CHANAKYA NATIONAL LAW

UNIVERSITY

Rights of Citizen

Constitutional Law - I
 TABLE OF CONTENTS

ACKNOWLEDGEMENT .............................................................................................................................................. I
RESEARCH METHODOLOGY ................................................................................................................................. II
CHAPTER 1 INTRODUCTION ............................................................................................................................. - 1 -
RIGHTS ..................................................................................................................................................................... - 1 -
FUNDAMENTAL RIGHTS ............................................................................................................................................ - 1 -
GENESIS.................................................................................................................................................................... - 2 -
SIGNIFICANCE AND CHARACTERISTICS .................................................................................................................... - 2 -
CHAPTER 2 CITIZENSHIP IN INDIA ................................................................................................................. - 4 -
CONSTITUTIONAL PROVISIONS ................................................................................................................................ - 4 -
Citizenship at the commencement of the Constitution, i.e., January 26, I950 ................................................... - 5 -
(1) Citizenship by Domicile (Article 5) .......................................................................................................................... - 5 -
(2) Citizenship of Migrants to India from Pakistan (Article 6) ....................................................................................... - 7 -
(3) Citizenship of Migrants of Pakistan (Article 7) ........................................................................................................ - 7 -
(4) Citizenship of persons of Indian origin residing outside India .................................................................................. - 9 -
Citizenship under the Citizenship Act, 1955 ...................................................................................................... - 9 -
Amendment of Citizenship Act .................................................................................................................................... - 10 -
Overseas Citizens of India ............................................................................................................................................ - 10 -
Citizenship by birth (Section 3) .................................................................................................................................... - 10 -
Citizenship by descent (Section 4) ................................................................................................................................ - 11 -
Citizenship by Registration (Section 5) ........................................................................................................................ - 11 -
Citizenship by naturalization ........................................................................................................................................ - 12 -
Citizenship by incorporation of territory ...................................................................................................................... - 12 -
CHAPTER 3 RIGHTS OF CITIZENS .................................................................................................................. - 13 -
CLASSIFICATION OF FUNDAMENTAL RIGHTS......................................................................................................... - 13 -
Positive and Negative Rights............................................................................................................................ - 13 -
RIGHT TO EQUALITY (ARTICLES 14-18)................................................................................................................. - 14 -
Equality Before Law (Article 14) ..................................................................................................................... - 14 -
No Discrimination on Grounds of Religion, Race, Caste, etc. (Article 15) ..................................................... - 15 -
Equality of Opportunity in Public Employment (Article 16) ............................................................................ - 16 -
Abolition of Untouchability (Article 17) .......................................................................................................... - 16 -
Abolition of Titles (Article 18) ......................................................................................................................... - 17 -
RIGHT TO FREEDOM (ARTICLES 19-22) ......................................................................................................... - 17 -
Freedom of Speech and Expression [Articles 19(1)(a) and 19(2)] .................................................................. - 18 -
Freedom of Assembly [Articles 19(1)(b) and 19(3)] ........................................................................................ - 18 -
Freedom to form Association [Articles 19(1)(c) and 19(4)] ............................................................................ - 18 -
Freedom of movement [Articles 19(1)(d) and 19(5)] ....................................................................................... - 19 -
Freedom of Residence [Articles 19(1)(e) and 19(5)] ....................................................................................... - 19 -
Freedom of Profession, Occupation, Trade or Business [Articles 19(1)(g) and 19(6)] .................................. - 20 -
Protection in respect of conviction for offences (Article 20) ........................................................................... - 21 -
Protection against Ex post facto law ............................................................................................................................. - 21 -
Protection against Double Jeopardy.............................................................................................................................. - 21 -
Prohibition against self-incrimination ........................................................................................................................... - 22 -
Protection of Life and Personal liberty (Article 21) ........................................................................................ - 22 -
Right to Education (Article 21A) ...................................................................................................................... - 24 -
Safeguards against arbitrary arrest and detention (Article 22)....................................................................... - 24 -
RIGHT AGAINST EXPLOITATION (ARTICLES 23-24) ................................................................................................ - 25 -
Prohibition of ‘Traffic in Human beings’ and Forced Labour (Article 23) ..................................................... - 25 -
Prohibition of employment of children in factories etc. (Article 24) ............................................................... - 25 -
RIGHT TO FREEDOM OF RELIGION (ARTICLES 25-28) ............................................................................................ - 26 -
Freedom of Religion in India (Article 25) ........................................................................................................ - 26 -
 Freedom to manage religious affairs (Article 26)............................................................................................ - 27 -
Freedom from taxes for promotion of any particular religion (Article 27) ..................................................... - 27 -
Prohibition of Religious instruction in State-aided Institution (Article 28) ..................................................... - 27 -
CULTURAL AND EDUCATIONAL RIGHTS (ARTICLES 29-30) .................................................................................. - 28 -
RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32 & 226)................................................................................ - 28 -
CHAPTER 4 CASE LAWS..................................................................................................................................... - 30 -
CITIZENSHIP (ARTICLE 5-11) ................................................................................................................................. - 30 -
EQUALITY BEFORE LAW (ARTICLES 14-18) ........................................................................................................... - 30 -
FREEDOM OF SPEECH AND EXPRESSION (ARTICLES 19-22) ................................................................................... - 33 -
RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32-25) ..................................................................................... - 36 -
CONCLUSION
BIBLIOGRAPHY
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ACKNOWLEDGEMENT
Any project completed or done in isolation is unthinkable. This project, although prepared by me,
is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor for
Constitutional Law - I, Dr. A. Subramaniam for his valuable suggestions towards the making of
this project.
Further to that, I would also like to express my gratitude towards our seniors who were a lot of
help for the completion of this project. The contributions made by my classmates and friends are,
definitely, worth mentioning.
I would like to express my gratitude towards the library staff for their help as well. I would also
like to thank the persons interviewed by me without whose support this project would not have
been completed.
Last, but far from the least, I would express my gratitude towards the Almighty for obvious
reasons.
 P a g e | II

RESEARCH METHODOLOGY

 Method of Research
The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the library at the Chanakya National Law University and also the internet sources.
 Aims and Objectives
The aim of the project is to describe the various ways of obtaining the citizenship of India along
with presenting an overview of the rights of citizens.
 Sources of Data:
The following secondary sources of data have been used in the project-
1. Cases
2. Books
3. Websites

 Method of Writing:
The method of writing followed in the course of this research paper is primarily descriptive.

 Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this research
paper.
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Chapter 1
Introduction
Rights
Rights are rules of interaction between people. They place constraints and obligations upon the
actions of the state and individuals or groups. For example, if one has a right to life, this means
that others do not have the liberty to kill him or her. Rights are defined as claims of an individual
that are essential for the development of his or her own self and that are recognized by society or
State. These are legal, social, or ethical principles of freedom or entitlement and are the
fundamental normative rules about what is allowed to people or owed to people, according to
some legal system, social convention, or ethical theory. Rights are often considered fundamental
to civilization, being regarded as established pillars of society and culture.
But the rights have real meaning only if individuals perform duties. A duty is something that
someone is expected or required to do. Parents, for example, have a duty to take care of their child.
You have duties towards your parents. A teacher has a duty to educate students. In fact, rights and
duties are two wheels on which the chariot of life moves forward smoothly. Life can become
smoother if rights and duties go hand in hand and become complementary to each other. Rights
are what we want others to do for us whereas the duties are those acts which we should perform
for others. Thus, a right comes with an obligation to show respect for the rights of others. The
obligations that accompany rights are in the form of duties. If we have the right to enjoy public
facilities like transport or health services, it becomes our duty to allow others to avail the same. If
we have the right to freedom, it becomes our duty not to misuse this and harm others.

Fundamental rights
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.
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The six fundamental rights are:

1. Right to equality 4. Right to freedom of religion
2. Right to freedom 5. Cultural and educational rights
3. Right against exploitation 6. Right to constitutional remedies
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.

Genesis
The development of constitutionally guaranteed fundamental human rights in India was inspired
by historical examples such as England's Bill of Rights (1689), the United States Bill of Rights
(approved on September 17, 1787, final ratification on December 15, 1791) and France's
Declaration of the Rights of Man (created during the revolution of 1789, and ratified on August
26, 1789). Under the educational system of British Raj, students were exposed to ideas of
democracy, human rights and European political history. The Indian student community in
England was further inspired by the workings of parliamentary democracy and British political
parties.
In 1919, the Rowlatt Acts gave extensive powers to the British government and police, and
allowed indefinite arrest and detention of individuals, warrant-less searches and seizures,
restrictions on public gatherings, and intensive censorship of media and publications. The public
opposition to this act eventually led to mass campaigns of non-violent civil disobedience
throughout the country demanding guaranteed civil freedoms, and limitations on government
power. Indians, who were seeking independence and their own government, were particularly
influenced by the independence of Ireland and the development of the Irish constitution. Also, the
directive principles of state policy in Irish constitution were looked upon by the people of India
as an inspiration for the independent India's government to comprehensively tackle complex social
and economic challenges across a vast, diverse nation and population.
In 1928, the Nehru Commission composing of representatives of Indian political parties proposed
constitutional reforms for India that apart from calling for dominion status for India and elections
under universal suffrage, would guarantee rights deemed fundamental, representation for religious
and ethnic minorities, and limit the powers of the government. In 1931, the Indian National
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Congress (the largest Indian political party of the time) adopted resolutions committing itself to
the defense of fundamental civil rights, as well as socio-economic rights such as the minimum
wage and the abolition of untouchability and serfdom. Committing themselves to socialism in
1936, the Congress leaders took examples from the constitution of the erstwhile USSR, which
inspired the fundamental duties of citizens as a means of collective patriotic responsibility for
national interests and challenges.
When India obtained independence on 15 August 1947, the task of developing a constitution for
the nation was undertaken by the Constituent Assembly of India, composing of elected
representatives under the presidency of Rajendra Prasad. While members of Congress composed
of a large majority, Congress leaders appointed persons from diverse political backgrounds to
responsibilities of developing the constitution and national laws. Notably, Bhimrao Ramji
Ambedkar became the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar
Vallabhbhai Patel became chairpersons of committees and sub-committees responsible for
different subjects. A notable development during that period having significant effect on the
Indian constitution took place on 10 December 1948 when the United Nations General Assembly
adopted the Universal Declaration of Human Rights and called upon all member states to adopt
these rights in their respective constitutions.
The Fundamental Rights were included in the Ist Draft Constitution (February 1948), the IInd
Draft Constitution ( 17 October 1948) and the IIIrd and final Draft Constitution ( 26 November
1949), being prepared by the Drafting Committee.

Significance and Characteristics

The Fundamental Rights were included in the constitution because they were considered essential
for the development of the personality of every individual and to preserve human dignity. The
writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech
and religion were not recognized and protected by the State. According to them, "democracy" is,
in essence, a government by opinion and therefore, the means of formulating public opinion
should be secured to the people of a democratic nation. For this purpose, the constitution
guaranteed to all the citizens of India the freedom of speech and expression and various other
freedoms in the form of the Fundamental Rights.
All people, irrespective of race, religion, caste or sex, have been given the right to move the
Supreme Court and the High Courts for the enforcement of their Fundamental Rights. It is not
necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not
have the means to do so and therefore, in the public interest, anyone can commence litigation in
the court on their behalf. This is known as " Public interest litigation". In some cases, High Court
judges have acted on their own on the basis of newspaper reports.
These Fundamental Rights help not only in protection but also the prevention of gross violations
of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens
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the access and use of the same facilities, irrespective of background. Some Fundamental Rights
apply for persons of any nationality whereas others are available only to the citizens of India. The
right to life and personal liberty is available to all people and so is the right to freedom of religion.
On the other hand, freedoms of speech and expression and freedom to reside and settle in any part
of the country are reserved to citizens alone, including non-resident Indian citizens. The right to
equality in matters of public employment cannot be conferred to overseas citizens of India.
Fundamental rights primarily protect individuals from any arbitrary State actions, but some rights
are enforceable against individuals. For instance, the Constitution abolishes untouchability and
also prohibits begar. These provisions act as a check both on State action as well as the action of
private individuals. However, these rights are not absolute or uncontrolled and are subject to
reasonable restrictions as necessary for the protection of general welfare. They can also be
selectively curtailed. The Supreme Court has ruled that all provisions of the Constitution,
including Fundamental Rights can be amended. However, the Parliament cannot alter the basic
structure of the constitution. Features such as secularism and democracy fall under this category.
Since the Fundamental Rights can only be altered by a constitutional amendment, their inclusion
is a check not only on the executive branch, but also on the Parliament and state legislatures.
A state of national emergency has an adverse effect on these rights. Under such a state, the rights
conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended.
Hence, in such a situation, the legislature may make laws which go against the rights given in
Article 19. Also, the President may by order suspend the right to move court for the enforcement
of other rights as well.
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Chapter 2
Citizenship in India
The population of State is divided into two classes — Citizens and aliens. A citizen of a State is a
person who enjoys full civil and political rights. Citizens are different from aliens who do not
enjoy all these rights. Citizenship carries with it certain advantages conferred by the Constitution.
Aliens do not enjoy these advantages. The following fundamental rights are available only to
citizens:
(1) The right not to be discriminated against any citizen on grounds of religion, race, sex or
place of birth (Article 15)
(2) The right to equality of opportunity in the matter of public employment (Article 16)
(3) The right to six freedoms enumerated in Article 19, i.e. freedom of speech and
expression; assembly; association; movement; residence; profession.
(4) Cultural and educational rights conferred by Articles 29 and 30.
(5) There are certain offices, under the Constitution which can be occupied by citizens only
e.g. office of the President [Article 58(1)(a)]; Vice-President [Article 67(3)(a)];
Judges of the Supreme Court [Article 124(3)]; or of a High Court [Article 217(2)];
Attorney-General [Article 76(1)]; Governor of a State [Article 157]; and
Advocate-General of a State [Article165].
(6) The right to vote for election to the House of the People and the Legislative Assemblies
of States is available to the citizens only and only they can become members of the Union
and the State Legislatures.
The rights guaranteed by Articles 14 and 21 are available to alien also.

Constitutional Provisions
The Constitution does not lay down a permanent or comprehensive provision relating to
citizenship in India. Part II of the Constitution simply describes classes of persons who would be
deemed to be the citizens of India at the commencement of the Constitution. the 26th January,
1950, and leaves the entire law of the citizenship to be regulated by law made by Parliament.
Article 11 expressly confers power on Parliament to make laws to provide for such matters. In
exercise of its power the Parliament has enacted the Indian Citizenship Act, 1955. This Act
provides for the acquisition and termination of citizenship subsequent to the commencement of
the Constitution.
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Citizenship at the commencement of the Constitution, i.e., January 26, I950

The following persons under Articles 5 to 8 of the Constitution of India shall become citizens of
India at the commencement of the Constitution:
1. Citizenship by domicile (Article 5),
2. Citizenship of emigrants from Pakistan (Article 6).
3. Citizenship of migrants to Pakistan (Article 7).
4. Citizenship of Indians abroad (Article 8).
(1) Citizenship by Domicile (Article 5)

According to Article 5 a person is entitled to citizenship by domicile if he fulfils the following

two conditions: Firstly, he must, at the commencement of the Constitution have his domicile in
the territory of India. Secondly. such person must fulfil any one of the three conditions laid down
in that Article, namely, (1) he was born in India, (2) either of his parents was born in India. (3) he
must have been ordinarily resident in the territory of India for not less than 5 years immediately
before the commencement of the Constitution.
Domicile in India is considered an essential requirement for acquiring the status of Indian
Citizenship. But the term 'domicile' is not defined in the Constitution. The domicile of a person is
in that country, in which he either has or is deemed by law to have his permanent house. There is
distinction between 'domicile' and 'residence'. Residence alone in a place is not sufficient to
constitute the domicile. It must be accompanied by the intention to make it his permanent home.
But it is basically a legal concept for the purpose of determining what is the personal law
applicable to an individual, and even if an individual has no permanent home, he is invested with
a domicile by law.
There are two main classes of domicile viz., ‘domicile of origin’ and ‘domicile of choice’. While
the former attaches to the individual by birth, the latter is acquired by residence in territory subject
to a distinctive legal system, with the intention to reside there permanently.
In Pradeep Jain v. Union of India1, the Supreme Court has held that in India Article 5 recognizes
only one domicile viz., domicile of India. It does not recognise the notion of State domicile. When
a person who is permanently resident in one State goes to another State with intention to reside
them permanently or indefinitely. his domicile, does not change and he does not acquire a new
domicile of choice. India is not a federal State in the traditional sense of the term. It has only one
citizenship viz., the citizenship of India. It has also one single unified legal system applicable
throughout the country. The concept of 'domicile' has relevance to the applicability of municipal
laws whether made by the Union of India or by the States.

1 AIR 1984 SC 142 (19841 3 SCC 654.

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Two elements are necessary for the existence of domicile

(i) a residence of a particular kind, and
(ii) an intention of a particular kind.
The residence need not he continuous but it must be indefinite, not purely fleeing. The intention
must be a permanent intention to reside forever in the country where the residence has been taken
up. Domicile is not the same thing as residence. Mere residence in a place is not sufficient to
constitute domicile. It must be accompanied by the intention to make it his permanent home. Thus,
there must be both the factum and animus to constitute the existence of domicile for neither
domicile nor mere residence is sufficient to make him an Indian citizen. Domicile, accompanied
with five years' residence are necessary to make a person a citizen. Thus, a person born in Goa of
Goan parents came to Bombay in his boyhood. was educated there, had resided there, since then
and did his father's business there. He was held to be an Indian citizen by domicile. 2
In Mohammad Raza v. State of Bombay3, the appellant came to India in 1938 it went on
pilgrimage to Iraq in 1945. On return, he was registered as a foreigner and several times his stay
in India was extended. In 1957 his request to extend the stay period was refused. He contended
that he must be regarded as citizen of India under Article 5, but his appeal was dismissed. The
Court held that though he was original resident, he did not acquire Indian citizenship because he
did not have a domicile in India. When the appellant returned from Iraq, he took over the job of a
cashier in a hotel. That by itself was held insufficient to establish that there was a change in his
mind of the kind necessary to acquire a new domicile. His application for extending his stay in
India made from time to time fortified this conclusion. The domicile of choice continues until the
former domicile has been resumed or another has been acquired.
In Louis De Raedt v. Union of India4, the petitioners. who were foreign national, challenged the
order of the Central Government expelling them from India on their failure to acquire Indian
Citizenship. The petitioners came to India before Independence and were staying continuously on
the basis of foreign passport and residential permits. They were engaged in Christian missionary
work. They contended that they became citizens of India by virtue of Article 5 (c) of the
Constitution as they were staying in India for more than 5 years immediately before the
commencement of the Constitution. The Court held that they failed to establish that they had an
intention to reside in India permanently. The petitioners did not have their domicile in India. For
the acquisition of a domicile of choice, it must be shown that the person concerned had a certain
state of mind, the animus manendi. If he claims that he had acquired a new domicile a particular
time he must prove that he had formed the 'intention of making his permanent home in the ‘country
of residence'. Residence alone, unaccompanied by this state of mind, is insufficient. Domicile of
origin is lost only on acquisition of domicile of choice and not on mere continuous stay in other
country.

2 Michael v. Slate of Bombay. AIR 1956 Bom. 729.

3 AIR 1956 SC 1436
4 (1991) 3 SCC 554
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A minor or married woman is not independent person. Neither of these class, has the legal capacity
to make a change of domicile. Therefore, the domicile of an infant generally follows the domicile
of his father5, while a married woman takes the domicile of her husband. A widow retains the
domicile of her husband until changed by her own act.6
Intention is an important element in determining the domicile of a person. It can be inferred from
the conduct of persons. Thus, a person in Government service, who was given the choice for
opting for India or Pakistan. who opted for Pakistan, actually went to Pakistan. served there under
the Government of Pakistan, but who subsequently resigned his job there and came to India cannot
claim the benefit of Article 5 for he never became the citizen of India!7

(2) Citizenship of Migrants to India from Pakistan (Article 6)

Persons who have migrated from Pakistan to India have been classified into two categories for the
purpose of citizenship, i.e., (i) those who came to India before July 19, 1948; and till those who
came on or after July 19, 1948.
Article 6 provides that a person who has migrated to India from Pakistan shall he 'deemed to be a
citizen of India at the commencement of the Constitution. i.e., on 25th January, 1950, if he or either
of his parents or any of his grandparents were born in India as defined in the Government of India
Act, 1935, and in addition to above condition which applies in both cases fulfils one of the
following two conditions:
(i) in ease he migrated to India before July 19, 1948 (the date on which the permit system for such
migration was introduced) he has been ordinarily residing in India since the date of his migration;
or
(ii) in case he migrated on or after July 19, 1948 he has been registered as citizen of India by an
officer appointed by the Government of India for the purpose:
Provided that no person shall he so registered unless he has been residing in India for at least six
months immediately before the date of his application for registration. If the above conditions are
satisfied, a person shall be deemed to be a citizen of India.

(3) Citizenship of Migrants of Pakistan (Article 7)

Under Article 7 a citizen by domicile (Article 5) or by migration (Article 6) ceases to be a citizen

if he has migrated to Pakistan after March 1, 1947. An exception is, however. made in favour of
a person who has returned to India on the basis of permit for resettlement in India. Such a person
is entitled to become a citizen of India if he fulfils other conditions necessary for immigrants from

5 Naziranbai v. State of M.P. AIR 1957 MB 1

6 Prakash v. Shahni. AIR 1956 J&K 83
7 Karimunissa v. State of M.P., AIR 1955 Nag. 6.
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Pakistan after July 19. 1948. under Article 6. He can register himself as citizen of India in the
same manner as a person migrating from Pakistan after July 19. 1948.
Article 7 thus overrides Articles 5 and 6.8 Both Articles 6 and 7 use the term ‘migrated'. The
waiting of the term 'migrated' came for consideration before the Supreme Court in Kulathi v. Stale
of Kerala9. According to the Court the term 'migrated' used in Article 6 and 7 has to be construed
with reference to the context and purpose and the prevailing political condition at the time the
Constitution was being enacted. So, interpreted, the word 'migrated' could mean nothing except
voluntarily going from India to Pakistan permanently or temporarily. The majority held that the
word 'migrate' was used in a wider sense of moving from one country to another with the
qualification that such movement was not for a short visit or for a special purpose.
Thus, it is a question of fact whether a person has migrated to or has gone to Pakistan on a
temporary visit only and has to be decided on the facts and circumstances of each case10.
Citizenship comes to an end only when there is a migration and not where there was only a
temporary visit. But in the context of the Constitution, it has the notion of transference of
allegiance from India to Pakistan. A temporary visit on business or otherwise cannot amount to
migration11.
In State of Bihar v. Kumar Amar Singh12 one Kumar Rani, who was admittedly born in the
territory of India and claimed to be the lawfully wedded wife of an Indian citizen whose domicile
was India at all material times, left India for Pakistan in July 1948, returned to India in December,
1948 on a temporary permit and went back to Pakistan in April 1949. On May 14. 1953 she came
hack to India under permanent permit obtained from High Commissioner for India in Pakistan,
which was cancelled on July 12, 1950 because it was wrongly issued without the concurrence of
the Government a, required by the rules made under the Influx form Pakistan (Control) Act, 1949.
She contended first that she had never ceased to be a citizen of India because she was born in
India and her domicile was the domicile of her husband who was an Indian and consequently she
was a citizen of India. She contended, alternatively that the proviso to Article 7 applied to her
since she had returned to India on a permanent permit and the
after 1st March, 1947, although her husband stayed in India, but she could not prove that she went
to Pakistan for a temporary purpose. The Supreme Court observed: "Article 7 clearly overrides
Article 5. It is pre-emptory in its scope and makes no exception for such a case, i.e., of the wife
migrating to Pakistan leaving her husband in India".
In Bhawanrao Khan v. Union of India13. the Supreme Court has held that those who had
voluntarily migrated to Pakistan and became citizens of Pakistan cannot claim the citizenship of
India on the ground that they had been living in India for a long time and their names have been
included in the voters list. In this case, a lady Bhanwarao Khan had claimed Indian citizenship on

8 State of Bihar v. Kumar Amar Singh. AIR 1955 SC 282.

9 AIR 1967 SC 1614.
10 Nisar v. Union of India. AIR 1958 Rai. 65.
11 Ataur Rehman v. State of M.P., AIR 1951 Nag. 44.
12 AIR 1955 SC 282.
13 AIR 2002 SC 1614
 Page |-9-

the ground that she had returned to India in 1955 and had been living here since then. The Court
held that "a foreign lady cannot claim Indian citizenship merely on the ground of long stay and
inclusion of her name in the voters' list"

(4) Citizenship of persons of Indian origin residing outside India

Article 8 provides that any person or either of whose parents or any of those grand-parents was
born in India as defined in the Government of India Act, 1935, and who is ordinarily residing in
any country outside India, shall be deemed to be a citizen of India as it he has been registered as
a citizen of India by the Diplomatic or Consular representatives of India in the country where he
is for the time being residing—on application made by him to such diplomatic or consular
representative, whether before or after 26th January. 1950. in the form and manner prescribed by
the Government of the Dominion of India or Government of India. Article 8 confers citizenship
on Indian nationals residing abroad on their complying with its provisions.
Article 9 provides that if a person voluntarily acquires the citizenship of any foreign State he shall
not be able to claim citizenship of India under Articles 5, 6 and 8. It deals only with voluntary
acquisition of citizenship of a foreign State before the Constitution came into force. Cases of
voluntary acquisition of a foreign citizenship before the commencement of the Constitution will
have to be dealt with the Government of India under the Citizenship Act of 1955.
Article 10 provides that every person who is or is deemed to be a citizen of India under any of the
foregoing provisions shall continue to be a citizen of India subject, however, to the provisions of
any law that may be made by Parliament. Thus, in exercise of this power, Parliament may take
away the right of citizenship of any person. But the right to citizenship given under the foregoing
provisions can only be taken away by an express law made by Parliament. It cannot be taken away
indirectly. In Ebrahim Wazir v. State of Bombay14, constitutional validity of Influx from Pakistan
(Control) Act. 1949, was involved. This Act provides that no person domiciled in India or Pakistan
shall enter India from Pakistan without a permit. If a person enters India without a permit he
commits an offence punishable under the Act. Section 7 of the Act authorises the Central
Government to direct the removal from India of any person who has committed, or against whom
a reasonable suspicion exists that he has committed an offence under the Act. The Supreme Court
held that Section 7 was ultra vires of Parliament because to allow the forcible removal of an Indian
citizen from India would be tantamount to destroying the right of citizenship conferred by Part 2
of the Constitution. The right of citizenship, the Court said, could only be taken away by recourse
to Article 11 of the Constitution. Thus, in absence of any law expressly made under Article 11 the
right of citizenship cannot be destroyed by an Act made for a different purpose.
Citizenship under the Citizenship Act, 1955

14 AIR 1952 SC 229

 P a g e | - 10 -

Parliament, in exercise of the power given to it under Article 11 of the Constitution, has passed
the Citizenship Act, 1955, making provisions for acquisition and termination of citizenship after
the commencement of the Constitution. The Act provides for the acquisition of Indian citizenship
after the commencement of the Constitution in five ways, i.e., birth, descent, registration.
naturalization and incorporation of territory.

Amendment of Citizenship Act

The Citizenship (Amendment) Act, 2003 has almost overhauled the Citizenship Act, 1955. Its
main aim is to provide double citizenship to "overseas citizen of India" of specified countries
mentioned in the new Fourth Schedule to the Act added by the amendment.
The Act has substituted new clauses for clauses (b) and (c) and proviso to (c) of Section 2 which
says that "illegal migrants means who entered into India—(i) without valid passport or other travel
documents as provided by any law (ii) and remained therein beyond the permitted period of time.

Overseas Citizens of India

The new Clause (ee) of Section 2 says that overseas citizen of India means a person who (i) is of
Indian origin being citizen of a specified country or (ii) was a citizen of India immediately before
becoming a citizen of specified country and is registered as an overseas citizen of India by the
Central Government under sub-section (1) of Section 7A. New Clause (gg) says that "specified
country" means a country specified in the Fourth Schedule. The Fourth Schedule mentions the
following countries—Australia. Canada, Finland, France, Greece, Ireland, Israel, Italy,
Netherland, New Zealand, Portugal, Republic of Cyprus, Sweden. Switzerland, United Kingdom
and United States of America.

Citizenship by birth (Section 3)

The new Section 3 for the existing Section 3 provides that except as provided in sub-section (2)
every person born in India (a) on or after 26th Jan., 1950 but before 1st July, 1987 (b) on or after
1st July, 1987 but before the commencement of the Citizenship (Amendment) Act, 2003 and either
of whose parents is a citizen of India at the time of his birth (c) on or after the commencement of
the Citizenship (Amendment) Act, 2003 where (i) both of his parents are citizens of India, or (ii)
one of whose parents is a citizen of India and other is not an illegal migrant at the time of his birth,
shall be a citizen of India by birth.
A person shall not be a citizen of India by virtue of this section. if at the time of his birth (a) either
his father or mother, possesses such immunity from suits and legal process as is accorded to an
envoy of a foreign sovereign power accredited to the President of India and he or she, as the case
may be, is not citizen of India. or (b) his father and mother is an enemy alien.
 P a g e | - 11 -

Citizenship by descent (Section 4)

According to new sub-section (1) of Section 4—A person born outside India shall be citizen of
India by descent—(a) on or after 26th Jan., 1950 but before 10th of Dec., 1992 if his father is a
citizen of India at the time of his birth, or (b) on or after 10th day of Dec., 1992 if either of his
parents is a citizen of India at the time of his birth.
Provided that if the father of a person referred to in clause (a) was a citizen of India by descent
only, that person shall not be a citizen of India by virtue of this section unless (a) his birth is
registered at the Indian Consulate within one year of is the commencement of this act, whichever
is later, or with the permission of the Tents) Government, after the expiry of the said period, or
(b) either of his parents is at the time of his being, in service under Government in India.
Provided also that on or after the commencement of the Citizenship (Amendment) Act, 2003, a
person shall not be a citizen of India by virtue of this section unless his firth is registered at an
Indian Consulate in such form and manner as may be prescribed (i) within one year of its
occurrence or the commencement of the Citizenship (Amendment) Act. 2003 whichever is later
or (ii) with the permission of the Central Government, after he expiry of the said period.
But no such birth shall be registered unless the parents of such person declare that he minor does
not hold the passport of another country. A minor who is citizen of India ty virtue of this section
and is also citizen of another country shall cease to be citizen of India if he does not renounce the
citizenship of another country within six months of its attaining full age.

Citizenship by Registration (Section 5)

The prescribed authority may on application register a citizen of India any person not being an
illegal migrant who is not heady such citizen by virtue of the Constitution or of any other
provisions of this Act if ,he belongs to any of the following categories—(a) a person of Indian
origin who is ordinarily resident of India for seven years before making an application for
registration b) persons of Indian origin who is ordinarily resident in any country or place outside
redivided India (c) person who is married to a citizen of India and is ordinarily resident of India
for seven years before making an application for registration (d) minor children of persons who
are citizens of India (e) a person of full age and capacity whose parents are registered as citizens
of India under clause (a) of this sub-section or sub-section (I) of section 6 (f) a person of full age
and capacity who either of his parents, was earlier citizen if Independent India, and has been
residing in India for one year immediately before nuking an application for registration (g) a
person of full age and capacity who has been registered as an overseas citizen of India for five
years. and who has been residing in India 'or two years before making an application for
registration.
For purposes of Clauses (a) and (c) an application shall be deemed to be ordinarily resident of
India (i) if he has resided in India for 12 months immediately before making an application for
 P a g e | - 12 -

registration (ii) he has resided in India during 8 years immediately preceding the said period of 12
months for a period of not less than 6 years.

Citizenship by naturalization

Where an application in the prescribed manner s made by any persons of full age and capacity.
"not being an illegal migrant"' the 7entral Government may, if satisfied that the applicant is
qualified for naturalization grant him a certificate of naturalization. The qualifications for
naturalization are the following:
(a) he must not be a citizen of a country where Indian citizens are prevented from becoming citizen
by naturalization,
(b) he has renounced the citizenship of the other country,
(c) he has either resided in India or has been in Government service for 12 in months before the
date of making the application for naturalization, or during 7 years prior to these 12 months,
he has resided or has been in the Government service for not less than four years,
(d) he must take an oath of allegiance.
(e) he is of a good character,
(f) he has an adequate knowledge of a language recognised by the Constitution,
(g) that after naturalization being granted to him, he intends to reside in India or to serve under the
Government of India. However, if in the opinion of the Central Government the applicant has
rendered distinguished service to the cause of science, philosophy, art, literature, world peace
or human progress. if may waive all or any of the above conditions for naturalization in his
case. (Section 6).

Citizenship by incorporation of territory

If any new territory becomes a pan of India. the Government of India shall specify the persons of
the territory to be citizens of India. (Section 7).
 P a g e | - 13 -

Chapter 3
Rights of Citizens
The Fundamental Rights are enshrined in Part III of the Constitution from articles 12 to 35. In this
regard, the framers of the Constitution derived inspiration from the Constitution of USA (i.e., Bill
of rights).
Part III of the Constitution is rightly described as magna carta of India. It contains a long and
comprehensive list of justiciable Fundamental Rights. Fundamental Rights were deemed essential
to protect the rights and liberties of the people against the encroachment of the power delegated
by them to their Government. The Fundamental Rights are meant for promoting the ideal of
political democracy. They prevent the establishment of an authoritarian and despotic rule in the
country and protect the liberty and freedom of the people, against the invasion by the State.
The Fundamental Rights are named so because they are guaranteed and protected by the
Constitution, which is the fundamental law of the land. They are fundamental also in the sense
that they are most essential for the all-round development of the individuals. The Constitution
provides for six Fundamental Rights viz.

Classification of Fundamental Rights

The fundamental rights as incorporated in the Indian Constitution can be classified under the
following six groups:
1. Right to equality (Articles 14-18);
2. Right to freedom (Articles 19-22);
3. Right against exploitation (Articles 23-24);
4. Right to freedom of religion (Articles 25-28);
5. Cultural and educational rights (Articles 29-30);
6. Right to constitutional remedies (Article 32).
The 44th Amendment has abolished the right to property as a fundamental right as guaranteed by
Article 19(1)(f) and Article 31 of the Constitution, and hence Article 19(1)(f) and Article 31 has
been omitted.
Positive and Negative Rights

The negative rights are in the nature of restriction upon exercise of power by the State or private
individuals while the positive rights require some positive action on the part of the State or
individuals against whom they are available. In some constitutions both types of rights have been
grouped under Fundamental Rights but the Indian Constitution followed the pattern set by Irish
Constitution and include positive rights mostly in the charter on Directive Principles of State
Policy, because it was not practicable to make them enforceable by an action in the court of law.
Part III includes mainly negative rights.
 P a g e | - 14 -

Right to Equality (Articles 14-18)

The Constitution of India guarantees the Right to Equality through articles 14 to 18. Equality is
one of the magnificent corner-stone of Indian democracy. The doctrine of equality before law is
a necessary corollary of rule of law which pervades the Indian Constitution. Article 14 deals with
the general right to equality and equal protection of law whereas articles 15-18 guarantee equality
in certain specified matters. Right to equally is the most important right for a democratic, socialist,
secular, republic as envisaged in the Preamble to the constitution. Democracy cannot function
properly without this minimum guarantee to individual member of the society. This principle has
been recently reiterated by the Supreme Court in case of M.G. Badappanavar v. State of
Karnataka15, in the following words “Equality is a basic feature of the Constitution of India and
any treatment of equals unequally or unequals as equals will be violation of basic structure of the
Constitution of India”.
Equality Before Law (Article 14)

Article 14 declares that 'the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India'. Thus, Article 14 uses two expressions "equality
before the law" and "equal protection of the law". The phrase "equality before the law" finds a
place in almost all written Constitutions that guarantees fundamental rights.' Both these
expressions have, however, been used in the Universal Declaration of Human Rights: The first
expression 'equality before law' is of English origin and the second expression has been taken
from the American Constitution. Both these expressions aim at establishing what is called
"equality of status" in the Preamble of the Constitution. While both the expressions may seem to
be identical, they do not convey the same meaning. While 'equality before the law' is a somewhat
negative concept implying the absence of any special privilege in favour of individuals and the
equal subject of all classes to the ordinary law. "Equal protection of the law" is a more positive
concept implying equality of treatment in equal circumstances. However, one dominant idea
common to both the expressions is tint of equal justice.16 In State of West Bengal v. Anwar Ali
Sarkar17, Patanjali Sastri, C.J., rightly held the second expression is corollary of the first and it is
difficult to imagine a situation in which the violation of the equal protection of laws will not be
the violation of the equality before law. Thus, in substance the two expressions mean one and the
same thing.
The above rule of equality is, however, not an absolute rule and them am number of exceptions
to it: First 'equality before the law' does not mean that the "powers of the private citizens are the
same as the powers of the public official,". Thus, a police officer has the power to arrest while,
as a general rule, no private person has this power. This is not the violation of the rule of law.
But the rule of law does require that these powers should be clearly defined by law and that

15 AIR 2001 SC 260: 2000 AIR SCW 4340

16 Sheoshanker v. State of M.P., AIR 1951 Nagpur 53 (FB)
17 AIR 1952 SC 75
 P a g e | - 15 -

abuse of authority by public officers must be punished by ordinary courts in the same manner as
illegal acts committed by private persons.
Secondly, the rule of law does not prevent certain classes of persons bring subject to special
rules. Thus, members of the armed forces are controlled by military laws. Similarly, medical
practitioners are subjected to the regulations framed by the Medical Council of India, a statutory
body, and are immune from the jurisdiction of ordinary courts.
Article 361 of the Indian Constitution affords an immunity to the President of India and the
State Governors. Article 361 provides that the President or the Governors of State shall not be
answerable to any Court for the exercise and performance of the powers and duties of the office
or for any act done or purporting to be done by him in the exercise and performance of those
powers and duties. No criminal proceeding shall be instituted or continued against the President
or the Governor of a State in any Court during his term of office. No process for the arrest or
imprisonment of the President or the Governor of State shall be issued from any Court during
his term of office.
Thirdly, ministers and other executive bodies are given very wide discretionary Powers by the
statutes. A Minister may be allowed by law 'to act as he thinks fit' or 'if he is satisfied'. Such
power is sometimes abused. Today, a large number of legislation is Passed in the form of
delegated legislation, i.e., rules, orders or statutory instruments made by ministers and other
bodies and not directly by Parliament. These rules did not exist in Dicey’s time.
Fourthly, certain members of society are governed by special rules in their professions, i.e.,
lawyers, doctors, nurses, members of armed forces and police. Such classes of people are treated
differently from ordinary citizens.

No Discrimination on Grounds of Religion, Race, Caste, etc. (Article 15)

Article 15 provides for a particular application of the general principle embodied in Article 14.
When a law conies within the prohibition of Article 15 it cannot be validated by recourse to
Article 14 by applying the principle of reasonable classification.4 It is when the discrimination
is based upon one of the grounds mentioned in Article 15. The reasonableness of the
classification will be tested under Article 14. The guarantee under Article 15 is available to
citizens only and not to every person whether 'citizen or non-citizen' as under Article 14.
The first clause of Article 15 directs the State not to discriminate Against a citizen on grounds
only of religion, race, caste, sex or place of birth or any of them. The second clause prohibits
citizens as well as the States from making such discrimination with regard to access to shops,
hotels, etc., and all places of public entertainment, of public resort, wells, tanks, roads, etc. The
first clause of Article 15 mentions the prohibited grounds in any matter which is exclusively
within the control of the State. The second clause prohibits both the State and the private
individual, whosoever is in the control of the above-mentioned places. The third clause
empowers the State to make special provisions for the protection of women and children. The
fourth clause which was added by the Constitution (1st Amendment) Act, 1951, enables the
State to make special provisions for the protection of the interests of the Backward Classes of
citizens and is, therefore, an exception to Articles 15 and 29 (2) of the Constitution.
 P a g e | - 16 -

Equality of Opportunity in Public Employment (Article 16)

Article 16 (1) guarantees equality of opportunity for all citizens in matters of employment or
'appointment' to any post under the State. Clause (2) says that no citizen shall, on grounds only of
religion, race, caste, sex, descent, place of birth, residence or any of them, he ineligible for or
discriminated against in respect of. Any employment or office under the State. Clauses (1) and (2)
of Article 16 lay down the general rule of equality of opportunity or appointment under the State
and that no citizen can he discriminated against or be ineligible for any employment or office
under the State on grounds only of religion. race, caste, sex, descent, place of birth or residence.
Art. 16 (1) and (2) applies only in respect of employment or office under the State. Clauses (3),
(4), (4-A), (4-B) and (5) of Art. 16 provide four exceptions to this general rule of equality of
opportunity.
Article 16 (3) provides that “Nothing in this Article shall prevent Parliament from making any
law prescribing in regard to a class or classes of employment or appointment to an office under
the Government of, or any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such employment Or
appointment.”
Article 16 (4) enables the State to make provision for the reservation of posts in government jobs
in favour of any backward class of citizens which, in the opinion of the State. is not adequately
represented in the services of the State. The newly added clause (4-A) (added by 77th Amendment
Act 1995) empowers the State to make any provision for reservation in matters of promotions for
SCs and STs which, in the opinion of the State, are not adequately represented in the services
under the State.
The Constitution (81st Amendment) Act, 2000 has added a new clause (4-B) after clause (4-A) in
Art. 16 of the Constitution which seeks to end the 50% limit for Scheduled Castes and Scheduled
Tribes and other Backward Classes in backlog vacancies which could not be filled up due to the
non-availability of eligible candidates of these categories in the previous year or years.
Clause (5) saves a km from the operation of clauses (1) & (2) which provides for the incumbent
of any office a religious qualification for appointment. It is to be noted that under Article 16 the
guarantee against discrimination is limited to 'employment' and `appointment' under the State.
Article 15. however, is more general and deals with all cases of discrimination which do not fall
under Article 16. Article 16 embodies the particular application of general rule of equality laid
down in Article 14 with special reference for appointment and employment under the State.

Abolition of Untouchability (Article 17)

Article 17 abolishes “untouchability” and forbids its practice in any form. The enforcement of any
disability arising out of untouchability is to be an offence punishable in accordance with law. It
does not stop with a mere declaration but announces that this forbidden ‘untouchability’ is not to
 P a g e | - 17 -

be henceforth practiced in any form. If it is so practiced it shall be dealt with as an offence

punishable in accordance with the law.

Abolition of Titles (Article 18)

Article 18 prohibits the State to confer titles on anybody whether a citizen or a non-citizen.
Military and academic distinctions are, however, exempted from the prohibition for they are
incentive to further efforts in the perfection of the military power of the State so necessary for its
existence, and for the scientific endeavors so necessary for its prosperity. Clause (2) prohibits a
citizen of India from accepting any title from any foreign state. Clause (3) provides that a
foreigner holding any office of profit or trust under the State cannot accept any title from any
foreign State without the consent of the President. This is to ensure loyalty to the Government
he serves for the time being and to shut out all foreign influence in the Government affairs or
administration. Clause (4) provides that no person holding any office of profit or trust under the
State shall accept, without the consent of the President any present, emolument or office of any
kind from or under any foreign State.

RIGHT TO FREEDOM (ARTICLES 19-22)

Personal liberty is the most important of all fundamental rights. Articles 19 to 22 deal with
different aspects of this basic right. Taken together these four Articles form a Chapter on
personal liberties which provides the backbone of the Chapter on Fundamental Rights.
The foremost amongst these are the six fundamental rights in the nature of freedoms which are
guaranteed to the citizens by Article 19 of the Constitution.
Article 19 of the Constitution guarantees to the citizens of India the following six fundamental
freedoms :
a. Freedom of Speech and Expression.
b. Freedom of Assembly.
c. Freedom to form Associations or Unions or Co-operative Societies.
d. Freedom of movement.
e. Freedom to reside and to settle.
g. Freedom of profession, occupation, trade or business.
These 'six freedoms' are however, not absolute. Absolute individual rights cannot be guaranteed
by any modern State. An organized society is the precondition of civil liberties. There cannot be
any right which is injurious to the community as a whole. If people were given complete and
absolute liberty without any social control the result would be ruined., Liberty has got to be limited
in order to be effectively possessed. For liberty of one must not offend the liberty of others.
 P a g e | - 18 -

The restrictions on these freedoms provided in clauses 2 to 6 of Article 19 of the Constitution.

The restriction which may be imposed under any of the clauses must be reasonable restriction.
The restrictions cannot be arbitrary.
Freedom of Speech and Expression [Articles 19(1)(a) and 19(2)]

Freedom of speech and expression is indispensable in a democracy. In Romesh Thapper v. State

of Madras18, Patanjali Sastri, J., rightly observed that ‘Freedom of speech and of the Press lay at
the foundation of all democratic organizations, for without free political discussion no public
education, so essential for the proper functioning of the process of popular Government is
possible.’
Article 19(1)(a) says that all citizens shall have the right to freedom of speech and expression. But
this right is subject to limitations imposed under Article 19(2) which empowers the state to put
‘reasonable’ restrictions on the following grounds, e.g., security of state, friendly relations with
foreign States, public order, decency and morality, contempt of court, defamation, incitement to
offence and integrity and sovereignty of India.

Freedom of Assembly [Articles 19(1)(b) and 19(3)]

Article 19(1)(b) guarantees to all citizens of India right "to assemble peaceably and without arms".
The right of assembly includes the right to hold meetings and to take out processions. This right
is however subject to the following restrictions:
1. The assembly must be peaceable;
2. It must be unarmed;
3. Reasonable restrictions can be imposed under Clause 3 of Article 19.
The right of assembly is implied in the very idea of the democratic Government. The right of
assembly thus includes right to hold meetings and to take out processions. This right. like other
individual rights is not absolute but restrictive. The assembly must he non-violent and must not
cause any breach of public peace. If the assembly is disorderly or riotous then it is not protected
under Article 19(1)(b) and reasonable restrictions may be imposed under clause (3) of Article 19
in the interests of 'sovereignty and integrity of India' or 'public order'.

Freedom to form Association [Articles 19(1)(c) and 19(4)]

Articles 19(1)(c) of the Constitution of India guarantees to all its citizens the right “to form
associations or unions or Co-operative Societies”. Under clause (4) or Article 19, however, the

18 AIR 1950 SC 124

 P a g e | - 19 -

State may by law impose reasonable restrictions on this right in the interest of public order or
morality or the sovereignty and integrity or India.
The right of association pre-supposes organization. It is an organization or permanent
relationship between its members in matters of common concern. It thus includes the right to
form companies, societies, partnership, trade union19, and political parties. The right guaranteed
is not merely the right to form association but also to continue with the association as such. The
freedom to form association implies also the freedom to form or not to form, to join or not to
join20, an association or union.
The right of association, like other individual freedom, is not unrestricted. Clause (4) or Article
19 empowers the State to impose reasonable restrictions on the right of freedom of association
and union in the interest of “public order” or “morality” or “sovereignty or integrity” of India. It
saves existing laws in so far as they are not inconsistent with fundamental rights of association.

Freedom of movement [Articles 19(1)(d) and 19(5)]

Articles 19(1)(d) guarantees to all citizens of India the right “to move freely throughout the
territory of India”. This right is, however, subject to reasonable restrictions mentioned in clause
(5) of Article 19, i.e, (1) in the interest of general public or (2) for the protection of the interest of
any Scheduled Tribe.
Articles 19(1)(d) of the Constitution guarantees citizens a right to go wherever they like in Indian
territory without any kind of restriction whatsoever. They can move not merely from one State to
another but also from one place to another within the same State. This freedom cannot be curtailed
by any law except within the limits prescribed under Article 19(5). What the Constitution lays
stress upon is that the entire territory is one unit so far the citizens are concerned 21. Thus, the
object was to make Indian citizens national minded and not to be petty and parochial.
The state may under clause (5) of Article 19 impose reasonable restrictions on the freedom of
movement on two grounds:
1. In the interest of general public,
2. For the protection of the interest of Scheduled Tribes.

Freedom of Residence [Articles 19(1)(e) and 19(5)]

According to Article 19(I)(e) every citizen of India has the right "to reside and settle in any part
of the territory of India". However, under clause (5) of Article 19 reasonable restriction may be

19 Kulkarni v. State of Bombay, AIR 1931 Bom 105

20 Sarya Pal Singh v. State of U.P., AIR 1951 All. 674
21 N.B. Khare v. State of Delhi, AIR 1961 SC 211
 P a g e | - 20 -

imposed on this right by law in the interest of the general public or for the protection of the
interest of any Scheduled Tribe.
The object of the clause is to remove internal barriers within India or any of its parts. The words
"the territory of India" as used in this Article indicate freedom to reside anywhere and in any part
of the State of India.
It is to be noted that the right to reside and right to move freely throughout the country are
complementary and often go together. Therefore, most of the cases considered under Article
19(1)(d) are relevant to Article 19(1)(e) also. This right is subject to reasonable restrictions
imposed by law in the interest of general public or for the protection of the interests of any
Scheduled Tribes. Thus, where a prostitute, under the Suppression of Immoral Traffic in Women
and Girls Act, 1956, was ordered to remove herself from the limits of a busy city or the restriction
was placed on her movement and residence, it was held to be a reasonable restriction.22

Freedom of Profession, Occupation, Trade or Business [Articles 19(1)(g) and 19(6)]

Article 19(1)(g) guarantees that all citizens shall have the right "to practise any profession, or to
carry on any occupation, trade or business". However, the right to carry on a profession, trade or
business is not unqualified. It can be restricted and regulated by authority of law. Thus, the State
can under clause (6) of Article 19 make any law—
(a) imposing reasonable restriction on this right 'in the interest of public',
(b) prescribing professional or technical qualifications necessary for practising any profession
or carrying on any occupation, trade or business, (c) enabling the State to carry on any trade
or business to the exclusion of citizens wholly or partially.
In P.A. Inamdar v. State of Maharashtra23, it has been held that the right to establish an educational
institution, for charity or for profit, being an occupation is guaranteed under the Constitution to
all citizens under Article 19 (1) (g) and to minorities under Article 30. 'Education' even though is
an occupation but it cannot be equated with trade or business. In short, education is national wealth
essential for the nation's progress and prosperity. Notwithstanding the fact that the right of a
minority to establish and administer an educational institution would be protected by Article 19
(1) (g) yet the Founding Fathers of the Constitution felt the need of enacting Article 30. The reason
is obvious. Article 30 is intended to instill confidence in minorities against any encroachment by
the executive or legislature. Article 19 (1) (g) is subject to reasonable restrictions under Clause
(6) of Article 19. Article 30 has been therefore enacted to give them additional protection.
However, merely because Article 30 (1) has been enacted, minority educational institutions do
not become immune from the operation of regulatory measures because the right to administer

22 State of U.P. v. Kaushalya, AIR 1964 SC 416

23 AIR 2005 SC 3226
 P a g e | - 21 -

does not include the right to mal-administer. The real purpose sought to be achieved by Article 30
is to give minorities some additional protection.
Protection in respect of conviction for offences (Article 20)

Article 20 of the Indian Constitution provides the following safeguards to the persons accused of
crimes:
(a) Ex post facto law: Clause (1) of Article 20.
(b) Double jeopardy: Clause (2) of Article 20.
(c) Prohibition against self-incrimination: Clause (3) of Article 20.
Protection against Ex post facto law:
Clause (1) of Article 20 of the Indian Constitution says that "no person shall be convicted of any
offence except for violation of a law in force at the time of the commission of the act charged as
an offence, nor be subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence.
Article 20 (1) imposes a limitation on the law-making power of the Legislature. Ordinarily, a
Legislature can make prospective as well as retrospective laws, but clause (1) of Article 20
prohibits the Legislature to make retrospective criminal laws. However, it does not prohibit
imposition of civil liability retrospectively, i.e., with effect from a past date24. So, a tax can be
imposed retrospectively25.
An ex post facto law is a law which imposes penalties retrospectively, i.e., on acts already done
and increases the penalty for such acts. The American Constitution also contains a similar
provision prohibiting ex post facto laws both by the Central and the State Legislatures.
Protection against Double Jeopardy:
Clause (2) of Article 20 of our Constitution says that "no person shall be prosecuted and punished
for the same offence more than once". This clause embodies the common-law rule of memo debet
vis vexari which means that no man should be put twice in peril for the same offence. If he is
prosecuted again for the same offence for which he has already been prosecuted, he can take
complete defence of his former acquittal or conviction.
The American Constitution incorporates the same rule in the Fifth Amendment that "no person
shall be twice put in jeopardy of life or limb". The protection under clause (2) of Article 20 is
narrower than that given in American and British laws. Under the American and the British
Constitution, the protection against double jeopardy is given for the second prosecution for the
same offence irrespective of whether an accused was acquitted or convicted in the first trial. But
under Article 20(2) the protection against double punishment is given only when the accused has

24 Hathi Singh Manufacturing Co. v. Union of India, AIR 1960 SC 923

25 Sundaramier & Co. v. State of Andhra Pradesh, AIR 1958 SC 468
 P a g e | - 22 -

not only been 'prosecuted' but also 'punished', and is sought to be prosecuted second time for the
same offence. The use of the word 'prosecution' thus limits the scope of the protection under clause
(1) of Article 20. If there is no punishment for the offence as a result of the prosecution clause (2)
of Article 20 has no application and an appeal against acquittal, if provided by the procedure is in
substance a continuance of the prosecution26. The word 'prosecution' as used with the word
'punishment' embodies the following essentials for the application of double jeopardy rule. They
are:
(1) The person must be accused of an 'offence'. The word 'offence' as defined in General Clauses
Act means 'any act or omission made punishable by law for the time being in force'.
(2) The proceeding or the prosecution must have taken place before a "court" or 'judicial tribunal".
(3) The person must have been 'prosecuted and punished' in the previous proceeding.
(4) The 'offence' must be the same for which he was prosecuted and punished in the previous
proceedings.
Prohibition against self-incrimination:
Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to be
a witness against himself. Thus, Article 20(3) embodies the general principles of English and
American jurisprudence that no one shall be compelled to give testimony which may expose him
to prosecution for crime. The cardinal principle of criminal law which is really the bed rock of
English jurisprudence is that an accused must be presumed to be innocent till the contrary is
proved. It is the duty of the prosecution to prove the offence. The accused need not make any
admission or statement against his own free will.

Protection of Life and Personal liberty (Article 21)

Article 21 reads as: “No person shall be deprived of his life or personal liberty except according
to a procedure established by law.”
According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in
a democratic society.”27 Iyer, J., has characterized Article 21 as “the procedural magna carta
protective of life and liberty.”28 This right has been held to be the heart of the Constitution, 29 the
most organic and progressive provision in our living constitution, the foundation of our laws.30

26 Smt. Kalawati v. State of H.P., AIR 1953 SC 131

27 Francis Coralis v. Union Territory of Delhi, AIR 1981 SC 746.
28 P.S.R. Sadhanantham v. R.S Naik, AIR 1992 SC 1701.
29 I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861
30 Rajneesh Kapoor v. Union of India, AIR 2007 MP 204.
 P a g e | - 23 -

Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by
the “State” as defined in Article 12. Violation of the right by a private individual is not within
the preview of Article 21.31
Article 21 secures two rights: Right to life; and Right to personal liberty.
The Article prohibits the deprivation of the above rights except according to a procedure
established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to
the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI of
the Constitution of Japan, 1946. Article 21 Applies to natural persons. The right is available to
every person, citizen or alien. Thus, even a foreigner can claim this right.7 It, however, does not
entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).32
In the case of Kharak Singh v. State of Uttar Pradesh33, the Supreme Court quoted and held that:
By the term “life” as here used something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body by amputation of an arm or leg or the
pulling out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world.
In Sunil Batra v. Delhi Administration34, the Supreme Court reiterated with the approval the above
observations and held that the “right to life” included the right to lead a healthy life so as to enjoy
all faculties of the human body in their prime conditions. It would even include the right to
protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It
includes the right to live in peace, to sleep in peace and the right to repose and health.
The expanded scope of Article 21 has been explained by the Apex Court in the case of Unni
Krishnan v. State of A.P. and the Apex Court itself provided the list of some of the rights covered
under Article 21 on the basis of earlier pronouncements and some of them are listed below:
(1) The right to go abroad.
(2) The right to privacy. (6) The right to shelter.
(3) The right against solitary confinement. (7) The right against custodial death.
(4) The right against hand cuffing. (8) The right against public hanging.
(5) The right against delayed execution. (9) Doctors assistance

31 Bombay Dyeing & Mfg. Co. v. By. EA Group, AIR 2006 SC 1489.
32 Cherchi Domenico Ferdinando v. Union of India, AIR 2004 Del. 147.
33 AIR 1963 SC 1295
34 AIR 1978 SC 1675
 P a g e | - 24 -

Right to Education (Article 21A)

The Constitution (86th Amendment) Act, 2002 added a new Article 21A after Article 21 and made
education for all children of the age of 6 to 14 years a fundamental right. It provides —The State
shall provide free and compulsory education to all children of the age of 6 to 14 years in such
manner as the State may, by law, determine".
It is well-known that education is a basic human right. For the success of democratic system of
Government. education is one of the basic elements. An educated citizen has to choose the
representatives who form the government. Education gives a person human dignity who develops
himself as well as contributes to the development of his country. The framers of the Constitution
realising the importance of education imposed a duty on the State under Art. 45 as one of the
directive policy of State to provide free and compulsory education to all children until they
complete the age of 14 years within 10 years from the commencement of the Constitution. The
object was to abolish illiteracy from the country. It was expected that the elected governments of
the country would honestly implement this directive but they did not take any concrete steps to
implement this directive. The framers perhaps were of the view that in view of the financial
condition of a new state it was not feasible to make it a fundamental right under Part III of the
Constitution, but included it in Chapter IV as one of the directive principles of State Policy. The
politicians of our country belied the hope of the framers of the Constitution.
Safeguards against arbitrary arrest and detention (Article 22)

According to Article 21 no person can be deprived of his life or personal liberty except according
to procedure established by law. This means that a person can be deprived of his life or personal
liberty provided his deprivation was brought about in accordance with the procedure prescribed
by law. Article 22 provides those procedural requirements which must be adopted and included
in any procedure enacted by the Legislature. If these procedural requirements are not complied
with, it would then be deprivation of personal liberty which is not in accordance with the
procedure established by law. Thus, Article 22 prescribes the minimum procedural requirements
that must be included in any law enacted by the Legislature in accordance with which a person
may be deprived of his life and personal liberty. Article 22 deals with two separate matters; (I)
persons arrested under the ordinary law of crimes; and (2) persons detained under the law of
`Preventive Detention'. The first two clauses of Article 22 deal with detention under the ordinary
law of crimes and lay down the procedure which has to be followed when a man is arrested and
the remaining clauses (3), (4), (5) and (6) deal with persons detained under a preventive detention
law and lay down the procedure which is to be followed when a person is detained under that law.
Clauses (1) and (2) of Art. 22 guarantee four rights on a person who is arrested for any offence
under an ordinary law:
1. The right to be informed ‘as soon as may be’ of ground of arrest,
2. The right to consult and to be represented by a lawyer of his own choice,
3. The right to be produced before a Magistrate within 24 hours,
4. The freedom from detention beyond the said period except by the order of the Magistrate
 P a g e | - 25 -

Right against exploitation (Articles 23-24)

Prohibition of ‘Traffic in Human beings’ and Forced Labour (Article 23)

Article 23 of the Constitution prohibits traffic in human being and begar and other similar forms
of forced labour. The second part of this Article declares that any contravention of this provision
shall be an offence punishable in accordance with law. Clause (2) however permits the State to
impose compulsory services for public purposes provided that in making so it shall not make any
discrimination on grounds only of religion, race, caste or class or any of them.
'Traffic in human beings' means selling and buying men and women like goods and includes
immoral traffic in women and children for immoral" or other purposes.' Though slavery is not
expressly mentioned in Article 23, it is included in the expression 'traffic in human being'.35 Under
Article 35 of the Constitution Parliament is authorised to make laws for punishing acts prohibited
by this Article. In pursuance of this Article Parliament has passed the Suppression of Immoral
Traffic in Women and Ur's Act, 195636, for punishing acts which result in traffic in human beings.
Article 23 protects the individual not only against the State but also private citizens. It imposes a
positive obligation on the State to take steps to abolish evils of "traffic in human beings" and begar
and other similar forms of forced labour wherever they are found.
Article 23 prohibits the system of 'bonded labour' because it is a form of force labour within the
meaning of this Article.
It is to be noted that the protection of this Article is available to both citizens as well as non-
citizens.
Begar and "other forms of forced labour" are prohibited by this Article. "Begar" means
involuntary work without payment. What is prohibited by this clause is the making of a person
to render service where he was lawfully entitled not to work or to receive remuneration of the
services rendered by him. This clause, therefore, does not prohibit forced labour as a punishment
for a criminal offence. The protection is not confined to begar only but also to "other forms of
forced labour". It means to compel person to work against his will.

Prohibition of employment of children in factories etc. (Article 24)

Article 24 of the Constitution prohibits employment of children below 14 years of age in factories
and hazardous employment. This provision is certainly in the interest of public health and safety
of life of children. Children are assets of the nation. That is why Article 39 of the Constitution
imposes upon the State an obligation to ensure that the health and strength of workers, men and

35 Duhar Goala v. Union of India, AIR 1952 Cal. 496

36 Now "The Immoral Traffic (Prevention) Act, 1956
 P a g e | - 26 -

women, and the tender age of the children are not abused and that citizens are not forced by
economic conditions making it necessary to enter avocations unsuited to their age or strength.

Right to Freedom of Religion (Articles 25-28)

The concept of secularism is implicit in the Preamble of the Constitution which declares the
resolve of the people to secure to all its citizens "liberty to thought. belief. faith, and worship".
The Constitution (42nd Amendment) Act. 1976. has inserted the word 'Secular' in the Preamble.
This amendment is intended merely to spell out clearly the concept of 'secularism' in the
Constitution. There is no mysticism in the secular character of the State. In India. a Secular State
was never considered as an irreligious or atheistic State. It only means that in matters of religion
it is neutral. It is the ancient doctrine in India that the State protects all religions but interferes with
none.37 Explaining the secular character of the Indian Constitution the Supreme Court said, "There
is no mysticism in the secular character of the State. Secularism is neither anti-God nor pro-God,
it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of
the State and ensures that no one shall he discriminated against on the ground of religion.38 The
State can have no religion of its own. It should treat all religions equally. The State must extend
similar treatment to the Church. the Mosque and the Temple. In a Secular State, the State is only
concerned with the relation between man and man. It is not concerned with the relation of man
with God. It is left to the individual's conscience. Every man should be allowed to go to Heaven
in his own way. Worshipping God should be according to the dictates of one's own conscience.39
Man is not answerable to the State for the variety of his religious views".40 The right of worship
was granted by God for man to worship as he pleased. There can be no compulsion in law of any
creed or practice of any form of worship.41
Freedom of Religion in India (Article 25)

(1) guarantees to every person the freedom of conscience and the right to profess, practise and
propagate religion. The right guaranteed under Art. 25 (1) like other constitutional rights, is not
absolute. This right is subject to public order, morality and health and to the other provisions of
Part III of the Constitution. Also, under sub-clauses (a) and (b) of clause (2) of Article 25 the State
is empowered by law—
(a) to regulate or restrict any economic, financial, political or other secular activity which
may be associated with religious practice;
(b) to provide for (i) social welfare and reform, and (ii) to throw open Hindu religious
institutions of a public character to all classes and sections of Hindus.

37 Vasudev v. Vamanji. ILR 1881 Bom. 80

38 St. Xavier’s College v. State of Gujarat, AIR 1974 SC 1389
39 Downes v. Bidwell, (1901) 182 US 244
40 United States v. Ballard, (1944) 322 US 78
41 Cantwall v. Connecticut, (1931) 310 US 295
 P a g e | - 27 -

Freedom to manage religious affairs (Article 26)

Article 26 says that, subject to public order, morality and health every religious denomination of
any section of it shall have the following rights:
(a) to establish and maintain institutions for religious and charitable purposes,
(b) to manage its own affairs in matters of religion,
(c) to own and acquire movable and immovable property,
(d) to administer such property in accordance with law.
Freedom from taxes for promotion of any particular religion (Article 27)

Article 27 provides that no person shall be compelled to pay any tax for the promotion or
maintenance of any particular religion or religious denomination. This Article emphasizes the
secular character of the State. The public money collected by way of tax cannot be spent by the
State for the promotion of any particular religion.
The reason underlying this provision is that India being a Secular State and there being freedom
of religion guaranteed by the Constitution both to individual and groups it is against the policy
of the Constitution to pay out of public funds any money for the promotion or maintenance of
the particular religion or religious denomination.42 It is to be noted here that what this Article
prohibits is the levying of tax and not of fee.
Prohibition of Religious instruction in State-aided Institution (Article 28)

According to Article 28 (1) no religious instruction shall be imparted in any educational institution
wholly maintained out of State funds. But this clause shall not apply to an educational institution
which is administered by the State but has been established under any endowment or trust which
requires that religious instruction shall be imparted in such institutions. Under clause 1(3) no
person attending any educational institution recognised by the State or receiving aid out of State
funds shall be required to take pan in any religious instruction that may be imparted in such
institutions or to attend any religious worship that may he conducted in such institution or to any
premises attached thereto unless such person or if such person is a minor his guardian has given
his consent thereto. Thus, Article 28 mentions four types of educational institutions:
(a) Institutions wholly maintained by the State.
(b) Institutions recognised by the State.
(c) Institutions that are receiving aid out of the State fund.
(d) Institutions that are administered by the State but are established under any trust or
endowment.
In the Institutions of (a) type no religious instructions can be imparted. In (b) and (c) type
institutions religious instructions may be imparted only with the consent of the individuals. In

42 Commr., H.R.E. v. L.T. Swamiar, AIR 1961 SC 282

 P a g e | - 28 -

the (d) type institution, there is no restriction on religious instructions.

Cultural and Educational Rights (Articles 29-30)

Article 29 (1) guarantees to any section of the citizens residing in any part of India having a
distinct language. script or culture of its own, the right to conserve the same. i.e. language, script
or culture. A minority community can preserve its language, script or culture by and through
educational institutions. Therefore, the right to establish and maintain institutions of their choice
is necessary concomitant to the right to preserve its distinctive language, script or culture. This
right is guaranteed to them by Article 30 (1) which says that all minorities whether based on
religion or language shall have the right to establish and administer educational institutions of
their choice. This right is further protected by Article 30 (2) which prohibits the State in granting
aid to educational institutions from discriminating against any educational institutions on the
ground that it is under the management of a minority whether based on religion or language.
This right is, however, subject to clause (2) of Article 29, according to which no citizen shall be
denied admission into any educational institutions maintained by the State or receiving aid out
of State funds on grounds only of religion, race, caste, language or any of them. Article 29
applies only to citizens while Article 30 applies to both citizens and non-citizens.

Right to Constitutional Remedies (Article 32 & 226)

"If I was asked to name any particular Article in this Constitution as the most important—an
Article without which this Constitution would be a nullity—I could not refer to any other Article
except this one… It is the very soul of the Constitution and the very heart of it," Dr. Ambedkar.'

It is true that a declaration of fundamental rights is meaningless unless there is an effective

machinery for the enforcement of the rights. It is remedy which makes the right real. If there is no
remedy, there is no right at all. It was. therefore, in the fitness of the things that our Constitution-
makers having incorporated a long list of fundamental rights have also provided for an effective
remedy for the enforcement of these rights under Article 32 of the Constitution. Article 32 is itself
a fundamental right. Article 226 also empowers all the High Courts to issue the writs for the
enforcement of fundamental rights.
Article 32 (1) guarantees the right to move the Supreme Court by "appropriate proceedings" for
the enforcement of the fundamental rights conferred by Part III of the Constitution. Clause (2) of
Art. 32 confers power on the Supreme Court to issue appropriate directions or orders or writs,
including writs in the nature of habeas corpus, mandamus. prohibition, quo-warranto and
certiorari for the enforcement of any of the rights conferred by Part III of the Constitution.
It is to be noted here that the power has been given to issue appropriate directions, orders or writs.
The writs which the Supreme Court can issue include the writs in the nature of the five writs
mentioned in Article 32—Habeas corpus, mandamus, prohibition, quo-warranto and certiorari. It
means the writs besides these five writs can also be issued. Further, the Court can issue the writ
 P a g e | - 29 -

"in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari. The court is
not bound to issue these writs strictly as these writs were issued in English law. The word in the
nature of "give more liberty to the court to issue writs for doing justice. A similar power is wielded
by the High Courts but the High Courts have power to issue writs not only for the enforcement of
fundamental rights but for any other purpose" also.
Under clause (3) of Art. 32 Parliament may by law empower any other court to exercise within
the local limits of its jurisdiction all or of the powers exercisable by the Supreme Court under
clause (2). Clause (4) says that the right guaranteed by Article 32 shall not be suspended except
as otherwise provided for the Constitution. Article 32 thus provides for an expeditious and
inexpensive remedy for the protection of fundamental rights from legislative and executive
interference.
Under Art. 32 (1) the Supreme Court's power to enforce fundamental right is widest. There is no
limitation in regard to the kind of proceedings envisaged in Art. 32 (1) except that the proceeding
must be "appropriate" and this requirement must be judged in the light of the purpose for which
the proceeding is to be taken. namely, enforcement of fundamental rights. It is not obligatory for
the Court to follow adversary system. The Constitution-makers deliberately did not lay down any
particular form of proceeding for enforcement of fundamental right nor did they stipulate that such
proceeding should conform to any rigid pattern or a straight-jacket formula because they knew
that in a country like India where there is so much of poverty, ignorance, illiteracy, deprivation
and exploitation, any insistence on a right formula of proceeding for enforcement of fundamental
right would become self-defeating.'
It is clear from Article 32 (1) that whenever there is a violation of a fundamental right, any person
can move the Court for an appropriate remedy.
 P a g e | - 30 -

Chapter 4
Case Laws
Citizenship (Article 5-11)
Pradeep Jain v. Union of India43,. Under the Indian Constitution there is only one domicile of
the country and there is no separate domicile for a State.
Chandigarh Housing Board v. Gurmit Singh44,. The Domicile means that a person must be
having permanent home in Chandigarh or he being there for years with the intention to live
permanently or indefinitely.
Satya v. Teja Singh45,. To establish domicile, two elements must be proved:
(i) residence of a particular kind;
(ii) intention of a particular kind.
Domicile means the place, which a person has fixed as a habitation of himself and his family not
for a mere special and temporary purpose but with a present intention of making it his
permanent house.

Equality before Law (Articles 14-18)

Article 14 forbids class legislation, but does not forbid classification or differentiation which rests
upon reasonable grounds of distinction. The principle of equality does not mean that every law
must have universal application to all persons who are not by nature, attainment or circumstances
in the same position.
Chiranjit Lal Chowdhary v. Union of India46,. Fazal Ali observed
“The guarantee of the equal protection of laws means the protection of equal laws. It forbids class
legislation but does not forbid classification which rests upon reasonable grounds of distinction.”
Kedar Nath Bajoria v. State of West Bengal47. The equal protection of the law guaranteed by
article 14 of the Constitution does not mean that all the laws must be general in character and
universal in application and that the State is no longer to have the power of distinguishing and
classifying persons or things for the purpose of legislation.

43 AIR 1984 SC 1420: (1984) 3 SCC 654

44 AIR 2002 SC 587: 2002 AIR SCW 176: (2002) 2 SCC 29: 2002 (1) SCJ 220
45 AIR 1975 SC 105: 1975 SCC (Cri) 50: (1975) 1 SCC 120: 1975 (2) SCJ 294
46 AIR 1951 SC 41: 1951 SCJ 29: 1950 SCR 869
47 AIR 1953 SC 404: 1953 Cr LJ 1621: 1953 SCJ 580: 1954 SCR 30
 P a g e | - 31 -

R.K. Garg v. Union of India48. The reasonable classification must not be arbitrary, artificial or
evasive but must be based on some real and substantial distinction bearing a just and reasonable
relation to the object sought to be achieved by the legislation.
Ram Krishna Dalmia v. Delhi Administration49. The Supreme Court has established certain
important principles which holds the scope of permissible classification. These may be stated as
below:
1. A law may be constitutional even though it relates to a single individual if on account of some
special circumstances or reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself.
2. There is always a presumption in favour of the constitutionality of an enactment and the burden
is upon him who attacks it to show that there has been a clear transgression of the constitutional
principles.
3. It must be presumed that the legislature understands and correctly appreciates the need of its
own people that its laws are directed to problems made manifest by experience.
4. The legislature is free to recognise the degrees of harm and may confine its restrictions to those
cases where the need is deemed to be the clearest.
5. There is no right to equality in illegal acts. Discretion cannot be alleged on the ground that
somebody has obtained an illegal benefit.
6. A classification need not be scientifically perfect or logically complete.
7. In order to sustain the presumption of constitutionality, the court may take into consideration
matters of common knowledge, matters of common report, the history of the times and may
assume every state of facts which can be conceived existing at the time of legislation.
8. The validity of a rule has to be judged by assessing its over-all effect and not by picking up
exceptional cases. What the Court has to see is whether the classification made is just taking all
aspects into consideration.
9. The Court must look beyond the ostensible classification and to the purpose of the law and
apply the test of palpable arbitrariness in the context of the felt needs of the times and societal
exigencies informed by experience to determine reasonableness of classification.
Nainsukh v. State of Uttar Pradesh50, It was held that a law providing for election to
municipalities on the basis of separate electorates for members of different religious communities
was unconstitutional for violation of article 15(1).

48 AIR 1981 SC 2138: 1981 11 Tax Caw Rev 277 (SC)

49 AIR 1958 SC 538: 1959 SCJ 147: 1959 SCR 279
50 AIR 1953 SC 384: 1953 SCJ 546: 1953 SCR 1184
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Madhu Limaye v. Superintendent, Tihar Jail, Delhi51, Article 15 prohibits classification on the
basis of racial superiority.
D.P. Joshi v. State of Madhya Pradesh52, The Supreme Court held that a law which discriminate
on the ground of residence does not infringe article 15. In this case the resident of Madhya Pradesh
were exempted from payment of a capitation fee for admission to the State Medical College, while
the non-residents were required to pay the same. The Supreme Court negatived the plea of
discrimination by the non-residents under article 15(1) because the ground of exemption was
residence and not place of birth. Residence and place of birth are two distinct concept. Article
15(1) prohibits discrimination on the basis of place of birth but not on residence.
Pradeep Jain v. Union of India53, In this case, the residential requirement for admission to
medical colleges was challenged. The Supreme Court has held that such conditions are
inconsistent with the idea of national unity and integration and though in given circumstances may
be justified both under articles 14 and 15(1) at the moment not more than 70% of seats should be
reserved on ground of residence at the M.B.B.S. level. There should be no reservation on the basis
of residence at the M.S. and M.D. Levels.
All-India Station Masters' and Assistant Station Masters' Association, Delhi v. General
Manager, Central Railway54, Equality of opportunity in matter of employment can be predicted
only as between who are either seeking the same employment or have obtained the same
employment and the equality of opportunity in matters of employment under article 16(1) means
equality between members of the same class of employees and not equality between members of
separate independent classes.
State of Mysore v. H. Srinivasamurthy55, It has been held by Supreme Court that equality is
violated if it rests on some reasonable basis. A reasonable classification should include all those
who are similarly situated and none who is not and in deciding who are similarly situated one has
to look to the object sought to be achieved by the legislation in question and mischief sought to
be eliminated by it.
Ajay Hasia v. Khalid Mujib Sehravardi56, An arbitrariness in selection process will violate
articles 14 and 16. Thus, it has been noted that allotment of excessive marks in competitive tests
may lead to arbitrariness but the same test may not be applied in cases of selection/promotion of
persons already in service for a higher post.
Akhil Bhartiya Shoshit Karamchari Sangh (Railway) v. UOI57, The categorization of
Scheduled Castes and Scheduled Tribes as a class on the basis of which the classification could
be justified as just and reasonable within the meaning of articles 15(1) and 16(1) because these

51 AIR 1975 SC 1505: (1970) 1 SCC 525: 1975 SCC (Cri) 235: (1975) 3 SCR 582.
52 AIR 1955 SC 334: 1955 SCJ 298: 1955 SCR 1215
53 AIR 1984 SC 1420: (1984) 3 SCC 654.
54 AIR 1960 SC 384: (1960) 2 SCR 311
55 AIR 1976 SC 1104: (1976) 1 SCC 817: (1976) 3 SCR 255.
56 AIR 1981 SC 487: (1981) 1 SCC 722: (1981) 2 SCR 79.
57 AIR 1981 SC 298: (1981) 1 SCC 246: (1981) 2 SCR 185
 P a g e | - 33 -

classes stand on a substantially different footing from the rest of the Indian community in our
Constitution.
Kishor Mohanlal Bakshi v. Union of India58, The rules made Income-Tax Officer of class I
eligible for appointment as Assistant Commissioner, but Income-Tax Officer of class II were
made eligible for appointment as Income-Tax Officer class I but not for promotion to the post of
Assistant Commissioner. The rules were held valid because there can be no question of equality
of opportunity between persons holding posts in different grades.

Freedom of Speech and Expression (Articles 19-22)

A.K. Gopalan v. State of Madras59, Patanjali Shastri, J., observed that man as a rational being
desires to do many things, but in a civil society his desires have to be controlled, regulated and
reconciled with the exercise of similar desires by other individuals.
However, the freedom guaranteed by article 19(1) are not absolute as right can be. Each of these
right is liable to be controlled, curtailed and regulated to some extent by laws made by Parliament
or State legislatures. Accordingly clauses (2) to (6) of article 19 lays down the grounds and
purposes for which a legislature can impose reasonable restrictions on the rights guaranteed by
articles 19(1)(a) to (g).
Unlike articles 14 and 21 the rights guaranteed under article 19 also not available to all persons.
The right under article 19 can be claimed by citizens only. The word citizens refers to natural
persons, who are entitled to citizenship under the law of the land. Citizens under article 19 mean
only natural persons and not legal persons such as corporation or companies.
R.C. Cooper v. Union of India60 (Bank Nationalisation case). It was held that a shareholder, a
depositor or a director is not entitled to move a petition for infringement of the rights of the
company, unless by the action impugned by him, his rights are also infringed.
Bennett Coleman and Co. Ltd. v. Union of India61, The Court said that the fundamental rights
of citizens are not lost when they associate to form a company. When the fundamental rights of
shareholders are impaired by State actions their rights as shareholders are protected.
M.P. Sharma v. Satish Chandra, District Magistrate, Delhi62, The Supreme Court taking a
broad view of article 20(3) stated that to limit article 20(3) to the oral evidence of a person standing
trial for an offence is to confine the content of the constitutional guarantee to its barely 'literal
import', and so to limit article 20(3) would be to rob the guarantee of its substantial purpose and
to miss the substance. It covers not only oral testimony or statements in writing of the accused but
also production of a thing or of evidence by other modes

58 AIR 1962 SC 1139: 1962 44 ITR 532

59 AIR 1950 SC 27: 1950 SCR 88.
60 AIR 1970 SC 1318: (1971) 1 SCR 512: (1970) 2 SCC 298
61 AIR 1973 SC 106: (1972) 2 SCC 788: 1973 (1) SCJ 177.
62 AIR 1954 SC 300: 1954 Cr LJ 865: 1954 SCJ 428: 1954 SCR 1077
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Nandini Satpathy v. P.L. Dani63, The court held that the expression "accused of an offence" no
doubt includes a person formally brought into police diary as an accused person but it also includes
a suspect. Adverting to several of its earlier decisions, the court did not agree with the restrictive
view of the expression 'accused of an offence' taken therein and extended the application of article
20(3) to police interrogations.
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat64, It has been
held that mere issue of notice on pendency of contempt proceedings are not in the nature of
criminal proceedings for an offence, the pendency of contempt proceedings cannot be regarded
as criminal proceedings merely because it may end in imposing punishment on the contemnor.
M.P. Sharma v. Satish Chandra, District Magistrate, Delhi65, The compulsory taking of finger
impressions or specimen handwriting of an accused would come within the mischief of article
20(3).
State of Bombay v. Kathi Kalu Oghad66, The court held that "to be a witness" in article 20(3)
means to impart knowledge about relevant facts by an oral statement or statement in writing made
as given in court or otherwise by giving of thumb impression or impression of foot, palm, or
fingers or specimen writing or signature or showing parts of body by way of identification are not
included in the expression 'to be witness' in article 20(3).
Parshadi v. Uttar Pradesh67, An accused who was charged with committing of a murder stated
to the police that he would give clothes of the deceased which he had placed in a pit and thereafter
he dug out the pit in presence of witnesses and took out the clothes which were identified as the
clothes belonging to the deceased. It was held that the statement of the accused to the police is
admissible.
ARTICLE 21-
A.K. Gopalan v. Union of India68, In that case the petitioner A.K. Gopalan, Communist leader
was detained under the Preventive Detention Act, 1950 the petitioner challenged the validity of
his detention under the Act on the ground. That it was violative of his right to freedom of
movement under article 19(1) which is the very essence of personal liberty guaranteed by article
21 of the Constitution. He argued that the words "personal liberty" includes the freedom of
movement also and therefore the Preventive Detection Act, 1950 must also satisfy the requirement
of article 19(5).
The Supreme Court by majority held that the 'personal liberty' in article 21 means nothing more
than the liberty of the physical body, that is, freedom from arrest and detention without the
authority of law. According to Prof. A.V. Diecy "Personal liberty means freedom from physical
restraint and coercion which is not authorised by law".

63 AIR 1978 SC 1025: 1978 Cr LJ 968: (1978) 2 SCC 424: 1978 SCC (Cri) 236
64 (1991) 4 SCC 406: AIR 1991 SC 2176: 1991 Cr LJ 3086: 1991 AIR SCW 2419: 1991 (3) Crimes 232: JT 1991 (3) SC 617: (1991) 3 SCR 936
65 AIR 1954 SC 300: 1954 Cr LJ 865: 1954 SCJ 428: 1954 SCR 1077
66 AIR 1961 SC 1808: (1961) 2 Cr LJ 856: (1962) 3 SCR 10
67 AIR 1957 SC 211: 1957 Cr LJ 328
68 AIR 1950 SC 27: 1950 SCJ 174: 51 Cr LJ 1383: 1950 SCR 88.
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Maneka Gandhi v. Union of India69, The Supreme Court overruled the Gopalan's case and
Justice Bhagwati observed - "The expression personal liberty in article 21 is of widest amplitude
and it covers a variety of rights which go to constitute the fundamental liberty of man and some
of them have raised to the status of distinct fundamental rights and given additional protection
under article 19".
Francis Coralie Mullin v. Administrator, Union Territory of Delhi70,. Bhagwati J. stated that
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 over the head and
facilities for reading, writing and expressing oneself in diverse forms freely moving about and
mixing and mingle with fellow human beings.
Bandhua Mukti Morcha v. Union of India71, It is the fundamental right of everyone in this
country to live with human dignity, free from exploitation. This right to live with human dignity
enshrined article 21 derives its life breath from the directive principles of state policy.
Peoples Union for Democratic Rights v. Union of India72, (Asiad Project Case). The Supreme
Court has held that non-payment of minimum wages to the workers employed in various Asiad
Projects in Delhi was a denial to them of their right to live with basic human dignity and is
violative of article 21 of the Constitution.
Kharak Singh v. State of Uttar Pradesh73, It was held that the term personal liberty in article
21 includes all varieties of rights which make-up the personal liberties of man other than those
mentioned in article 19(1).
Satwant Singh Sawhney v. D. Ramarathnam, A.P.O. New Delhi74, It was held that personal
liberty in article 21 includes right of locomotion. It does not include right to move throughout the
territory of India as it is expressly guaranteed by article 19 but right to go abroad is included in
article 21.
Neeraja Choudhary v. State of Madhya Pradesh75, The Supreme Court observed that it is the
plaints requirement of articles 21 and 23 that the bonded labour should not only be identified and
released but also suitably rehabilitated.
Olga Tellis v. Bombay Municipal Corporation76, The Supreme Court held that if there is an
obligation upon the state to secure to citizens adequate means to livelihood and right to work.

69 AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621: 1978 (2) SCJ 312.
70 AIR 1981 SC 746: 1981 Cr LJ 306: (1981) 1 SCC 608: 1981 SCC (Cri) 212: 1981 (2) SCJ 18: (1981) 2 SCR 516
71 AIR 1984 SC 802: (1984) 3 SCC 161.
72 AIR 1982 SC 1473: MANU/SC/0038/1982 : AIR 1982 SC 1473: 1982 UJ (SC) 553:
73 AIR 1963 SC 1295: (1963) 2 Cr LJ 329: (1964) 1 SCR 332: 1964 (2) SCJ 107.
74 AIR 1967 SC 1836: 1968 (1) SCJ 178: (1967) 3 SCR 525.
75 AIR 1984 SC 1099: (1984) 3 SCC 243: 1984 (2) Crimes 511.
76 AIR 1986 SC 180: (1985) 3 SCC 545.
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Delhi Transport Corporation v. DTC. Mazdoor Congress77, The Supreme Court held that right
to life includes right to livelihood and therefore right to livelihood cannot hang on to the fancies
of individuals in authority. Deprivation of livelihood must be through procedure prescribed by
law which must be just fair and reasonable and not fanciful, oppressive or at vagary.
Chandra Rajakumari v. Police Commissioner, Hyderabad78, It has been held that the right to
live with human dignity or decency is included in article 21 and therefore, holding of beauty
contest is repugnant to dignity or decency of women and offends article 21 of the Constitution.
Peoples Union for Civil Liberties v. Union of India79, It has been held that right to life in article
21 includes right to food.
Consumer Education and Research Centre v. Union of India80, The Supreme Court held that
right to health and medical care to protect ones health and vigour white in service or post
retirement is a fundamental right of a workers.
Subhash Kumar v. State of Bihar81, The Supreme Court held that the protection and
improvement of environment has been included in the right to life under article 21.

Right to Constitutional Remedies (Article 32-25)

Daryao v. State of Uttar Pradesh82, The Supreme Court observed that the fundamental rights
are included not only to protect individual's rights but they are based on high public policy. Liberty
of the individual and the protection of the Fundamental Rights are the very essence of the
democratic way of life adopted by the Constiution and it is the privilege and the duty of this court
to uphold those rights. This would naturally refuse to circumvent them or to curtail them except
as provided by the Constitution itself.
Premchand Garg v. Excise Commissioner, Uttar Pradesh83, The Supreme Court has described
the significance of article 32 in the following words:-
"The Fundamental Rights to move this court can therefore be appropriately described as the
cornerstone of the democratic edifice raised by the Constiution. That is why it is natural that this
court should regard itself as the protector and guarantor of Fundamental Rights and should declare
that it cannot, consistently with the responsibility laid upon it, refuse to entertain applications
seeking protections".

77 AIR 1991 SC 101: JT 1990 (3) SC 725: 1991 SCC (Lands) 1213: (1991) Supp 1 SCC 600.
78 AIR 1998 AP 302: 1998 (1) Andh LD 810: 1998 (1) Andh LT 329
79 AIR 2003 SC 2363: 2003 AIR SCW 2353: JT 2003 (2) SC 528: MANU/SC/0234/2003 : (2003) 4 SCC 399: (2003) 2 SCR 1136
80 (1995) 3 SCC 42: 1995 AIR SCW 759: 1995 Lab IC 1368: MANU/SC/0175/1995 : AIR 1995 SC 922
81 AIR 1991 SC 420: 1991 AIR SCW 121: JT 1991 (1) SC 77: MANU/SC/0106/1991 : (1991) 1 SCC 598: (1991) 1 SCR 5
82 AIR 1961 SC 1457: 1962 (1) SCJ 702: (1962) 1 SCR 574.
83 AIR 1963 SC 996: (1963) 2 SCA 125: (1963) SUPP 1 SCR 885.
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CONCLUSION
Part II of the Constitution of India contains seven articles which define, and determine the
acquisition of Indian citizenship. The world has transformed into a global village, and thus the
inhabitants of a territory are classified into two classes of people, namely, nationals and foreign
nationals/foreigners. The state has a duty to provide to its nationals, certain rights and privileges
and confers the status of citizenship. Therefore, a citizen is a person who is entitled to certain civil
rights and privileges in a sovereign state.
The acquisition of citizenship can be categorized into four types: Citizenship by domicile; Citizens
migrated from Pakistan; Persons migrated to Pakistan; and Citizenship of Indians abroad. Articles
5 to 8 of the Indian Constitution deal with citizenship of India at the commencement of the
Constitution. Articles 9 to 11 deal with the mode of acquisition and loss of citizenship. These
articles, along with the Indian Citizenship Act of 1955, together constitute the laws regarding
citizenship of India.
As every citizen has certain duties towards his/her state, every state also has duties towards its
citizens. The duties of the state become the rights of the citizens.
Part III of the Indian Constitution contains a set of these rights which are regarded as the very
fundamental rights which every human being deserves, as a part of a civilized world. The rights
under Part III are therefore rightly named as the ‘Fundamental Rights’. The citizens of India enjoy
every right enumerated under Part III, while some rights are not available to foreigners.
For example, the rights under Articles 15, 16, 19, 29, and 30, are not available to foreigners.
The Fundamental Rights cover several aspects of social, economic, and political rights which
include articles ‘Right to equality’, ‘Right to Freedom’, ‘Right against exploitation’, ‘Right to
Freedom of Religion’, ‘Cultural and Educational rights, and ‘Right to Constitutional remedies’.
A state is required to be impartial towards its citizens for the betterment of the nation as a whole.
The ‘Right to equality’ incorporates several rights such as ‘Equality before law’, ‘Prohibition of
Discrimination’, ‘Equality of opportunity in matters of public employment’ and, ‘Abolition of
untouchability and titles’. These rights safeguard the interests of every citizen and provide
everyone to excel to his/her maximum potential without being restricted by any external factor.
Every individual is unique in his thoughts and expressions, and it is the right of every human being
to freely express his individuality through modes of speech and expression, etc. These rights are
provided under Articles 19. This article guarantees the freedom of ‘speech and expression’,
freedom of assembly, freedom to form association, freedom of movement, freedom of residence
and, freedom of profession, occupation, trade, or business. Along with these freedoms, the state
also guarantees protection in respect of conviction for offences, protection against arrest and
detention in certain cases, and protection of life and personal liberty, so that a person can be free
from any apprehension of sanctions while expressing himself.
The Constitution also guarantees the right to education, right against exploitation, right to freedom
of religion, and some cultural and educational rights, so that every person may profess the religion
 P a g e | - 38 -

of his choice and preserve his cultural heritage. The Constitution also provides to each person, the
right to Constitutional Remedies in case the state fails to allow the enjoyment of any of these
rights. Under Article 32, the Supreme Court can be approached for its intervention if any of the
fundamental rights are being infringed by the State.
These rights guarantee every citizen the freedom to live with human dignity without being
restricted by state policy and actions. Before being a member of any country, every citizen is
firstly a human being, so his basic human rights shall be guaranteed unconditionally, and the state
should take every measure for setting him free from restrictions arising out of any social,
economic, or political barriers. Thus, along with the Fundamental Rights, the Directive Principles
of State Policy, even though being unenforceable, also constitute the rights of its citizens.
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Bibliography
 Anubhule, Rajendra D., ‘Constitution of India’, 14th Ed.
 Singh, Mahendra P., ‘V.N. Shukla’s Constitution of India’, 11th Ed.
 Pandey, J.N., ‘Constitutional law of India’, 53rd Ed.
 Nooran, A.G., ‘Constitutional questions and Citizens rights’
 Jain, M.P., ‘Constitutional law of India, 5th Ed.