Constitution of India

India This article is part of the series: Constitution of India

Constitution of India decorated and beautified by Santiniketan artists including Beohar Rammanohar Sinha

Preamble PARTS Fundamental Rights PART I ∙ II ∙ III ∙ IV ∙ V ∙ VI ∙ VII VIII ∙ IX ∙ X ∙ XI  ∙ XII ∙ XIII ∙ XIV XV ∙ XVI ∙ XVII ∙ XVIII ∙ XIX ∙ XX ∙ XXI XXII SCHEDULES First ∙ Second ∙ Third ∙ Fourth ∙ Fifth Sixth ∙ Seventh ∙ Eighth ∙ Ninth Tenth ∙ Eleventh ∙ Twelfth APPENDICES I ∙ II ∙ III ∙ IV ∙ V AMENDMENTS List ∙ 1 ∙ 10 ∙ 38 ∙ 39 ∙ 42

Politics of India Union Government Elections Political Parties Local & State Govt. Other countries ·  Law Portal

The Constitution of India (Hindi: भारतीय संविधान; see also names in the other official languages) is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest written constitution of any sovereign country in the world, containing 395 articles in 22 parts, 12 schedules and 115 amendments. Besides the English version, there is an official Hindi translation.

The Constitution was enacted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950. The date 26 January was chosen to commemorate the Purna Swaraj declaration of independence of 1930. With its adoption, the Union of India officially became the modern and contemporary Republic of India and it replaced the Government of India Act 1935 as the country's fundamental governing document. The Constitution declares India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them. The words "socialist" and "secular" were added to the definition in 1976 by constitutional amendment. India celebrates the adoption of the constitution on 26 January each year as Republic Day.

Background

Main article: Indian independence movement

The majority of the Indian subcontinent was under British colonial rule from 1858 to 1947. This period saw the gradual rise of the Indian independence movement to gain independence from foreign rule. The movement culminated in the formation of the Dominion of India on 15 August 1947, along with the Dominion of Pakistan. The Constitution of India was adopted on 26 November 1949 and came into effect on 26 January 1950, proclaiming India to be a sovereign, democratic republic. It contained the founding principles of the law of the land which would govern India after its independence from British rule. On the day the constitution came into effect, India ceased to be a dominion of the British Crown.

Evolution of the Constitution

Acts of British Parliament before 1935

After the Indian Rebellion of 1857, the British Parliament passed the Government of India Act 1858, which abolished the role of the East India Company in the government of India, and transferred British India to the direct rule of the Crown. The Act also established in England the office of the Secretary of State for India through whom Parliament would exercise its rule (along with a Council of India to aid him), as well as establishing the office of Viceroy of India (along with an Executive Council in India, consisting of high officials of the British Government). The Indian Councils Act 1861 provided for a Legislative Council consisting of the members of the Executive council and non-official members. The Indian Councils Act 1892 established provincial legislatures and increased the powers of the Legislative Council. Although these Acts increased the representation of Indians in the government, their power still remained limited. The Indian Councils Act 1909 and the Government of India Act 1919 further expanded participation of Indians in the government.

Government of India Act 1935

Main article: Government of India Act 1935

The provisions of the Government of India Act 1935, though never implemented fully, had a great impact on the Constitution of India. Many key features of the constitution are directly taken from this Act: the federal structure of government, provincial autonomy, a bicameral central legislature consisting of a federal assembly and a Council of States, and the separation of legislative powers between the centre and provinces, are some of the provisions of the Act which are present in the Constitution of India.

The Cabinet Mission Plan

Main article: 1946 Cabinet Mission to India

In 1946, British Prime Minister Clement Attlee formulated a cabinet mission to India to discuss and finalize plans for the transfer of power from the British Raj to Indian leadership as well as provide India with independence under Dominion status in the Commonwealth of Nations. The Mission discussed the framework of the constitution and laid down in some detail the procedure to be followed by the constitution drafting body.. Elections for the 296 seats assigned to the British Indian provinces were completed by August 1946. The Constituent Assembly of India first met and began work on 9 December 1946.

The mission consisted of Lord Pethick-Lawrence, the Secretary of State for India, Sir Stafford Cripps, President of the Board of Trade, and A. V. Alexander, the First Lord of the Admiralty. However, Lord Wavell, the Viceroy of India, did not participate.

Indian Independence Act 1947

Main article: Indian Independence Act 1947

The Indian Independence Act, passed by the British Parliament on 18 July 1947, divided British India into two new independent states, India and Pakistan, which were to be dominions under the Commonwealth of Nations until they had each finished drafting and enacted a new constitution. The Constituent Assembly was divided into two for the separate states, with each new Assembly having sovereign powers transferred to it for the respective dominion. The Act also terminated British suzerainty over the princely states, each of which was left to decide whether to accede to one or other of the new dominions or to continue as independent states in their own right. However, in most cases the states were so dependent on central institutions that they were widely expected to accede to a dominion.

When the Constitution of India came into force on 26 January 1950, it repealed the Indian Independence Act. India ceased to be a dominion of the British Crown and became a sovereign democratic republic. 26 November 1949 is also known as National Law Day.

Constituent Assembly

Original Preamble to Constitution of India 1949 decorated beautified solely by Beohar Rammanohar Sinha

Main article: Constituent Assembly of India

The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies. Sanjay Phakey, Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Kanaiyalal Munshi, Purushottam Mavalankar, Sandipkumar Patel, Dr Ambedkar, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee, Nalini Ranjan Ghosh, and Balwantrai Mehta were some important figures in the Assembly. There were more than 30 members of the scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi. The Chairman of the Minorities Committee was Harendra Coomar Mookerjee, a distinguished Christian who represented all Christians other than Anglo-Indians. Ari Bahadur Gururng represented the Gorkha Community. Prominent jurists like Alladi Krishnaswamy Iyer, B. R. Ambedkar, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankar were also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh, Rajkumari Amrit Kaur and Vijayalakshmi Pandit were important women members. The first president of the Constituent Assembly was Dr Sachidanand Sinha. Later, Rajendra Prasad was elected president of the Constituent Assembly. The members of the Constituent Assembly met for the first time on 9 December 1946.

Drafting

On the 14 August 1947 meeting of the Assembly, a proposal for forming various committees was presented. Such committees included a Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On 29 August 1947, the Drafting Committee was appointed, with Dr Ambedkar as the Chairman along with six other members. A Draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947.

The architects of India’s constitution, though drawing on many external sources, were most heavily influenced by the British model of parliamentary democracy. In addition, a number of principles were adopted from the Constitution of the United States of America, including the separation of powers among the major branches of government, the establishment of a supreme court, and the adoption, albeit in modified form, of a federal structure (a constitutional division of power between the Union (central) government and state governments)

The Assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution. After many deliberations and some modifications, the 308 members of the Assembly signed two copies of the document (one each in Hindi and English) on 24 January 1950. The original Constitution of India is hand-written with beautiful calligraphy, each page beautified and decorated by artists from Santiniketan including Beohar Rammanohar Sinha and others. Two days later, on 26 January 1950, the Constitution of India became the law of all the States and territories of India.

The Constitution has undergone many amendments since its enactment.

Structure

The Constitution, in its current form (March 2011), consists of a preamble, 22 parts containing 450 articles, 12 schedules, 2 appendices and 96 amendments to date. Although it is federal in nature it also has a strong unitary bias.

Parts

The individual Articles of the Constitution are grouped together into the following Parts:

Preamble Part I – Union and its Territory Part II – Citizenship. Part III – Fundamental Rights. Part IV – Directive Principles of State Policy. Part IVA - Fundamental Duties. Part V – The Union. Part VI – The States. Part VII – States in the B part of the First schedule(Repealed). Part VIII – The Union Territories Part IX – The Panchayats. Part IXA - The Municipalities. Part X – The scheduled and Tribal Areas Part XI – Relations between the Union and the States.

Part XII – Finance, Property, Contracts and Suits Part XIII – Trade and Commerce within the territory of India Part XIV – Services Under the Union, the States. Part XIVA - Tribunals. Part XV – Elections Part XVI – Special Provisions Relating to certain Classes. Part XVII – Languages Part XVIII – Emergency Provisions Part XIX – Miscellaneous Part XX – Amendment of the Constitution Part XXI – Temporary, Transitional and Special Provisions Part XXII – Short title, date of commencement, Authoritative text in Hindi and Repeals

Schedules

Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity and policy of the Government.

• First Schedule (Articles 1 and 4)- This lists the states and territories of India, lists any changes to their borders and the laws used to make that change.
• Second Schedule (Articles 59, 65, 75, 97, 125, 148, 158, 164, 186 and 221)- – This lists the salaries of officials holding public office, judges, and Comptroller and Auditor-General of India.
• Third Schedule (Articles 75, 99, 124, 148, 164, 188 and 219)—Forms of Oaths  – This lists the oaths of offices for elected officials and judges.
• Fourth Schedule (Articles 4 and 80)  – This details the allocation of seats in the Rajya Sabha (the upper house of Parliament) per State or Union Territory.
• Fifth Schedule (Article 244)  – This provides for the administration and control of Scheduled Areas and Scheduled Tribes (areas and tribes needing special protection due to disadvantageous conditions).
• Sixth Schedule (Articles 244 and 275)— Provisions for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram.
• Seventh Schedule (Article 246)—The union (central government), state, and concurrent lists of responsibilities.
• Eighth Schedule (Articles 344 and 351)—The official languages.
• Ninth Schedule (Article 31-B) – Articles mentioned here are immune from judicial review.
• Tenth Schedule (Articles 102 and 191)—"Anti-defection" provisions for Members of Parliament and Members of the State Legislatures.
• Eleventh Schedule (Article 243-G)—Panchayat Raj (rural local government).
• Twelfth Schedule (Article 243-W)—Municipalities (urban local government).

System of government

Dr. Bhimrao Ramji Ambedkar was the chairman of the Constitution Drafting Committee.

The basic form of the Union Government envisaged in the Constitution is as follows,

“

A democratic executive must satisfy three conditions: 1. It must be a stable executive, and 2. It must be a responsible executive. Unfortunately, it has not been possible so far to devise a system which can ensure both conditions in equal degree. ..... The daily assessment of responsibility, which is not available in the American system is, it is felt, far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the parliamentary system of Executive has preferred more responsibility to stability.

”

Federal Structure

The Constitution provides for distribution of powers between the Union and the States. It enumerates the powers of the Parliament and State Legislatures in three lists, namely Union list, State list and Concurrent list. Subjects like national defence, foreign policy, issuance of currency are reserved to the Union list. Public order, local governments, certain taxes are examples of subjects of the State List, on which the Parliament has no power to enact laws in those regards, barring exceptional conditions. Education, transportation, criminal law are a few subjects of the Concurrent list, where both the State Legislature as well as the Parliament have powers to enact laws. The residuary powers are vested with the Union.

The upper house of the Parliament, the Rajya Sabha, which consists of representatives of States, is also an example of the federal nature of the government.

Parliamentary Democracy

The President of India is elected by the Parliament and State Legislative Assemblies, and not directly by the people. The President is the head of state, and all the business of the Executive and Laws enacted by the Parliament are in his/her name. However, these powers are only nominal, and the President must act only according to the advice of the Prime Minister and the Council of Ministers.

The Prime Minister and the Council of Ministers exercise their offices only as long as they enjoy a majority support in the Lok Sabha, the lower house of the Parliament, which consists of members directly elected by the people. The ministers are answerable to both the houses of the Parliament. Also, the Ministers must themselves be elected members of either house of the Parliament. Thus, the Parliament exercises control over the Executive.

A similar structure is present in States, where the directly elected Legislative Assembly enjoys control over the Chief Minister and the State Council of Ministers.

Independent Judiciary

The Judiciary of India is free of control from either the executive or the Parliament. The judiciary acts as an interpreter of the constitution, and as an intermediary in case of disputes between two States, or between a State and the Union. An act passed by the Parliament or a Legislative Assembly is subject to judicial review, and can be declared unconstitutional by the judiciary if it feels that the act violates the provisions of the Constitution.

Changing the constitution

Main article: Amendment of the Constitution of India

Amendments to the Constitution are made by the Parliament, the procedure for which is laid out in Article 368. An amendment bill must be passed by both the Houses of the Parliament by a two-thirds majority and voting.In addition to this, certain amendments which pertain to the federal nature of the Constitution must be ratified by a majority of state legislatures.

As of January 2012 there have been 115 amendment bills presented in the Parliament, out of which 115 have been passed to become Amendment Acts. Most of these amendments address issues dealt with by statute in other democracies. However, the Constitution is so specific in spelling out government powers that many of these issues must be addressed by constitutional amendment. As a result, the document is amended roughly twice a year.

The Supreme Court has ruled in Kesavananda Bharati v. State of Kerala case that not every constitutional amendment is permissible, the amendment must respect the "basic structure" of the constitution, which is immutable.

In 2000 the National Commission to Review the Working of the Constitution (NCRWC) was set up to look into updating the constitution.

Judicial review of laws

See also: Judicial review

Judicial review is adopted in the Constitution of India from the Constitution of the United States of America. In the Indian constitution, Judicial Review is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. Article 13 states that

1. All pre-constitutional laws, after the coming into force of constitution, if in conflict with it in all or some of its provisions then the provisions of constitution will prevail and the provisions of that pre-constitutional law which conflicts the provisions of the constitution will not be in force until an amendment of the constitution relating to the same matter. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Doctrine of Eclipse.

2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void-ab-initio.

In such situations, the Supreme Court or High Court interprets the laws as if they are in conformity with the Constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 124, 131, 219, 228 and 246 provide a constitutional basis to the Judicial review in India.^{[citation needed]}

1. Numbered list item

'Judicial Review of an Administrative Action'''
Italic text The most significant segment of administrative law is that pertaining to judicial review of administrative action. The whole law of Judicial control of administrative action is based on the assumption that the real kernel of democracy lies in the Courts enjoying the ultimate authority to restrain the exercise of absolute and arbitrary power. In the absence of some kind of judicial power to control administrative agencies, there is always danger that they may commit excesses and degenerate into arbitrary bodies. Such a development would be contrary to a democratic Constitution and the concept of rule of law. Judicial review is not an unguided missile. Court does not interfere in policy matters. The Supreme Court in Federation of Railway Officers Association v. Union of India, (AIR 2003 SC 1344), has held that court will not interfere unless the government policy is inconsistent with the Constitution or arbitrary. Judicial Review is inherent in administrative process because it is basic structure of the constitution of India, which cannot be abrogated even by amending the constitution. The whole law relating to judicial Review of administrative action has been developed by Judges on case-to-case basis. Courts see whether there is any infirmity in the decision making process and not in the decision itself. Any administrative action is subject to judicial review on three grounds : (i)illegality, (ii)irrationality, (iii)procedural impropriety. Any challenged administrative action must fall within any of these categories. Mere assertion in that regard would not be sufficient. Once the administrative action is found to be intra vires, the scope of judicial review is very limited because the Court cannot substitute its own views and judgment to that of administration. Due to increase in governmental functions, administrative authorities exercise vast powers in almost all fields. But if the rule of laws and conformity to the provisions of the Constitution is to be maintained, it is necessary that these multitudinous administrative authorities must be brought under the control of the Courts of law, so that the authorities may be kept within the powers and jurisdictions conferred upon them by statutes as well as to ensure that, even in their non-statutory functions, they do not violate any of the constitutional mandates, such power of Courts is comprehensively described as the power of ‘judicial review’. Since judicial review occupies a key position in the scheme of Indian Administrative law, an important question arises as to what are the techniques available to the concerned person to bring his complaint or grievance against administrative action within the cognizance of courts. The techniques ordinarily used for the purpose are writs, appeals, reference to the Courts, injunctions, declarations, suits for damages for tortious actions of the administration and civil servants, and for breach of contracts between the State and individuals. Writs are issued by the Supreme Court under Article 36 of the Constitution of India. Under Article 227 of the Constitution of India, High courts exercise the power of supervision over tribunals within their territorial jurisdiction. Provision for appeal before the Supreme Court of India, from the decisions of tribunals has been made under Article 136 of the Constitution of India. Further, there are a number of statutes which provide for appeal to the Courts from the decisions of various administrative bodies. The technique of reference is used for enabling administrative bodies to seek opinions of Courts on questions of law. For grant of declarations and injunction, provisions have been made under the Specific Relief Act, 1963. The Union and States are legal persons under Articles 300 and as such they can be held liable to pay damages for breach of contract and tortious actions. Ever since the commencement of the constitution, the writ system has been the most commonly used technique of judicial review to bring administrative action within the cognizance of courts. Innumerable cases relating to writs seem to indicate that the writ process has over-shadowed all other techniques of judicial review of administrative action. The system of judicial review of administrative action has been inherited from Britain. It is on this foundation that the Indian courts have built the superstructure of control mechanism. The whole law of judicial review of administrative action has been developed by judges on case-to-case basis. Consequently, a thicket of technicality and inconsistency surrounds it. Jurisdiction of the Supreme Court Under Articles 32 and 136 of the Constitution of India. India has a hierarchical judicial system in which Supreme Court of India is the apex court. It is the final interpreter of law and the ultimate court of appeal in all civil, criminal and constitutional matters. It is also the final protector of people’s Fundamental Rights. Judicial Review is thus not only an integral part of the Constitution but is also a basic structure of the Constitution which cannot be abolished or whittled down even by an amendment of the Constitution. In any democratic society judicial review is the soul of the system because without it democracy and the rule of law cannot be maintained. Thus extraordinary jurisdiction of the Court under Art. 32 or 136 of the Constitution cannot be taken away by legislation or principle of election or estoppel or even by amending the Constitution. The Supreme Court is invested with the power of judicial review under Article 32. Article 32(1) guarantees the right to move the Supreme Court for the enforcement of Fundamental Rights and Article 32(2) invests the Supreme Court with the power to issue directions, orders or writs for the enforcement of these right. The right to move the Supreme Court for the enforcement of any fundamental right is itself a Fundamental Right and the Court has no power to refuse in its discretion to grant appropriate remedy if the violation of any fundamental Right is proved. Therefore, it is not only the right and power but the duty of the Supreme Court to protect and safeguard the fundamental rights of the people. Where no fundamental right of a person is violated, Court can decline jurisdiction. It is for this reason in Federation of Bar Association, Karnataka v. Union of India, (2000 (6) SCC 715) the Court declined relief in a PIL petition for the establishment of High Court benches at other places in Karnataka. The nature and purpose of judicial review is not the review of the decision of the administrative authority but of the decision making process. Therefore, Supreme Court cannot assume appellate jurisdiction and reappreciate the primary or perceptive facts found by the fact-finding authority. The right of seeking judicial review depends on the facts of each individual case, however, there cannot be a review of an abstract proposition of law. Though the jurisdiction of the Supreme Court under Art. 32 is confined to the enforcement of fundamental rights yet if there is a clear abuse of process of the court petition is maintainable even if no violation of any fundamental right is involved. Thus when a person manipulated facts in order to get a decree by a court to defeat the ends of justice in such a situation petition under Art. 32 is maintainable. While exercising jurisdiction the court will not go into questions of policy of the State which is required to be dealt with by the legislature. On this basis the court declined jurisdiction where the personal laws of Hindus, Muslims and Christians were challenged as violative of fundamental rights of women. The court also cannot issue direction which would result in amendment of government's existing policy. The judgment of the Court operates in rem, hence, no new parties can re-agitate a concluded issue on fresh grounds. Where the Supreme court under Art. 136 held that special duty allowance payable to Central Government employees in North-Eastern region will not be admissible to employees belonging to the region, a subsequent writ by the local employees on new ground will not be maintainable. It has been firmly established that the Court can grant compensation for established breach of fundamental rights and abuse of power while exercising jurisdiction under Art. 32 of the constitution. For this purpose the Court can enforce fundamental rights even against private bodies or individual. The Court can exercise jurisdiction suo motu or on the basis of a PIL in the absence of personal approach by the victim. In order to enforce the concept of accountability the Court can also award exemplary damages for oppressive, arbitrary and unconstitutional action of government servants while exercising jurisdiction under Art. 32 of the Constitution. The State has a right to change its policy from time to time in public interest under the changing circumstances and, therefore, generally the Court would not interfere unless the change of policy is arbitrary or violative of law and the constitution. Article 136 which is in the nature of a residuary reserve power of judicial review in the area of public law lays down that the supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal. Since the court has power to grant special leave to appeal against the decisions of administrative tribunals and other agencies, it is now regarded as an important mode of judicial review of administrative adjudicatory actions. Article 136 also refers to tribunals, a term which necessarily refers to a statutory body having the power to affect the rights of the people and the duty to act judicially. A ‘tribunal’ for the purpose of Article 136 must have some trappings of a law court which include: (i)That the proceedings before it must start on an application in the nature of a plaint. (ii)That it possesses the powers of a civil court in matters compelling attendance of witnesses, discovery and inspection. (iii)That it allows cross-examination and legal representation. (iv)That it decides on the basis of evidence and according to law. (v)That its members are qualified to be judges. On the basis of these, the Supreme Court found that the Conciliation Officer acting under the U.P. Industrial disputes Act is not a tribunal as he does not enjoy the powers of a civil Court. In the same manner an arbitrator appointed under the Industrial Disputes Act, 1947 is not considered to be a tribunal, as he is appointed by the parties and is not invested with inherent judicial power of the State. But on the other hand, an Industrial Tribunal, Election Commission, Railway Rates Tribunal, Labour Appellate Tribunal, Income Tax Appellate Tribunal, Custodian General of Evacuee Property, Authority under Payment of Wages Act, Central Government acting under Section 111(3) of the Companies Act and under Section 30 of the Mines and Minerals (Development and Regulation) Act, have been held to be ‘tribunals’ within the jurisdiction of the Supreme Court under Article 136. The Power to grant special leave to appeal is discretionary and, therefore, cannot be defined exhaustively. Courts will exercise this power in exceptional circumstances to prevent the miscarriage of justice. The term ‘exceptional circumstances’ cannot be defined by any set formula. However, the court may exercise its power in cases where there has been an illegality or irregularity of procedure or violation of the principles of natural justice resulting in gross miscarriage of justice. In the same manner the Supreme Court may decline jurisdiction where the conduct of the petitioner is objectionable or where appeal involves a matter or purely academic interest and is of no practical value or where appeal is frivolous, or where there is unreasonable delay in filing petitions. Jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India Article 226 empowers the High Courts to issue directions, orders or writs for the enforcement of the Fundamental Rights and for any other purpose also. Thus the power of judicial review of the High Courts is wider than that of Supreme Court. The words ‘for any other purpose’ enable the High Courts to exercise their power of judicial review for the enforcement of the ordinary legal rights, which are not Fundamental Rights. In Manjula Manjari v. Director Public Instruction, AIR 1952 Ori 344, it was held that the jurisdiction of the High Court under Article 226 for the enforcement of Fundamental Rights is mandatory whereas for the enforcement of ordinary legal rights it is discretionary. Further it was held in Kihota Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, that the power of judicial review of the High Court under Article 226 is constitutional, therefore, no measure of finality given by the legislature to any action or decision can take away this power. High Court is bound to follow the technical procedure of the English Law in the matter of issuing a writ, hence a petition will not be thrown out because the proper writ has not been prayed for (Kanu Sanyal v. Dist. Magistrate, 1973(2) SCC 674). High Court can issue a writ to a person or authority having its location or residence within the territorial jurisdiction of the court, or, if the cause of action either wholly or partly arises within its territorial jurisdiction. Therefore, a High Court can issue a writ even when the person or authority is located outside its territorial jurisdiction. The power of the High Court under Article 226 is discretionary and the power cannot be exercised as a court of appeal. The jurisdiction is supervisory in nature. It can strike down an impugned rule and direct the authorities to reframe it but cannot itself frame it. The power of judicial review under Article 226 is not directed against the decision but is confined to the decision making process. High Court would generally not re-appreciate evidences or enter into determination of questions which demand an elaborate examination of evidence or interfere in the punishment imposed unless the administrative determination is mala fide, or made in contravention or is in violation of any constitutional provision, or is such that shocks the conscience of the Court (Tax Appellate Tribunal v. C.I.T., 1996 (7) SCC 454). High Court, being a court of plenary jurisdiction, has inherent power to do ‘complete justice’ between the parties similar to Supreme Court’s power under Article 142 of the Constitution. Unless the facts and circumstances of the case clearly justify the laches or delay, these may disentitle a person from seeking relief. The Constitution places no limitation or fetters on the power of the High Court except self-imposed limitation, therefore, the arms of the court are long enough to reach injustice wherever it is found. It is for this reason that the distinction between public law and private law is being obliterated, and a person can enforce a legal right founded upon a contract or a statute or instrument having the force of law. While dismissing a petition in limine/summary dismissal the High Court must record reasons so that in appeal the Apex Court is not denied opportunity of testing and weighing those reasons. Some of the very important Cases, which were discussed in the classroom, by our learned teacher, are as follows: Case law 1 Jalan Trading Company v. Mill Mazdoor Sabha (A.I.R. 1967 SC 691) In this case Section 37 of the Payment of Bonus Act, 1965 authorised the Central Government to provide by order for removal of doubt or difficulties in giving effect to the provisions of the Act. The Court held Section 37 ultra vires on the ground of excessive delegation and observed that the Act authorized the government to determine for itself what the purposes of the Act are which in substance would amount to exercise of legislative power that cannot be delegated. Case law 2 In Gammon India Ltd. v. Union of India (1974 (1) SCC 596: AIR 1974 SC 960), it was held that Section 34 of the Contract Labour (Regulation and Abolition) Act 1970, providing, that if any difficulty arises in giving effect to the provisions of the Act, the Central Government may make such provisions, not inconsistent with the provisions of this Act, as appeared to it to be necessary or expedient for removing the difficulty. The Supreme Court held Section 34 does not amount to excessive delegation, as it does not contemplate any alteration in the Act. It simply authorizes the removal of difficulties, which may arise in the implementation of the law.

Case law 3 In Kerala State Electricity Board v. Indian Aluminium Company (1976 (1) SCC 466: AIR 1976 SC 1031), the validity of the Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order, 1968, was in question. The order was passed in exercise of the powers conferred by Section 3 of the Kerala Essential Articles Control (Temporary Powers) Act, 1961. The Act in Section 2 (a) defined ‘essential article’ as meaning any article, which may be declared by the government by notified order to be an essential article. The purpose of the Act is to provide in the interest of the general public for the control of the production, supply, distribution of and trade and commerce in certain articles. Section 2(a) was challenged on the ground of excessive delegation. The Court upheld the constitutionality of Section 2(a) on the ground that the Act lays down sufficient policy to guide the discretion of the administrative authority. However, it is pertinent to mention here that Justice Gupta disagreed with the majority decision on the ground that the Act contains no specific standard or policy with reference to which an article may be declared as an ‘essential article’. Case Law 4 In N.K.Papiah v. Excise Commisioner (AIR 1975 SC1007), a provision authorizing levy of excise duty “at such rate as the government may prescribe” was held valid, although neither any policy was laid down for guidance, nor any maximum rate was prescribed. Case Law 5 In State of U.P. v. Johri Mal (AIR 2004 SC 3800), it was held that although discretionary powers are not beyond the pale of Judicial Review, the Court’s it is trite, allow the public authorities sufficient elbow space/play in the joints for proper exercise of discretion. Case Law 6 Judicial Review means supremacy of law. It seeks to ensure that administrative actions are taken according to law. In Tata Cellular v. Union of India (1994 (6) SCC 651), the Supreme Court laid down that judicial review is concerned with reviewing not the merits of decision but the decision making process itself. Thus judicial review is different from appeal. While hearing an appeal the Court is concerned with the merits of the decision but in judicial review the court is basically concerned with the decision making process because even otherwise the Court is hardly equipped to review the merits of the decision. The Court rightly observed that it is not the function of the Court to act as a superboard or with the zeal of a pedantic schoolmaster substituting its judgment with that of the administrator. As per the case referred above it was held that the duty of the Court in exercising the power of judicial review is thus to confine to the questions: 1. Whether a decision making authority exercised its powers? 2. Whether the authority has committed an error of law where the Supreme Court has laid down that the scope of judicial of administrative action is limited to three grounds, viz, (i) unreasonableness which can more appropriately be called irrationality; (ii) illegality and (iii) procedural impropriety. 3. Whether the authority has committed a breach of the principles of natural justice? 4. Whether the authority has reached a decision which is no reasonable person would have reached? 5. Whether the authority has abused its powers? In this way the grounds on which judicial review can be exercised are as follows: 1. Illegality: This means that the decision maker must correctly understand the law that regulates his decision making process and must give effect to it. 2. Irrational: This means that the decision is so outrageous in its defiance of logic or of accepted moral standard that no sensible person could have arrived at such a decision. 3. Procedural impropriety: This means that the procedure for taking administrative decision and action must be fair, reasonable and just. 4. Proportionality: This means that in any administrative decision and action the end and means relationship must be rational. 5. Unreasonableness: This means that either the facts do not warrant the conclusion reached by the authority or decision is partial and unequal to its operation. Thus, the modern trend in the area of judicial review is towards judicial restraint. This is so because the Judge in Socio-economic matters cannot do better than the Administrator. Accordingly, any policy decision of the government is not subject to judicial review unless it is unreasonable and against public interest. Against whom writ can be issued Under the provisions of Articles 32 and 226 of the Indian Constitution, the Supreme Court and the High Courts have the power to issue writs in the nature of habeas corpus, mandamus, certiorari, prohibition and quo warranto. The jurisdiction of the Supreme Court is limited only to the enforcement of fundamental rights, while the High Courts can issue writs not only for the enforcement of fundamental rights but for other purposes also. Authorities amenable to the writ jurisdiction of the Supreme Court: The main purpose of Article 32 is to protect the individual against the infringement of his fundamental rights. The threat to fundamental rights may arise from the following sources: 1.Government and Parliament of India, Governments and legislatures of States and local governments. 2.Government departmental undertakings. 3. Agencies incorporated by statutes. 4.Agencies registered under statutes, e.g., Companies Act and Societies Registration Act. 5.Courts. 6.Private individuals and bodies. Judicial opinion is clear that the authorities falling under the first three categories are amenable to the writ jurisdiction of the Supreme Court and are included within the definition of ‘State’ in Article 12 of the Constitution of India. Agencies falling under the fourth category (incorporated public or private companies, government companies, registered societies) may be included within the term ‘State’ and, therefore, are amenable to the writ jurisdiction of the Supreme Court, if such authorities are instrumentalities or agencies of the Government (R.D.Shetty v. International Airports Authority, (1979 (3) SCC 489). Courts of law are not mentioned as such in Article 12 but they may pose a threat to the fundamental rights of the people in exercise of their administrative powers. In Prem Chand Garg v. Excise Commissioner (AIR 1963 SC 996), the Supreme Court struck down certain rules framed by it as violative of fundamental rights. Some of the Fundamental rights given under Articles 15(2), 17, 23(1) and 24 can be claimed against private individuals also. The judicial opinion is that these rights though belong to private individuals cannot be enforced by private individuals. Therefore, as the law stands today, such private individuals and bodies are not amenable to the jurisdiction of the Supreme Court, no matter they violate Fundamental Rights, (writ of Habeas Corpus being the exception). There seems to be no valid reason for this kind of a judicial exclusion. The approach of the Court in the area of fundamental rights must not be whether the authority is ‘State’ within the meaning of Article 12. The correct approach should be that every authority or person who poses a threat to a fundamental right should be amenable to the jurisdiction of the Supreme Court. Therefore, not the ‘type of agency’ but the ‘threat to the fundamental rights’ must be the determining factor for the issue of writs under Article 32. Authorities amenable to the writ jurisdiction of the High Courts: The High Courts have a wider power to issue writs against ‘any person or authority’ for the enforcement of fundamental rights and any other legal right. As regards the ‘person and authority’ against whom such writs can be issued, the law seems to be in a thicket of inconsistencies. There is no controversy about the writs of habeas corpus and quo warranto which can be issued against private individuals and public officers respectively. Therefore, the real problem for jurisdiction lies in the writs of certiorari, prohibition and mandamus. It is gratifying to note that the area for the operation of these writs has been extended, and rightly so, to cover various administrative agencies exercising mutifarious functions. There is no dispute that all constitutional and administrative authorities are amenable to the jurisdiction of the courts. Therefore a writ can be issued against public acts of the President of India, Governer, Union and State Governements, Ministers, Government officers and departments, and other bodies given in the Constitution, i.e., Union Public Service Commission, Election Tribunal, Finance Commission, Water Disputes Authority and Attorney-General of India. The combined effect of In re Constitution of India (AIR 1965 SC 745) and State of Punjab v. Satyapal (AIR 1969 SC 903) is that a writ can be issued in appropriate cases, where there is a violation of the Constitution or any law, to Parliament and State legislatures. In State of M.P. v. Babulal (AIR 1977 SC 1718) it was held beyond doubt that a writ of certiorari can be issued against a court to correct the record if the court has usurped jurisdiction. The opinion of the Courts is also decisive that writs can be issued to statutory bodies irrespective of their functions and ‘profit’ orientations. Therefore writs can be issued to bodies like. L.I.C., N.S.C, University, Dock Labour Board, State Transport Corporation, Warehousing Corporation, Steel Authority of India, etc. The law relating to the amenability of registered agencies, i.e., companies registered under the Indian Companies Act and societies registered under the Societies Registration Act, is still in a developing stage and has not reached the stage of maturity. However, some High Courts have taken the view that not only government companies but private companies also are amenable to the writ jurisdiction because their bye-laws have the force of law. In Borhan Kumar v. Indian Oil Corpn. (AIR 1971 Pat 174), Standing orders made by the companies under the Industrial Employment (Standing Orders) Act, 1946 were considered as having the force of law. In K.L. Mathew v. Union of India (AIR 1974 Ker 4), the Kerala High Court also issued a writ against the Cashew Corporation of India, a government company, on the ground that it was performing a statutory function, under the Imports and Exports Control Act, 1947 and Import Control Order, 1955, of controlling import and export of cashewnuts. The Supreme Court in R.D.Shetty v. International Airports Authority (AIR 1979 SC 1628) has rightly extended its reach in matters of issuing writs by liberalizing the test which brings an administrative authority within the gravitational orbit of the term ‘State’ in Article 12 of the Constitution. The core question in writ jurisdiction in India has always been whether an administrative authority is included in the category of ‘other authorities’ as contemplated by Article 12 within the definition of the term ‘State’. In Rajasthan Electricity Board v. Mohan Lal (AIR 1967 SC 1857), the Court held that a constitutional or statutory authority would be within the meaning of the expression ‘other authorities’ if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal consequences of it has the sovereign power to make rules and regulations having the force of law. This test was followed in Sukhdev Singh v. Bhagatram (AIR 1975 SC 1331). However, in this case, Mathew, J. enunciated a broader test, namely, whether the administrative authority is an instrumentality or agency of the government: if it is, it would fall within the meaning of the expression ‘other authorities’ and would be ‘State’. This test of ‘governmental instrumentality or agency’ was found to be most satisfactory by the Supreme Court in R.D.Shetty v. International Airports Authority (AIR 1979 SC 1628). Principles for Exercise of Writ Jurisdiction The writ jurisdiction exercised by the Supreme Court under Article 32 and by the High Courts under Article 226 for the enforcement of Fundamental Rights is mandatory and not discretionary. However, the writ jurisdiction exercised by the High Court Under Article 226 for any other purpose is discretionary. The writ jurisdiction confers a discretion of a most extensive nature on the High Courts. But the very vastness of the jurisdiction conferred on the High Courts imposes on it the responsibility to use it with circumspection. Therefore, the High Court will necessarily exercise the jurisdiction in accordance with judicial considerations and well-established principles. Some of the principles which would regulate the exercise of jurisdiction under Article 226, as discussed in the class room by our learned teacher are as under: Alternative Remedy Ordinarily the court exercises writ jurisdiction on exhaustion of remedies. Availability of an adequate and efficacious alternative legal remedy is a ground for the court to decline to exercise its writ issuing power. However, this principal is not to apply where the enforcement of fundamental rights either under article 32 or 226 is involved. The law is that the Supreme court and High courts cannot refuse reliefs under Articles 32 and 226 on the ground of alternative remedy if the person complains of infringement of his fundamental Rights. (a) Violation of Fundamental Rights- The position is that under article 32 it is not merely a right of an individual to move the Supreme Court but also the duty of the Supreme Court to enforce the Fundamental Right. If the petitioner satisfies the Supreme court that his Fundamental Right has been infringed, it is not only the right and power but also the duty and obligation of the Supreme Court to see that the petitioner's Fundamental right is protected and safeguard. The jurisdiction in the High Court in considering a writ petition under Article 226 for the enforcement of fundamentals right is substantially the same as the jurisdiction of the Supreme Court under Article 32. In the leading case of Himmat lal v. State of M.P (AIR 1954 SC 403), Speaking for the Constitution Bench of the Supreme Court, Mahajan ,C.J. observed: "The contention that because a remedy under the impugned Act was available to the appellant it was disentailed to the relief under Article 226 stands negatived by the decision of this Court in the case of State of Bombay v. United Motors........... There it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party to the Court with an allegation that his Fundamental Right had been infringed and sought relief under Article 226.(AIR 1954 SC 406)." (b) Violation of Non-Fundamental Rights- However, with regard to any other purpose, the jurisdiction of High Court under Article 226 is discretionary. The High Court does not act as a Court of appeal against the decision of a Court or Tribunal to correct errors of fact and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. The Supreme Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be by-passed and will leave the party applying to it to such resort to the machinery so set up (Union of India v. T.R.Verma, AIR 1957 SC 882). The reason is obvious. High Courts are the apex judicial institutions in the States, and it is but natural that if an alternative, suitable and equally efficacious remedy is available to the party, they may refuse to exercise this discretionary jurisdiction and direct the aggrieved party to first avail the said alternative remedy. Res-judicata The doctrine of res-judicata which is founded on public policy applies in the area of writ jurisdiction as well. If a writ petition has been considered and dismissed, the same petition on the same ground cannot be filed in the same Court again. It has been settled since long that there is no good ground to preclude decisions in matters in controversy in writ proceedings under Article 32 or Article 226 of the Constitution from operating as res-judicata in subsequent petition. In the historic case of Daryao v. State of U.P. (AIR 1961 SC 1457), the Supreme Court has placed the doctrine of res-judicata on a higher footing. In this case, the petitioner had filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution and the same was dismissed. Then they filed subsequent petitions in the Supreme Court under Article 32 of the Constitution for the same relief and on the same grounds. Preliminary objection was raised against the maintainability of the petition on the ground that the prior decision of the High Court would operate as res-judicata to a subsequent petition under Article 32.The Supreme Court accepted the contention and dismissed the petition. Speaking for the Constitution Bench, Gajendra Gadkar, J. rightly observed: "The binding character of judgment pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis." Thus, the principle of res-judicata applies in cases for the enforcement of Fundamental Rights. A person is free to approach the High Court or Supreme Court for the enforcement of his Fundamental Rights. If such a person has made a choice of approaching the High Court which has considered his petition and dismissed it under Article 226, then such decision would operate as res-judicata so as to bar a similar petition under Article 32 of the Constitution of India. Anticipatory Relief The jurisdiction conferred on the Supreme Court under Article 32 or the High Court under Article 226 is very vast and comprehensive. Such words as writs, orders or directions used in Article 32 as well as 226 are not qualified in any way, and, therefore, the Court is thus empowered to pass any order including a declaratory order. However, Courts have imposed certain self-limitations on the vastness of such power. One of such limitations is that a Court can entertain a writ petition when the petitioner has already suffered a damage or injury or when there is a reasonable likelihood of injury being caused, but would not make any pronouncement merely on hypothetical questions. No advisory opinion or declaratory judgment would be given on the Constitutionality of a legislation or validity of an administrative action in absence of some concrete injury or controversy. Prerogative Writs in Particular A few words may be said here mentioning the essential features of prerogative writs. 1. Writ of Certiorari Nature and Scope- "Certiorari" is a Latin word which means "to certify". Essentially, it was a royal demand for information. It required "the judges of any inferior Court of record to certify the record of any matter in that Court with all things touching the same and to sent it to the King's Court to be examined. Certiorari may be defined as a judicial order issued by the Supreme Court under Article 32 or by a High Court under Article 226 of the Constitution to an inferior Court or any authority exercising judicial, quasi-judicial, or administrative functions to transmit to the Court the records of proceedings pending therein for scrutiny and, decide the legality and validity of the orders passed by them. If the decision is bad it is quashed, in other words, declared invalid. Consequently, it is not binding on the person against whom the order had been made by the inferior Court. Conditions- The conditions for issue of the writ of certiorari rested on the observations of Atkin, L.J. in R. v. Electricity Commissioners (1924 (1) K.B. 171). In this case Lord Atkin observed: "Whenever any body of persons having legal authority to determine questions affecting rights of subjects and having duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs". Thus, the foregoing proposition lays down the following conditions for the issue of the writ of Certiorari: (a) A body of persons; (b) Having legal authority; (c) To determine questions affecting the rights of subjects; (d) Having the duty to act judicially; and (e) Act in excess of legal authority. Grounds- A writ of certiorari may be issued on any of the following grounds: (1) Error of Jurisdiction- This refers to such situations where the authority acts without jurisdiction, in excess of jurisdiction or fails to exercise jurisdiction vested in it by law. In all these situations, defect of jurisdiction or power is involved, and the writ of Certiorari lies. These grounds are as follows: (a) Lack of Jurisdiction- Where the authority has no jurisdiction at all to take action, it is a case of lack of jurisdiction. (b) Excess of Jurisdiction- Where the authority has jurisdiction but it exceeds its permissible limits, it is a case of excess of jurisdiction. (2) Abuse of Jurisdiction- Certiorari will be issued to quash an action where the authority has abused its jurisdiction. A authority is said to have abused its jurisdiction when it exercises its powers for improper purpose, or on extraneous considerations, or in bad faith, or leaves out relevant considerations or does not exercise the power by itself but at the instance or discretion of another person. (3) Jurisdictional facts- Lack of jurisdiction may also arise from absence of some preliminary facts which must exist before an authority exercise jurisdiction, such facts are known as 'jurisdictional' or 'collateral facts'. The existence of these facts is sine qua non or a condition precedent to the assumption of the jurisdiction by a body over a dispute and to decide it. In other words it can be said that fact or facts upon which an administrative agency's power to act depends is called a 'jurisdictional fact'. If the jurisdictional facts do not exist, the authority cannot act. (4) Error of law apparent on the face of the record- A decision of an authority can be quashed by the writ of certiorari if there is error of law apparent on the face of the record. No error can be said to be an error on the face of the record if it is not self-evident and it requires an examination or argument to establish it. Hence, an error will be apparent on the face of record if it is self-evident and can be ascertained merely by looking into the record without having to have resort to evidence. (5) Violation of the principles of natural justice- A writ of Certiorari can be issued when there is violation of the principles of natural justice. There is a minimum standard of natural justice which must be complied with by 'any one who decides any thing'. These principles include: (i) Rule against bias- Bias may include: (a) Personal bias, (b) Pecuniary bias, (c) Departmental bias, (d) Policy bias. (ii) Rule of Audi Alterem Partem- This right to hearing may include: (a) Notice, (b) Hearing, (i) Oral Hearing, (ii) Fair Hearing, (c) Cross Examination, (d) Right to Counsel, (e) Institutional decision, (f) Reasoned decision.

Writ of Prohibition Nature and Scope- A writ of prohibition is a judicial order. It can be issued to a judicial or quasi-Judicial authority, when such authority exceeds its jurisdiction or tries to exercise jurisdiction not vested in it. Writ of Mandamus Nature and Scope- A writ of Mandamus is a command which is issued by a Court to an authority asking it to perform a public duty imposed upon it by the Constitution or any other law. In the words of Markose1: Mandamus is a judicial remedy which is in the form of an order from a superior Court (the Supreme Court or a High Court) to any Government, Court, Corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty. Mandamus demands some kind of activity on the part of the body or person to whom it is addressed. Thus, when a body omits to decide a matter which it is bound to decide, it can be commanded to decide the same. Where the Government denies to itself a jurisdiction which it has under the law, or where an authority vested with a power improperly refuses to exercise it, Mandamus can be issued. Some of the very important Cases, which were discussed in the classroom, by our learned teacher, are as follows: Case law 1 S.P.Manocha v. State of M.P. (A.I.R. 1975 M.P. 84) The Court in this case held that the foundation of Mandamus is the existence of the right. No one can claim a Madams unless he has a legal right. There must be legally protected right before one suffering a legal grievance can claim a Mandamus. In this case the Court did not issue Mandamus to the college to admit the petitioner because he failed to establish a right to admission in the college. Case law 2 Manjula Manjari v. Director Public Instruction, AIR 1952 Ori 344 The Court in this case held that the writ of Mandamus will not be issued where the duty is of discretionary nature. In this case the publisher of a book applied for issuance of a writ of Mandamus to compel the Director Public Instructions to include her book in the list of books approved for schools. The writ of Mandamus was not issued because it was held that the choice of text-books was a matter of discretion of the Director Public Instructions and he was not under duty to the applicant to include the book in the approved list. Case law 3 Gujrat State Financial Corporation v. Lotus Hotel, AIR 1983 SC 848 Though as a general rule the writ of Mandamus would lie only to enforce a duty which is public in nature. But in this case the Supreme Court issued writ of Mandamus to a government instrumentality for specific performance of a contract to advance money. In this case Lotus Hotel had entered into a contract with the Gujrat State Financial Corporation for the loan of Rs.30 Lacs for the construction of a Hotel. Though the loan had already been sanctioned, yet later on it was refused to be paid. In this case the court observed: “It is too late in the day to contend that the instrumentality.............. can commit breach of a solemn undertaking on which the other side has acted and then contend that the party suffering by the breach of the contract may sue for damages but cannot compel specific performance of contract.” Writ of Quo Warranto Nature and Scope- 'Quo Warranto' means 'what is your authority'. This writ is a judicial order against an occupier or usurper of an independent substantive public office or franchise or liberty to show 'by what authority' he is in such office, franchise or liberty. If the answer of the usurper is not to the satisfaction of the Court, the writ of quo warranto can be issued to oust him. Writ of Habeas Corpus General- The writ of Habeas Corpus is a process by which an individual who has been deprived of his personal liberty by any executive act, may have the validity of such act tested before a Superior Court. It is thus a protector of personal liberty. The writ is in the nature of an order calling upon the person by whom a prisoner is alleged to be kept in confinement to bring such person before the Court to let the Court know on what ground the prisoner has been confined and to set him free if there is no legal justification for the imprisonment.

1. Numbered list item

'===Article 22 of the Constitution of India----Protection against Arrest and Detention===Italic text''

Article 22 of the Constitution of India is titled as “Protection against arrest and detention in certain cases”. It embodies procedural safeguards against arrest or detention, which are available in the following two cases— Firstly, where the arrest or detention is made under the ordinary law relating to commission of offences. Secondly, where the detention is made under a law providing for preventive detention. Article 22 of the Constitution of India reads as under: - “ (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply— (a)to any person who for the time being is an enemy alien; or (b)to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless— (a)an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b)such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts, which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe— (a)the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b)the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c)the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).” Meaning of the word “Arrest”— The word “arrest” is not defined either in the procedural Acts or in the various substantive Acts, though Section 46 of the Criminal Procedure Code, 1973 lays down mode of arrest to be effected. Stroud’s Judicial Dictionary,1 defines the word ‘arrest’ as follows: “’arrest’, is when one is taken and restrained from his liberty.” In the Bouvier’s Law Dictionary,2 the meaning is given thus: “Arrest : to deprive a person of his liberty by legal authority.” Detention of an accused— Section 57, Cr.P.C. is a pointer to the intendment to uphold personal liberty and to restrict to the minimum the curtailment of liberty. Section 73, Cr.P.C. provides that when a person against whom a warrant is issued by a Magistrate is arrested, he is required without loss of time, to be taken to the nearest police station and the police officer is required to produce him before a Magistrate. These provisions indicate that the police has been given the least powers to detain an accused person without a proper authority in that behalf. The powers of arrest and detention conferred under Section 4 (c) read with Section 5 of the Armed Forces (Special Powers) Act, 1958, has to be exercised in consonance with the overriding requirements of Clauses (1) and (2) of Article 22 of the Constitution.3 On a reading of Section 57 of the Code of Criminal Procedure it is evident that no police officer can detain in custody a person arrested without warrant for a period longer than twenty-four hours besides the time taken for journey. Object behind Article 22— The safeguards are provided with a view to avoid any miscarriage of justice. It is to correct or check the use of power by the executive in arresting or detaining a person. Who can claim Article 22— The safeguards contained in Article 22 can be claimed by every person whether a citizen or a non-citizen. Even a foreigner can claim these safeguards. However, these safeguards are not available to an enemy alien (i.e., a national of a country with whom India is at war). When Article 22 does not apply— The words “arrest and detention” in Article 22 have been interpreted to mean arrest and detention upon an accusation for a criminal or quasi-criminal offence. It, thus, does not apply to detentions made in civil matters, e.g., arrests made for the recovery of arrears of land revenue. Again, Article 22 would not apply where there is no allegation or accusation of any actual or apprehended commission by a person of any offence. In Raj Bahadur v. Legal Remembrancer,4 the Calcutta High Court held that removal of a minor girl from a brothel and detaining her in police custody under Section 13 of the Bengal Suppression of Immoral Traffic Act, 1923, did not constitute “arrest and detention” within the meanings of Article 22.

Safeguards against Arrest or Detention made under the Ordinary law relating to commission of offences {Article 22(1) & (2)}— Article 22 guarantees the following safeguards against arrest or detention made under the ordinary law relating to the commission of offences— (a)Right to be informed, as soon as may be, of the grounds for arrest or detention. (b)Right to consult and to be defended by a legal practitioner of his choice. (c)Right to be produced before the nearest Magistrate within 24 hours of arrest. (d)Right not to be detained in custody beyond 24 hours without the authority of the Magistrate. Right to be informed of the grounds of arrest— Clause (1) of Article 22 requires that any person who is arrested should be informed of the grounds for such arrest. The grounds must be furnished “as soon as may be”. The words “as soon as may be” mean as early as is reasonable in the circumstances of the particular case. No hard and fast rule can be laid down in this regard. The object is to enable the person arrested to know as to why and for what offence he has been arrested. It is to afford him the earliest opportunity to remove any mistake or misapprehension or misunderstanding in the mind of the executive authority making the arrest. Right to consult and to be defended by a legal practitioner— Clause (1) of Article 22 further provides that the person arrested “shall not be denied the right to consult and to be defended by a legal practitioner of his choice”. This right is guaranteed with a view to enable the detenue to prepare for his defence. This right belongs to the arrested person not only at the pre-trial stage, but also at the trial before a criminal Court or before a special tribunal and whether the arrest is made under the general law or under a special Statute. Personal liberty is invaded by arrest and continues to be restrained during the period a person is on bail and it matters not whether there is or is not a possibility of imprisonment. An accused has a right to consult his lawyers when he is brought by the police to a Magistrate to record a confession. It is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near-custodial interrogation. The accused should not only be defended by a pleader at the time of the trial or inquiry but he should have a reasonable opportunity of getting into communication with his pleader for the purpose of preparing his defence while in the custody of the police before the charge-sheet is submitted. The police must not in anyway obstruct such interviews on arbitrary or fanciful ground with a view to deprive the accused of his fundamental right. In Joginder Kumar v. State of U.P.,5 the Supreme Court has ruled that the right of arrested person to have someone informed about his arrest and to consult privately with his lawyer were inherent in Articles 21 and 22. Thus the right to consult the lawyer means the right to consult him away from the hearing of the police. The right to be defended by a legal practitioner cannot be excluded by a Statute because of the constitutional mandate under Article 22(1). In State of M.P. v. Shobhram,6 certain persons were arrested under the provisions of the Criminal Procedure Code for committing the offence of criminal trespass and were prosecuted under the M.P. Panchayat Act in the Court of Nayaya Panchayat. Section 63 of the Panchayat Act had excluded the legal practitioners from practicing before the Court of Nayaya Panchayat. The Court imposed a fine of Rs.75/- on each accused. The Supreme Court struck down Section 63 of the Panchayat Act as violative of Article 22(1). Right to be produced before the Nearest Magistrate— Clause (2) of Article 22 provides that “every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate”. The right to be produced before the nearest Magistrate is guaranteed with a view to avoid any miscarriage of justice. It is with the object to correct and approve the executive action of arresting a person. In Re Madhu Limaye,7 it was held by the Supreme Court that the Magistrate must apply his judicial mind to determine whether the arrest is regular or legal and in accordance with the law. The Magistrate, therefore, while authorizing the extension of arrest must not act mechanically. The words “nearest Magistrate” means the Magistrate found to be nearest to the place of arrest. It is immaterial whether the Magistrate has or does not have jurisdiction to try the case or that the Magistrate sits in a court or not, at the time the arrested person is produced before him. The arrest is legal when the arrested persons were kept in custody for more than 24 hours but the time spent up was used for preparation of recovery list and taking the statements of the accused and it was then too late in the day to put them before a Magistrate and the accused persons were therefore put up before the Magistrate the next day.8 Where the Investigating Officer has satisfactorily explained the detention of the accused from time to time till the production before the Magistrate, the production of the accused before the Magistrate after 24 hours of his arrest did not render the custody illegal.9 Only under two conditions can the said direction be obviated. One is when the arrested person is an “enemy alien”. The second is when the arrest is under any law for preventive detention. In all other cases the Constitution has prohibited peremptorily that “no person shall be detained in custody beyond the said period without the authority of a Magistrate”. Right not to be Detained in Custody beyond 24 hours without the authority of the Magistrate— Clause (2) of Article 22 mandates that the arrested person shall not be detained in custody beyond the said period of 24 hours without the authority of a Magistrate. In, Ganpati K. Reddy v. Nafisal Hasan,10 it was interpreted by the Supreme Court that it would mean that if there is failure to produce the arrested person before the nearest Magistrate within 24 hours, it would make the detention illegal. Exceptions to Clause (1) and Clause (2) of Article 22— Article 22(3) Clause (3) of Article 22 provides that the safeguards guaranteed by Clauses (1) and (2) of Article 22 are not available to the following persons— (a)Any person who for the time being is an enemy alien; (b)Any person who is arrested or detained under any law providing for preventive detention. In case of a person arrested or detained under a law providing for preventive detention, special provisions are contained in Clauses (4) to (7) of Article 22. Preventive Justice and Punitive Justice— Preventive justice consists in restraining a man from committing a crime, which he may commit but has not yet committed, or doing some act injurious to members of the community, which he may commit but has not yet done. In almost every case where preventive justice is put in force, some suffering and inconvenience may be caused to a suspected person. That is inevitable. But the suffering is inflicted for something much more important than his liberty or convenience namely, for securing the public safety and defence of the realm.11 As preventive justice proceeds upon the principle that a person should be restrained from doing something which, if free and unfettered, it is reasonable probable that he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof.12 Preventive detention is not punitive but a precautionary measure. The object is not to punish a man for having done something but to interpret before he does it and to prevent him from doing it. Justification of such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence.13 Preventive detention is devised to afford protection to society. Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state.14 When we consider the question of validity of conditions of detention, it is necessary to bear in mind the distinction between ‘preventive detention’ and ‘punitive detention’. There is a vital distinction between these two kinds of detention. ‘Punitive detention’ is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while ‘Preventive detention’ is not by way of punishment at all, but it is intended to prevent a person from indulging in conduct injurious to the society. The power of preventive detention has been recognized as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war of aggression.15 Our Constitution does not recognize the existence of this power, but it is hedged in by various safeguards set out in Articles 21 and 22. Article 22 in Clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Article 22, there is also Article 21, which lay down restrictions on the power of preventive detention.16 Purpose and intent of Preventive detention— Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects, which are specified by the concerned law. The action of the Executive in detaining a person being only precautionary, normally the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of detention. The satisfaction of the Detaining Authority may act on any material and on any information that it may have before it. Such material and information may merely afford for a sufficiently strong suspicion to take action, but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty of citizens, would lose all their meanings, provide the justification for the laws of preventive detention. Laws that provide for preventive detention posit that an individual’s conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of possible future manifestation of similar propensities on the part of the offender. This jurisdiction has at times been even called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. Thomas Jefferson once said, “To lose our country by a scrupulous adherence to the written law would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs”. This, no doubt, is the theoretical jurisdictional justification for the law enabling preventive detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by striding the right balance between individual liberties on the one hand and the needs of an orderly society on the other.17 Safeguards in use of preventive detention— The framers of the Constitution were of the view that in free India, when there will be democratic and representative government, the need for framing such preventive detention laws will rarely arise and shall be sparingly and cautiously used. But it was right that in 1950 that the Parliament passed the Preventive Detention Act to curb the ‘violent and terrorist’ activities of the communists in Hyderabad, West Bengal and Madras State. The Constitutional validity of the Act was upheld by the Supreme Court in terms of the Parliament’s power to enact such a law but Chief Justice Kania and Justice Mahajan and Mukherjee, observed in A.K.Gopalan v. State of Madras18, that preventive detention laws were repugnant to democratic Constitutions and did not exist in democratic countries. Constitutional validity of Preventive Detention Act— The Constitution permits the Parliament and the State Legislature to enact Preventive Detention Acts under Entry 9 of the Union List. The Parliament has power to pass laws relating to Preventive Detention for reasons connected with defence, foreign affairs or the security of India and also in respect of persons subjected to such detention. Both the Parliament and the State Legislatures have under Entry 3 of the Concurrent List power to pass laws in respect of the Preventive Detention for reasons connected with the Security of State, the maintenance of public order or the maintenance of supplies and services essential to the community and persons subject to such detention. The constitutionality of the Preventive Detention Act, 1950 was challenged in A.K.Goplan’s case19. The Act was held to be valid. Kania C.J., said: “Preventive detention in normal times, i.e. without the existence of an emergency like war, is recognized as a normal topic of legislation in List I, Entry 9 and List III, entry 3 of Schedule 7. Even in the Chapter on Fundamental Rights, Article 22 envisages legislation in respect of preventive detention in normal times. The provisions of Article 22 (4) to (7) by their very wording leave unaffected the large powers of legislation on point and emphasis particularly by Article 22 (7) the powers of the Parliament to deprive a person of a right to have his case considered by an Advisory Board. Part III and Article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on the subject would have been quite unrestricted. Parliament could have made a law without any safeguard or any procedure for preventive detention. Such an autocratic supremacy of the legislature is certainly cut down by Article 21.” The law of preventive detention has therefore now to pass the test not only of Article 22, but of Article 21 and if the constitutional validity of any such law is challenged, the court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. Public Order— The true distinction between the areas of ‘public order’ and ‘law and order’ lies not in the nature or equality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of ‘law and order’ and ‘public order’ is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community, which makes it prejudicial to the maintenance of public order.20 The two concepts have well defined contours, it being well established that stray and unorganized crimes of theft and assault are not matters of ‘public order’ since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder.21 Safeguards against arrest or detention made under a law providing for Preventive Detention {Articles 22(4) to (7)}— Clauses (4) to (7) of Article 22 contain the procedural requirements, which are to be complied with when a person is detained under a law providing for preventive detention. These are as follows— (a)No detention beyond three months unless such detention is approved by the Advisory Board; (b)The detaining authority must communicate, as soon as may be, to the detenu, the grounds for such detention; (c)The detenu must be afforded the earliest opportunity of making a representation against the order of detention; (d)No detention beyond the maximum period prescribed under a law made by Parliament under Clause 7(b). No detention beyond three months without review by Advisory Board (Art. 22(4)(a)) Sub-clause (a) of Clause (4) of Article 22 provides that a law providing for preventive detention shall not authorize the detention of a person for a longer period than three months except in the following cases— (a)Where an Advisory Board, before the expiration of the said period of three months, reports that in its opinion, there is sufficient cause for such detention. (b)Where a person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7). Clause (4) (a) provides a limitation on legislative power as to the period of preventive detention. It prohibits against any law providing for detention for more than three months without a provision for an Advisory Board. A provision for an Advisory Board is, therefore, not necessary where the detention is for less than three months.22 In case the detention is to continue for more than three months, Clause (4) (a) of Article 22 requires that the detention must be confirmed by the Advisory Board saying that there is sufficient cause for such detention. The opinion of an Advisory Board confirming the detention must be obtained before the expiry of the first three months of detention. The order of confirmation passed after three months of the date of detention, though the opinion of the Advisory Board had been received, would be invalid and violative of Article 22 (4) (a).23 Advisory Board— The function of the Advisory Board is merely to report on the point whether there is sufficient cause for the detention. It is to provide a safeguard against misuse of the power of preventive detention. The Board is to judge whether the detention is justified and not arbitrary. Its duty is to report about the sufficiency of the detention. The Board is not concerned as to how long the person should be detained.24 Constitution of the Advisory Board— Clause (4) (a) of Article 22 provides that the Advisory Board shall consist of persons who are, or have been qualified to be appointed as, Judges of a High Court. It is left for the executive to constitute the Advisory Board. The Constitution (Forty-fourth Amendment) Act, 1978 proposed that the Advisory Board should be an independent and impartial body, free from executive control. But, the changes have not yet been brought into force. Procedure before the Advisory Board— Clause 7(c) of Article 22 provides that Parliament may, by law, prescribe the procedure to be followed by the Advisory Board in an inquiry under Article 22(4)(a). It has, however, been held that the Board submitting its report without hearing the detenu and examining his witness violates Article 22. Further, that the failure to produce the detenu before the Board, due to the wilful refusal of the detenu himself is equally violative of these provisions.25 But, the detenu cannot claim to be represented by a legal practitioner before the Board.26 However, if the detaining authority or the Government takes the aid of a legal practitioner or adviser before the Board, the detenu must be allowed the same facility.27 The detenu cannot claim the right of cross-examination before the Advisory Board. Right of the Detenu to be informed of the Grounds of Detention— Clause (5) of Article 22 imposes an obligation on the Government to communicate to the detenu the grounds of detention. For the compliance of this requirement, the grounds of detention should be very clear and easily understandable. There must be a rational connection between the grounds stated by the government and the object which are to be prevented under the law providing for preventive detention.28 Thus, where the grounds of detention related to publication of a defamation of a Judge of a High Court and had nothing to do with the purpose of public order or other objects of the statute, the grounds were irrelevant which would invalidate the detention.29 In Tarannum v. Union of India,30 the Supreme distinguished between "maintenance of public order" and "maintenance of law and order". Holding that acts of looting gold and cash were not prejudicial to maintenance of "public order" but mere relating to only "law and order", the Apex Court quashed the order of detention made under the National Security Act, 1980. It has been held that the grounds furnished to the detenu must not be "vague", "irrelevant" or "non-existent", or based on extraneous considerations.31 These must be self-explanatory and self-sufficient and the copies of documents referred to in the grounds, must be supplied.32 Where the detenu did not know sufficient English to understand the grounds communicated to him, it was held in Surjeet Singh v. Union of India,33 that service of grounds in English was no sufficient compliance with the requirement contained in Article 22(5). Simply by reason that the detenu signed in English, did not mean that he could understand the grounds.34 If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, it has been held that the purpose of Article 22(5) is not served.35 Right of the Detenu to Make a Representation against the Order of Detention Article 22(5)-- Clause (5) of Article 22 enjoins the detaining authority to afford the detenu the earliest opportunity to make a representation against the order of detention. The right to make a representation implies that the detenu should have such information as will enable him to made a representation. All the basic and material facts which influenced the detaining authority to order detention, must be communicated to the detenu. If there are any statements and documents referred to in the grounds, they must also be communicated to him.36 Unless such information is furnished to him, it is not possible for the detenu to make the representation. In that case, the right guaranteed under Article 22(5) will be only illusory but not a real right at all.37 The right to make a representation does not carry with it the right to be heard by an independent judicial administrative or advisory tribunal. It also does not include in it the right to be heard orally or an oral interview in respect of the representation. It is implicity in Article 22(5) that the representation must be a written representation communicated through the jail authorities or through any other mode which the detenu thinks fit.38 Again, the right to make a representation does not give a right to be represented by a lawyer.39 Consideration of the Representation— Article 22 (5) imposes an obligation on the Government to consider the representation of the detenu as expeditiously as possible and without inordinate delay.40 No right to Disclosure of Certain Facts, Article 22 (6)-- Clause (6) of Article 22 is an exception to Clause (5). Clause (6) provides: "Nothing in clause (5) shall require the authority making such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose". The facts which cannot be required to be disclosed are those which the detaining authority considers to be against public interest to disclose. It is, therefore, for the detaining authority, in the exercise of its discretion, to decide what facts cannot be disclosed.41 Therefore, the detenu is not entitled to the disclosure of confidential sources of information used in the ground for making of the order of detention.42 What is necessary for the making of an effective representation is the disclosure of the material and not the source thereof. No Detention Beyond the maximum Period Prescribed Under a Law Made by Parliament under Clause 7(a) {Article 22 (4) (b)}-- Proviso to Clause 4(a) of Article 22 provides that a person detained under a preventive detention law shall not be detained beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7) of Article 22. Clause (7) of Article 22 confers power on Parliament to make a law prescribing the maximum period for which any person may, in any class or classes of cases, be detained under any law providing for preventive detention. Section 14A of the National Security Act, 1980, prescribes a maximum period of twelve months for which a person can be detained under the Act. Section 14A was amended, in view of the extraordinary situation prevailing in the State of Punjab and in the amended Section 14A, the words "twelve months" have been substituted by the words "two years" for Punjab and Chandigarh. Preventive detention without reference to Advisory Board— Article 22(7)(a) provides: "Parliament may by law prescribe the circumstances under which and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4)". Sub-clause (a) of Clause (7) of Article 22 came to be interpreted by the Supreme Court in Sambhu Nath Sarkar v. State of W.B.43 Section 17A of the Maintenance of Internal Security Act, 1971, contained five heads in relation to which preventive detention could be for a period longer than three months without any reference to an Advisory Board. The Supreme Court held Section 17A unconstitutional. The Court said that Article 22(7)(a) was an exception to Article 22(4). Thus, Article 22(7)(a) could be made use of only in exceptional and extraordinary cases. A law under Article 22(7)(a), therefore, would by its nature be a drastic law and should apply to exceptional circumstances and exceptional activities. The word "and" in Article 22(7)(a), the Court said, should, therefore, be interpreted to have its ordinary conjunctive sense. The Parliament thus was required to prescrible both the "circumstances under which and the "class of cases" in which only the reference to the Advisory Board could be dispensed with. Article 22(7)(a) empowers only the Parliament and not a State Legislature.44 The Constitution (Forty-fourth Amendment) Act, 1978 proposed to delete sub-clause (a) of Clause (7) of Article 22. Since, the Amendment is not brought into force, as yet, Article 22(7)(a) remains as it was prior to the Forty Fourth Amendment, 1978. Two imperatives— It is now settled law that the power to preventively detain a person cannot be exercised except in accordance with the constitutional safeguards provided in Clauses (4) and (5) of Article 22 and if any order of detention is made in violation of such safeguards, it would be liable to be struck down as invalid. It is immaterial whether these constitutional safeguards are incorporated in the law authorizing preventive detention because even if they are not they would be deemed to be part of the law as a super-imposition of the Constitution which is the supreme law of the land and they must be obeyed on pain of invalidation of the order of detention. 45 The Supreme Court explained the true meaning and import of Clause (5) in Khudiram Das v. The State of West Bengal46: “The constitutional imperatives enacted in this article are two-fold; (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security.” There are thus two distinct safeguards provided to a detenu; one is that his case must be referred to an Advisory Board for its opinion if it is sought to detain him for a longer period than three months and the other is that he should be afforded the earliest opportunity of making a representation against the order of detention and such representation should be considered by the detaining authority as early as possible before any order is made confirming the detention. Neither safeguard is dependent on the other and both have to be observed by the detaining authority. It is no answer for the detaining authority to say that the representation of the detenu was sent by it to the Advisory Board and the Advisory Board has considered the representation and then made a report expressing itself in favour of detention. Even if the Advisory Board has made a report stating that in its opinion there is sufficient cause for the detention, the State Government is not bound by such opinion and it may still on considering the representation of the detenu or otherwise, decline to confirm the order of detention and release the detenu. The detaining authority is, therefore, bound to consider the representation of the detenu on its own and keeping in view all the facts and circumstances relating to the case, come to its own decision whether to confirm the order of detention or to release the detenue.47 In Abdul Karim v. State of West Bengal48 the Supreme Court interpreted the language of Article 22 (5) and observed: “Article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Article 22 (5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board under Section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. The constitutional right to make a representation guaranteed by Article 22(5) is a valuable constitutional right and is not a mere formality. It is, not possible to accept the argument that the State Government is not under a legal obligation to consider representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If this view point contended for by the respondent was correct, the constitutional right under Article 22 (5) would be rendered illusory.” Thus the two obligations of the Government to refer the case of the detenu to the Advisory Board and to obtain its report on the one hand and to give an earliest opportunity to him to made a representation and consider the representation on the other, are two distinct obligations independent of each other.

See also

• Constitutional economics
• Constitutionalism
• History of democracy
• List of national constitutions
• Magna Carta
• Rule according to higher law
• Uniform civil code of India

Bibliography

• Baruah, Aparajita (2007). Preamble of the Constitution of India : An Insight & Comparison. Eastern Book Co. ISBN 9788176299960. 
• Basu, Durga Das (1965). Commentary on the constitution of India : (being a comparative treatise on the universal principles of justice and constitutional government with special reference to the organic instrument of India). 1–2. S. C. Sarkar & Sons (Private) Ltd. 
• Basu, Durga Das (1984). Introduction to the Constitution of India (10th ed.). South Asia Books. ISBN 0836410971. 
• Basu, Durga Das (1981). Shorter Constitution of India. Prentice-Hall of India. ISBN 9780876922002. 
• Das, Hari Hara (2002). Political System of India. Anmol Publications. ISBN 8174886907. 
• Dash, Shreeram Chandra (1968). The Constitution of India; a Comparative Study. Chaitanya Pub. House. 
• Ghosh, Pratap Kumar (1966). The Constitution of India: How it Has Been Framed. World Press. 
• Jayapalan, N. (1998). Constitutional History of India. Atlantic Publishers & Distributors. ISBN 8171567614. 
• Khanna, Hans Raj (1981). Making of India's Constitution. Eastern Book Co. ISBN 9788170121084. 
• Basu, Durga Das (1984). Introduction to the Constitution of India (10th ed.). South Asia Books. ISBN 0836410971. 
• Pylee, M.V. (1997). India's Constitution. S. Chand & Co.. ISBN 812190403X. 
• Pylee, M.V. (2004). Constitutional Government in India. S. Chand & Co.. ISBN 8121922038. 
• Sen, Sarbani (2007). The Constitution of India: Popular Sovereignty and Democratic Transformations. Oxford University Press. ISBN 9780195686494. 
• Sharma, Dinesh; Singh, Jaya; Maganathan, R.; et al. (2002). Indian Constitution at Work. Political Science, Class XI. NCERT. 
• "The Constituent Assembly Debates (Proceedings):(9th December,1946 to 24 January 1950)". The Parliament of India Archive. http://parliamentofindia.nic.in/ls/debates/debates.htm. Retrieved 2008-02-22. 

External links

• Original Unamended version of the Constitution of India
• Ministry of Law and Justice of India – The Constitution of India Page
• Constitution of India as of 29 July 2008
• Constitutional predilections
• Commonwealth Legal Information Institute – Online Copy