Constitutional Law II: Complete Notes

About this subject

Constitutional Law II deals with civil liberties. It is studied in eight units, from the question of who is a citizen of India to how the Constitution enforces the rights it gives. These rights are at work in ordinary life: when a person speaks his mind online, prays in his own way, or is stopped by the police on the road. Connecting every rule to real life makes it easier to understand and remember.

Unit 1: Citizenship under the Indian Constitution

Why citizenship comes first

Before asking what rights the Constitution gives, one must ask to whom it gives them.

Holder	Rights
Every person in India, citizen or foreigner	Equality before the law (Article 14); right to life (Article 21)
Citizens only	Freedoms in Article 19; rights against discrimination (Articles 15 and 16); cultural and educational rights (Articles 29 and 30)

Only citizens can vote, or become President, a judge of the Supreme Court or a member of Parliament. Citizenship decides which doors are open to a person, which is why the study of civil liberties begins with it.

Citizenship, nationality and domicile

Concept	Meaning	Where it matters
Citizenship	Full membership of a State under its own law	Carries rights (such as the right to vote) and duties (such as allegiance)
Nationality	Mainly an idea of international law; tells other countries which State a person belongs to	For example, which State may protect him abroad. In India, it usually goes together with citizenship
Domicile	The place a person treats as his permanent home	Mostly private matters, such as marriage and succession

A person can be a citizen of one country and have his domicile in another. Domicile matters here because Article 5 used it to decide who became a citizen when the Constitution began. India recognises only one domicile, the domicile of India; there is no separate domicile of Uttar Pradesh or Kerala.

Birth, blood and the birthright lottery

Method	Meaning	Rule
Jus soli	"Right of the soil"	A child born on the territory becomes a citizen, whoever the parents are
Jus sanguinis	"Right of blood"	A child takes citizenship from the parents, wherever the child is born

The scholar Ayelet Shachar calls birthright citizenship a "birthright lottery": where a person is born, and to whom, decides much of his life chances, yet it is pure luck.

Partition and the Citizenship Articles (Articles 5 to 11)

The Constitution was written while Partition (1947) was uprooting millions. Families crossed the new borders in both directions, often in panic, and some later went back. So the framers could not simply say that everyone born in India is a citizen; they had to decide the status of people who had moved. Articles 5 to 11, in Part II, deal with this. Articles 5 to 9 came into force early, on 26 November 1949, the day the Constitution was adopted.

Article 5: the basic rule

At the commencement of the Constitution, a person became a citizen if he had his domicile in India and met any one of three conditions:

1. he was born in India; or
2. either of his parents was born in India; or
3. he had been ordinarily resident in India for at least five years immediately before the commencement.

Article 6: persons who came from Pakistan

It applied where the person, or a parent or grandparent, was born in undivided India.

• Migrated before 19 July 1948: a citizen if ordinarily resident in India since then.
• Came on or after 19 July 1948: had to get himself registered.

The date matters because, from 19 July 1948, a permit system controlled movement from Pakistan.

Article 7: persons who went to Pakistan

A person who migrated from India to Pakistan after 1 March 1947 was not a citizen, even if Article 5 or 6 would otherwise cover him. But if he came back under a permit for resettlement or permanent return, he could qualify like a person who migrated after 19 July 1948.

Articles 8 to 11

• Article 8: persons of Indian origin living abroad could register at Indian embassies.
• Article 9: a person who voluntarily acquired the citizenship of a foreign State is not a citizen of India.
• Article 10: existing citizenship continues, subject to any law of Parliament.
• Article 11: nothing in these Articles takes away Parliament's power to make any provision about the acquisition and termination of citizenship and all other matters relating to it.

The Citizenship Act, 1955

Parliament passed the Citizenship Act, 1955 using Article 11.

Five ways of acquiring citizenship

1. Birth.
2. Descent: a child born outside India to an Indian parent.
3. Registration: groups such as persons of Indian origin and persons married to Indian citizens.
4. Naturalisation: foreigners long resident in India, normally for 12 months immediately before applying and for 11 years in all during the 14 years before that.
5. Incorporation of territory: as when the people of Goa were declared citizens after it became part of India.

Three ways of losing citizenship

Mode	How it works
Renunciation	A voluntary declaration giving it up
Termination	Automatic, when a citizen voluntarily acquires the citizenship of another country
Deprivation	An order of the Central Government taking away citizenship obtained by registration or naturalisation, on grounds such as fraud or disloyalty to the Constitution

Citizenship by birth: Section 3

Section 3 is the most important provision. It has changed twice, and each change moved India away from pure jus soli.

Born in India	Citizen by birth if
On or after 26 January 1950 and before 1 July 1987	Always, whoever the parents were
On or after 1 July 1987 and before 3 December 2004	At least one parent was an Indian citizen at the time of the birth
On or after 3 December 2004 (when the 2003 amendment came into force)	Both parents are Indian citizens, or one parent is a citizen and the other is not an illegal migrant at the time of the birth

Illegal migrant

A foreigner who entered India without a valid passport or other travel document, or who entered with valid documents but stayed beyond the permitted time. An illegal migrant cannot become a citizen by registration or naturalisation.

Assam, the Assam Accord and Section 6A

Migration into Assam from the east is old, but it rose sharply around 1971, when the war in East Pakistan led to the birth of Bangladesh. From 1979, a mass movement led by students demanded the detection and deportation of foreigners. It ended with the Assam Accord of 15 August 1985 between the Central Government and the movement's leaders. To give effect to it, Parliament inserted Section 6A into the Citizenship Act in 1985.

Section 6A: three groups

It covers persons of Indian origin who came to Assam from the territory that is now Bangladesh.

Entry into Assam	Status
Before 1 January 1966, and living in Assam since	Treated as citizens
On or after 1 January 1966, before 25 March 1971	Detected as foreigners and must register; for 10 years from detection they have all citizens' rights except the right to vote; after 10 years they become citizens
On or after 25 March 1971	Illegal migrants, liable to be detected and deported

Why 25 March 1971? On that date the Pakistani army began its crackdown in East Pakistan, causing a huge flow of refugees and the war that created Bangladesh.

Later, under the Supreme Court's supervision, the National Register of Citizens (NRC) was updated for Assam. Its final list, published on 31 August 2019, left out about 19 lakh people.

The majority held:

1. Article 11 gave Parliament the power to enact it.
2. Treating Assam differently was a reasonable classification, because the scale of migration into Assam was unique, and the cut-off of 25 March 1971 had a rational basis.
3. The mere presence of different ethnic groups does not violate the citizens' right under Article 29 to conserve their culture, unless they show the law actually prevents them from doing so.

The Court also issued directions for detecting and deporting those who came after the cut-off. Dissent: Justice J.B. Pardiwala held that Section 6A had become unconstitutional with the passage of time, mainly because detection under it had no time limit; he would have applied his ruling only for the future.

No Dual Citizenship: the Overseas Citizen of India

India does not allow dual citizenship; a citizen who voluntarily acquires foreign citizenship stops being an Indian citizen. To give people of Indian origin abroad a lasting link with India, the law created the Overseas Citizen of India (OCI) from 2005.

An OCI cardholder gets	An OCI cardholder does not get
A lifelong, multiple-entry visa	The right to vote
Freedom from registering with the authorities, however long he stays	High constitutional offices, such as President or judge
Parity with non-resident Indians in many economic and educational matters	A right to public employment; the right to buy agricultural land

Since a notification of 4 March 2021, a cardholder also needs special permission for research, journalism, missionary work, mountaineering and similar activities. A person is not eligible if he, or any of his parents, grandparents or great-grandparents, has ever been a citizen of Pakistan or Bangladesh.

Cancellation

• Grounds in Section 7D, such as fraud or disaffection towards the Constitution.
• Added by the Citizenship Amendment Act, 2019: violating the Citizenship Act or any other law the Central Government notifies, after a reasonable opportunity of being heard. Supporters see a reasonable safeguard; critics feared even a minor violation could cost a person the card.
• In August 2025, the government notified that registration may be cancelled if a cardholder is sentenced to imprisonment for two years or more, or is charge-sheeted for an offence punishable with seven years or more.

The Citizenship Amendment Act, 2019

The CAA is the most debated citizenship law of our time. It received the President's assent on 12 December 2019, came into force on 10 January 2020, and its rules were notified on 11 March 2024.

What it does

1. It adds a proviso to the definition of illegal migrant: a person of the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community, from Afghanistan, Bangladesh or Pakistan, who entered India on or before 31 December 2014 and has been exempted by the Central Government under the laws on passports and foreigners, shall not be treated as an illegal migrant.
2. A new Section 6B gives them a special route to citizenship by registration or naturalisation.
3. For naturalisation, the 11 years of residence are reduced to 5.
4. On receiving citizenship, pending proceedings against them about illegal entry come to an end.
5. The route does not apply to the Sixth Schedule tribal areas of Assam, Meghalaya, Mizoram and Tripura, or to areas under the Inner Line permit system.

The constitutional questions

Union of India's defence	Petitioners' arguments
Article 11 gives Parliament full power over citizenship	Article 14 protects every person, not only citizens
Article 14 allows reasonable classification; the three countries are neighbours with a State religion, where these six communities are persecuted religious minorities	Choosing beneficiaries by religion is not a reasonable classification
The object is to protect persecuted minorities; the cut-off date is a rational limit	It leaves out Muslims, including sects such as the Ahmadiyyas, said to face persecution in Pakistan, and persecuted groups from other neighbours, such as Tamils from Sri Lanka and Rohingya from Myanmar
It takes away no one's citizenship; every other foreigner can still apply under the ordinary law	It violates secularism and conflicts with the Assam Accord's cut-off of 25 March 1971

Present position

More than 200 petitions are pending in the Supreme Court. The Court has not stayed the Act or its rules, so the law is in force and, like every statute, is presumed constitutional until the Court decides otherwise.

The Court fixed the final hearing for May 2026, and its judgment is awaited.

Related change: Immigration and Foreigners Act, 2025

From 1 September 2025, this Act replaced the Foreigners Act and three other laws.

An order under it exempts members of these six communities from the three countries, who entered India up to 31 December 2024, from the need for a passport or visa.

Unit 2: Locating the State and the Boundaries of Fundamental Rights

The next question is: against whom can fundamental rights be claimed, and how far do they reach?

Most fundamental rights are guarantees against the State, not against every private person. So the court first asks a threshold question: is the wrongdoer the State? Article 12 answers it. In Part III, unless the context otherwise requires, "the State" includes:

1. the Government and Parliament of India;
2. the Government and the Legislature of each State;
3. all local or other authorities within the territory of India or under the control of the Government of India.

Local authorities are bodies such as municipalities and panchayats. The real difficulty lies in the words other authorities: do they cover only bodies doing the work of government, or also a public sector company, a research council or a sports board? The Supreme Court answered step by step.

"Other Authorities": How the Tests Developed

Statutory authorities

• No narrow reading; no ejusdem generis: "other authorities" is not to be read narrowly. Under the ejusdem generis rule ("of the same kind"), general words following specific words take their colour from them. It cannot apply, because the bodies named in Article 12 share no common kind.
• Statutory power: other authorities include all constitutional or statutory authorities on whom powers are conferred by law. The Board was created by the Electricity Supply Act, 1948 and could issue directions, some carrying criminal penalties.
• Commercial activity irrelevant: the Constitution itself allows the State to do business.

Statutory corporations and the instrumentality test

Justice K.K. Mathew, concurring, said the real question is whether a body is an agency or instrumentality of the government; when the State acts through a corporation, it cannot escape its constitutional duties by that choice. This became the instrumentality test.

The Ajay Hasia tests:

1. Does the government hold the entire share capital?
2. Does government money meet almost all its expenses?
3. Does it enjoy a monopoly conferred or protected by the State?
4. Is there deep and pervasive State control?
5. Are its functions of public importance and closely related to governmental functions?
6. Was a government department transferred to it?

Refining the tests

The question is whether the body is financially, functionally and administratively dominated by or under the control of the government. The control must be particular to that body and pervasive. Mere regulatory control, which every business faces under general laws, is not enough.

Is the BCCI the State?

International Bodies and Social Media Companies

Bodies set up by several countries, such as United Nations agencies, are created by treaties, not Indian law, and are not controlled by the Government of India, so they are generally outside Article 12.

Social media companies raise a newer question. Much public speech now happens on private platforms, but these companies are not the State, because the government does not own, fund or control them. A user whose post is removed cannot simply claim a breach of Article 19 against the platform. Courts have been asked whether such platforms, like the BCCI, perform public functions attracting writs under Article 226. When the government orders a platform to block content, that order is State action and must satisfy the Constitution (see Unit 4).

Private Actors and Horizontal Application

Some rights apply horizontally, that is, against private persons too:

• Article 15(2): no discrimination in access to shops, public restaurants, hotels and places of public entertainment, or in the use of wells, tanks, bathing ghats and roads.
• Article 17: abolishes untouchability, practised mostly by private persons.
• Article 23: forbids trafficking in human beings and forced labour by anyone.
• Article 24: forbids child labour in factories, mines and hazardous work.

A High Court under Article 226 can issue writs to any person or authority, so a private body performing a public duty, such as a private trust running an aided college, can be directed to perform it. An ordinary private dispute, however, is not a matter for writs.

Article 13 and the Meaning of "Law"

Article 12 says who is bound; Article 13 says what happens to a law that violates fundamental rights.

• Clause (1): pre-Constitution laws are void to the extent of inconsistency with fundamental rights.
• Clause (2): the State shall not make any law taking away or abridging fundamental rights; a law in contravention is void to the extent of the contravention.
• Clause (3): "law" includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in India.
• Clause (4) (added in 1971): Article 13 does not apply to a constitutional amendment under Article 368.

Doctrines under Article 13

No retrospective effect

Doctrine of eclipse

Point	Pre-Constitution law	Post-Constitution law
Effect of conflict	Eclipsed: unenforceable while the conflict lasts	Void from birth
Later amendment removing the conflict	Revives the law	Cannot revive it
Citizens-only rights	—	Void only as against citizens; valid against non-citizens

Doctrine of severability

Because a law is void only to the extent of inconsistency, courts ask whether the bad part can be cut away.

Doctrine of waiver

Personal Laws and Article 13

Are uncodified personal laws, such as Hindu or Muslim rules on marriage and succession, "law" under Article 13? If so, every such rule can be tested against fundamental rights.

Three reasons:

1. Uncodified personal law is not a law in force under Article 13, nor custom or usage, so it cannot be tested against fundamental rights; the framers deliberately left personal laws to be reformed by the legislature.
2. Under Article 25, the State may regulate religious practices in the interest of social welfare and reform.
3. Under Article 14, the legislature may reform the law of one community at a time.

The consequence: a personal law rule that discriminates against women escapes review simply because it is not in a statute, which is why the view has been questioned. Two later developments matter.

The Amending Power and the Basic Structure

Article 368 gives Parliament power to amend the Constitution, while Article 13(2) bars any law taking away or abridging fundamental rights. Is a constitutional amendment "law" under Article 13? If yes, Parliament cannot amend fundamental rights; if no, it can amend them freely.

Parliament responded with the Twenty-fourth Amendment (1971), adding Article 13(4) and making clear that Parliament may amend any provision of the Constitution.

Justice H.R. Khanna tipped the balance: the word "amendment" itself carries a limit, and after an amendment the Constitution must survive with its basic identity. Basic features named by the judges include the supremacy of the Constitution, the republican and democratic form of government, secularism, separation of powers, federalism, and the dignity and freedom of the individual. Later cases added judicial review, the rule of law, free and fair elections and the independence of the judiciary.

The basic structure at work

The Forty-second Amendment (1976) added clauses (4) and (5) to Article 368: no amendment could be questioned in any court, and there was no limit on the amending power.

Critics of the doctrine	Supporters of the doctrine
Unelected judges should not have the last word over elected representatives, and judges themselves decide what is basic	A constitution must protect its identity from a passing majority

The Right to Property

The original Constitution had two property rights: Article 19(1)(f), every citizen's freedom to acquire, hold and dispose of property; and Article 31, under which no person shall be deprived of property save by authority of law, and compulsory acquisition was allowed only for a public purpose, with compensation.

The new Republic wanted to abolish the zamindari system and redistribute land, and courts struck down several reform laws. The response:

1. First Amendment (1951): added Article 31A (protecting laws acquiring estates), Article 31B and the Ninth Schedule; Acts in the Schedule were protected from challenge for violating fundamental rights.
2. Bela Banerjee (case below): compensation means a just equivalent.
3. Fourth Amendment (1955): made adequacy of compensation non-justiciable.
4. R.C. Cooper (1970, case below): compensation on relevant principles.
5. Twenty-fifth Amendment (1971): replaced "compensation" with "amount".
6. Kesavananda Bharati: Justice Khanna, whose opinion decided the case, said the right to property is not part of the basic structure.

Forty-fourth Amendment and Article 300A

The Forty-fourth Amendment (1978) deleted Article 19(1)(f) and Article 31 with effect from 1979, and inserted Article 300A outside Part III: "No person shall be deprived of his property save by authority of law."

Point	Before	After
Provisions	Articles 19(1)(f) and 31, in Part III	Article 300A, outside Part III
Status	Fundamental right	Constitutional right
Remedy	Article 32	No direct petition under Article 32; High Court under Article 226, or a civil suit

"Authority of law" means a valid law made by a legislature; a mere executive order is not enough.

The seven rights: (1) the owner's right to notice; (2) the right to be heard; (3) the right to a reasoned decision; (4) the State's duty to acquire only for a public purpose; (5) the right to fair compensation; (6) the right to an efficient process completed within reasonable time; (7) the right to the formal conclusion of the process.

Exceptions to the Fundamental Rights

Three Articles titled "saving of certain laws" still work as exceptions:

Article	Protects	From challenge under
31A	Laws on matters such as acquisition of estates and taking over management of property	Articles 14 and 19
31B	Acts in the Ninth Schedule	Any fundamental right, subject to the basic structure test of I.R. Coelho
31C (added 1971)	Laws giving effect to Article 39(b) (distributing the community's material resources for the common good) and 39(c) (preventing concentration of wealth)	Articles 14 and 19

Other exceptions

• Article 33: Parliament may restrict the fundamental rights of the armed forces and the police, to keep discipline.
• Article 34: restrictions while martial law is in force.
• Articles 358 and 359: during a national emergency, Article 19 may be suspended, and the enforcement of other rights suspended.

Unit Three: Equality Jurisprudence

Once the State and the limits of its power are located, the first promise the State makes to every person is the promise of equality.

Equality and the Rule of Law

A.V. Dicey, the British jurist, explained the rule of law in three ways:

1. No arbitrary power: no person can be punished except for a clear breach of law proved in the ordinary courts.
2. No one above the law: every official is subject to the ordinary courts.
3. Rights secured by courts: individual rights are secured by the decisions of the courts.

Formal rule of law	Substantive rule of law
Asks whether rules are clear, public, general and equally applied.	Also asks whether the law respects basic rights and justice.

The Constitution contains both versions. The Supreme Court treats the rule of law as part of the basic structure, and Article 14 is its most direct expression.

The Two Parts of Article 14

Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 14 protects any person, including a foreigner and a company.

Point	Equality before the law	Equal protection of the laws
Nature	Negative idea	Positive idea
Source	English law	American Constitution
Meaning	No one is above the law; no one gets special privileges	Persons in the same situation must be treated alike

Reasonable Classification

Article 14 forbids class legislation but allows reasonable classification. This is the Supreme Court's answer to when unequals may be treated differently.

Presumption of Constitutionality

A law challenged under Article 14 is presumed valid, and the challenger must clearly show otherwise. The legislature is elected and is presumed to understand the needs of the people and where the problems lie, so the court will assume any state of facts that could reasonably justify the law.

Limits: the presumption is not a shield for clear discrimination. In recent cases on colonial criminal laws, judges have said that it carries less weight for a pre-Constitution law, which no elected Indian legislature ever tested against the fundamental rights.

The Rule Against Arbitrariness

The approach was applied in Maneka Gandhi v. Union of India (1978) and in the cases on State bodies (see Unit Two).

Arbitrariness and Legislation

Does the arbitrariness test apply to laws made by the legislature too? For some years there was doubt.

Constitution Benches applied this test in 2018 to the challenges to the old laws on homosexuality and adultery.

Formal and Substantive Equality

This is the most important idea in equality jurisprudence.

Formal equality	Substantive equality
Treats everyone exactly alike, whatever their situation.	Looks at real outcomes: whether a rule, in practice, helps or harms groups that have long been disadvantaged.

The Constitution chose substantive equality.

Articles 15 and 16

Article 14 protects every person; Articles 15 and 16 protect citizens and are more specific.

Article 15

• 15(1): the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
• 15(2): applies even to private places such as shops and hotels.
• 15(3): special provisions for women and children.
• 15(4) (First Amendment): special provisions for the advancement of socially and educationally backward classes of citizens, and for the Scheduled Castes and Scheduled Tribes.
• 15(5) (93rd Amendment, 2005): extends this to admissions in private educational institutions, aided or unaided, but not minority institutions.
• 15(6) (2019): up to 10 per cent reservation for economically weaker sections.

Article 16: Public Employment

• 16(1): equality of opportunity in matters of public employment.
• 16(2): no discrimination on grounds only of religion, race, caste, sex, descent, place of birth or residence.
• 16(4): reservation of appointments or posts for any backward class of citizens that, in the opinion of the State, is not adequately represented in the services under the State.
• 16(4A) and 16(4B): promotions and unfilled vacancies (below).
• 16(6): up to 10 per cent reservation for economically weaker sections.

Affirmative Action and Its Scheme

1. Scheduled Castes: castes listed by the President under Article 341, communities that suffered untouchability.
2. Scheduled Tribes: tribal communities listed under Article 342.
3. Socially and educationally backward classes: commonly called Other Backward Classes (OBCs).

• Article 46 (directive principle): asks the State to promote their educational and economic interests.
• Article 335: claims of SCs and STs to public posts must be considered consistently with the efficiency of administration.
• Article 340: the President may appoint a commission to investigate the conditions of backward classes.

Identifying the Backward Classes

Who is backward? This is the hardest question in the whole subject.

Backward Classes Commissions

• First: headed by Kaka Kalelkar; reported in 1955; not acted upon.
• Second: headed by B.P. Mandal; appointed in 1979; reported on 31 December 1980, using eleven indicators.

Mandal indicators	Number	Examples	Points each
Social	4	Caste considered socially backward by others; dependence mainly on manual labour	3
Educational	3	Proportion of children who never attended school	2
Economic	4	Value of family assets	1

Total: 22 points; a caste scoring 11 or more was treated as backward. The Commission identified 3,743 castes, put the OBCs at about 52 per cent of the population, and recommended 27 per cent reservation, so that the total with SCs and STs would stay below 50 per cent.

Indra Sawhney v. Union of India

1. Article 16(4) is not an exception to Article 16(1); it is an instance of the classification that equality permits.
2. A backward class can be identified by caste, because in India a caste can be, and quite often is, a social class. But the class must be backward mainly in a social sense, and inadequately represented.
3. The creamy layer among the OBCs must be excluded.
4. Reservations should not normally exceed 50 per cent, except in extraordinary situations, such as for people from far-flung and remote areas.
5. Article 16(4) does not permit reservation in promotions; existing reservations in promotion could continue for five years.
6. The 10 per cent reservation for economically backward people of other classes was struck down: economic criteria alone cannot identify a backward class under Article 16(4).
7. A permanent body must examine requests for inclusion and exclusion, which led to the National Commission for Backward Classes.

Reservation in Promotions and Procedural Requirements

Amendment after Indra Sawhney	Change
77th (1995)	Article 16(4A): reservation in promotion for SCs and STs.
85th (2001)	Consequential seniority: a reserved candidate promoted earlier keeps the seniority gained by that promotion.
81st (2000)	Article 16(4B): unfilled reserved vacancies carried forward as a separate class, outside the 50 per cent limit for that year.
82nd (2000)	Proviso to Article 335: qualifying marks and standards of evaluation may be relaxed for SCs and STs in promotion.

The Fifty Per Cent Ceiling

The 50 per cent rule began in M.R. Balaji and was confirmed in Indra Sawhney.

Parliament quickly reversed that second part by the 105th Amendment (2021), restoring the power of the States to prepare their own lists.

Economically Weaker Sections

The 103rd Amendment (2019) allowed up to 10 per cent reservation for economically weaker sections not covered by the existing reservations.

Majority	Dissent
Economic criteria alone can support special provisions; the 50 per cent ceiling applies only to reservations for backward classes; excluding classes that already have reservation was reasonable.	Excluding the poor among those very groups violated the equality code, which is part of the basic structure.

The Creamy Layer

Indra Sawhney required their exclusion from OBC reservation; otherwise the top of each class would capture the benefit and the truly needy would get nothing. The Central Government fixes the income limit: ₹8 lakh a year since 2017.

Group and stage	Creamy layer
OBCs	Must be excluded (Indra Sawhney).
SCs and STs: promotions	Can apply (Jarnail Singh).
SCs and STs: initial appointments	Four judges in the sub-classification case (Davinder Singh) suggested the State evolve a policy to identify a creamy layer among them; not necessary for the decision, so not a binding direction. On 9 August 2024, the Union Cabinet stated that the Constitution does not provide for a creamy layer among SCs and STs.

Sub-classification of the Scheduled Castes

Can a State divide the Scheduled Castes into sub-groups and prefer the most backward among them?

Reservation and Merit

Argument against reservation	Argument for reservation
Jobs and seats should go to those who score the most; reservation lowers efficiency.	Scores reflect privilege as well as talent; a child whose family could afford coaching, books and time to study does not start from the same line as a first-generation learner.

The Supreme Court has moved towards the second view.

Scholars studying institutions such as the Indian Institutes of Technology similarly argue that the very idea of merit can carry the advantages of caste.

Is Reservation a Fundamental Right?

Can a member of a backward class demand in court that the State introduce reservation? The settled answer is no.

Some scholars disagree: since N.M. Thomas and Indra Sawhney, reservation is a facet of equality itself, so the State cannot simply ignore inadequate representation of a backward class. The binding position remains that there is no enforceable right to demand reservation.

Untouchability and Article 17

Article 17 is one of the shortest and strongest Articles in the Constitution.

Article 17: Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.

The Constitution does not define untouchability. Courts read it as the practice, grown out of the caste system, of treating some castes as polluting and excluding them from temples, wells, schools and social life. Dr. B.R. Ambedkar, who led the drafting of the Constitution, was born into a community treated as untouchable; he rejected the theory that caste and untouchability rested on racial difference, and argued that they were social creations kept alive by religious sanction and custom.

Legislation

• Untouchability Offences Act, 1955: renamed the Protection of Civil Rights Act in 1976.
• Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989: a stronger law. It creates special offences (such as insulting or humiliating a member of these communities in public view, forcing them to eat inedible substances, or wrongfully taking their land) and provides for special courts. Section 18 says the anticipatory bail provision of the CrPC does not apply to its offences.

Subject	Mahajan directions	Section 18A (inserted 2018)
Arrest of a public servant	Only with approval of the appointing authority	No approval needed before arrest
Registering a case	Preliminary enquiry could be held first	No preliminary enquiry needed
Anticipatory bail	Available where no prima facie case is made out	Bar applies notwithstanding any judgment of a court

Parliament responded in 2018 by inserting Section 18A in the Act (right-hand column above). On 1 October 2019, a three-judge bench allowed the Union's review petition and recalled the directions.

Unit Four: Citizens' Freedoms

Equality tells the State how to treat people; the freedoms let citizens live, speak and work as they choose.

The Six Freedoms of Article 19

Article 19(1)	Freedom	Restrictions
(a)	Speech and expression	Clause (2)
(b)	To assemble peaceably and without arms	Clause (3)
(c)	To form associations or unions, and co-operative societies	Clause (4)
(d)	To move freely throughout the territory of India	Clause (5)
(e)	To reside and settle in any part of India	Clause (5)
(f)	Property: deleted by the 44th Amendment (see Unit Two)	Not applicable
(g)	To practise any profession, or carry on any occupation, trade or business	Clause (6)

• The freedoms belong only to citizens; a foreigner or a company cannot claim them.
• No freedom is absolute: clauses (2) to (6) allow reasonable restrictions, but only on the grounds listed in each clause.

Freedom of Speech and Expression

Three reasons are usually given for protecting speech strongly in a democracy:

1. Truth is best found when ideas compete openly, like goods in a market.
2. Citizens cannot govern themselves wisely unless they can hear and debate all views, including criticism of the government.
3. Expressing oneself is part of being a free and dignified person.

The Supreme Court reads the freedom very widely: it includes the freedom of the press, the right to receive information, and speech through the internet.

The Right to Remain Silent

Freedom of speech includes the freedom not to speak.

1. No law required anyone to sing the national anthem; standing respectfully showed proper respect.
2. The expulsion violated their freedom of speech, which includes the freedom to remain silent. The instructions relied on were departmental circulars, not law, and a restriction under Article 19(2) must be imposed by law.
3. It violated their freedom of religion under Article 25. The question is not whether a belief seems reasonable to others, but whether it is genuinely and conscientiously held.

The judgment ends with a famous thought: our tradition teaches tolerance, our philosophy preaches tolerance, our Constitution practises tolerance; let us not dilute it.

Reasonable Restrictions on Speech

Article 19(2) lists the only grounds for restricting speech: sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; contempt of court; defamation; incitement to an offence.

Stage	Change to Article 19(2)
Romesh Thappar decided	Public order was not on the list.
First Amendment (1951)	Added public order, friendly relations with foreign States, and incitement to an offence; also added the word "reasonable", letting courts judge the restriction.
16th Amendment (1963)	Added sovereignty and integrity of India.

Regulating Speech Online

• Section 69A, Information Technology Act, 2000: the Central Government may block online content on grounds taken from Article 19(2).
• Section 79: intermediaries, such as social media platforms, are protected from liability for users' content if they follow due diligence.

Rule 9 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 required digital news publishers and streaming platforms to follow a code of ethics, with a three-tier system of oversight and the government at the top.

Fake news: false information can cause panic and even violence, but if the government itself decides what is true, it may silence criticism. A 2023 amendment let a Central Government fact check unit mark information about the government's business as fake, false or misleading; platforms keeping such content could lose their legal protection.

Criminalising Speech

Speech crimes are tested strictly, because the threat of prosecution silences not only the guilty but also those who fear being accused.

Shreya Singhal v. Union of India

Kind of speech	Position
Discussion	Protected, however unpopular
Advocacy	Protected, however unpopular
Incitement (tends to cause public disorder)	May be punished in the interest of public order

Why Section 66A failed:

• It was not limited to incitement.
• Words such as "annoying" and "grossly offensive" were vague and could cover innocent speech.
• Chilling effect: the vagueness would make people stop speaking for fear of prosecution.
• Overbreadth: it caught protected speech along with unprotected speech.

Other holdings: Section 69A and the blocking rules were upheld because of their safeguards, such as a hearing and reasons recorded in writing. Section 79 was read down: an intermediary must remove content only on actual knowledge through a court order, or a government notification, relating to the grounds in Article 19(2).

Obscenity

Hicklin test (English, 1868)	Contemporary community standards test
Whether the material tends to deprave and corrupt those whose minds are open to such immoral influences. Long used by Indian courts.	The material is judged as a whole, by the standards of an average person in contemporary society, and in its context.

Speech that Hurts Religious Feelings

That forfeiture power is now in Section 98 of the B.N.S.S. Courts have also warned against using such powers too readily.

Sedition

Section 124A of the IPC punished words or signs that bring or attempt to bring hatred or contempt towards, or excite or attempt to excite disaffection towards, the government established by law. The colonial government used it against freedom fighters, including Bal Gangadhar Tilak and Mahatma Gandhi.

After Kedar Nath Singh, the Court insisted on this narrow reading.

In September 2023, whether Kedar Nath Singh should be reconsidered was referred to a larger bench.

Section 152 of the B.N.S.

The IPC was replaced by the B.N.S. (2023) from 1 July 2024. It has no offence called sedition.

Point	Section 124A, IPC	Section 152, B.N.S.
Protects	Government established by law	Sovereignty, unity and integrity of India
Conduct	Hatred, contempt or disaffection towards the government	Exciting or attempting to excite secession, armed rebellion or subversive activities, or encouraging feelings of separatist activities
Means	Words or signs	Words, signs, electronic communication, financial means or otherwise

The government says sedition has been abolished and the new offence protects the nation, not the government. Critics say its words are wide enough to be misused in the old way. A challenge to Section 152 is pending in the Supreme Court.

Assembly and Protest

Article 19(1)(b): the right to assemble peaceably and without arms. Article 19(3): reasonable restrictions only in the interests of the sovereignty and integrity of India, and public order. The right to protest flows from the freedoms of speech and assembly; a peaceful march, sit-in or demonstration is a way of speaking to the government.

Association, Unions and Strikes

Article 19(1)(c): the right to form associations or unions. Article 19(4): restrictions in the interests of the sovereignty and integrity of India, public order or morality. Workers may form a trade union, but the right to a union does not include a right to strike.

Movement and Residence

Article 19(1)(d) and (e): every citizen may move freely throughout India, and reside and settle anywhere in India. These rights make India one country for its citizens; a State cannot treat the people born there as its own property, or stop them moving to another State to live and work. Article 19(5) allows restrictions only in the interests of the general public, or to protect the interests of any Scheduled Tribe.

These rights belong only to citizens; a foreigner has no fundamental right to stay in India.

Historians have shown that women affected by this law went to court themselves, arguing that their work was their livelihood.

Profession, Trade and Business

Article 19(1)(g) protects the right to practise any profession, or carry on any occupation, trade or business. Article 19(6) allows reasonable restrictions in the interests of the general public, and lets the State prescribe professional or technical qualifications.

State Monopoly

The State may shut out private business and run a trade itself. The First Amendment added Article 19(6)(ii): nothing in Article 19 stops a law relating to the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the complete or partial exclusion of citizens. This amendment also revived a transport law under the doctrine of eclipse (see Unit Two). Even a monopoly law is protected only so far as the monopoly needs.

Unit 5: Right to Life and Personal Liberty

These rights protect every person, citizen or not, when the State tries to take away liberty itself.

Fundamental rights in the criminal process

A person is most at the mercy of the State when he is accused of a crime, arrested and detained.

• Article 20 protects against retrospective criminal laws, double punishment and compelled self-incrimination.
• Article 22 protects a person who is arrested or detained.
• Article 21 stands behind all of them.

Ex Post Facto Laws: Article 20(1)

Article 20(1) has two parts:

1. No person shall be convicted of any offence except for violating a law in force at the time of the act.
2. No person shall be subjected to a penalty greater than that which could have been imposed under the law in force at the time of the offence.

Three further points

1. Only criminal law is covered.

2. No vested right in procedure. A change in the procedure of trial can apply to pending cases.

3. The clause protects the accused, so he may take the benefit of a later law that reduces punishment.

Double Jeopardy: Article 20(2)

No person shall be prosecuted and punished for the same offence more than once. Jeopardy means danger: the rule protects a person from being put in danger of punishment twice for the same thing.

Self-Incrimination: Article 20(3)

No person accused of any offence shall be compelled to be a witness against himself. The prosecution must prove guilt with its own evidence and cannot force the accused to help it. The rule also discourages torture, because forced confessions cannot be used.

Three conditions must be met:

1. the person must be accused of an offence;
2. there must be compulsion; and
3. the compulsion must be to be a witness against himself.

Selvi v. State of Karnataka

In several cases, the police had subjected accused persons and suspects to three techniques without their consent:

• Narcoanalysis: injecting a drug that lowers a person's inhibitions, so that he talks freely.
• Polygraph (the "lie detector"): records changes in blood pressure, pulse and breathing while he answers questions.
• Brain mapping: records the electrical activity of the brain when he is shown material connected with the crime.

Section 349 of the B.N.S.S. now allows a magistrate to order any person, even one not arrested, to give specimen signatures, finger impressions, handwriting or voice samples.

Arrest and Detention: Article 22

An arrested person has four protections:

1. He must be informed, as soon as may be, of the grounds of his arrest.
2. He may consult, and be defended by, a lawyer of his choice.
3. He must be produced before the nearest magistrate within 24 hours, excluding the time of the journey.
4. He cannot be kept in custody beyond that without the authority of a magistrate.

These safeguards do not apply to an enemy alien, or to a person arrested under a law of preventive detention.

Grounds of arrest: recent cases

Preventive Detention

The State detains a person not for what he has done, but to prevent him from doing something harmful in the future, such as acting against public order or the security of the State.

Ordinary arrest	Preventive detention
Follows a crime alleged to have been committed	Aims to prevent a future harmful act
Protected by the four safeguards of Article 22	No trial and no conviction; rests on the satisfaction of the government; separate safeguards in Article 22(4) to (7)

Safeguards: Article 22(4) to (7)

The framers allowed this power in the troubled years after Partition, but with safeguards:

1. No detention beyond three months unless an Advisory Board, of persons who are, have been or are qualified to be High Court judges, reports sufficient cause, or the detention is under a law made by Parliament under Article 22(7).
2. The grounds of detention must be communicated to the detenu as soon as may be.
3. He must get the earliest opportunity to make a representation against the order.

Facts whose disclosure would be against the public interest may be withheld.

Detention laws

The Maintenance of Internal Security Act (MISA) was used widely during the Emergency of 1975 and repealed in 1978. The main central law today is the National Security Act, 1980.

The Forty-fourth Amendment made the Advisory Board provisions stricter, but the government never brought that part into force, and the Court held that it could not order the government to do so.

Strict construction

Courts read these laws strictly, in favour of the detenu; every safeguard must be followed exactly. They also separate public order from law and order.

Article 21: From Gopalan to Maneka

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

Through interpretation, these few words have become the source of dozens of rights. The story has three stages: A.K. Gopalan (1950), R.C. Cooper (1970) and Maneka Gandhi (1978).

Point	A.K. Gopalan (1950)	Maneka Gandhi (1978)
Procedure established by law	Any procedure laid down by a valid statute	Must be right, just and fair, with a fair hearing
Relation between rights	Separate codes; detention tested only under Articles 21 and 22	Articles 14, 19 and 21 must be satisfied together

The Emergency: A.D.M. Jabalpur and Its Correction

During the Emergency, the President suspended the right to move courts to enforce Article 21.

The correction came in two steps. The Forty-fourth Amendment amended Article 359 so that the enforcement of Articles 20 and 21 can never be suspended. In 2017, the privacy judgment held the majority view in A.D.M. Jabalpur seriously flawed and overruled it.

Life with Dignity

After Maneka Gandhi, "life" means the right to live with human dignity, not mere animal existence.

Other rights recognised: speedy trial, free legal aid, emergency medical treatment, a clean environment and, in 2024, freedom from the adverse effects of climate change.

Right to die with dignity

In January 2023 the Court simplified the procedure for living wills.

Right to Privacy

Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court, challenged the Aadhaar scheme, which collects residents' fingerprints and iris scans to give them a unique identity number. The government denied any fundamental right to privacy, relying on two judgments of larger benches:

• M.P. Sharma v. Satish Chandra: eight judges rejected a privacy argument against search and seizure.
• Kharak Singh v. State of Uttar Pradesh: six judges said privacy was not a guaranteed right, while striking down night visits by the police to a suspect's home.

Privacy protects:

• the body, for example against forced medical procedures;
• information, meaning control over personal data; and
• decisions, the freedom to make intimate choices about family, marriage, sexuality and way of life.

It is not surrendered merely because a person is in a public place.

Test for restrictions

Privacy is not absolute. The plurality laid down three requirements:

1. Legality: there must be a law.
2. Legitimate aim.
3. Proportionality: the means must be rationally connected to the aim and must not go further than necessary.

Autonomy, Sexuality and Personal Relationships

With privacy and dignity as fundamental rights, a person's most intimate choices about body, sexuality and relationships are protected.

A 2026 amendment to the Transgender Persons (Protection of Rights) Act, 2019 replaced self-identification with certification through a medical board; a challenge is pending in the Supreme Court.

Navtej Singh Johar v. Union of India

Section 377 of the IPC punished carnal intercourse against the order of nature and was used against consensual sex between adults of the same sex.

The section still applied to non-consensual acts and to acts with minors and animals. The B.N.S., which replaced the IPC from 1 July 2024, has no corresponding provision.

Joseph Shine v. Union of India

Section 497 of the IPC made adultery an offence, but only a man could be punished, for sex with another man's wife without that man's consent. The wife could not be punished even as an abettor, and if the husband consented, there was no offence at all.

Adultery can still be a ground for divorce, but it is no longer a crime, and the B.N.S. does not make it one. In January 2023, the Court clarified that the judgment does not stop the armed forces from taking disciplinary action for such conduct.

Supriyo alias Supriya Chakraborty v. Union of India

Issue	Majority (Justice S. Ravindra Bhat, Justice Hima Kohli, Justice P.S. Narasimha)	Minority (Chief Justice Chandrachud, Justice S.K. Kaul)
Legal recognition of the union	No enforceable right	Right to enter into a union recognised
Adoption rules barring unmarried (including queer) couples from adopting jointly	Upheld	Would have struck down

Live-in Relationships

A live-in relationship between two consenting adults is not an offence and is protected as part of their liberty.

A woman in a relationship in the nature of marriage can claim protection under the Protection of Women from Domestic Violence Act, 2005.

In Uttarakhand, the Uniform Civil Code, in force since 27 January 2025, requires live-in couples to register. Supporters say this protects women and children; critics say it intrudes on privacy. Challenges have been filed in the Uttarakhand High Court.

Marriage, Consent and the Body

Marital rape exception

The IPC said that sexual intercourse by a man with his own wife, if she was not under fifteen, is not rape; the B.N.S. keeps the exception but raises the age to eighteen.

Restitution of conjugal rights

Under Section 9 of the Hindu Marriage Act, 1955, a court may order a spouse who has withdrawn without reasonable excuse to return.

A fresh challenge to Section 9, relying on the privacy judgment, is pending.

Bodily autonomy and medical choices

New Frontiers: Data Protection

Every use of a phone or a payment app collects data about the user. After Puttaswamy, Parliament passed the Digital Personal Data Protection Act, 2023 (DPDP Act).

• As a rule, data may be processed only with free, specific and informed consent, or for certain legitimate uses listed in the Act.
• The data principal has rights to information, correction, erasure and grievance redressal.
• A Data Protection Board can impose heavy penalties.
• The rules were notified in November 2025 and are coming into force in phases.

Critics' concern	Government's answer
The Central Government may exempt any instrumentality of the State on grounds such as security and public order, which could permit surveillance without the Puttaswamy safeguards.	The exemptions are limited to specified grounds.
The Act amended the Right to Information Act to exempt all personal information from disclosure, weakening transparency.	Personal data deserves protection.

Mass Surveillance and Facial Recognition

In 2021, reports alleged that the Pegasus spyware had been used against journalists, activists and politicians. The government neither confirmed nor denied its use, citing national security.

Facial recognition technology

It identifies people by matching images of their faces, for example from street cameras, with a database.

Supporters	Critics
Helps find missing children and catch criminals	Can be inaccurate; can track innocent people everywhere; not governed by any specific law

Under Puttaswamy, any such system needs a law, a legitimate aim, proportionality and safeguards. A challenge to its use by the police has been filed in the Telangana High Court.

The Right to be Forgotten

The DPDP Act gives a right to erase personal data given by consent, but there is no general statutory right to be forgotten. High Courts differ:

Court	View
Odisha High Court (2020)	Recognised it as part of privacy, where intimate images of a woman had been posted online
Delhi High Court	Interim relief to persons acquitted in criminal cases
Kerala High Court, Division Bench (2022)	Open justice prevails; the right cannot remove names from court judgments

The Supreme Court is examining the question and has stayed a Madras High Court order directing a legal database to remove an acquitted person's name from a judgment.

Rights of Animals

Article 48A asks the State to safeguard forests and wildlife. Article 51A(g) makes it a duty of every citizen to have compassion for living creatures.

Right against Exploitation: Article 23

• Article 23(1) prohibits traffic in human beings, begar and other similar forms of forced labour, and makes any breach an offence.
• Article 23(2) allows the State to impose compulsory service for public purposes, such as military service, but without discrimination on grounds only of religion, race, caste or class.

Child Labour: Article 24

No child below the age of fourteen years shall be employed to work in any factory or mine, or engaged in any other hazardous employment.

Since a 2016 amendment, the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 forbids employing children below fourteen in any occupation, except helping a family enterprise after school hours and working as an artist in audio-visual entertainment, with safeguards. Adolescents between fourteen and eighteen cannot be employed in hazardous occupations.

Right to Education: Article 21A

Education first appeared only among the directive principles.

The Eighty-sixth Amendment (2002) inserted Article 21A:

The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

It also added a duty on parents and guardians to provide such opportunities. The Right of Children to Free and Compulsory Education Act, 2009 gives effect to Article 21A; both came into force on 1 April 2010. The Act requires private unaided schools to admit children from weaker sections and disadvantaged groups, to the extent of at least 25 per cent of their entry class.

Freedom of Religion: The Design of Articles 25 to 28

India is home to almost every major religion of the world. The framers had to protect religious freedom fully, and yet allow the State to reform social practices, such as untouchability and discrimination against women, that had been justified in the name of religion. Articles 25 to 28 are their answer: they protect faith, and also limit faith when it collides with other rights.

Article 25: freedom of conscience and religion

Article 25(1): subject to public order, morality and health, and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

• Freedom of conscience: the inner freedom to believe, or not to believe.
• Profess: to declare one's faith openly.
• Practise: to perform its rituals and observances.
• Propagate: to spread it by explaining its tenets to others.

The right is subject to public order, morality and health, and to the other fundamental rights. Article 25(2) keeps two powers with the State:

1. to regulate or restrict any economic, financial, political or other secular activity associated with religious practice; and
2. to make laws for social welfare and reform, and to throw open Hindu religious institutions of a public character to all classes and sections of Hindus. For this purpose, Hindus include Sikhs, Jains and Buddhists.

An Explanation says that wearing and carrying the kirpan is part of the profession of the Sikh religion.

Articles 26, 27 and 28

• Article 26: every religious denomination has the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, and to own, acquire and administer property in accordance with law.
• Article 27: no person can be compelled to pay taxes whose proceeds are specifically used to promote a particular religion.
• Article 28: no religious instruction shall be provided in any educational institution wholly maintained out of State funds. In institutions recognised or aided by the State, no person can be made to attend religious instruction or worship without his consent, or the consent of the guardian if he is a minor.

The Essential Religious Practices Test

Almost everything a believer does may be connected with his religion. If all of it were protected, the State could reform nothing. So the courts developed a test to decide which practices are protected.

In later cases, the courts began to decide the question for themselves:

Criticism of the test

The test asks secular judges to decide what is truly essential to a faith, which is really a theological question. Some judges have suggested a different approach:

Essential religious practices test	Alternative approach
Is the practice essential and integral to the religion?	Is the practice consistent with dignity, equality and the other fundamental rights?

This debate lies at the heart of the reference now before a nine-judge bench (see the Sabarimala review below).

Shayara Bano v. Union of India: Instant Triple Talaq

Judges	Reasoning
Justice R.F. Nariman and Justice U.U. Lalit (majority)	The Muslim Personal Law (Shariat) Application Act, 1937 recognised and enforced triple talaq, so it was a law in force under Article 13. Because it allowed a marriage to be broken capriciously, without any attempt at reconciliation, it was manifestly arbitrary and violated Article 14.
Justice Kurian Joseph (majority, different route)	Triple talaq is against the basic tenets of the Quran, and what is bad in theology cannot be good in law. So it was not an essential practice protected by Article 25.
Chief Justice J.S. Khehar and Justice S. Abdul Nazeer (dissent)	Triple talaq was part of Muslim personal law, protected by Article 25, and only Parliament could change it. They restrained husbands from using it for six months and urged Parliament to legislate.

Parliament later passed the Muslim Women (Protection of Rights on Marriage) Act, 2019. It declares instant triple talaq void and illegal, and makes it an offence punishable with up to three years' imprisonment.

The Hijab Case

The essential practices test was tested again in Karnataka. In February 2022, the State government issued an order under which students had to wear the uniform prescribed by their colleges. Several colleges barred Muslim girls who wore the hijab, a headscarf, from classes.

Justice Hemant Gupta	Justice Sudhanshu Dhulia
Dismissed the appeals. The State may prescribe a uniform to promote equality and secular education.	Allowed the appeals. The essential religious practices question was unnecessary; the real questions were choice and conscience, and whether stopping girls from studying because of a headscarf was reasonable.

Managing Religious Institutions: Article 26

The right of a denomination to manage its affairs in matters of religion cannot be taken away. But the administration of its property can be regulated by law.

The Sabarimala case

This case brings Articles 14, 15, 17, 25 and 26 together.

Judge(s)	View
Chief Justice Dipak Misra (for himself and Justice A.M. Khanwilkar)	The devotees of Ayyappa are not a separate religious denomination, so Article 26 did not apply. Excluding women was not an essential practice, and the Rule violated the right of women to worship under Article 25.
Justice R.F. Nariman	Agreed.
Justice D.Y. Chandrachud	The exclusion rested on notions of purity and pollution, and was a form of untouchability. The essential practices test must be applied in the light of constitutional morality.
Justice Indu Malhotra (dissent)	In matters of deep religious faith, courts should not impose their own notions of rationality. The worshippers of Ayyappa at Sabarimala have the character of a denomination, and a petition by persons who were not devotees should not decide such a question.

The questions referred include the scope of Articles 25 and 26, the meaning of morality in them, how far courts may examine whether a practice is essential, and whether outsiders can challenge a denomination's practices through public interest litigation. A bench of nine judges heard these questions in 2026 and has reserved its judgment.

The Waqf Amendment Act, 2025

The State's power to regulate the property of religious bodies is being tested again. In 2025, Parliament passed the Waqf Amendment Act, which made major changes to the management of waqf property. Among other things, it allowed non-Muslims to be members of waqf boards, and allowed a government officer to decide whether property claimed as waqf is really government land.

Petitioners	Government
The Act violated the rights of a religious denomination under Article 26.	The Act only regulated the secular administration of property.

On 15 September 2025, the Supreme Court refused to stay the whole Act, but stayed a few provisions for the time being, including the power of the government officer to decide questions of title, and a condition that only a person practising Islam for at least five years could create a waqf. It also limited the number of non-Muslim members on the boards. The final decision is awaited.

Apostasy and Conversion

The question is whether the right to propagate includes a right to convert others.

Many States have since passed similar laws, often called freedom of religion laws, and the newer ones go further. Many require notice to the District Magistrate before a conversion, and some allow a marriage performed only for the purpose of conversion to be declared void.

Supporters say	Critics say
These laws protect vulnerable people from fraud and pressure.	They intrude into private choices of faith and marriage, and place the burden of proof on the accused.

In August 2021, the Gujarat High Court stayed some provisions of that State's amendment as they applied to marriages freely entered into by adults of different faiths. Challenges to several State laws are pending in the Supreme Court. Two points are settled:

An Experiment with Secularism

The word secular was added to the Preamble by the Forty-second Amendment in 1976. But the idea was present from the start, in Articles 14, 15, 16 and 25 to 28.

Model	Meaning of secularism
United States	Often described as a wall of separation between church and State.
France	Keeping religion out of public life altogether.
India	No wall. The State may engage with religion: to reform it, to regulate its secular activities, and even to fund institutions run by religious groups. It may not prefer one religion over another, or discriminate on the ground of religion.

Challenges to the Places of Worship Act are now pending. In December 2024, the Supreme Court directed courts not to register new suits of this kind until it decides.

Is Indian secularism working?

• Some scholars argue that the constitutional design shows a bias towards the majority religion, for example in grouping Sikhs, Jains and Buddhists with Hindus for some purposes, and in the directive on cattle slaughter.
• Others argue that the State has too readily accommodated conservative leaders of minority religions, at the cost of women's rights within those communities.
• Some feminist scholars argue that religion and nationalism have been used to shape the law on women's lives.

Secularism and popular culture

Constitutional values also live outside courtrooms, in films, songs and stories. Indian cinema has long shaped how the nation imagines its many communities, and film makers such as Shyam Benegal have reflected on this. But popular culture is also a site of conflict: films and books are often attacked for hurting religious sentiments. The Court has repeatedly protected artistic expression against such pressure.

So secularism in popular culture means that the State must protect the freedom of every creator, whatever his religion, from the veto of an angry crowd.

Constitutional Protection for the Minorities: Articles 29 and 30

Freedom of religion protects every believer as an individual; Articles 29 and 30 protect minority communities as groups. In a democracy, the majority decides through elections. But a permanent minority, religious or linguistic, may never become the majority. If the majority could shape all schools and colleges in its own image, a minority's language, script and culture could slowly disappear. So Articles 29 and 30 give minorities two protections: one for their culture and one for their educational institutions.

Article 29

• Article 29(1): any section of the citizens residing in India, having a distinct language, script or culture of its own, shall have the right to conserve the same.
• Article 29(2): no citizen shall be denied admission into any educational institution maintained by the State, or receiving aid out of State funds, on grounds only of religion, race, caste, language or any of them.

Article 30

• Article 30(1), the heart of minority protection: all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
• Article 30(1A), added by the Forty-fourth Amendment: if the State acquires the property of such an institution, the amount fixed must not restrict or abrogate this right.
• Article 30(2): the State, in granting aid, shall not discriminate against an institution on the ground that it is under the management of a minority.

Who is a minority

The Constitution does not define the word minority. Minority status under Article 30 is decided with reference to the State: both religious and linguistic minorities are identified State by State, and this does not change when the law in question is made by Parliament. The Kerala Education Bill case said that, for a State law, the minority is judged against the population of that State, and eleven judges settled the State as the unit in T.M.A. Pai Foundation v. State of Karnataka, decided on 31 October 2002.

For central welfare schemes, the Central Government notifies national minorities under the National Commission for Minorities Act, 1992. In 1993 it notified five communities: Muslims, Christians, Sikhs, Buddhists and Parsis. On 27 January 2014, it added Jains as the sixth.

In Re Kerala Education Bill

The four principles laid down, which still guide this area:

1. Minority status is decided with reference to the State as a whole.
2. A minority institution does not lose its protection because it admits a few students from other communities.
3. There is no fundamental right to receive State aid or recognition. But the State cannot impose conditions for aid or recognition that would destroy the minority character of the institution, or force it to surrender its right to administer.
4. The State may impose reasonable regulations to maintain educational standards and excellence, such as rules on qualifications of teachers and on health and hygiene.

The Right to Establish and Administer

Later case law has worked out the line between permitted regulation and forbidden control.

Unaided minority institution	Aided minority institution
Takes no government money, so enjoys the widest autonomy.	Uses public money, so can be regulated more.
May admit students and appoint teachers of its choice, and fix its own fees, subject only to a ban on profiteering and capitation fees.	May be required to admit a reasonable proportion of students from outside the minority community, because Article 29(2) applies to aided institutions.

Governance and reservation in minority institutions

Parliament responded to P.A. Inamdar with the Ninety-third Amendment, which added Article 15(5). It allows reservation in admissions to private educational institutions, aided or unaided, but expressly excludes minority institutions under Article 30. So a minority institution cannot be compelled to follow the State's reservation policy.

In September 2025, a bench of two judges doubted whether minority schools should be exempted from the whole Act, rather than only from the 25 per cent rule, and referred the question to a larger bench. Until that bench decides, Pramati remains the law.

A minority institution may prefer students of its own community:

But the institution must still meet the standards set by law for teachers, courses and examinations, and must treat its teachers fairly. Regulations that protect teachers from arbitrary dismissal are valid, because good administration requires them.

The Minority Status of Aligarh Muslim University

The roots of Aligarh Muslim University (AMU) lie in the Muhammadan Anglo-Oriental College, founded at Aligarh in 1875 by Sir Syed Ahmad Khan to promote modern education among Muslims. In 1920, the Central Legislature passed the Aligarh Muslim University Act, which dissolved the college and incorporated the University.

Parliament responded with an amendment in 1981, which described the University as established by the Muslims of India. In 2005, the Allahabad High Court struck down that part of the amendment, along with a policy reserving half the postgraduate medical seats for Muslim students. Appeals went to the Supreme Court.

The majority held three things:

1. An institution does not lose its minority character merely because it was incorporated by a statute. The real question is who established it.
2. To answer that, the court must look at the genesis of the institution. Whose idea was it? Who collected the funds and gave the land? Was it established mainly for the benefit of the minority community?
3. The administration need not be entirely in the hands of the minority, but its set-up should affirm the minority character.

The majority did not itself decide whether AMU is a minority institution. It left that question to a regular bench, to decide by applying these tests. That decision is still awaited.

Constitutional Remedies: Articles 32 and 226

A right that cannot be enforced is only a promise on paper. So the framers made the remedy itself a fundamental right.

• Article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights.
• Article 32(2) empowers the Supreme Court to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
• Article 32(4): the right shall not be suspended except as provided by the Constitution, which means only during an emergency under Article 359.

In the Constituent Assembly, on 9 December 1948, Dr. B.R. Ambedkar called Article 32 the very soul and the very heart of the Constitution.

Article 226 compared

Article 226 gives every High Court the power to issue writs throughout its territory, to any person or authority, including a government, for the enforcement of fundamental rights and for any other purpose.

Point	Article 32	Article 226
Purpose	Only to enforce fundamental rights.	Also ordinary legal rights, because of the words "for any other purpose"; so its scope is wider.
Nature	Itself a fundamental right.	A constitutional power; the High Court has discretion to refuse relief, for example where an adequate alternative remedy exists.
Territory	Across India.	Within the High Court's territory, or where the cause of action arises.

In practice, the Supreme Court often asks petitioners to approach the High Court first.

The Five Writs and Public Law Compensation

The five writs came to India from English law.

Habeas corpus

Habeas corpus means "you may have the body". It is issued to a person or authority who has detained someone, to produce the detained person before the court and justify the detention. If the detention is unlawful, the court orders release. It is the most important protection of personal liberty. Any person may seek it on behalf of the detenu, and the rules on standing are relaxed.

Mandamus

Mandamus means "we command". It is issued to a public authority, commanding it to perform a public duty that the law requires it to perform. It does not lie to enforce a purely private duty or a private contract, or against the President or a Governor for the exercise of their official powers.

Certiorari and prohibition

Certiorari means "to be certified". It is issued by a higher court to a lower court, tribunal or authority, to send up the record of a case and quash its decision. It lies where the lower body:

• acted without jurisdiction, or exceeded its jurisdiction;
• violated natural justice; or
• made an error of law apparent on the face of the record.

Prohibition is its twin. It is issued to stop a lower court or tribunal from proceeding with a case that is beyond its jurisdiction.

Prohibition	Certiorari
Issued while the proceedings are still pending, to prevent the excess.	Issued after the decision, to quash it.

Quo warranto

Quo warranto means "by what authority". It asks a person holding a public office created by law to show by what authority he holds it. If he is not legally qualified, or was not validly appointed, the court removes him.

Compensation as a public law remedy

Beyond these writs, the Court has developed a public law remedy of compensation.

Public Interest Litigation

Bonded labourers, undertrial prisoners and pavement dwellers are often too poor or too unaware to go to court. So from the late 1970s, the Supreme Court relaxed this rule and created public interest litigation (PIL).

Epistolary jurisdiction

The letters in the Asiad workers case and the Bandhua Mukti Morcha case were treated the same way.

Achievements and criticism

PIL has achieved a great deal for prisoners, workers, children and the environment. But it has also been criticised:

• Some scholars argue that courts, freed from ordinary procedure, have sometimes made sweeping orders without hearing those affected. They point to the demolition of slum settlements along the Yamuna in Delhi in 2004, which followed litigation in the High Court: a remedy designed for the poor was used against the poor.
• The Supreme Court itself has warned against PILs filed for publicity or private gain.

PIL remains a powerful tool, but one to be used with care.

Directive Principles of State Policy

Part IV contains the Directive Principles of State Policy (DPSP). The idea came from the Irish Constitution. They are goals that the State must pursue in governing the country, for example: adequate means of livelihood for all; distributing the material resources of the community to serve the common good; preventing the concentration of wealth; equal pay for equal work; free legal aid; protection of the environment; and separation of the judiciary from the executive.

Article 37: the directives shall not be enforceable by any court, but they are nevertheless fundamental in the governance of the country, and it shall be the duty of the State to apply them in making laws.

Rights and directives: the relationship

The relationship between the enforceable rights and the unenforceable directives has changed over time.

In the Kerala Education Bill case (1958), the Court adopted the doctrine of harmonious construction: courts should try to give effect to both, as far as possible. Parliament then tried to give the directives priority through Article 31C, and the Forty-second Amendment extended that protection to all the directives.

Since then, the Court has used the directives to give content to fundamental rights, as Article 21 absorbed the directives on education, health and livelihood. In the Property Owners Association case, it read Article 39(b) more narrowly than before.

The Uniform Civil Code: Article 44

Article 44 says that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

The Supreme Court has more than once urged the State to act:

Supporters of a uniform civil code	Critics
It would promote equality, especially gender equality, and national integration.	It could erode the cultural autonomy of religious minorities and tribal communities; reform should come gradually and from within communities.

Uttarakhand became the first State to bring a uniform civil code into force, from 27 January 2025; it does not apply to the Scheduled Tribes. In March 2026, Gujarat became the second State to pass such a law.

Cow protection and Article 48

Article 48 asks the State to organise agriculture and animal husbandry on modern and scientific lines, and to take steps to preserve and improve breeds and prohibit the slaughter of cows and calves and other milch and draught cattle. When the Constituent Assembly debated it on 24 November 1948, some members wanted cow protection to be a fundamental right. It was finally placed among the directive principles, in the language of agriculture.

Fundamental Duties

The original Constitution had no list of duties. The Forty-second Amendment in 1976, following the Swaran Singh Committee, added Part IVA, with ten fundamental duties of every citizen in Article 51A. The Eighty-sixth Amendment in 2002 added an eleventh. The duties include:

• respecting the Constitution, the national flag and the national anthem;
• upholding the sovereignty and integrity of India;
• renouncing practices derogatory to the dignity of women;
• protecting the environment;
• developing the scientific temper; and
• for parents and guardians, providing opportunities for education to children between six and fourteen.

The duties are not directly enforceable: no writ lies to compel a citizen to perform them. But courts use them in two ways:

1. to help interpret laws and fundamental rights; and
2. to help decide whether a restriction on a right is reasonable, as in the cattle slaughter case.

Connecting the Whole Course: A Problem

1. The police are the State under Article 12, and the law is law under Article 13.
2. His privacy under Article 21 is affected, so the law must pass the test in Puttaswamy.
3. His freedoms of speech and assembly are chilled, so the restriction must fall within Article 19(2) and 19(3), and be reasonable.
4. He must be given the grounds of his arrest in writing under Article 22.
5. If the system targets people of one community, Articles 14 and 15 are engaged.
6. He can seek habeas corpus and compensation under Article 226 or 32.

Quick revision

• Religious freedom protects faith, but only its essential core, and always subject to public order, morality, health and other rights.
• Secularism means equal respect for all faiths, not hostility to faith.
• Minority status is decided State by State.
• A minority has the right to establish and administer its own institutions; the State may regulate them only to maintain standards, not to take away their character.
• In every problem, first ask whether the wrongdoer is the State, and which right is affected.
• Always name the Article, and support it with the leading case.
• Whenever two concepts look similar, such as reasonable classification and arbitrariness, or preventive and punitive detention, write their differences clearly, with an example.