergency;
- Article 19 shall be suspended only in situations of the proclamation of emergency due to war or external aggression, and shall remain unaffected if the proclamation is due to armed rebellion.
The Hon’ble Supreme Court, in Sarbananda Sonowal v. Union of India (2005), got the opportunity to interpret the term “aggression” for the first time. In this case, the constitutional validity of the Illegal Migrants (Determination by Tribunals) Act, 1983 was questioned on the grounds of violation of Article 14. The Act was only applicable to the State of Assam. The objective of the Act was to determine and detain the immigrants from Bangladesh. The Court, upholding the validity of the Act, held that the word “aggression” was deliberately used by the Constitution-makers as it meant more than just a war. The illegal immigrants in the State of Assam were threatening the security of India and hence it amounted to aggression.
A national emergency has been declared three times in India till date. The first national emergency under Article 352 was declared in 1962 during the Indo-China war. The second national emergency was declared in 1971 due to the Indo-Pakistani war revolving around the liberation of Bangladesh. The third national emergency was proclaimed due to “internal disturbance” by the Indira Gandhi government in 1975. It is still considered the darkest phase in the history of Indian politics.
Article 356 – State emergency
Article 356 of the Constitution provides for the mechanism of emergency in a State. The President shall proclaim an emergency in any State of India if he is not satisfied that the government of the State is functioning in accordance with the provisions of the Constitution. Such an opinion shall be made only after receiving a report from the Governor of the State. Once such a proclamation is made by the President, the functions of the State government shall be transferred to the President of India. In addition to this, the functions of the legislative assembly shall be assumed by the Parliament of India. Hence, a proclamation of emergency in a State is often known as the President’s rule.
It is pertinent to note that imposing President’s rule in a State shall be the last resort. In situations where the governance of a State is not in accordance with the Constitution, the Union government can act as per the provision provided under Article 355 of the Constitution to ensure peace and harmony as well as checking that the State government is acting in accordance with the Constitutional machinery.
Article 360 – Financial emergency
Article 360 of the Constitution provides that where the President is dissatisfied with the financial condition or credit of India or any part thereof, he shall proclaim a financial emergency. The provision formerly provided that the decision of the President shall be final and cannot be questioned at any Court of law. The provision was however amended by the 44th amendment and was brought under the scope of judicial review. Similar to the proclamation of a national emergency, a financial emergency shall be placed before both the houses of the Parliament and has to be approved by a special majority in both the houses, save for the period of two months rather than one month in case of a national emergency.
The effect of a financial emergency shall extend the executive functions of the Union of India to pass any order which shall be effective in any State. Such orders may contain provisions for reduction of salaries of the persons serving a State or the Union as well as serving all the money bills to the President for consideration after getting approved by the houses of the Parliament. It is pertinent to note that a financial emergency has never been proclaimed in India.
Other important Articles
Article 51A – Fundamental Duties
Fundamental duties were not a part of the Constitution until 1976. The provision of fundamental duties of the citizens has been incorporated through the Constitution (42nd Amendment) Act, 1976, as under Part IVA and Article 51A of the Constitution. The amendment was brought in under the recommendations of the Swaran Singh Committee. The original report of the committee did not mention any of the fundamental duties. However, when the report was presented before the All India Congress Committee (AICC), it was Dr. Karan Singh who spelled out some of the fundamental duties of the citizens. AICC then suggested an amendment in the report and fundamental duties paved the way to the Constitution.
The fundamental duties of the citizens of India are as follows:
- Abide by the Constitution and respect the National Flag and the National Anthem;
- Cherish and follow the noble ideals which inspired our national struggle for freedom;
- Uphold and protect the sovereignty, unity and integrity of India;
- Defend the country and render national service when called upon to do so;
- Promote harmony and the spirit of common brotherhood amongst all the people of India, and renounce practises derogatory to the dignity of women;
- Value and preserve the rich heritage of our composite culture;
- Protect and improve the natural environment including forests, lakes, rivers and wildlife, and have compassion for living creatures;
- Develop the scientific temper, humanism and the spirit of inquiry and reform;
- Safeguard public property and abjure violence;
- Strive towards the achievement of the nation;
- Provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.
The purpose of the fundamental duties under the Constitution of India is to preserve and protect the sovereignty and integrity of the nation. Even prior to the inclusion of the fundamental duties, the Courts were of the opinion that the Constitution confers various duties along with the fundamental rights and directive principles. In Chandra Bhavan Boarding & Lodging v. State of Mysore (1969), the Hon’ble Supreme Court observed that as the Parts III and IV of the Constitution are fundamental in nature, it would be appalling to think that it does not oblige the citizens with some duties. Part IV enables the legislators to impose some duty on the citizens. In Shyam Narayan Chouksey v. Union of India (2017), the Hon’ble Supreme Court issued directions to avoid any sort of disrespect towards the national flag and national anthem.
Article 300A – Right to Property
The right to property was provided under Chapter III of the Constitution under the head of fundamental rights under Article 19 (1)(f). It provided the right to acquire, hold and dispose of the property. It was repealed through Constitution (44th Amendment) Act, 1978, and shifted to Article 300A. The replaced provision states that “No person shall be deprived of his property save by authority of law”. This means that the right may be taken away by the State through proper procedure and laws.
Article 368 – Amendment of the Constitution
Article 368 of the Constitution provides the procedure for amendment of the Constitution. The importance of the provision is manifold. Framing of the world’s largest Constitution in one era and its implementation without any changes in another era is impossible. The fact was realised by the progressive Constituent Assembly. The procedure provides for categories of amendments to the Constitution. The categories include an amendment by simple majority, an amendment by a special majority and an amendment by a special majority coupled with ratification.
The provisions of the Constitution that require a simple majority include provisions such as Article 4, Article 169(3) and Article 239-A. These provisions are not included in the procedure established under Article 368. Provisions provided under Article 368 shall be amended only through a special majority along with the ratification by more than half of the States. These include the following:
- Articles 54, 55, 73, 162, 241, 279-A
- Chapter IV of Part V, Chapter V of Part VI, and Chapter I of Part XI
- Lists provided under the Seventh Schedule
- Representation of States in Parliament
- Article 368 itself
Any provisions that are not included in the above-mentioned provision as well as that require a simple majority, shall be amended through a special majority only. It is pertinent to note that Article 13 is beyond the scope of the amendment as provided under Article 368(3) of the Constitution.
In Kesavananda Bharati’s case, the basic structure doctrine was propounded by the Hon’ble Supreme Court, which stated that the basic structure of the Constitution shall be beyond the scope of the amendment under Article 368. The basic structure of the Indian Constitution includes the following:
- Supremacy of the Constitution.
- Republican and Democratic forms of government.
- Secular character of the Constitution.
- Separation of powers.
- Federal character of the Constitution.
- Unity and integrity of the nation.
- The democratic character of our polity.Essential features of individual freedom that are secured to the citizens.
The Indian Constitution is the supreme law in India and from the aforementioned discussion, it is evident how this supreme law establishes the rule of law in India. It provides individuals with rights and also obliges them to perform certain duties. Certain rights are fundamental and enforceable in a writ court. Lastly, this article is just an attempt to highlight some of the most important articles of the Constitution in view of the author; however, every provision in the Constitution has its own importance.
- Mahendra Pal Singh, V.N. Shukla’s Constitution of India (EBC, 13th ed. 2017)
- Constitution of India (EBC, 47th ed. 2021)
- M.P. Jain, Indian Constitutional Law (LexisNexis, 8th ed. 2017)
- Mamta Rao, Constitutional Law (EBC, 2nd ed. 2021)
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