NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

COURSE OUTLINECONSTITUTIONAL LAW-II

CONSTITUTIONAL GOVERNANCE IN INDIA:
LIMITATIONS ON GOVERNING POWER,
RIGHTS, DIRECTIVES AND DUTIES

SEMESTER III: B.A.LL.B. & B.B.A.LL.B.

COURSE TEACHER,
Prof. Udai Raj Rai

GENERAL APPROACH
1. The Course content relates to Parts III, IV and IVA of the Constitution. Part III in
general, limits the scope of the legislative and executive powers. Part IV attempts
to shape the mode of the governing power and IV A, inserted in 1976, in the belief
that part III is too individualistic and right oriented, prescribes certain obligations
for the citizens and in the process attempts to balance the liberal individualistic
philosophy of Part III with communitarian approach of Part IV A. All the three
parts are value loaded and ideological and cannot be treated as narrow precepts of
ordinary statute. All the three parts are justiciable, though only Part III is
enforceable. But the division becomes largely blurred when an activist Court
excercising its review power creatively translates some directive or duty as an
aspect of some Part III right.
2. The Course is divided into three parts. The Course teachers understanding is
that Part III articles embody liberty and equality values and different rights are
either liberty based or equality based. Again they can be studied both as limitations
on the governing power and as human rights that are inherent in a human being and
the Constitution extends the recognition to them and pledges to support and
enforce them. India is a party to the two International Covenants on Human Rights
and the Constitution represents part of the domestic machinery to implement them.
Even otherwise our Supreme Court freely draws on international Covenants to
which India is a party in its interpretation of the Constitution and the laws of the
Country.

The entire course content is divided into three major modules which are subdivided into smaller modules.
I
GENERAL
1. Inter- relationship between Part III, IV and IVA of the Constitution and the
respective purposes they are intended to serve.
2. Fundamental Rights and Directives as Human Rights.
International Covenants on Civil and Political Rights and on Economic
Social and Cultural Rights.
3. Fundamental Rights as limitations on the governing power.
A. Meaning of State in Article 12
B. Scope for horizontal application of rights.
C. Meaning of law in Article 13
D. Judicial enforcement of the rights: Articles 32 and 226
E. Exceptions: Articles 31A, 31B, 31C, 33, 34, 358 and 359
F. Mode of Interpretation:
a) From Positivism to Structuralism.
b) The element of reasonableness implicit in Articles 14, 19 and 21.
c) Rights and directives to be construed harmoniously.

II
LIBERTY BASED RIGHTS
1. A general view of liberty- based rights: Articles 19, 20, 21, 22, 25, 26, 27, 28
2. Corresponding provisions in International Covenant on Civil and Political
Rights.
3. Liberty of thought and expression:
A. Underlying theme of the right and its philosophy.
B. What it comprises or what are the constitutionally protected expressions
C. Special importance of political speech
D. Right to dissent and criticise.
E. Protection of academic freedom
F. Right to seek, receive and impart information, Right to information Act,
2005

G. Media Freedom: Its scope, privileges and limitations.

H. Permissible Restrictions on Expression right
I. Subversive Speech: Is it protected ?
4. Assembly; Association; Movement and Residence, Occupation, trade and
Business
A. Issue of hostile audiences.
B. Issues arising in the context of foreign funded NGOs.
C. Internment and Externment orders.
D. Self- financing educational institutions and the limits of their freedom
E. The issue of slaughter of certain animals and sale of their meat.
5. Life and Personal Liberty
A. Content of the right
B. Punitive Deprivation
a. Due Process of law: Articles 20, 21 and 22(1) and (2)
b. Anti- terrorist law
c. Death Sentence
d. Rights of the prisoners.
C. Preventive Detention
D. Broad Interpretation of life.
E. Broad interpretation of personal liberty.
a. Privacy
i)
Right to die
ii)
Sexual Orientation
iii) Restitution of Conjugal Rights
b. Reproductive right and Family planning
c. Right to own personal property
d. Right against noise pollution.
6. Liberty of belief, faith and worship:
A. Sincere spiritual belief without a belief in any particular deity.
B. Scope of the right to profess, practice and propagate religion: Conversion
Controversy
C. Intra-religious controversies.
D. Religious denominations and their rights
E. Inter-religious controversies
F. State and religion

III
EQUALITY BASED RIGHTS AND STATES OBLIGATION FOR
SOCIO-ECONOMIC JUSTICE
1. Equality before law and equal protection of the laws.
A. What equality means and what is its reach?
B. Reasonable Classification principle.
a. Equality a procedural right
b. Minimal scrutiny and enough judicial deference
c. Duality an essential feature.
C. The New Equal Protection: Rule against arbitrariness
a. Substantive equal protection
b. Duality not essential
c. Searching judicial scrutiny and minimum judicial deference.
d. Court assumes a general power for non-textual review.
D. Equality right and distribution of largess by the State.
2. Right against discrimination on certain prohibited grounds like religion, race
, caste, gender, place of birth, residence and language.
3. Equality of opportunity in public appointments.
4. Equality of opportunity in admissions to educational institutions.
5. Safeguards for disadvantaged sections of the society:
A. Disadvantage based on social origin and social reservation for Scheduled
Castes, Scheduled tribes and other backward classes: A Critical Analysis.
B. Gender Based disadvantage:
a. Women
b. Transgenders
c. Problems of Gays and Lesbians
C. Physically disabled.
D. Economically disadvantaged people, poor and destitutes
6. Social equality: Article 15(2), 17, 23, 24
Untouchability , bonded labour, child labour, trafficking in human beings
7. Economic, Social and Cultural Rights
A. Right to preserve ones cultural identity Art 29(2)
B. Right of religious and linguistic minorities to establish and administer
educational institutions of their choice- Art 30

C. Right to free and Compulsory Primary education- The Right of Children

to Free and Compulsory Education Act, 2009
D. Social Rights: A Comparative Study of South Africa and India
a. Work
b. Shelter
c. Food
d. Health care