Constitutional Law -II
Maharashtra National Law University, Aurangabad · LL.B. Semester 5
Unit I — General Introduction
General Introduction, Preamble, Salient features of the Indian Constitution, Constitution & Constitutionalism, Federal features of the Indian Constitution, Unitary features of the Indian Constitution.
Unit II — The Union and Its Territory
Union and Its Territory (Articles 1 to 4), Power to cede Indian Territory to a Foreign Nation, Power to create/extinguish a state, Alteration of name, area and boundary of existing states, – Procedure (Articles 1 – 4) Constitutional Scheme of Fundamental Rights Origin and development of Fundamental Rights, Fundamental Rights are not absolute, Fundamental Rights: Negative and Positive import, Classification of Fundamental Rights, Availability of Fundamental Rights, Rights available only to the citizens, Rights available to all persons, Rights available to both natural as well as juristic persons Extra-territoriality of Fundamental Rights. Fundamental Right available only against “state action‟. Test for the determination of infringement of Fundamental Rights.
Unit III — Fundamental Rights – I Concept of State And Law
The Concept of “The State” under Article 12. The scope of the expression “unless the context otherwise requires”, Is the judiciary a part of “the State”? The scope of the expression “other authorities”. “Law” under Article 13 (3), An amendment to the Constitution is not “Law” Article 13 (4), Unconstitutionality of a Statute/Law under Article 13 and Articles 245/246, respectively (r/w Seventh Schedule of the Constitution), Doctrine of Eclipse, Doctrine of Severability Doctrine of Waiver of Fundamental Rights Cases, Bhikaji Narain v. State of M.P., AIR 1955 SC 781, Sundarama Iyer v. State of A.P., AIR 1958 SC 468, Basheshar Nath v. I.T. Commissioner, AIR 1959 SC 148, Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, Smt. Selvi & Ors v. State of Karnataka, 2010 (4) SCALE 690.
Unit IV — Fundamental Rights – II The Right to Equality (Articles 14-18)
The Right to Equality, Old Doctrine of Equality: The doctrine of reasonable legislative classification, New Doctrine of Equality: The doctrine of non-arbitrariness, Equality among Equals; Treating un-equals as equals violates equality clause, Classification as such not completely prohibited: Reasonable Classification Permissible, Single Person may be treated as a separate class, Establishment of Special Courts, Conferment and/or exercise of discretionary or arbitrary power is antithesis of right to equality, Special provisions for women and children; requirements relating to residence; requirement of a particular religion being professed by the incumbent of an office related to a religious or denominational institution, Protective Discrimination - Reservations in appointments and promotions; Special provisions for socially and educationally backward classes of citizens and for Scheduled Castes and Scheduled Tribes, Air India Cabin Crew Association v. Union of India [Civil Appeal nos.9862-9865 of 2011(Arising out of SLP(C) Nos.20679-20682 of 2007). Decided on17/11/2011]. National Legal Services Authority v. Union of India · The Right to Substantive Equality, The doctrine of affirmative action, Reservation of seats in educational institutions, and Reservation in State services.
Unit V — Fundamental Rights – III Right to Freedoms (Articles 19-22)
The Six Fundamental Freedoms -Article 19 (1) (a) to (g), Available only to citizens of India; · a) Freedom of Speech and Expression, Meaning of Freedom, Freedom of Press, Freedom of Press and Commercial advertisements. · b) Freedom of Assembly · c) Freedom of Association · d) Freedom of Movement · e) Freedom of Residence · f) Freedom to Acquire, Hold and Dispose of Property (r/w Articles 31, 31A, 31B, 31C &300A). · g) Freedom of Trade, Occupation, Business, Profession. · h) Constitutional Rights of the Accused (Art.20) · 1. Right Against Ex-Post Facto Laws · 2. The Right Against Double Jeopardy · 3. The Prohibition Against Self-Incrimination · i) The Right to Life and Personal Liberty (Article 21) · j) The Right to Life and Derivative Rights · 1. The Right to Privacy · 2. The Right to Livelihood · 3. The Right to Healthy Environment · 4. The Right to Education · 5. The Right to Basic Needs · 6. The Right to Go Abroad · 7. The Right to Health · 8. The Right to Die, etc. Right to Life as an Instrument of Prison Reform · 4) Constitutional Safeguards to Persons Detained under Preventive Detention Laws (Art.22) · 1. Enactment of Preventive Detention Laws: The Constitutional Position. · 2. Grounds of Preventive Detention and their Justiciability. · 3. Constitutional Safeguards to Detenus · 4. Right to be communicated the Grounds of Arrest · 5. Right To Represent Against the Order of Detention · 6. The Procedure before the Advisory Board. · 7. Proposed Changes by the Constitution Forty Fourth (Amendment) Act, 1978. · 8. Rights of a Detenu under Detention. · 9. Constitutional Validity of Preventive Detention Laws. · 5) The Relationship of Articles 14, 19 & 21 · 6) Right Against Exploitation (Articles 23-24).
Unit VI — Fundamental Rights – IV Religious Freedoms & Rights of Minorities Religious
Freedoms & Rights of Minorities A) Religious Freedoms (Arts. 25-28) Concept of Religion B) Rights of Minorities (Arts. 29-30) · 1) The Right to Establish and Administer Educational Institutions of their choice: Scope; · 2) The Question of Minority: The Deciding Test; · 3) The Right to Aid, Recognition, and Affiliation; · 4) Administrative Autonomy of Minority Institutions and the Regulatory Power of the State: Limits. · 5) T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481. · 6) P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537. · 7) State of Bombay v. Bombay Education Society, AIR 1954 SC 561. · 8) Kerala Education Bill, In re, AIR 1958 SC 956. · 9) Gujarat University v. Shri Krishna, AIR 1963 SC 703. · 10) Ahmadabad St. Xaviers College Society v. State of Gujarat, AIR 1974 SC 1389. · 11) Frank Anthony Public School Employees Association v. Union of India, AIR 1987 SC 311. · 12) Sindhi Education Society & Anr. v. The Chief Secretary, Govt. NCT of Delhi& Ors. (Civil Appeal No. 5489 of 2007-decided on 08/07/10).
Unit VII — Fundamental Right – V The Right to Constitutional Remedies (Art.32)
Doctrine of locus standi, Public Interest Litigation / Social Action Litigation/ Class Action Litigation.
Unit VIII — Directive Principles of State Policy & Fundamental Duties
Directive Principles of State Policy (Arts.36-51), The Constitutional Scheme; Meaning and scope of the expression “fundamental in the governance of the country” The idea of subservience of Directive Principles to Fundamental Rights; The import of non- enforceability of Directive Principles; Judicial Strategies to enforce Directive Principles. B) Fundamental Duties (Part – IVA, Art. 51A) · 1) Reasons for incorporation of Fundamental Duties · 2) Nature and Scope of Fundamental Duties.