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All Constitutions are the heirs of the past as well as the testators of the future. The very fact
that the Constitution of the Indian Republic is the product not of political revolution but of the
research and deliberations of a body of eminent representatives of the people, who sought to
improve upon the existing systems of administration, makes a retrospect of the constitutional
development indispensible for a proper understanding of the Constitution. No other
Constitution in the world is like ours. It combines under its wings such diverse people,
numbering now more than 100 millions, with different languages and religions and in different
stages of economic development, into one nation, no other nation is faced with such vast socio-
economic problems.

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ëreamble is the key to open the mind of the makers. But it does not mean that the preamble
can override the express provisions of the Act. In 



Supreme Court held that the
ëreamble was not the part of the constitution and therefore it could never be regarded as the
source of substantive powers. Such powers are expressly granted in the body of Constitution.
This question as to whether ëreamble can be amended under Article 368 was raised for the first
time before the Supreme Court in the historic case of 
 
  
 

In
this case it rejected the above view and held that ëreamble of our Constitution is of extreme
importance and the Constitution should be read and interpreted in the light of the grand and
noble vision expressed in the ëreamble. Attorney general in this case also argued that by the
virtue of the amending power in article 368 even ëreamble can be amended like any other
provisions of the Constitution. However it was contended that amending power in Article 368 is
limited. ëreamble creates an implied limitation on the power of amendment. ëreamble consists
the basic structure or the fundamental features of our Constitution. Consequently, the
amending power cannot be used so as to destroy or damage the basic structure mentioned in
the ëreamble. 

It was then felt that it would be necessary to decide whether  !  
 "#
$%&'() * + ('* was rightly decided or not? The Supreme Court in this case held that
ëarliament has no power to amend the Fundamental Rights of Citizens. However, the question
as to ,  

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 6 It was claimed that if ëarliament can abrogate
fundamental rights such as freedom of speech and expression, freedom to form associations or
unions, and freedom of religion. They claim that democracy can even be replaced and one-
party rule established. Indeed, sort of repeal the Constitution; any form of Government with no
freedom to the citizens can be set up by ëarliament by exercising its powers under Article 368.
On the other side it is urged that the power of ëarliament is much more limited. It says that the
Constitution gave the Indian citizen freedoms which were to subsist forever and the
Constitution was drafted to free the nation from any future tyranny of the representatives of
the people.

These cases raise grave issues. But however grave the issues may be, the answer must depend
on the interpretation of the words in Article 368, read in accordance with the principles of
interpretation which are applied to the interpretation of a Constitution given by the people to
themselves. It must interpret Article 368 in the setting of our Constitution, in the background of
our history and in the light of our aspirations and hopes, and other relevant circumstances.



0

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8The provisional ëarliament is competent to
exercise the power of amending the Constitution under Article 368. The fact that the said
article refers to the two Houses of the ëarliament and the ëresident separately and not to the
ëarliament, does not lead to the inference that the body which is invested with the power to
amend is not the ëarliament but a different body consisting of the two Houses. The learned
Chief Justice thought that the power to amend in the context was a very wide power and it
could not be controlled' by the literal dictionary meaning of the word "amend". He expressed
his agreement regarding the applicability of Article 13(2) to Constitution Amendment Acts
passed under Article 368. He further held that when Article 368 confers on ëarliament the right
to amend the Constitution, it can be exercised over all the provisions of the Constitution. Thus
in Kesavanand Bharati Case the Supreme Court reversed its decision in the Golaknath Case with
respect to the power of parliament to amend the Constitution under Article 368.

9

9: 8 The Supreme Court struck down Art 31-C as amended by
Section 4 of the 42nd amendment, as unconstitutional on the ground that it destroys the ͞basic
features͟ of the Constitution by totally excluding from challenge to any laws giving effect to the
Directive principles of the State ëolicy, even if they were inconsistent with the rights
guaranteed by Art 14 & 19. The Indian Constitution is founded on the bedrock of the balance
between ëarts III & IV. It explained the relationship between Fundamental Rights and Directive
ërinciples to be complementary to each other. In case of conflict, a harmonious balance has to
be created. The view of the Court that since the validity of Art- 31 C as originally introduced was
upheld in Kesavanand Bharati case and therefore it is valid is not correct. Art 31 C in its
amended form was not in existence when its validity was upheld in latter case and therefore,
Art 31 C in its amended form cannot be upheld by applying the Kesavanand Bharati͛s ruling
until Minerva Mills decision is overruled. It nullified the effects of the 42nd Amendment, which
had taken away the Supreme Court͛s power to Judicial Review in certain matters. The Court
again identified ͚Judicial Review͛ as a part of the Basic Structure, and clarified that it could not
be removed by ëarliament.

9
 +/ +


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6

ëandit Jawaharlal Nehru, who presided over the Congress Expert Committee emphasized
before the Constituent Assembly that the removal of socio-economic inequalities was the
highest priority. He believed that only this could make India a casteless and classless society,
without which the Constitution will become useless and purposeless. The Founding Fathers of
the Constitution were thus aware of the ripples of inequality present in society, decried the
notion of caste and ensured that the Constitutional framework contained adequate safeguards
that would ensure the upliftment of the socially and educationally backward classes of citizens,
thus creating a society of equals. The interpretation of the term "socially and educationally
backward", and its constituent classes, was left for future generations to decide.

In 1  .
 O 
  :   , the Supreme Court has upheld the 27 percent
reservation for OBC in admissions in higher educational institutions like IITs and IIMs. The
judgment once implemented the total reservation will come to 49.5% from 22.5% for SCs & STs.
Chief Justice Balakrishnan said Reservation for admission in educational institutions or for
public employment has been a matter of challenge in various litigations in this Court as well as
in the High Courts. Diverse opinions have been expressed in regard to the need for reservation.
But there has been considerable disagreement as to which category of disadvantaged sections
deserves such help, about the form this help ought to take and about the efficacy and propriety
of what the government has done in this regard.


, 
:  it was held that the reservation for the backward classes
the creamy layer should be excluded; the exclusion makes the class a truly backward class. The
very concept of a class denotes a number of persons having certain common traits which
distinguish them from others. In a backward class if the connecting link is the social
backwardness it should be the same. If some of the members are far too socially advanced then
the connecting link between them snaps, they would be misfits in the class. After excluding
them alone would the class be a truly backward class. This is commonly known as the ͚Mandal
Judgment.͛ It is based upon the principle of ͚equality among equals,͛ enshrined in Article 14 of
the Constitution. The Apex Court clarified, however, that these benefits should not be extended
to those falling within the ͚creamy layer,͛ an expression which is used to define those in the
castes or classes that are defined as ͚backward͛ for the purpose of reservations, who in reality
do not suffer from any economic or social hardships.
In : 
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  ? 
 , it was held that right to
establish educational institutions can neither be a trade or business nor can it be a profession
within the meaning of Article 19(1)(g). O ,


 O91" ?


 
 
 ?
 , wherein it was held that all citizens have the fundamental right to
establish and administer educational institutions under Article 19(1)(g) and the term
"occupation" in Article 19(1)(g) comprehends the establishment and running of educational
institutions and State regulation of admissions in such institutions would not be regarded as an
unreasonable restriction on that fundamental right to carry on business under Article 19(6) of
the Constitution.

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6
It was considered by the Supreme Court of India in the case of +
    9 
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 1+%&((&@3 in which the constitutional validity of the conversion-prohibiting laws
enacted by Madhya ëradesh and Orissa was challenged. Reverand Stanislaus
of Raipur challenged the Madhya ëradesh Dharma Swatantrya Act by refusing to register
conversions. The Constitution Bench of the Supreme Court headed by Chief Justice A.N. Ray
interpreted the word `propagate' used in Article 25(1) of the Constitution as `defined' in the
Shorter Oxford Dictionary - "to spread from person to person, or from place to place, to
disseminate, diffuse (a statement, belief, practice etc.)". The Bench observed: "We have no
doubt that it is in this sense that the word `propagate' has been used in Article 25 (1), for what
the Article grants is not the right to convert another person to one's own religion, but to
transmit or spread one's religion by an exposition of its tenets." A distinction was made
between the right to propagate and the right to convert. The former was allowed while the
latter was seen as not part of the fundamental rights.
A-
 
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In 
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+#!
 and Another and Vice Versa, Review ëetition in Civil
Appeal Nos. 887 and 909 of 1975. The 39th Amendment, Which provided that the election
to ëarliament of any person who was holding the ërime Minister͛s office could not be
challenged in a court of law, was declared unconstitutional and struck down by the Supreme
Court. This petition of the election-petitioners sets out the issues framed in the trial Court. It
then states facts showing that the Thirty-ninth Amendment of the Constitution as well as some
amendments by the Elections Laws (Amendment) Act 40 of 1975. In view of the fact the judge
is of the opinion that there is no sufficient ground for reviewing the judgment, this review
application was dismissed. The infamous Emergency of 1975 was a result of the judgment.
Similarly +..
is the landmark judgment on Article 356 of the Constitution. The
Supreme Court held in this case that Secularism is a basic feature of the Constitution. The
ëresident͛s order to dissolve a State Assembly under Article 356 is subject to Judicial Review,
and if the court finds the imposition of ëresident͛s rule unconstitutional, it can restore the
dismissed State Government. The critical point to remember here is that the scope of judicial
review is limited to examining in the state, and not whether ëresident͛s Rule should have been
imposed at all or not- the latter decision remains the prerogative of the Executive.

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The     
was a milestone in the Muslim women's search for justice and the
beginning of the political battle over personal law. A 60-year-old woman went to court asking
maintenance from her husband who had divorced her. The court ruled in her favour. Shah Bano
was entitled to maintenance from her ex-husband under Section 125 of the Criminal ërocedure
Code (with an upper limit of Rs. 500 a month) like any other Indian woman. The judgment was
not the first granting a divorced Muslim woman maintenance under Section 125. But a voluble
orthodoxy deemed the verdict an attack on Islam. The Supreme Court provided for a Muslim
woman͛s right to maintenance after divorce.

The progress made in this matter, however, was negated by the subsequent legislation passed
by the Government that was then in power. It enacted the Muslim Women (ërotection of
Rights on Divorce) Act, 1986.The most controversial provision of the Act was that it gave a
Muslim woman the right to maintenance for the period of |
 (about three months) after the
divorce, and shifted the onus of maintaining her to her relatives or the Wakf Board. The Act was
seen as discriminatory as it denied divorced Muslim women the right to basic maintenance
which women of other faiths had recourse to under secular law. The Shah Bano Case is one of
the most significant lawsuits in the history of Indian Judicial system.

  
  B
  1.
  a writ- petition was allowed even through a letter by
some third person who was moved by the inhuman meted out to a prisoner in jail. This
judgment opened the gates to the introduction of ë.I.L., or ͚ëublic Interest Litigation͛ in India.
The petitioner contended that s. 56 of the ërisons Act which confers unguided, uncanalised,
and arbitrary powers on the Superintendent to confine a prisoner in irons is ultra vires Arts. 14
and 21 of the Constitution. It has been well established that convicts are not by mere reason of
the conviction denuded of all the fundamental rights which they otherwise possess.

For example a man of profession who is convicted would stand stripped of his right to hold
consultations while serving out his sentence; but the Constitution guarantees other freedoms
like the right to acquire, hold and dispose of property for the exercise of which incarceration
can be no impediment. Likewise even a convict is entitled to the precious right guaranteed by
Art. 21 that he shall not be deprived of his life or personal liberty except according to the
procedure established by law.
In a landmark judgmentof    
 +# , the litigation resulted from a brutal
gang rape of a publicly employed social worker in a village in Rajasthan during the course of her
employment. The petitioners bringing the action were various social activists and non-
governmental organizations. The primary basis of bringing such an action to the Supreme Court
in India was to find suitable methods for the realization of the true concept of ͞gender
equality͟ in the workplace for women. In turn, the prevention of sexual harassment of women
would be addressed by applying the judicial process. The Supreme Court did not wait for
ëarliament to ratify an international treaty, but went ahead and laid down rules to protect
woman from sexual harassment at work place. According to this judgment, each workplace
must necessarily have sexual harassment code and policy in place.

1

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+
9
6
In 9
  :  The right to go abroad is a part of one͛s fundamental right
to life and personal liberty under Article 21.The Supreme Court also laid down the following
proposition in this case: Articles 19 and 21 are not watertight compartments. The expression
͚personal liberty͛ in Article 21 is of the widest amplitude, covering a variety of rights, of which
some have been included in Article 19 and given additional protection. Hence, there may be
some overlap between Articles 19 and 21. As a result, a law falling under the purview of Article
21 must also satisfy the requirements of Article 19. In other words, a law made by the State
which seeks to deprive a person of his personal liberty must prescribe a procedure for such
deprivation, which must not be arbitrary, unfair or unreasonable.

O

/  
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8 In case of 9 > 
 
 ,
the Supreme Court held that right to education is fundamental right under Article 21 of the
Constitution. The right to life under Article 21 and the dignity of the individual cannot fully be
appreciated without the enjoyment of right to education. The Court observed: Right to life is
compendious expression for all those rights which the Courts must enforce because they are
basic to the dignified enjoyment of life. It extends to the full range of conduct which the
individual is free to pursue. The right to life under Article 21 and the dignity of the individual
cannot be assured unless it is accompanied by the right to education. The State Government is
under an obligation to provide educational facilities at all levels to its citizens.

In case of :
  
 1
"

 the Supreme Court was asked to examine
the decision of Mohini Jain's case. In the present case the Apex Court partly overruled given in
the Mohini Jain case. The Court held that, the right to education is implicit in the right to life
and personal liberty guaranteed by Article 21 and must be interpreted in the light of the
Directive ërinciple of State ëolicy contained in Articles 41, 45 and 46.The Apex Court, however,
limited the State obligation to provide educational facilities as follows.

(i) Every Citizen of this Country has a right to free education until he completes the age of
fourteen years;
(ii) Beyond that stage, his right to education is subject to the limits of the economic capacity of
the state.

Further the Supreme Court in 99
 
 O.! the Supreme Court observed
that, to develop the full potential of the children they should be prohibited to do hazardous
work and education should be made available to them. In this regard the Court held that, the
government should formulate programme offering job oriented education so that they may get
education and the timings be so adjusted so that their employment is should not be affected.
Again in   9  9
   :   , Justice K. Ramaswamy and Justice Sagir
Ahmad, observed, illiteracy has many adverse effects in a democracy governed by rule of law.
Educated citizens could meaningfully exercise his political rights, discharge social
responsibilities satisfactorily and develop sprit of tolerance and reform. Therefore, education is
compulsory...., compulsory education is one of the states for stability of democracy, social
integration and to eliminate social evils." The Supreme Court by rightly and harmoniously
construing the provision of ëart III and IV of the constitution has made right to education a
basic fundamental right.

  .
 
  
; The right to pollution- free water and air is a Fundamental
Right under Article 21 of the Constitution. The Supreme Court 99

8 ordered the
shifting of 168 hazardous industries operating in Delhi as they posed a danger to the ecology. In
another M.C. Mehta case, the Supreme Court directed 292 industries located in Agra to change
over to natural gas as industrial fuel in order to protecttheO#9 

The Supreme Court in D

  D.




 
  
recognized the
͚right to speedy trial͛ as a Fundamental Right under Article 21. In B    
   ,
 

/ Supreme Court laid down extensive guidelines against any form of torture or cruel,
inhuman or degrading treatment, as a part of the Right to Life under Article 21 of the
Constitution. In "
0
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 B
.
  +/   :    it held that non-
payment of minimum wages to workers amounts to a denial of their rights to live with basic
human dignity and is a violation of Article 21.

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The Supreme Court recognized the right to free legal aid through a wide interpretation of the
meaning and impact of the Directive ërinciples of State ëolicy in D    
  
9 

 The Supreme Court directed the State to evolve a uniform civil code in the
country in 
9/


Supreme Court Advocates on:Article 124 (2), 217(1) (appointment of Judges), Article 2229(1)
(transfer of Judges) and Article 216 (number of Judges to be determined by ëresident) leave
scope for executive interference. There is a requirement of ͚consultation,͛ by the ëresident,
with the Chief Justice of India. In " 0 : case, the Supreme Court held that
no primacy need be given to the opinion of the Chief Justice of India; it is the executive that has
primacy. This case is also known as the Judge Transfer case.
In +

 1   :   8 By a seven to two majority, the Supreme Court
overruled S.ë. Gupta͛s case and held that in a matter of appointment of Judges of the Supreme
Court and the High Courts, the ëresident is bound to act in accordance with the opinion of the
Chief Justice of India, as well as personal favouritism, has reduced to a minimum through this
judgment.

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The Supreme Court on cases involving marriage, adoption, custody of children in cases of
separation. In 1 directs that all marriages, irrespective religions of the couple, or
whether they have been conducted according to religious rites and ceremonies, have to be
mandatorily registered. This is applicable to the religions. In 
 !/0  .
 
!/0the Supreme Court said that a husband͛s riches cannot be cited as logical reason to get
custody of a child by contrasting it with the humble economic condition of the estranged wife,
and entrusting a teacher mother the task of bringing up a minor son. The Court said ͞In
determining the question as to who should be given custody of a minor child, the paramount
consideration is the ͚welfare of the child͛ and not rights of the parents under a statute.͟ 
=-. "
: , the Supreme Court issued comprehensive guidelines to
be adhered to by all adoption agencies while giving up a child for adoption to people living
abroad.

In "      9
 1  it held that the service provided by doctors
should also be brought within the ambit of the definition of the term ͞Service͟ under Section 2
(o) of the Consumer ërotection Act. It is the same ͚medical negligence case͛ which is mentioned
so often. It was also held that your right to health is a Fundamental Right under Article 21.

Supreme Court also laid down comprehensive guidelines regarding rape trials, especially those
involving child victims in B
 "
   B
   
   1
 "

 . This was much
needed and long overdue, because earlier the trials were being conducted in such a way that
more trauma was caused to the victim, and in most cases they were too intimidated and
humiliated to testify properly. In  
   :"  9  Supreme Court holds that
promiscuity is not a licence to rape.

The Supreme Court also directed that a Committee be formed which would come up with a
Model ëolice Act in "
 / : It was a ëIL directed at overhauling the
ëolice Act, 1881 and bringing about police reforms. Accordingly, the Soli Sorabjee Committee
drew up such a Modal law; it is now pending adoption and implementation by the Centre and
the States. In =  .
   
   :" the Supreme Court held that the police is duty-
bound to register an F.I.R. when a complaint is made. In case they refuse to do so, a complaint
is to be made to the Chief Judicial Magistrate, who shall take disciplinary action against the
errant personnel, and the latter may even be sent to jail.

O+/
# 
 O.!It was held by the Supreme Court that Government
employees have no legal, moral, constitutional, or fundamental right to go on a strike. The
Supreme Court laid down the legal definition of an ͚idiot͛ in D
 /     
  
9 "

 (relevant in cases where legal insanity or idiocy is claimed as a defence):͞An
idiot is one who is of non- sane memory from his birth, by a perpetual infirmity, without lucid
intervals: and those are said to be idiots who cannot count 20, or tell the days of the week or
who do not know their fathers or mothers or the like͙. And it is for the accused to prove they
were idiots or otherwise of unsound mind.͟

The Supreme Court in A0

 
 
 1
"

 holds that the Governor͛s
power to grand pardon under Section 321 of the Code of Criminal ërocedure is not unlimited
and is subject to judicial review. This case on a ëIL filed because a large number of hardcore
convicts had been pardoned on purely political considerations, without there being any
reasonable ground. In 1 + .   
    
   #
  it was held by the
Supreme Court that once the ëOTA Review Committee has dropped all charges under ëOTA
against an accused, he cannot be prosecuted under ëOTA; the decision of the ëOTA Review
Committee is binding on the prosecution and the court.

8
Indian Constitution has made successful attempt to bring about synthesis between concepts of
Individual freedom and social Justice. It is an Organic Document which defines the powers and
functions of various organs of the state and guarantees to its citizens certain fundamental
rights. With a passage of time Supreme Court has rightly come out as     

.
 +/ as guaranteed to us by the Constitution and has always upheld the same.

Lastly I would like to quote G.Austin͛s quote :

FO
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/
0 8
%à Constitutional law Of India by J.N ëandey.
*à Jennings ʹSome characteristics of the Indian constitution.
2à Basu ʹ Introduction to the Constitution of India.
Ià H.M Seervai- Constitution of India.
Jà In re: Berubari͛s, AIR 1960 SC 858
'à Shelat and Grover ,JJ., in Kesavananda Bharati v. state of Kerala, AIR 1973 SC 1461.
(à S.R Bommai v UOI (1994) SCC 1
3à A.K Gopalan͛s Case AIR 1950 SC 27
&à Maneka Gandhi AIR 1978 SC 27. 
%@àSunil Batra v. Delhi Administration AIR 1978 SC 1675
%%àM.H Haskot v. Home Secretary of Bihar, AIR 1979 SC 1360.
%*àM.C Mehta v. Union Of India (1987) 1 SCC 395
%2àIndira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
%IàD.S Nakara V. Union Of India. AIR 1983 SC 130
%JàT.M ëai Foundation v. State of Karnataka, AIR 2003 SC 355.
%'àRev Stanislaus vs Madhya ëradesh, AIR 1977 SC 908