RAJIV GANDHI NATIONAL UNIVERSITY OF LAW PATIALA, PUNJAB

POLITICAL SCIENCE PROJECT REPORT ON CONFLICT BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY
SUBMITTED IN PARTIAL FULFILMENT OF B.A. LL.B.(HONS.) FIRST SEMESTER

Submitted to:
Mrs. Shweta Dhaliwal

Submitted by:
Harkirat Singh Kang(308) Satwik Shekhar(318) Kawaljyot Singh Atwal (328) Ashutosh Sharma(338)

ACKNOWLEDGEMENT
We would like to thank Mrs. Shweta Dhaliwal, for the valuable advice and guidance given to us in the successful completion of this project.

We would also like to thank librarian Mrs. Updesh Kaur Ghuman for providing us with the valuable reading materials for doing the project.

We would also like to thank Computer sir Mr. Inderpreet Singh who provided us with good internet facility.

We would also like to thank for the painful and joint efforts of our group members, which helped us in bringing out this project.

Last but not least we would like to thank the ALMIGHTY whose blessings helped us in making this project come out successfully with flying colures.

INDEX
Pg No. FUNDAMENTAL RIGHTS 1 DIRECTIVE PRINCIPLES OF STATE POLICY 4 STATE OF MADRAS Vs CHAMPAKAM DORAIRIA 7 THE STATE OF BOMBAY AND ANR. Vs F N BALSARA 9 MOHD. HANIF QUARESHI AND ANR. Vs THE STATE OF BIHAR 12 REMYA RAJU AND ORS. Vs GOVT OF KERALA AND ORS. 14 RANDHIR SINGH Vs UNION OF INDIA AND ORS. 16 GRIH KALYAN KENRA WORKERS UNION Vs UNION OF INDIA AND OTHERS 18 E. V. CHINNAIAH Vs STATE OF ANDHRA PRADESH AND OTHERS 20 M. NAGARAJ AND ORS Vs UNION OF INDIA 23 MINERVA MILLS LTD AND ORS Vs UNION OF INDIA AND ORS. 26 HIS HOLINESS KESAVANANDA BHARTI SRIPADAGALVARU AND ORS Vs STATE OF KERALA AND ANR. 28 UNNI KRISHNAN, J.P. AND OTHERS ETC. VS. STATE OF ANDHRA PRADESH AND OTHERS ETC 30 MISS. MOHINI JAIN VS. STATE OF KARNATAKA AND OTHERS 35 AJAY GOSWAMI VS. UNION OF INDIA (UOI) AND ORS. 40 PATHUMMA AND ORS. VS.STATE OF KERALA AND ORS. AND K.M 45. KUNHAHAMMAD AND ORS. VS. STATE OF KERALA AND ORS. 49 THE STATE OF BOMBAY AND ANR. VS. F.N. BALSARA 53

FUNDAMENTAL RIGHTS
The Constitution which lays down the basic structure of a nation's polity is built on the foundations of certain fundamental values. The vision of our founding fathers and the aims and objectives which they wanted to achieve through the Constitution are contained in the Preamble, the Fundamental Rights and the Directive Principles. These three may be described as the soul of the Constitution and the testament of the founding fathers to the succeeding generations together with the later Part on Fundamental Duties. The Fundamental Rights in India enshrined in the Part III of the Constitution of India guarantee civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, colour or sex. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The seven fundamental rights are: 1. Right to equality 2. Right to freedom 3. Right against exploitation 4. Right to freedom of religion 5. Cultural and educational rights 6. Right to constitutional remedies 7. Right to Life and personal liberty (As per 86th amendment of 2002)

Rights literally mean those freedoms which are essential for personal good as well as the good of the community. The rights guaranteed under the Constitution of India are fundamental as they have been incorporated into the Fundamental Law of the Land and are enforceable in a court of law. However, this does not mean that they are absolute or that they are immune from Constitutional amendment. Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.

CRITICAL ANALYSIS
The Fundamental Rights have been criticised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity, though these provisions have been enshrined in the Directive Principles of state policy. The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticized for failing to check the sanctioning of powers often deemed "excessive". There is also the provision of preventive detention and suspension of Fundamental Rights in times of Emergency. The provisions of acts like MISA (Maintenance of Internal Security Act) and NSA (National Security Act) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and crossborder terrorism and political violence, without safeguards for civil rights. The phrases "security of State", "public order" and "morality" are of wide implication. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation. The freedom to assemble peacably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.

"Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate. Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India. India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials and politicians worldwide. The right to equality in matters regarding public employment shall not be conferred to Overseas citizens of India, according to the Citizenship (Amendment) Bill, 2003.

DIRECTIVE PRINCIPLES OF STATE POLICY

The concept of Directive Principles of State Policy was borrowed from the Irish Constitution. The makers of the Constitution of India were influenced by the Irish nationalist movement. Hence, the Directive Principles of the Indian constitution have been greatly influenced by the Directive Principles of State Policy. The idea of such policies "can be traced to the Declaration of the Rights of Man proclaimed Revolutionary France and the Declaration of Independence by the American Colonies." The Indian constitution was also influenced by the United Nations Universal Declaration of Human Rights. The Directive Principles of State Policy are guidelines to the central and state governments of India, to be kept in mind while framing laws and policies. These provisions, contained in Part IV of the Constitution of India, are not enforceable by any court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country. DPSPs aim to create social and economic conditions under which the citizens can lead a good life. They also aim to establish social and economic democracy through a welfare state. They act as a check on the government, theorized as a yardstick in the hands of the people to measure the performance of the government and vote it out of power if it does not fulfill the promises made during the elections. The State has made many efforts to implement the Directive Principles. The Programme of Universalisation of Elementary Education and the five year plans has been accorded the highest priority in order to provide free education to all children up to the age of 14 years. The 86th constitutional amendment of 2002 inserted a new article, Article 21-A, into the Constitution, that seeks to provide free and compulsory education to all children aged 6 to 14 years. These are some of the steps taken by various government to implemnet such policies. The directive principles ensure that the State shall strive to promote the welfare of the people by promoting a social order in which social, economic and political justice is informed in all institutions of life. Also, the State shall work towards reducing 7

economic inequality as well as inequalities in status and opportunities, not only among individuals, but also among groups of people residing in different areas or engaged in different vocations. The State shall aim for securing right to an adequate means of livelihood for all citizens, both men and women as well as equal pay for equal work for both men and women. The State should work to prevent concentration of wealth and means of production in a few hands, and try to ensure that ownership and control of the material resources is distributed to best serve the common good. Child abuse and exploitation of workers should be prevented. Children should be allowed to develop in a healthy manner and should be protected against exploitation and against moral and material abandonment. The State shall provide free legal aid to ensure that equal opportunities for securing justice is ensured to all, and is not denied by reason of economic or other disabilities. The State shall also work for organisation of village panchayats and help enable them to function as units of self-government. The State shall endeavor to provide the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, within the limits of economic capacity, as well as provide for just and humane conditions of work and maternity relief. Changes in Directive Principles require a Constitutional amendment which has to be passed by a special majority of both houses of the Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority of the house whether the Lok Sabha or Rajya Sabha.

CRITICAL ANALYSIS
Directive principles of state policy are not enforceable by law. No one can move to court if he or she has not been assured such right. That is the biggest drawback of the directive principles of state policy. It depends on the state whethether to follow the principles od directive principles of state policy or not. They are not bound by it in framing their laws.

Citation: AIR1951SC226, (1951)IMLJ621(SC), [1951]2SCR525 IN THE SUPREME COURT OF INDIA Decided On: 09.04.1951

Appellants: The State of Madras

Vs.

Respondent: Srimathi Champakam Dorairia AND Appellants: The State of Madras

Vs.

Respondent: C.R. Srinivasan

Hon'ble Judges: Harilal Kania, C.J., Fazl Ali, Patanjali Sastri, Mehr Chand Mahajan, Mukherjea, S.R. Das and Vivian Bose, JJ. Subject: Constitution

Facts of the case

With regard to admission of students to the Engineering and Medical Colleges of the State, the Province of Madras had issued an order (known as the Communal G. O.) that seats should be filled in by the selection committee strictly on the following basis, i.e., out of every 14 seats, 6 were to be allotted to Non-Brahmin (Hindus), 2 to Backward Hindus, 2to Brahmins, 2 to Harijans. 1 to Anglo-Indians and Indian Christians and 1 to Muslims. . On June 7, 1950, Srimathi Champakam Dorairajan made an application to the High Court of Judicature at Madras under article 226 of the Constitution for protection of her fundamental rights under article 15(1) and article 29(2). In the affidavid filed by her She states that on inquiry she came to know that 9

she would not be admitted to the College as she belonged to the Brahmin community. She wanted to get admission in a medical college. Sri Srinivasan applied for admission into the Government Engineering College at Guindy and he couldnt secure a seat there on the same ground.

JUDEGEMENT
The court held that while clause (1) of article 29 protects the language, script or culture of a section of the citizens, clause (2) of article 29 guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right. He urges that article 46 charges the State with promoting with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation. It is pointed out that although this article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Court, the principles therein laid down are nevertheless fundamental for the governance of the country and article 37 makes it obligatory on the part of the State to apply those principles in making laws. The argument is that having regard to the provisions of article 46, the State is entitled to maintain the Communal G.O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petitioners are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Therefore the appeals were dismissed.

10

CRITICAL ANALYSIS
The case talks about the conflict between fundamental rights and directive principles of state policy. Here the directive principles have been given more weightage then the fundamental rights. These days reservations are common in all educational institutions. Do they all deny right to equality of citizens. Article 16 talks about the right to equality the most important fundamental right. According to this article everybody should be treated equal in eyes of law. There should be no discrimination of any kind. But there is a special clause mentioned in this article Nothing in this article shall prevent the State from making any provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Therefore the judgement is right. The reservation in this case is positive discrimination. It is necessary to represent all section of society equally so that all sections of society can come or move forward. Secondly, the case was decided in 1951. We can imagine the condition of society at that time. So positive discrimination was necessary for the upliftment of the weaker sections of the society. Otherwise they wont have been able to progress an would have been the most badly suffers of the society. The provisions made were protective. But in todays view this positive discrimination should be given up. The reservation which was mere at that time has increased to 48%. If it is continued to increase even in state reserved institution at this rate, the situation is going to worsen for the unreserved class.

11

Equivalent Citation: (1951)53BOMLR982, (1951)IIMLJ141, [1951]2SCR682 IN THE SUPREME COURT OF INDIA Decided On: 25.05.1951

Appellants: The State ofBombay and Anr.

Vs.

Respondent: F.N. Balsara AND Appellants: F.N. Balsara

Vs.

Respondent: The State of Bombay and Anr.

Hon'ble Judges: Saiyid Fazl Ali, Patanjali Sastri, Mukherjea, S.R. Das and Vivian Bose, JJ. Subject: Media and Communication Subject: Constitution

Facts
The appealant filed the case against state of Maharashtras act of Bombay prohibition act and Abkari act in which certain restrictions were put on sale of liquors and use of alcohol for medical purpose was defined. The appealant filed the petition against certain undue restrictions and invalidity of certain clauses in this act in which invalidity od definition of liquor was one of the clause. . The Act in question was passed by the Legislature of the Province of Bombay as it was constituted in 1949, and was published in the Bombay Government Gazette on the 20th May, 1949, and came into force on the 16th June, 1949.

Judgement
The judges held that the only point which remains to be decided is whether as a result of some of the sections of the Act having been declared to be invalid, what is left of

12

the Act should survive or whether the whole Act should be declared to be invalid. This argument was raised before the High Court also, but it was rejected and it was held that it was not possible on a fair review of the whole matter to assume that the legislature would not have enacted the part which remained without enacting the part that was held to be bad. It is to be noted that upon the findings of the High Court, the question should have assumed a more serious aspect than it presents now, because the High Court has declared several important sections of the Act including the definition of "liquor" to be ultra vires the legislature. I have now examined those sections and have held many of them to be valid. The provisions which are in my view invalid cannot affect the validity of the Act as a whole. It is quite clear that the provisions held by me to be invalid are not inextricably bound up with the remaining provisions of the Act, and it is difficult to hold that the legislature would not have enacted the Act at all without including that part which is found to be ultra vires. The Act still remains substantially the Act as it was passed. And some certain amendmends or some of the acts were declared invalid.

Critical analysis
This case included article 19 of fundamental rights and article 47 of directive principles of state policy. According to article 19 a person has been given to carry on a profession of her choice. But within this article there is a clause that reasonable restrictions can be imposed if required. Also it has been mentioned the restriction should be reasonable. According to article 47 the states aim at improving health and for the same purpose has endeavor to bring about prohibition of the consumption of liquor for the same purpose. There is a direct conflict between the two. At one side we are talking about free profession and on the other side prohibition. But the judgment stands valid. A person cannot be given free right to handle profession of liquor. If it is a common thing then it is going to affect the health of public. Therefore reasonable restrictions are do necessary. In this article 47 has been given more weightage then article 19. and the judgment has been done for the welfare of people. For both kinds of people by putting certain restrictions in favor of those who oppose sale of liquor and by continuing sale of liquors in favor of those who are in favor of drinking.

13

Equivalent Citation: AIR1958SC731, [1959]1SCR629 IN THE SUPREME COURT OF INDIA Decided On: 23.04.1958

Appellants: Mohd. Hanif Quareshi and Ors.

Vs.

Respondent: The State of Bihar

Hon'ble Judges: S.R. Das, C.J., Gajendragadkar, S.K. Das, Venkatarama Ayyar and Vivian Bose, JJ. Subject: Constitution

Facts
A Bill, which was eventually passed as the Bihar Act, was published in the Bihar Gazette on April 20, 1953. The scheme of the Bill, as originally drafted, was, it is said, to put a total ban only on the slaughter of cows and calves of cows. Uttar Pradesh passed the same kind of act prevention f cow slaughter act, 1955. Kasais and Quiraishi communities were against his passing of this act. They were a butcher community and were against passing of such kind of act. So couple of petitions were filed against passing of these acts.

Judgement
The judges held that the Bihar Act, in so far as it prohibits the slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, is valid. The Bihar Act makes no distinction between she-buffaloes, bulls and bullocks (cattle and buffaloes) which are useful as milch or breeding or draught animals and those which are not and indiscriminately prohibits slaughter of she-buffaloes, bulls and bullocks (cattle and buffalo) irrespective of their age or usefulness. In our view the ban on slaughter of she-buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful is reasonable but of those which are not useful is not valid. The question as to when a she-buffalo, breeding bull or working bullock (cattle and buffalo) ceases to be useful and becomes useless and unserviceable is a matter for

14

legislative determination. There is no provision in the Bihar Act in that behalf. Nor has our attention been drawn to any rule which may throw any light on the point. It is, therefore, not possible to apply the doctrine of severability and uphold the ban on the slaughter of she-buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful as milch or breeding or working animals and strike down the ban on the slaughter of those which are useless. The entire provision banning the slaughter of she-buffaloes, breeding bulls, and working bullocks (cattle and buffalo) has, therefore, to be struck down. The result is that we uphold and declare that the Bihar Act in so far as it prohibits the slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, is constitutionally valid and we hold that, in so far as it totally prohibits the slaughter of she-buffaloes, breeding bulls and working bullocks (cattle and buffalo), without prescribing any test or requirement as to their age or usefulness, it infringes the rights of the petitioners under Art. 19(1)(g) and is to that extent void. The Madhya Pradesh and Uttar Pradesh acts were also declared void.

Critical analysis
The judgment involves article 19 of fundamental rights and article 48 of directive principles of state policy. Article 48 states that "The State shall endeavour to organize agriculture and animal husbandry on modern and Scientific linesand shall, in particular, take steps for preserving and improving the breeds and prohibiting the slaughter, of cows and calves and other milch and draught cattle." So there was a conflict between article 48 which prevents the slaughter of cows. The other is article 19 which gives right to carry on profession of your own choice. The restriction imposed was reasonable. But there should be some special provisions to prevent the slaughter of cows, buffaloes, oxen etc which provides us with milk. Due consideration should be given to that also. We cannot heart the religious sentiments of various sects. But also India is a religious country and due consideration should be given to all the religions. So rights of the Muslim community should also be protected. They should be allowed to carry on the profession of their choice with certain reasonable restrictions imposed on them. So the decision of the apex court was right. Due consideration should be given to both the sects.

15

Equivalent Citation: AIR2008Ker192, 2008(2)KLJ216 IN THE HIGH COURT OF KERALA Decided On: 14.03.2008

Appellants: Remya Raju and Ors.

Vs.

Respondent: Govt. of Kerala and Ors.

Hon'ble Judges: Thottathil B. Radhakrishnan, J. Subject: Constitution

Facts of the case

Petitioners 1 & 2 are two students of SDA School, Sadanandapuram, Kottarakkara and are appearing for the SSLC examination of March 2008, conducted by Government of Kerala, which commenced on 12-03-2008. According to them, they belong to the Seventh Day Adventist denomination, a world wide Protestant Christian denomination and are therefore entitled to fundamental right under Article 25(1) of the Constitution to freely profess, practise and propagate that religion. According to them, in terms of the core faith of the members of that denomination, they have to abstain from any activity from 6 a.m. to 6 p.m. on Saturdays and therefore it will be impermissible for them, in the context of their religion, to appear for the examination scheduled tomorrow, i.e., 15-03-2008/fliey filed this Writ Petition on 12-03-2008, relying on Ext.P2 Government Order dt. 21-12-1961 by which the Government had decided that if there are any candidates belonging to Jews or Seventh Day Adventist denomination to appear for the examination, special arrangements will be made for them, for conducting the examination after 6 p.m.

Judgement of the case

In the judgement given by the court the court held that an examination of Part III of the Constitution, held in the backdrop of the DirectivePrinciplesof state policy, as enshrined in Part IV and fundamental duties as enshrined in Article 51A, the sole 16

provision in Part IVA, would advise that, having regard to the secular component of the Indian Republic, no right guaranteed by Article 25 of the Constitution to any citizen can, in any manner, erode the secular rights referable to the other provisions of the Constitution. This is how the protective right under Article 25 sustains along with the principlesof Article 14, which enjoins equality be fore law and equal protection of the laws. Some more facts were referred and in their final judgement the court h ordered and it is directed that the respondents shall take necessary steps to ensure that Ext.P2(clause in case referring to protecting religious rights) is given effect to in the matter of conducting examinations as far as the petitioners are concerned.

Critical analysis
In the present case article 25 of Indian constitution and also article 51 of directive principle of state policy was referred. So it was a case involving both fundamental rights and directive principles of state policy. In it due consideration was given to both. Right to religion is a fundamental right given under article 25 of the Indian constitution. When the government provides at protecting rights of the religious sects specially those of the minorities, the decision taken by apex court was right. The case was based on the one of the earlier decided cases of 1961. So postponing the date of examination or rescheduling the timings of the examination was a necessity. So that the examination does not hurt to their religious sentiments and due consideration is given to both. Also under to provide equal opportunity under article 14 of Indian constitution it was a necessity, so that they can stand equally with other candidates without getting their religious sentiments hurt.

17

Equivalent Citation: AIR1982SC879, 1982(30)BLJR275, [1982(44)FLR299], 1982LablC806, (1982)ILLJ344SC, (1982)ILLJ344SC, 1982(1)SCALE110, (1982)1SCC618, [1982]3SCR298, 1982(1)SLJ490(SC), 1982(14)UJ193(SC) IN THE SUPREME COURT OF INDIA Decided On: 22.02.1982

Appellants: Randhir Singh

Vs.

Respondent: Union of India (UOI) and Ors.

Hon'ble Judges: A.P. Sen, Baharul Islam and O. Chinnappa Reddy, JJ. Subject: Constitution

Facts of the case

The petitioner is a Driver-Constable in the Delhi Police Force under the Delhi Administration and he demands that his scale of pay should atleast be the same as the scale of pay of other drivers in the service of the Delhi Administration. The case of the petitioner is that he discharges the same duties as the rest of the drivers in the other offices; in fact he claims that he discharges more onerous duties than the others. He complains that there is no reason whatsoever to discriminate against the petitioner and other driver-Constables merely because he and his ilk happen to be described as constables as indeed they are bound to be so described, belonging as they do to the Police Force. The submissions made on behalf of the respondents, it was suggested that the petitioner was no more and no less than a constable of the Delhi Police Force and that there was no such category of Drivers in the Delhi Police Force.

Judgement of the case

The court held that.there cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the 'powers, functions and privileges of a police officer', their duties and responsibilities are more arduous. In answer to the allegation in the petition that 18

the driver-constabies of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay for equal work is not a principle which the Courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational. We, therefore, allow the Writ Petition and direct the respondents to fix the scale of pay of the petitioner and the driver-constables of the Delhi Police Force atleast on a par with that of the drivers of the Railway Protection Force. The scale of pay shall be effective from 1st January, 1973, the date from which the recommendations of the Pay Commission were given effect.

Critical analysis
In this case the same article 14, article 16 of fundamental rights and the article 39 of directive principles of state policy have been referred. One of the fact given by respondent in this case was . The pay scales of the drivers of the Delhi Police has been fixed after duly considering all the circumstances. The drivers in the other departments are not similarly situated as the petitioner and there is no question of any hostile discrimi-nation. It is, however, denied that the drivers have been treated as a separate class. It is also denied that the designation of the petitioner is N. T. Driver. The fact lies it was given as a point that the constable has been appointed as a driver but to appoint as a driver designation of constable was given and another point was given that it was for maintaining the peace and performing other duties which a constable has to performed. Looking at these factors when the appealant was performing extra duties it ws his right to get more pay and also according to article 39 of directive principles of state policy equal pay for equal work.

19

Equivalent

Citation:

AIR1991SC1173, 1991(1)SCALE1,

[1991(62)FLR337], (1991)1SCC619,

JT1991(1)SC60, [1991]1SCR15,

(1991)ILLJ349SC, 1991(1)UJ468(SC)

IN THE SUPREME COURT OF INDIA Decided On: 09.01.1991

Appellants:Grih Kalyan Kendra Workers' Union

Vs.

Respondent: Union of India and others

Hon'ble Judges: K.N. Singh and N.D. Ojha, JJ. Subject: Constitution

Facts of the case

A petition under Article 32 of the Constitution of India, was filed by the petitioner Union on behalf of the employees of the Grih Kalyan Kendra for a declaration that the Grih Kalyan Kendra wherein the workers are employed is 'State' within the meaning of Article 12 of the Constitution and for the issuance of a writ of mandamus directing the Union of India and the respondents to pay regular pay scales in parity with other employe.es performing similar work under the Union of India like New Delhi Municipal Committee and other Departments of Delhi Administration. This organization has various objectives like to promote social, economical and political activities for the betterment of central government employees and their families etc. For achievement of their this objective they run various activities like running nursery schools, providing skills and training etc. The petitioner has asserted that the employees of the Kendra are paid low wages and their salaries are far less than what is paid to the employees doing similar nature of work in the organisations like NDMC and other Departments of the Delhi Administration. In the counter-affidavit filed on behalf of the respondents, it is asserted that the Grih Kalyan Kendra was started as a welfare society with the aim of helping the needy Government servants especially those belonging to lower income group by providing to their dependents opportunity of gainful work, so that, they might be able to supplement the meagre income of their 20

family and at the same time they may also gain skill and experience in order to improve their career elsewhere. Grih Kalyan Kendra was expected to be a stepping stone for such dependents of the poor Government servants and there was no intention to provide them with any regular employment.

Judgement
The court held that same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less-it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact. The court further held that Kendra employees are not prohibited from taking any other employment, they are not recruited through an open competition, there is no age bar for their recruitment or retirement and since, being dependents of Government servants, they are eligible in that capacity for receiving other benefits like free medical aid and leave travel concessions. In view of these circumstances, to place the Kendra employees on par with other employees would be treating unequals as equals which would conceivably draw a constitutional challenge.Therefore there payscale was increased accordingly.

Critical Analysis
In the present case article 14 and 16 of fundamental rights and article 39 of Indian constitution were involved. Article 16 states that no one can be discriminated on the basis of employment. There should be equality in case of public employment. And article 39 d states that equal pay for equal work. So we look at both the clauses the judgement was right. The grihya kalyans demand was justiable. One can not be discriminated in forms of pay when they are performing the same kind of duties. Article 39 speaks for equal pay for equal work and and therefore their pay should be equal to other departments of Delhi government. When they were permanent 21

employees of that an office which was a government department cannot be discriminated on such grounds.

22

Equivalent Citation: AIR2005SC162, 2005(1)ALD102(SC), 2004(5)CTC426, 2005(3)ESC426, [2005(2)JCR204(SC)], JT2005(11)SC482, (2005)1MLJ79(SC), 2004(9)SCALE316, (2005)1SCC394, 2005(2)SLJ388(SC) IN THE SUPREME COURT OF INDIA Decided On: 05.11.2004

Appellants: E.V. Chinnaiah

Vs.

Respondent: State OF Andhra Pradesh and Ors.

Hon'ble Judges: N. Santosh Hegde, S.N. Variava, B.P. Singh, H.K. Sema and S.B. Sinha, JJ. Subject:Constitution

Facts of the case

The state Andhra Pradesh appointed a Commission headed by Justice Ramachandra Raju (Retd.) to identify the groups amongst the Scheduled Castes found in the List prepared under Article 341 of the Constitution of India by the President, who had failed to secure the benefit of the reservations provided for Scheduled Castes in the state in admission to professional colleges and appointment to services in the state.The Report submitted by the Commission led to certain litigations and a reference being made by the state to the National Scheduled Castes Commission. Accepting the Report of Justice Ramachandra Raju Commission (Supra), the sate by an Ordinance divided the 57 castes enumerated in the Presidential List into 4 groups based on inter-se backwardness and fixed separate quota in reservation for each of these groups. Thus, the castes in the Presidential List came to be grouped as A, B, C, and D. The 15% reservation for the backward class in the sate in the educationalinstitutions and in the services of the state under Article 15(4) and 16(4) of the Constitution of India for the Scheduled Castes were apportioned amongst the 4 groups. The petioners filed the petition against it. According to them it was against law and state do not have and power to do that.

23

Judgement of the case

The court held that the pious object the Presidential Notification under Article 341 of the Constitution as well as the benefits of reservation of appointments or posts which in the opinion of the state, is not adequately represented in the services under the the state, is afforded to a class of persons specified in Presidential Notification under Article 341 of the Constitution. The backward class of citizens enshrined in Article 16(4) of the Constitution includes Scheduled Castes and Scheduled Tribes. The whole basis of reservation is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes as a class of suffering since a considerable length of persons who have been time due to social and educational

backwardness. The protection and reservation is afforded to a homogeneous group. Further classification and/or regrouping the homogeneous groups by state Legislature would tinker with the Presidential Notification issued under Article 341, which is constitutionally impermissible. By the impugned legislation, the state has sought to re-group the homogeneous group specified in Presidential Notification for the purposes of reservation and appointments. It would tantamount to discrimination in reverse and would attract the wrath of Article 14 of the Constitution. It is a trite law that justice must be equitable. Justice to one group at the costs of injustice to other group is another way of perpetuating injustice. There fore the act was declared void.

Critical analysis
In the present case article 14, 15, 16 of fundamental rights and 39, 41,46 and article 47 of directive principles of state policy was referred. Due consideration was given to both. Article 39 talks about social order based on justice, article 41 talks about social services and article 46 and 47 talks about distributive justice and economic empowerment respectively. Article 15 talks about no discrimination on basis of religion and article 16 talks about equal opportunity. Article 46 talks about economic empowerment of weaker sections of society. So state has to take necessary steps for the upliftment of weaker sections of the society. So the step taken by Andhra Pradesh government seems right for the upliftment of weaker sections of the society. The apex court declared the act void but it was better for those weaker sections of society which still do not have yet been able to take this opportunity. Due to this special reservation 24

they may have been able to take advantage. Otherwise those backward classes who have already been benefited from this reservation is still taking advantage of this reservation policy. The act was void on constitutional ground but that could have been declared legal.

25

Equivalent Citation: AIR2007SC71, 2006(4)AWC4054(SC), [2007(1)JCR147(SC)], JT2006(9)SC191, 2006(6)KarLJ529, 2006(10)SCALE301, (2006)8SCC212 IN THE SUPREME COURT OF Decided On: 19.10.2006

Appellants: M. Nagaraj and Ors.

Vs.

Respondent: Union OF India (UOI) and Ors.

Hon'ble Judges: Y.K. Sabharwal, C.J., K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan, JJ.

Facts of the case

The petitioner has challenged the 85th amendment in which there was reservation policy even in promotion in government policies. According to him this policy is going to give a break to his promotion in governmental services. Petitioners have invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16 of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. According to him reservation in promotion will be against constitution and his right to equality will be violated. So he wanted that reservation in government services should not be based on this criteria.

JUDGEMENT OF THE CASE

The judges held that in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned state will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The state is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the state has to collect 26

quantifiable data showing backwardness the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the state has compelling reasons, as stated above, the state will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.

Critical analysis
There was a direct conflict between directive principle of state policy and fundamental rights. Article 46 of directive principal of state policy talks about upliftment of lower classes of society and article 14 talks about equality in case of opportunity. The decision of apex court cannot be held right. The weaker sections should not be provided reservation in promotion. Promotion should be strictly based on the efficiency of your work. If we keep on promoting people on criteria on this phenomenon we are not going to get efficient people at higher levels. We cannot appease them at every level. At time of promotion everybody should be considered equal at every level. When they have been provided with opportunity while selection in government services, there is no point of giving them reservation at promotion time. Other criterias should be made for them if special privealge has to be given to them.

27

Equivalent Citation: AIR1980SC1789, (1980)3SCC625, [1981]1SCR206, 1980(12)UJ727(SC) IN THE SUPREME COURT OF INDIA Decided On: 31.07.1980

Appellants: Minerva Mills Ltd. and Ors.

Vs.

Respondent: Union of India (UOI) and Ors.

Hon'ble Judges: Y.V. Chandrachud, C.J., A.C. Gupta, N.L. Untwalia, P.N. Bhagwati and P.S. Kailasam, JJ. Subject: Constitution

Facts of the case

Petitioner No 1 which is a limited company owned a textile undertaking called Minerva Mills situated in the State of Karnataka. This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalization) Act, 1974, Petitioners 2 to 6 are shareholders of Petitioner No. 1, some of whom are also unsecured creditors and some secured creditors. Respondent 1 is the Union of India. Respondent 2 is the National Textile Corporation Limited in which the textile undertaking of Minerva Mills comes to be vested under Section 3(2) of the Nationalisation Act of 1974. Respondent 3 is a subsidiary of the 2nd respondent. By these petitions, the petitioners challenge the constitutional validity of certain provisions of the Sick Textile Undertakings (Nationalisation) Act and of the order dated October 19, 197. The petitioners further challenge the constitutionality of the Constitution (39th Amendment) Act which inserted the impugned Nationalisation Act as Entry 105 in the 9th Schedule to the Constitution. That raises a question regarding the validity of Article 31B of the Constitution with which we propose to deal in another batch of petitions. Finally, the petitioners challenge the constitutionality of Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 and it is this contention alone with which we propose to deal in these petitions.

28

Judgement
The judge held that Section 4 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution. Thus Section 55 of the Constitution (Forty-second Amendment) Act, 1976 which inserted Sub-sections (4) and (5) in Article 368 was held to be as unconstitutional and void on the ground that it damages the basic structure of the Constitution and goes beyond the amending power of Parliament. But so far as Section 4 of the Constitution (Forty-second Amendment) Act, 1976 is concerned, the judge held that, on the interpretation placed on the amended Article 31C by him, it does not damage or destroy the basic structure of the Constitution and is within the amending power of Parliament and he therefore declared the amended Article 31C to be constitutional and valid.

Critical Analysis
This case deals with Articles 14, 19 which come under fundamental rights and Articles 38 and 39 which deals with the directive principles of state policy. In this case there was a great debate relating to whether directive principles can have supremacy over fundamental rights - merely because directive principles are nonjustifiable it does not mean that they are subservient to fundamental rights destroying fundamental rights in order to achieve goals of directive principles amounts to violation of basic structure - giving absolute primacy to one over another disturbs harmony - goals of directive principles should be achieved without abrogating fundamental rights - directive principles enjoy high place in constitutional scheme - both fundamental rights and directive principles to be read in harmony held, amendments in Article 31C introduced by Section 4 of 42nd Amendment Act unconstitutional. 29

IN THE SUPREME COURT OF INDIA Decided On: 24.04.1973

Appellants: His Holiness Kesavananda Bharati Sripadagalvaru and Ors.

Vs.

Respondent: State of Kerala and Anr.

Hon'ble Judges S.M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K. Mathew, K.S. Hegde M.H. Beg, P. Jaganmohan Reddy, S.N. Dwivedi and Y.V. Chandrachud, JJ. Subject: Constitution

Theory of Basic Structure

The question whether fundamental rights can be amended under article 368 came for consideration in the Supreme Court in Shankari Prasad case. in this case validity of constitution (1st amendment) act, 1951 which inserted inter alia , articles 31-A and 31-B of the constitution was challenged. The amendment was challenged on the ground that it abridges the rights conferred by part III and hence was void. The Supreme Court however rejected the above argument and held that power to amend including the fundamental rights is contained in Article 368and the same view was taken by court in Sajjan Singh case. In Golak Nath case, the validity of 17th Amendment which inserted certain acts in Ninth Schedule was again challenged. The Supreme Court ruled the parliament had no power to amend Part III of the constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh case. In order to remove difficulties created by the decision of SC in Golak Nath case parliament enacted the 24th Amendment act. The 30

Supreme Court recognized BASIC STRUCTURE concept for the first time in the historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by parliament. In this case validity of the 25th Amendment act was challenged along with the Twenty-fourth and Twenty-ninth Amendments. The court by majority overruled the Golak Nath case which denied parliament the power to amend fundamental rights of the citizens. The majority held that article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the constitution. This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history.

Judgement
Basic Features of the Constitution according to the Kesavanada verdict each judge laid out separately, what he thought were the basic or essential features of the Constitution. Sikri, C.J. explained that the concept of basic structure included: # Supremacy of the Constitution # Republican and democratic form of government # Secular character of the Constitution # Separation of powers between the legislature, executive and the judiciary # Federal character of the Constitution Shelat, J. and Grover, J. added three more basic features to this list: # The mandate to build a welfare state contained in the Directive Principles of State Policy # Unity and integrity of the nation # Sovereignty of the country.

31

Unegde, J. and Mukherjea, J. identified a separate and shorter list of basic features: # Sovereignty of India # Democratic character of the polity # Unity of the country # Essential features of the individual freedoms secured to the citizens # Mandate to build a welfare state Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble Of the Constitution and the provisions into which they translated such as: # Sovereign democratic republic # Justice - social, economic and political # Liberty of thought, expression, belief, faith and worship # Equality of status and the opportunity. He said that the Constitution would not be itself without the fundamental freedoms and the directive principles. Former Chief Justice K. Subba Rao in an article on the two judgments Golaknath and Kesavananda Bharati, expressed the view: "The existence of a remote judicial control may only act as a brake against hasty and unreasonable legislative and executive action and as a form of guarantee to the public against instability. The stability of the Constitution stabilizes the State." Basic Structure concept reaffirmed- the Indira Gandhi Election case In Indira Gandhi v. Raj Narayan the Supreme Court applied the theory of basic structure and struck down cl.(4) of article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the ? basic feature? of the constitution. The amendment was made to the jurisdiction of all courts including SC, over disputes relating to elections involving the Prime Minister of India. Basic Features of the Constitution according to the Election case verdict Again, each judge expressed views about what amounts to the basic structure of the Constitution:

32

Justice Y.V. Chandrachud listed four basic features which he considered unamendable: # Sovereign democratic republic status # Equality of status and opportunity of an individual # Secularism and freedom of conscience and religion # 'government of laws and not of men' i.e. the rule of law Sikri C. J. Held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression "amendment of this Constitution", in Article 368 means any addition or 'change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed. 13. Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word 'amendment' occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features.

33

ANALYSIS
As we go through this landmark judgment by our honorable supreme court of India I could hardly find any flaws in this judgment because this is the one which has changed the entire way of looking at the constitution of India and helped in protecting the future of the citizens of this nation.

34

Appellants:Unni Krishnan, J.P. and others etc.

Vs.

Respondent: State of Andhra Pradesh and others etc.

Hon'ble Judges: L.M. Sharma, C.J., S. Ratnavel Pandian, S. Mohan, B.P. Jeevan Reddy and S.P. Bharucha, JJ.
AIR1993SC2178, JT1993(1)SC474, 1992(2)SCALE703, (1993)1SCC645, [1993]1SCR594.

Case Note:
Constitution - professional degree - Sections 4 and 15 of Andhra Pradesh Educational Institution (Regulation of Admission) Order 1974 - whether professional degree covered under fundamental right to education - petitioner contended that every citizen has right to education for medical, engineering or other professional degree petitioner contended that when primary education covered under fundamental right then professional degree also covered same - petitioner filed petition on precedent of Court - Court observed that precedent of Court passed Order within jurisdiction of Constitution of India - no Articles of Constitution of India provide fundamental rights as claimed by petitioner - petition dismissed.

Judgement:
The question which arose in the case of whether a citizen has a Fundamental Right to education for a medical, engineering or other professional degree. The question whether the right to primary education, as mentioned in Article 451 of the Constitution of India, is a Fundamental Right under Article 212 did not arise in Mohini Jain's case and no finding or observation on that question was called for. It was contended before

The State shall endeavour to provide early childhood care and education for all children untilthey complete the age of six years Article 21 of the Constitution deals with prevention of encroachment upon personal liberty or deprivation of life of a person.
2

35

us that since a positive finding on that question was recorded in Mohini Join's case it becomes necessary to consider its correctness on merits. We do not think so. Learned arguments were addressed in support of and against the aforesaid view which have been noticed in the judgments of our learned Brothers. It was contended by learned Counsel appearing for some of the parties before us that Article 37 3 in Part IV of the Constitution expressly states that the provisions contained in Part IV shall not be enforceable by any court and that, therefore, assuming the right under Articles 45 to be included within the ambit of Article 21, it would still not be enforceable. Emphasis was also laid upon the language used in Article 45 which requires the State to "endeavor to provide" for the free and compulsory education of children. A comparison of the language of Article 45 with that of Article 494 was made and it was suggested that whereas in Article 49 an "obligation" was placed upon the State, what was required by Article 45 was "endeavor" by the State. We are of the view that these arguments as also the arguments of counsel on the other side and the observations in the decisions relied upon by them would need a thorough consideration, if necessary by a larger Bench, in a case where the question squarely arises. Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia5, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to life. The State may not, by affirmative action, be compellable to pro vide adequate in Part IV of the Constitution expressly states that the provisions contained in Part IV shall not be enforceable by any court.
3 4 5

Makes the provision for protection of monuments and places and object of national importance. amongst other things.( oxford English dictionary basically a Latin turm)

36

means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21. No doubt, the above extract from Mohini Jain's case (supra) states "education at all levels" but we consider the law has been somewhat broadly stated and, therefore, must be confined to what is envisaged under Article 45. The bench which heard and disposed of the writ petition framed four questions as arising for its consideration viz., (i) Is there a 'right to education' guaranteed to the people of India under the Constitution? If so, does the concept of 'capitation fee' infarct the same? (ii) Whether the charging of capitation fee in consideration of admission to educational institutions is arbitrary, unfair, unjust and as such violates the equality clause contained in Article 14 of the Constitution? (iii) Whether the impugned notification permits the Private Medical Colleges to charge capitation fee in the guise of regulating fees under the Act? and (iv) Whether the notification is violative of the provisions of the Act which in specific terms prohibits the charging of capitation fee by any educational institution in the State of Karnataka? On the first question, the Bench held, on a consideration of Articles 21, 38, 39(a) and (f), 41 and 45 of the constitution: (a) the framers of the Constitution made it obligatory for the State to provide education for citizens"; (b) the objectives set forth in the preamble to the Constitution cannot be achieved unless education is provided to the citizens of this country; (c) the preamble also assures dignity of the individual. Without education, dignity of the individual cannot be assured; (d) Parts III and IV of the Constitution are supplementary to each other. Unless the 'right to education' mentioned in Article 41 is made a reality, the fundamental rights in part III will remain beyond the reach of the illiterate majority; (e) Article 21 has been interpreted by this Court to include the right to live with human dignity and all that goes along with it. "The "right to education' flows directly 37

from right to life." In other words, 'right to education' is concomitant to the fundamental rights enshrined in part III the Constitution. The State is under a constitutional mandate to provide educational Institutions at all levels for the benefit of citizens." The benefit of education cannot be confined to richer classes. This Court has also been consistently adopting the approach that the fundamental rights and directive principles are supplementary and complementary to each other and that the provisions in Part-Ill should be interpreted having regard to the Preamble and the directive principles of the State policy. The initial hesitation to recognise the profound significance of part ' has been given up long ago. We may explain. There were two parts of the report; one contains fundamental rights which were justiciable and the other part of the report refers to fundamental rights which were not justifiable but were directives.

Final Judgment
For the above reasons the Writ Petitions and Civil Appeals except (W.P. (C) 855/92, C.A. 3573/92 and the Civil Appeals arising from S.L. Ps. 13913 and 13940/92) are disposed of in the following terms: 1. The citizens of this country have a fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute right. Its content and para meters have to be determined in the light of Articles 45 and 41. In other words every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State 2. The obligations created by Articles 41, 45 and 46 of the Constitution can be discharged by the State either by establishing institutions of its own or by aiding, recognising and/or granting affiliation to private educational institutions. Where aid is not granted to private educational institutions and merely recognition or affiliation is granted it may not be insisted that the private education institution shall charge only that fee as is charged for similar courses in governmental institutions. The private educational institutions have to and are entitled to charge 38

a higher fee, not exceeding the ceiling fixed in that behalf. The admission of students and the charging of fee in these private educational institutions shall be governed by the scheme evolved herein - set out in Part-Ill of this Judgment. 3. A citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right much less a fundamental right, to affiliation or recognition or to grant-in-aid from the State. The recognition and/or affiliation shall be given by the State subject only to the conditions set out in, and only accordance with the scheme continued in Part-Ill of this Judgment. No Government/University or authority shall be competent to grant recognition or affiliation except in accordance with the said scheme. The said scheme shall constitute a condition of such recognition or affiliation, as the case may be, in addition to such other conditions and terms which such Government, University or other authority may choose to impose. Those receiving aid shall, however, be subject to all such terms and conditions, as the aid giving authority may impose in the interest of general public. 4. Section 3-A of the Andhra Pradesh Educational Institutions6 is violative of the equality Clause enshrined in Article 14 and is accordingly declared void. The declaration of the Andhra Pradesh High Court in this behalf is affirmed. 5. Writ Petition No. 855 of 1992 is dismissed.

(Regulation Of Admission And Prohibition of Capitation Fee) Act, 1983 39

IN THE SUPREME COURT OF INDIA

Decided On: 30.07.1992

Appellants:Miss. Mohini Jain

Vs.

Respondent: State of Karnataka and others

Hon'ble Judges: Kuldip Singh and R.M. Sahai, JJ.
AIR1992SC1858, JT1992(4)SC292, 1992(2)SCALE90, (1992)3SCC666, [1992]3SCR658, 1992(2)UJ331(SC), (1992)2UPLBEC1198

Case Note:
Constitution - capitation-fee - Article 14 of Constitution of India and Section 3 of Karnataka Educational Institutions
7

- petitioner challenged notification of

Government permitting private medical colleges in State to charge exorbitant tuition fees from students other than those admitted to 'Government seats' - charging capitation fee in consideration of admission to educational institutions is patent denial of citizen's right to education - State action permitting capitation-fee to be charged by State - recognised educational institutions is wholly arbitrary and violative of Article 148 - impugned notification provided for capitation-fee and not tuition fee and contrary to Section 3 - notification set aside - petition allowed

The Judgment:
Provision for free and compulsory education for children. - The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for children until they complete the age of fourteen years.
7 8

(Prohibition of Capitation Fee) Act, 1984.

Right to equality.

40

It is no doubt correct that "right to education" as such has not been guaranteed as fundamental right under Part III of the Constitution but reading the above quoted provisions cumulatively it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizens. The preamble promises to secure justice "social, economic and political" for the citizens. A peculiar feature of the Indian Constitution is that it combines social and economic rights along with political and justifiable legal rights. The preamble embodies the goal which the State has to achieve in order to establish social justice and to make the masses free in the positive sense. The securing of social justice has been specifically enjoined an object of the State under Article 38 of the Constitution. Can the objective which has been so prominently pronounced in the preamble and Article 38 of the Constitution be achieved without providing education to the large majority of citizens who are illiterate. The objectives flowing from the preamble cannot be achieved and shall remain on paper unless the people in this country are educated. The three pronged justice promised by the preamble is only an illusion to the teaming-million who are illiterate. It is only the education which equips a citizen to participate in achieving the objectives enshrined in the preamble. The preamble further assures the dignity of the individual. The Constitution seeks to achieve this object by guaranteeing fundamental rights to each individual which he can enforce through court of law if necessary. The directive principles in Part IV of the Constitution are also with the same objective. The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarily the education which brings forth the dignity of a man. The framers of the Constitution were aware that more than seventy per cent of the people, to whom they were giving the Constitution of India, were illiterate. They were also hopeful that within a period often years illiteracy would be wiped out from the country. It was with that hope that Articles 41 and 45 were brought in Chapter IV of the Constitution. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him. Tht is why it is said that "Education shall be directed to the full development of the human personality"9 Article 41 in Chapter IV of the Constitution recognises an individual's right "to education". It says that "the State shall, within the limits of its economic capacity and development, make effective
9

Universal Declaration of Human Rights, 1948 . 41

provision for securing the right...to education...". Although a citizen cannot enforce the directive principles contained in Chapter IV of the Constitution The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education" under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate.10 But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the humanself. 11. In Bandhua Mukti Morcha v. Union of India and Ors. MANU/SC/0051/1983, this Court held as under: This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi MANU/SC/0517/1981
10

42

neither the Central Government nor any State Government - has the right to take any action which will deprive a person of the enjoyment of these basic essential. The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Ariticle 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity

Critical analysis:

These two cases are related two very close articles of constitution of India.i.e. 21A right to education and 41 of directive principle of state policy. These two cases give a very example of how DPSP and fundamental rights are not always in conflict with each other. As in second case art 21 and 41 can not deal separately and court decided to read these two articles together the very idea behind it was that if government legislate any law or act or provision which is contrary to DPSP it may or may not be contrary to the provision of fundamental rights. Some time DPSP provide immense power to legislature to legislate any law for so called in the welfare of people, i.e. compulsory education for children and govt. taking it as a basis as a basis legislation it should keep in mind that as DPSP are itself not enforceable by law it means if any law or act goes against the provision of DPSP a person has no power to approach court for its enforcement, on the other hand as far as fundamental rights are concern these rights are highly justifiable .if any how any act or provision goes contrary to any provision of fundamental rights . it can be redressed by court to give absolute privilege to one over the other is to disturb the harmony of the constitution which is essential for its basic structure.. it is strongly proved that both directive principle of state policy ,Nevertheless, in determining the scope and ambit of the fundamental rights relied upon by or on behalf of any person or body, the court may not entirely ignore these directive principles of State policy laid down in Part-IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible. The Fundamental Rights and Directive Principles constitute the conscience'

43

of the Constitution.... To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the nation and the very ideals on which our Constitution is built.... There is no anti-thesis between the Fundamental Rules and the Directive Principles.... One Supplements the other. Both Parts III and IV. have to be balanced and harmonised...then alone the dignity of the individual can be achieved.... Fundamental Rights and Directive Principles are meant to supplement each other. And we should not took them as contrary always.

44

THE SUPREME COURT OF INDIA Writ Petition (Civil) 384 of 2005 Decided On: 12.12.2006

Appellants :Ajay Goswami

Vs.

Respondent: Union of India (UOI) and Ors.

AIR2007SC493, 2007(2)ALD70(SC), 2006(14)SCALE317, (2007)1SCC14 Judge AR. Lakshmanan and Tarun Chatterjee, JJ.

Fact of the case

Constitution Writ Petition Maintainability Petitioner filed present petition requesting the Court to direct the authorities to strike a balance between fundamental right of freedom of speech and expression enjoyed by press and duty of government to protect minors from abuse, exploitation and harmful effects of such expression Held, in view of the availability of sufficient safeguards in terms of various legislations, norms and rules and regulations to protect the society in general and children, in particular, from obscene and prurient contents, the writ at the instance of the Petitioner was not maintainable Petition, accordingly,failed Constitution Freedom of Speech and Expression11 Petitioner filed present petition requesting the Court to direct the authorities to strike a balance between fundamental right of freedom of speech and expression enjoyed by press and duty of government to protect minors from abuse, exploitation and harmful effects of such expression Held, Pictures in dispute had been published by Respondents with the intent to inform readers of the current entertainment news from around the world and India Any steps to ban publishing of certain news pieces or pictures would fetter the independence of free press which is one of the hallmarks of our democratic setup Petitioner failed to establish the need and requirement to curtail the freedom of speech and expression Times of India and Hindustan Times are leading
11

Article 19 of constitution of india.

45

newspapers in Delhi having substantial subscribers from all sections They have an internal regulatory system to ensure no objectionable photographs or matters gets published They were conscious of their responsibility towards children but at the same time it would be inappropriate to deprive the adult population of the entertainment which was well within the acceptable levels of decency on the ground that it may not be appropriate for the children Petition dismissed

Judgment:
December, 2006, a two Judges Bench in Ajay Goswami & union of India Ors12 while considering the grievance of the writ petitioner that the freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing obscene materials held that any steps to ban publishing of certain news pieces or pictures would fetter the independence of free press which is one of the hallmarks of the democratic setup in this country. In the opinion of the Bench, imposition of a blanket ban on the publication of certain photographs and news items etc. will lead to a situation where the newspaper will be publishing material which caters only to children and adolescents and the adults will be deprived of reading their share of their entertainment which can be permissible under the normal norms of decency in any society. Observing that the definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities, the Bench said that a culture of responsible reading should be inculcated among the readers of any news article and no news item should be viewed or read in isolation. It is necessary that publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying message that is purported to be conveyed to the public. Also the members of the public and readers should not look for meanings in a picture or written article, which is not conceived to be conveyed through the picture or the news item, the Bench said. COURT NEWS, OCTOBER --- DECEMBER 2006 Finally observing that the fertile imagination of anybody especially of minors should not be a matter that should be agitated in the Court of law and that a hypersensitive
12

[Writ Petition (Civil) No.384 of 2005].

46

person can subscribe to other Newspapers of his choice, which might not be against his standards of morality, the Bench dismissed the writ petition.

Critical analysis:
It is thus well established by the decisions of this Court that the provisions of Parts III article 19 and IV article 45 are supplementary and complementary to each other and that Fundamental Rights are but a means to achieve the goal indicated in Part-IV. It is also held that the fundamental Rights must be construed in the light of the Directive Principle...The fundamental rights and the directive principles constitute the 'conscience' of our Constitution....To ignore Part IV is to ignore the sustenance provided for in the Constitution, the hopes held out to the Nation and the very ideals on which our Constitution is built here is no anti-thesis between the fundamental rights and the directive principles13. As in present case both the news papers i.e. Times of India, Hindustan times are prima facit
14

having fundamental right to freedom of

press under article 19. and if those photos are not suitable to particular section of society it means not that news agencies has to leave their fundamental right. this case is based upon the implementation of article 45 of directive principle of state policy for stop publishing photos of adult nature. but adults also a group of readers and parents of children are free to chose any another newspaper which be suitable to them.we should not leave fundamental rights of the verge of DPSP. Both Parts III and IV have to be balanced and harmonized. then alone the dignity of the individual can be achieved. The object of the government in establishing the Constitution was to promote justice, social and economic, liberty and equality. The modus operandi15 to achieve these objectives is set out in Part III and IV of the Constitution. Both parts III and IV enumerate certain moral rights. Each of these parts represent in the main the statements in one sense of certain aspirations whose fulfillment was regarded as essential to the kind of society which the Constitution- makers wanted to build. Many of the articles, same in this case we should consider the seriousness of any part in this
13 14

Mentioned in case of Maneka Gandi vs. Union of India. By the fact of (Blacks Law Dictionary) 15 mode of operation

47

case DPSP were not proving them self more important to fundamental rights I mean parents of children have an option to chose any another news paper so fundamental right of Press agency is not strongly violating the provision of DPSP. On the other hand DPSP is not enforceable by law as well it also goes against the enforceability of itself.

48

State of Gujarat
Vs.

Respondent: Mirzapur Moti Kureshi Kassab Jamat and Ors.

AND

Appellants: Shree Ahimsa Army Manav Kalyan Jeev Daya Charitable Trust
Vs.

Respondent: Mirzapur Moti Kureshi Kassab Jamat, Ahmedabad and Ors.

[Alongwith Civil Appeal No. 4945 of 1998] Hon'ble Judges: R.C. Lahoti, C.J., B.N. Agarwal, Arun Kumar, G.P. Mathur, C.K. Thakker and P.K. Balasubramanyan, JJ. and (A.K. Mathur, J. Dissenting Opinion)

FACTS OF THE CASES

Constitution Amending Act Validity of Bombay Animal Preservation Act of 1954 (Bombay Act); Bombay Animal Preservation (Gujarat Amendment) Act 1994 (Amendment Act) In order to conserve cattle population of Bombay, State Government enacted the Bombay Animal Preservation Act 1948 (Act) prohibiting slaughter Act was substituted by Bombay Animal Preservation Act of 1954 (Bombay Act) State of Gujarat was formed in 1960 Gujarat Legislature enacted the Bombay Animal Preservation (Gujarat Extension and Amendment) Act 1961 ('1961 Act') through which Bombay Act was extended to State of Gujarat Various amendments followed till enactment of the present impugned Act, Bombay Animal Preservation (Gujarat Amendment) Act 1994 (Amendment Act) The Bombay Act of 1954 referred to as 'the principal Act' was further amended by Section 2 of the amending Act Constitutional validity of Amendment Act was put in issue by four writ petitions filed in the High Court which were heard and disposed of by a common judgment High Court allowed the writ petitions and struck down the impugned 49

Amending Act High Court held that the Amendment Act imposed an unreasonable restriction on the fundamental rights and therefore, it was ultra vires the Constitution Effect of the judgment of the High Court as summed up by the Judges would be that there would not be a total ban on the slaughter of bulls or bullocks above the age of 16 years Feeling aggrieved, the appellants filed these appeals By a three judge Judge Bench of this Court, before which the appeals came up for hearing, the matter was directed to be placed for hearing before a Constitution Bench Hence, present appeal Held, firstly, impugned enactment enables the State in its endeavor to protect and improve the environment within the meaning of Article 48A of the Constitution Secondly, three propositions are well settled: (i) 'restriction' includes cases of 'prohibition'; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right Thirdly, in the present case, we find the issue relates to a total prohibition imposed on the slaughter of cow and her progeny. The ban is total with regard to the slaughter of one particular class of cattle. The ban is not on the total activity of butchers (kasais); they are left free to slaughter cattle other than those specified in the Act. It is not that the writ petitioner-respondents survive only by slaughtering cow progeny. They can slaughter animals other than cow progeny and carry on their business activity Though it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of the general public, yet, in the present case, banning slaughter of cow progeny is not a prohibition but only a restriction Thus, Amendment Act intra vires16 Appeals allowed

Judgement
16

Within the legal power or authority or a person or official or body etc (Blacks Law Dictionary)

50

The challenge to the constitutional validity of the three legislations was founded on the following three grounds, as was dealt with in the judgment : (i) that the total ban offended the religion of the Muslims as the sacrifice of a cow on a particular day is enjoined or sanctioned by Islam; (ii) that such ban offended the fundamental right guaranteed to the Kasais (Butchers) under Article 19(1)(g) and was not a reasonable and valid restriction on their right; and (iii) that a total ban was not in the interest of the general public. On behalf of the States, heavy reliance was placed on Article 48 of the Constitution to which the writ petitioners responded that under Article 37 the Directive Principles were not enforceable by any court of law and, therefore, Article 48 had no relevance for the purpose of determining the constitutional validity of the impugned legislations which were alleged to be violative of the fundamental rights of the writ petitioners. Dealing with the challenge to the constitutional validity of the legislations, their Lordships reiterated the well accepted proposition based on several pronouncements of this Court that there is always a presumption in favor of the constitutionality of an enactment and that the burden lies upon him who attacks it to show that there has been a clear violation of the constitutional principles. The legislative wisdom as expressed in the impugned enactment can be pressed into service to support the presumption. Chief Justice S.R. Das spoke for the Constitution Bench and held: (i) that a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male or female, was quite reasonable and valid and is in consonance with the Directive Principles laid down in Article 48; (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle Page 1368 as well as buffaloes) as long as they are capable of being used as mulch or draught cattle was also reasonable and valid; and (iii) that a total ban on slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals could not be supported as reasonable in the interests of the general public and was invalid., Likewise, the Hon'ble Chief Justice has dealt in detail the relation of Fundamental Rights with Directive Principles. His Lordship has very exhaustively dealt with all the cases bearing on the subject prior and after decision in Keshwanand Bharti's case. The court should guard zealously Fundamental Rights guaranteed to the citizens of the society, but at the same time strike a balance between the Fundamental Rights and the larger interests of 51

the society. But when such right clashes with the larger interest of the country it must yield to the latter. Therefore, wherever any enactment is made for advancement of Directive Principles and it runs counter to the Fundamental Rights an attempt should be made to harmonise the same if it promotes larger public interest. Therefore, as a result of above discussion, I am of the view that the view taken by the Division Bench of the Gujarat High Court is correct and there is no justification for reversing the view taken by the earlier Constitution Bench decision of this Court. All appeals are dismissed. No order as to costs.

Critical Analysis:
This is a example of conflict between the two articles of the constitution. i.e. art 19 1(g) and art 38. On one part fundamental right (19 1 g) give this liberty to carry on any profession of your convenience on the other hand directive principle of state policy direct the government to provide all its citizens good and dwelling environment as we all know that cow slaughter is against the religious faith and feelings of Hindu community. It effect a large part of our country. Fundamental Rights are also subjected to some restrictions. you have your fundamental right until it violate the right of another person. In this case one article of DPSP i.e. art 48(a) direct government to make provision for a large no. of people it is true that DPSP is not enforceable by law itself but when DPSP are containing too important and effective that they can not be avoided as in this case the provisions contained in the chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the Fundamental Rights. And in this case the restriction is very reasonable so it can be stated that fundamental rights are not absolute, they can not go contrary to the directive principle of state policy all the time.

52

Appellants: PATHUMMA and Ors.

Vs.

Respondent: State of Kerala and Ors.

AND

Appellants: K.M. Kunhahammad and Ors.

Vs.

Respondent: State of Kerala and Ors.

AIR1978SC771, (1978)2SCC1, [1978]2SCR537

Case note:
Property - auction sale - Section 65 and Order 21 Rule 72 of CPC, 1908, Section 53 of Transfer of Property Act, Sections 20, 20 (2), 20 (3) and 20 (6) of Kerala Agriculturists (Debt Relief) Act, 1970, Articles 14, 19 (1), 19 (5) and 31 of Constitution of India and Section 27 of Specific Relief Act - writ appeal challenging Kerala Agriculturists (Debt Relief) Act as ultra vires17 and violation of fundamental rights - impugned Act provides benefit to petty farmers and relief from indebtness Act does not provides for any drastic or arbitrary procedure - Section 20 of Act is reasonable and not violative of any fundamental right - validity of Act upheld.

Judgement :
These appeals by certificate granted by the High Court of Kerala involve a common question of law containing a challenge to the constitutionality of the Kerala Agriculturists' Debt Relief Act, 1970 (Act II of 1970) (hereinafter referred to in short as the Act). The appellants have assailed particularly Section 20 of the Act which entitles the debtors to recover the properties sold to purchasers in execution of a decree passed in liquidating the debt owed by the agriculturists.
17

Ultra vires is a Latin phrase that literally means "beyond the powers". Its inverse is called intra vires, meaning "within the powers". It is used as a legal term in a number of common law contexts.

53

A perusal of this clause manifestly reveals that the right conferred by Article 19(1)(f) is conditioned by the various factors mentioned in Clause (5). The Constitution permits reasonable restrictions to be placed on the right in the interest of the general public or for the protection of the interest of any Scheduled Tribe. The State in the instant case claims protection under Clause (5) by submitting that the provisions contained in the Act amount to reasonable restrictions for the general good of an important part of the community, namely, the poor agriculturist debtOrs. The object of the Act, according to the State, is to remove agricultural indebtedness and thereby to eradicate one of the important causes of poverty in this country. Such an object is undoubtedly in public interest, and, therefore, the restriction contained in the Act must be presumed to be a reasonable restriction. This Court has considered this question on several occasions during the last 21/2 decades and has laid down several tests guidelines to indicate what in a particular circumstance can be regarded as a reasonable restriction. One of the tests laid down by this Court is that, in judging the reasonableness of the restrictions imposed by Clause (5) of Article 19, the Court has to bear in mind the Directive Principles of State Policy. It will be seen that Article 38 contains a clear directive to the State to promote the welfare of the people by securing and protecting as effectively as possible a social order in which justice, social, economic and political shall inform all the institutions of national life. Article 39(b) contains a direction to secure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Indisputably, the object of the Act is to eradicate rural indebtedness and thereby to secure the common good of people living in abject poverty. The object, therefore, clearly fulfils the directive laid down in Articles 38 and 39(b) of the Constitution as referred to above. The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality. 54

Critical Analysis
The avowed purpose of our Constitution is to create a welfare State. The directive principles of State policy set forth in Part IV of our Constitution enjoin upon the State the duty to 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. In this case section 20 of a certain act prohibit right to property which was earlier a part of fundamental rights (art 19 1 f) .this controversial sec.20 give right to creditor of get back his money by sailing the property of debtor in case of default in repayment. But govt. can not avoid the right of creditor to get his money back which is govt. duty under DPSP (art 39 b). It is a continue conflict between any two art of fundamental rights and DPSP. It is true that government has to protect the fundamental rights if anyhow it come into a danger. But DPSP also a strong direction to state for working in welfare of people

55

Appellants: The State of Bombay and Anr.

Vs.

Respondent: F.N. Balsara

AND

Appellants: F.N. Balsara

Vs.

Respondent: The State of Bombay and Anr. Case Notes:

The case discussed the applicability of the Bombay Prohibition Act, 1949 to medicinal and toilet preparations containing alcohol- It also discussed the validity of Sections 2(24)(a), 12, 13, 23, 24, 39, 40(1)(b), 46, 52, 53, 139(c) of the Act The restrictions imposed by Sections 12 and 13 of the Act on the possession, sale and consumption of liquor are unreasonable restrictions on the fundamental rights guaranteed under Article 19(1)(f) of the Constitution of India, so far as medicinal and toilet preparations are concerned and the said sections are invalid as they prohibit the sale or consumptions of such articles.

Judgement
The High Court has declared the other notification issued by the Government on the 30th March, 1950, to be invalid on grounds which are stated in these words :"That notification exempts persons holding permits under clause (c) of sub-section (1) of section 40, special permits under section 41, or interim permits under section 47, from the provisions of section 23(a) in so far as it relates to the offering of foreign liquor to persons holding similar permits. This is clearly not justified. Having created a class, having given to that class the right of obtaining a permit on grounds other than those of health, it will be totally wrong to permit that class not to abide by the same provisions with regard to permits as others to whom permits have been given. The restrictions placed by the legislature itself on a permit-holder regarding the use and 56

consumption of his stock of liquor is to be found in section 43 under which the permit-holder shall not allow the use and consumption by any person who is not a permit-holder, that restriction must apply equally to permits issued under section 40 to Indian citizens as well as foreigners, and in our opinion it is improper to allow a foreigner permit-holder to stand drinks to other permit-holders and to deny that privilege to Indian permit-holders. The guarantee of equality before the law extends under our Constitution not only to legislation but also to rules and notifications made under statutory authority and even to executive orders and as the notification offends against the principle of equality it is, therefore, void."

Critical Analysis:
In this case government once again seemed to go against the provision of fundamental right as according to fundamental right 23a18 sailing and purchasing of any intoxicated material or any thing which is not good for helth i.e. liquor .government not only selling it and purchasing liquor but also promoting it by providing license to carry on it as a profession. But as government gain a lots of profit and many people are using it as a way of earning. As an example given in the case it self that using liquor is a ordinary part of military and if government giving them some relief in taxes and licensing is not against the fundamental right because directive principle of state policy give direction to government for protect right of individual community, though government can at some restriction on these liquor for general people but it can not prohibit it for wholly. Constitution of India by the virtue of art 19 provide all citizen of India to carry on any profession or business so accordingly selling and purchasing of liquor but at the same time directive principle of state policy strictly direct the government to keep welfare of citizen as in this case selling of liquor is really not with the welfare of people and government have to stop this practice but as we see in this case licensing of liquor is some how against the public policy but prohibiting fundamental right (Right to carry on any profession) is not required when we can do compromise with DPSP .I mean instead of fully restrict dealing in liquor government can restrict it in some area.. So whether fundamental right is highly dangerous if
Prohibition of Soliciting Use Of Intoxicant or Hemp or doing any Act calculated to incite or encourage member of public to commit offence
18

57

there is any escape way and government also gaining something out of it, It is better to kill DPSP for Fundamental rights.

58