Fundamental Rights in Indian constitution

Constitution of India

 

Part III – Fundamental Rights

General
12. Definition.
13. Laws inconsistent with or in derogation of the fundamental rights.

 

 

Right to Equality
14. Equality before law.
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
16. Equality of opportunity in matters of public employment.
17. Abolition of Untouchability.
18. Abolition of titles.


Right to Freedom
19. Protection of certain rights regarding freedom of speech, etc.
20. Protection in respect of conviction for offences.
21. Protection of life and personal liberty.
21A. Right to education.
22. Protection against arrest and detention in certain cases.


Right against Exploitation
23. Prohibition of traffic in human beings and forced labour.
24. Prohibition of employment of children in factories, etc.
Right to Freedom of Religion
25. Freedom of conscience and free profession, practice and propagation of religion.
26. Freedom to manage religious affairs.
27. Freedom as to payment of taxes for promotion of any particular religion.
28. Freedom as to attendance at religious instruction or religious worship in certain  educational institutions.


Cultural and Educational Rights
29. Protection of interests of minorities.
30. Right of minorities to establish and administer educational institutions.
31. [Repealed.]
Saving of Certain Laws
31A. Saving of Laws providing for acquisition of estates, etc.
31B. Validation of certain Acts and Regulations.
31C. Saving of laws giving effect to certain directive principles.
31D. [Repealed.]


Right to Constitutional Remedies
32. Remedies for enforcement of rights conferred by this Part.
32A. [Repealed.]
33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.
34. Restriction on rights conferred by this Part while martial law is in force in any area.
35. Legislation to give effect to the provisions of this Part.

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COMMENTFundamental Rights under United States of America

  • The right to due process
  • The right to freedom of speech
  • The right to freedom of religion
  • The right to privacy
  • The right to marry
  • The right to interstate and intrastate travel
  • The right to equality
  • The right to assemble
  • And the right to bear arms

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General Concept

  • There exist  equitable harmony between Parts III and IV of the Constitution,no intention could be inferred  by making the fundamental rights conferred by Part III subservient to the directive principles of State Policy set out in Part IV of the Constitution. The Constitution-makers did not contemplate a disharmony or imbalance between the fundamental rights and the directive principles and indeed they were both meant to supplement each other. The basic structure of the Constitution rests on the foundation that while the directive principles are the mandatory ends of government, those ends can be achieved only through permissible means which are set out in Part III of the Constitution. In other words, the mandatory ends set out in Part IV can be achieved not through totalitarian methods but only through those which are consistent with the fundamental rights conferred by Part III, was the lead argument of Nani Palkiwala  in Minerva Mill case.
  • “Mr. N Palkhivala, the learned counsel further argued that it is impossible to envisage  that a destruction of the fundamental freedoms guaranteed by Part III is necessary for achieving the object of some of the directive principles like equal justice and free legal aid, organising village panchayats, providing living wages for workers and just and humane conditions of work, free and compulsory education for children, organisation of agriculture and animal husbandry, and protection of environment and wild life. What the Constituent Assembly had rejected by creating a harmonious balance between Parts III and IV is brought back by the 42nd Amendment” .

    • Fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in our Judgments as “transcendental”, “inalienable” and “primordial.” For us, it has been said in Kesavananda Bharati (1973) Suppl. SCR 1) (p. 991), they constitute the ark of the Constitution. The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville Austin’s
      observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. In other words, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.

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ARROW 212. Definition

In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.


The Concept

Dr. B.R. Ambedkar explaining the scope of Article 12 and reason why this Article was placed in the Chapter on Fundamental Rights so spoke in the Constituent Assembly :

“The object of the fundamental rights is two-fold. First, that every citizen must be in a position to claim those rights. Secondly, they must be binding upon every authority I shall presently explain what the word “authority” means upon every authority which has got either the power to make laws or the power to have discretion vested in it. Therefore, it is quite clear that if the Fundamental Rights are to be clear, then they must be binding not only upon the Central Government, they must not only be binding the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village panchayats and taluk boards, in fact, every authority which has been created by law and which has got certain power to make laws, to make rules, or make bye- laws.

If that proposition is accepted and I do not see anyone who cares for Fundamental Rights can object to such a universal obligation being imposed upon every authority created by law then, what are we to do to make our intention clear? There are two ways of doing it. One way is to use a composite phrase such as “the State”, as we have done in article 7; or, to keep on repeating every time, “the Central Government, the Provincial Government, the State Government, the Municipality, the Local Board, the Port Trust, or any other authority”. It seems to me not only most cumbersome but stupid to keep on repeating this phraseology every time we have to make a reference to some authority. The wisest course is to have this comprehensive phrase and to economise in words”. [quoted  in Pradeep Biswas -vs- Institute of Chemical Biology 2002 (5) SCC 111].


  • Whether a body is “State” as defined by Article 12 of the Constitution of India, or for its being subject to jurisdiction of the Courts, for judicial review purposes, under Article 226 of the Constitution of India. The Petitioners also rely on a few decisions, such as Pradeep Biswas -vs- Institute of Chemical Biology 2002 (5) SCC 111 and Zee Telefilms -vs-Union of India 2005 (4) SCC it is held , article 226 confers wide powers on the High Courts to issue writs to “any person or authority”. It can be issued “for the enforcement of any of the fundamental rights and for any other purpose”. The term “authority” used in Article 226, it has been held, should be widely construed, unlike the term “authority” occurring in Article 12, which is relevant in the context of enforcement of fundamental rights under Art 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as other rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or bodies performing public. The form of the body or institution is irrelevant; what is of relevance is the nature of the obligation imposed, the breach of which is complained against, or the enforcement of which is sought. It has thus been ruled that judicial control over ever changing nature of bodies affecting the rights of people cannot be stereotyped or straight-jacketed. This was emphasized in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors,-vs- V. R. Rudani1989 (2) SCC 691. In Praga Tools Corporation v. Shri C.A Imanual and Ors., (1969) 3 SCR 773 : (AIR 1969 Supreme Court 1306) , this Court(SC) said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even if it is not a public official or statutory body. It was observed (at 778) ; “It is however not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsbury’s Laws of England (3rd Ed. Vol. II p. 52 and onwards).
  • In Binny Ltd. & Anr. v. V.V. Sadasivan, 2005 (6) SCC 657, while deciding when a private body can be said to be performing public function, the Supreme Court observed: “Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the government to run industries and to carry on trading activities. These have come to be known as Public Sector Undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between the public  functions and private functions when it is being discharged by a purely private authority. A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf & Jowell in Chapter 3 para 0.24, it is stated thus: “A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides “public goods” or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including: rule-making, adjudication (and other forms of dispute resolution); inspection; and licensing. Public functions need not be the exclusive domain of the state. Charities, self-regulatory organizations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd’s of London, churches) may in reality also perform some types of public function. As Sir John Donaldson M.R. urged, it is important for the courts to “recognize the realities of executive power” and not allow “their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted”. Non-governmental bodies such as these are just as capable of abusing their powers as is government.” In G.Bassi Reddy v. International Crops Research Institute and Another, (2003) 4 SCC 225 it was observed that: “It is true that a writ under Article 226 also lies against a person’ for “any other purpose”. The power of the High Court to issue such a writ to “any person” can only mean the power to issue such a writ to any person to whom, according to well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words “and for any other purpose” must mean “for any other purpose for which any of the writs mentioned would, be  issued. A writ under Article 226 can lie against a “person” if it is a statutory body or performs a public function or discharges a public or statutory duty.” There are decisions which have ruled that even in the contractual sphere, there is no bar to entertaining a writ petition or if it involves some disputed question of facts. The Supreme Court observed in LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482, that: “Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action ‘ hedged with public element becomes open to challenge. If it is shown that the exercise of the power is arbitrary unjust and unfair, it should be no answer for the State its instrumentality, public authority or person whose acts have the insignia of public element to say that their actions are in the field of private law and they are free to prescribe any conditions or limitations in their actions as private citizens, simplicitor, do in the field of private law. Its actions must be based on some rational and relevant principles. It must not be guided by irrational or irrelevant considerations. Every administrative decision must be hedged by reasons….The actions of the State, its instrumentality, any public authority or person whose actions bear insignia of public law element or public character are amenable to judicial review and the validity of such an action would be tested on the anvil of Article 14. While exercising the power under Article 226 the Court would be circumspect to adjudicate the disputes arising out of the contract depending on the facts and circumstances in a given case. The distinction between the public law remedy and private law field cannot be demarcated with precision. Each case has to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy. The distinction between public law and private law remedy is now narrowed down. The actions of the appellants bear public character with an imprint of public interest element in their offers regarding terms and conditions mentioned in the appropriate table inviting the public to enter into contract of life insurance. It is not a pure and simple private law dispute without any insignia of public element.
  •  Even on the issue of judicial control of non-state bodies, the growth of law in India and other parts of the world have been parallel. In Nagle v. Feilden and Others [1966 (2) QB 633], a Jockey Club was entitled to issue licences training horses meant for races. An application for grant of licence was refused, on the ground that the request was by a woman. The action of the Club (a private body) was set aside by the court, which held that it exercised licensing functions, and controlled the profession and, thus, had to be judged and viewed by higher standards. It was held that it could not act arbitrarily. In Greig & Others v. Insole & Others [1978 (3) All ER 449], a Chancery Division considered in great details the rules framed by the International Cricket Council as also the Test and County Cricket Board of United Kingdom. The question which arose there was whether the ICC and consequently the TCCB could debar a cricketer from playing official cricket as well as county cricket as the plaintiffs, well- known and talented professional cricketers (who had played for English County Club and test matches for some years) participated in the World Series Cricket which promoted sporting events of various kinds. In R. v. Panel on Take-overs and Mergers, ex parte Datafin plc & Anr [1987 (1) All ER 564] the Court exercised the power of the judicial review over a private body. The grounds of judicial review, which was granted, are: (a) The Panel, although self-regulating, do not operate consensually or voluntary but had imposed a collective code on those within its ambit; (b) The Panel had been performing a public duty as manifested by the government’s willingness to limit legislation in the area and to use the Panel as a part of its regulatory machinery. There had been an “implied devolution of power” by the Government to the Panel in view of the fact that certain legislation presupposed its existence. (c) Its source of power was partly moral persuasive. Such a power would be exercised under a statute by the Government and the Bank of England.Lloyd LJ in his separate speech said that: “On the policy level, I find myself unpersuaded. Counsel for the panel made much of the word ‘self-regulating’. No doubt self-regulation has many advantages. But I was unable to see why the mere fact that a body is self-regulating makes it less appropriate for judicial review. Of course there will be many self-regulating bodies which are wholly inappropriate for judicial review. The committee of an ordinary club affords an obvious example. But the reason why a club is not subject to judicial review is not just because it is self-regulating. The panel wields enormous power. It has a giant’s strength. The fact that it is self regulation, which means, presumably, that it is not subject to regulation by others, and in particular the Department of Trade and Industry, makes it not less but more appropriate that it should be subject to judicial review by the courts.” [Aston Cantlow, Wilmcote and Billesley Parochial Church Council v. Wallbank [2001] 3 W.L.R. 1323].
  • Equally, that the institution or organization is not controlled, and is autonomous is irrelevant; indeed, the concept of non-government organization(NGO) means that it is independent of any manner of government control in its establishment, or management. That the organization does not perform – or pre-dominantly perform – “public” duties too, may not be material, as long as the object for funding is achieving a felt need of a section of the public, or to secure larger societal goals. To the extent of such funding, indeed, the organization may be a tool, or vehicle for the executive government‟s policy fulfillment plan. This view, about coverage of the enactment, without any limitation, so long as there is public financing, is supported by a recent decision of the Chancery Division in Sugar -vs- British Broadcasting Corporation & Anr [2009] UKHL 9 (where the court considered the coverage of the UK Information Act, in respect of the British Broadcasting Corporation, which was notified as a “public authority” in regard to a certain class of information).
  • In Zee Teleflims Ltd vs UOI where the issue was if the Board of Control for Cricket (BCCI) was “State” under Article 12 of the Constitution, and bound by Article 14. The court had observed in the said ruling that: “…It cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.”
  • BCCI is ‘State’ under Article 12 of the Indian constitution by Zee Telefilms Ltd. & Anr vs Union Of India & Ors on 2 February, 2005 LINK
  • Definition of ‘Authority’ : In [Pradeep Biswas -vs- Institute of Chemical Biology 2002 (5) SCC 111]¬“We sum up our conclusions as under:-(1) Simply by holding a legal entity to be an instrumentality or agency of the State it does not necessarily become an authority within the meaning of ‘other authorities’ in Article 12. To be an authority, the entity should have been created by a statute or under a statute and functioning with liability and obligations to public. Further, the statute creating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of Article 13(2) governing its relationship with other people or the affairs of other people __ their rights, duties, liabilities or other legal relations. If created under a statute, then there must exist some other statute conferring on the entity such powers. In either case, it should have been entrusted with such functions as are governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence governmental. Such authority would be the State, for, one who enjoys the powers or privileges of the State must also be subjected to limitations and obligations of the State. It is this strong statutory flavour and clear indicia of power __ constitutional or statutory, and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a given case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap. Tests 1, 2 and 4 in Ajay Hasia enable determination of Governmental ownership or control. Tests 3, 5 and 6 are ‘functional’ tests. The propounder of the tests himself has used the words suggesting relevancy of those tests for finding out if an entity was instrumentality or agency of the State. Unfortunately thereafter the tests were considered relevant for testing if an authority is the State and this fallacy has occurred because of difference between ‘instrumentality and agency’ of the State and an ‘authority’ having been lost sight of sub-silentio, unconsciously and un-deliberated. In our opinion, and keeping in view the meaning which ‘authority’ carries, the question whether an entity is an ‘authority’ cannot be answered by applying Ajay Hasia tests.(2) The tests laid down in Ajay Hasia’s case are relevant for the purpose of determining whether an entity is an instrumentality or agency of the State. Neither all the tests are required to be answered in positive nor a positive answer to one or two tests would suffice. It will depend upon a combination of one or more of the relevant factors depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be by removing the mask or piercing the veil disguising the entity concerned. When an entity has an independent legal existence, before it is held to be the State, the person alleging it to be so must satisfy the Court of brooding presence of government or deep and pervasive control of the government so as to hold it to be an instrumentality or agency of the State”.

Devider

ARROW 213. Laws inconsistent with or in derogation of the fundamental rights

(1)  All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,-
(a)”law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b)”laws in force” includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.


The Concept

In Kesavananda Bharati case [1973 (4) SCC 225] Justice Khanna – “…..no generation has monopoly of wisdom nor has any generation a right to place fetters on future generations to mould the machinery of government and the laws according to their requirements. Although guidelines for the organization and functioning of the future government may be laid down and although norms may also be prescribed for the legislative activity, neither the guidelines should be so rigid nor the norms so inflexible and unalterable as should render them to be incapable of change, alteration and replacement even though the future generations want to change, alter or replace them…….amendment of the constitution necessary contemplates that the Constitution has not to be abrogated but only changes have to be made in it. … … … it is not permissible to touch the foundation or to alter the basic institutional pattern… … … The words ‘amendment of the constitution’ with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution.

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ARROW 214. Equality before law

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


The Concept of Equality 

From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of ARTICLE 14, and if it affects any matter relating to public employment, it is also violative of ARTICLE 16. Arts. 14 and 16 strike at arbitrariness in State action an( ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would :amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice : in fact the matter comprehends the former. Both are inhibited by Arts. 14 and 16 It is also necessary to point out that the ambit and reach of Arts. 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Arts. 14 and 16 if he has been. arbitrarily or unfairly treated or subjected to mala fide exercise of. power by the State machine.  Art 16 embodies the fundamental guarantee that Arts. 14 as there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art 16 is only an instance of the application of the concept of equality enshrined in Art 14. In other words, Art 14 is the genus while Art 16 is a species, Art 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination( E. P. Royappa vs State Of Tamil Nadu & Anr on 23 November,  1974 AIR 555, 1974 SCR (2) 348)

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ARROW 215. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-
(a)access to shops, public restaurants, hotels and places of public entertainment; or
(b)the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

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ARROW 216. Equality of opportunity in matters of public employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State,
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an officeunder the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which in the opinion of State are not adequately represented in the services under the State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

17. Abolition of untouchability

“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.

18. Abolition of titles

(1) No title, not being a military or academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

Devider

ARROW 219. Protection of certain rights regarding freedom of speech, etc.

(1) All citizens shall have the right-
(a)to freedom of speech and expression;
(b)to assemble peaceably and without arms;
(c)to form associations or unions or co-operative societies;
(d)to move freely throughout the territory of India;
(e)to reside and settle in any part of the territory of India;and
(g)to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests ofthe sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests ofthe sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,-
(i)the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii)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 exclusion, complete or partial, of citizens or otherwise.

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20. Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.

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ARROW 221. Protection of life and personal liberty

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


The Great Idea of  life and liberty

In Kartar Singh and Ors. V. State of Punjab (1994) 3 SCC 569, wherein Justice K.Ramaswamy, speaking for the Court, discussed the importance of life and liberty in the following words :

“The foundation of Indian political and social democracy, as envisioned in the preamble of the Constitution, rests on justice, equality, liberty and fraternity in secular and socialist republic in which every individual has equal opportunity to strive towards excellence and of his dignity of person in an integrated egalitarian Bharat. Right to justice and equality and stated liberties which include freedom of expression, belief and movement are the means for excellence. The right to life with human dignity of person is a fundamental right of every citizen for pursuit of happiness and excellence. Personal freedom is a basic condition for full development of human personality. Art.21 of the Constitution protects right to life which is the most precious right in a civilized society. The trinity i.e. liberty, equality and fraternity always blossoms and enlivens the flower of human dignity. One of the gifts of democracy to mankind is the right to personal liberty. Life and personal freedom are the prized jewels under Art.19 conjointly assured by Art.20(3), 21 and 22 of the Constitution and Art.19 ensures freedom of movement. Liberty aims at freedom not only from arbitrary restraint but also to secure such conditions which are essential for the full development of human personality. Liberty is the essential concomitant for other rights without which a man cannot be at his best. The essence of all civil liberties is to keep alive the freedom of the individual subject to the limitations of social control envisaged in diverse articles in the chapter of Fundamental Rights Part III in harmony with social good envisaged in the Directive Principles in Part IV of the Constitution. Freedom cannot last long unless it is coupled with order. Freedom can never exist without order. Freedom and order may coexist. It is essential that freedom should be exercised under authority and order should be enforced by authority which is vested solely in the executive. Fundamental rights are the means and directive principles are essential ends in a welfare State. The evolution of the State from police State to a welfare State is the ultimate measure and accepted standard of democratic society which is an avowed constitutional mandate. Though one of the main functions of the democratic Government is to safeguard liberty of the individual, unless its exercise is subject to social control, it becomes anti-social or undermines the security of the State. The Indian democracy wedded to rule of law aims not only to protect the fundamental rights of its citizens but also to establish an egalitarian social order. The individual has to grow within the social confines preventing his unsocial or unbridled growth which could be done by reconciling individual liberty with social control. Liberty must be controlled in the interest of the society but the social interest must never be overbearing to justify total deprivation of individual liberty. Liberty cannot stand alone but must be paired with a companion virtue; liberty and morality; liberty and law; liberty and justice; liberty and common good; liberty and responsibility which are concomitants for orderly progress and social stability. Man being a rational individual has to life in harmony with equal rights of others and more differently for the attainment of antithetic desires. This intertwined network is difficult to delineate within defined spheres of conduct within which freedom of action may be confined. Therefore, liberty would not always be an absolute license but must arm itself within the confines of law. In other words, here can be no liberty without social restraint. Liberty, therefore, as a social conception is a right to be assured to all members of a society. Unless restraint is enforced on and accepted by all members of the society, the liberty of some must involve the oppression of others. If liberty be regarded a social order, the problem of establishing liberty must be a problem of organizing restraint which society controls over the individual. Therefore, liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number, in other words common happiness as an end of the society, lest lawlessness and anarchy will tamper social weal and harmony and powerful courses or forces would be at work to undermine social welfare and order. Thus the essence of civil liberty is to keep alive the freedom of the individual subject to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution. The modem social evolution is the growing need to keep individual to be as free as possible, consistent with his correlative obligation to the society. According to Dr. Ambedkar in his closing speech in the Constituent Assembly, the principles of liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form the union or trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality. Equality cannot be divorced from liberty. Nor can equality and liberty be divorced from fraternity. Without equality, liberty would produce supremacy of law. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality would not become a natural course of things. Courts, as sentinel on the qui vive, therefore, must strike a balance between the changing needs of the society for peaceful transformation with orders and protection of the rights of the citizen.(Para 374)

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ARROW 221A. Right to education

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.

22. Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply-
(a)to any person who for the time being is an enemy alien; or
(b)to any person who is arrested or detained under any law providing for preventive detention.
(4)
No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-
(a)an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b)such person is detained in accordance with the provision of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5)
When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him (he earliest opportunity of making a representation against the order.
(6)
Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7)
Parliament may by law prescribe-
(a)the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b)the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c)the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

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23. Prohibition of traffic in human beings and forced labour

(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

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24. Prohibition of employment of children in factories, etc.

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.

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25. Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a)regulating or restricting any economic, financial, political or other secular activity which maybe associated with religious practice;
(b)providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

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26. Freedom to manage religious affairs

Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
(a)to establish and maintain institutions for religious and charitable purposes;
(b)to manage its own affairs in matters of religion;
(c)to own and acquire movable and immovable property; and
(d)to administer such property in accordance with law.


The Concept

Provisions make it clear that the rights of the ‘denominational religious institutions’ are to be preserved and protected from any invasion by the State as guaranteed under Article 26 of the Constitution-Undoubtedly, the object and purpose of enacting Article 26 of the Constitution is to protect the rights conferred therein on a `religious denomination` or a section thereof. However, the rights conferred under Article 26 are subject to public order, morality and health and not subject to any other provision of Part III of the Constitution as the limitation has been prescribed by the law makers by virtue of Article 25 of the Constitution. The term ‘religious denomination’ means collection of individuals having a system of belief, a common organisation; and designation of a distinct name. The right to administration of property by a ‘religious denomination’ would stand on a different footing altogether from the right to maintain its own affairs in matters of religion. (Vide: Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj etc.etc. v. The State of Gujarat & Ors., AIR 1974 SC 2098; T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., AIR 2003 SC 355; and Nallor Marthandam Vellalar & Ors. v. Commissioner, Hindu Religious and Charitable Endowments & Ors., AIR 2003 SC 4225).The Constitution Bench of this Court in S. Azeez Basha & Anr. v. Union of India, AIR 1968 SC 662, while dealing with the rights of minority to establish educational institutions, also dealt with the provisions of Article 26 of the Constitution and observed that the words “establish and maintain” contained in Article 26 (a) must be read conjunctively. A ‘religious denomination’ can only claim to maintain that institution which has been established by it. The right to maintain institutions would necessarily include the right to administer them. The right under Article 26(a) of the Constitution will only arise where the institution is established by a ‘religious denomination’ and only in that event, it can claim to maintain it. While dealing with the issue of Aligarh Muslim University, this Court rejected the claim of Muslim community of the right to administer on the ground that it had not been established by the Muslim community and, therefore, they did not have a right to maintain the university within the meaning of Article 26(a) of the Constitution . In Khajamian Wakf Estates etc. v. State of Madras etc., AIR 1971 SC 161, the Constitution Bench of this Court held that the religious denomination can own, acquire properties and administer them in accordance with law. In case they lose the property or alienate the same, the right to administer automatically lapses for the reason that property ceases to be their property. Article 26(d) of the Constitution protects the rights of ‘religious denomination’ to establish and administer the properties as clauses (c) and (d) guarantee a fundamental right to any religious denomination to own, acquire, establish and maintain such properties.The Constitution Bench of this Court in Shirur Mutt (Supra) categorically held that a law which takes away the right to administer the religious denomination altogether and vests it in any other authority would amount to a violation of right guaranteed in clause (d) of Article 26 of the Constitution. Therefore, the law could not divest the administration of religious institution or endowment. However, the State may have a general right to regulate the right of administration of a religious or charitable institution or endowment and by such a law, State may also choose to impose such restrictions whereof as are felt most acute and provide a remedy therefore. (See also: Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors., AIR 1954 SC 388; and Pannalal Bansilal Pitti & Ors. v. State of A.P. & Anr., AIR 1996 SC 1023) Dr. Subramanian Swamy Versus State of Tamil Nadu & Ors.

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27. Freedom as to payment of taxes for promotion of any particular religion

No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions

(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

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ARROW 229. Protection of interests of minorities

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(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,

30. Right of minorities to establish and administer educational institutions

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

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31. Compulsory acquisition of property Repealed

Rep. by the Constitution (Forty-fourth Amendment) Act, 1978 , section. 6 (w.e.f. 20.6.1979).

31A. Saving of laws providing for acquisition of estates, etc.

(1) Notwithstanding anything contained in article 13, no law providing for-
(a)the acquisition by the State of any estate or of any rights therein or the extinguishments or modification of any such rights, or
(b)the taking over of the management of any property by the Stale for a limited period either in the public interest or in order to secure the proper management of the property, or
(c)the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d)the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e)the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,
shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred byarticle 14 or article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

(2) In this article,-
(a) the expression “estate”, shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include-
(i)any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii)any land held under ryotwari settlement;
(iii)any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b)the expression “rights”, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.

31B. Validation of certain Acts and Regulations

Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.

31C. Saving of laws giving effect to certain directive principles

Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

31D. Saving of laws in respect of anti-national activities

Repealed

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32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.


COMMENTFor Article 32 see Constitutional Remedies and Writ Jurisdiction


32A. Constitutional validity of State laws not to be considered in proceedings under article 32 Repealed Rep . b y the Constitution (Forty-third Amendment) Act, 1977 , section 3 (w .e.f . 13. 4. 1978 )

33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.

Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,-
(a)the members of the Armed Forces; or
(b)the members of the Forces charged with the maintenance of public order; or
(c)persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d)persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

34. Restriction on rights conferred by this Part while martial law is in force in any area

Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

35. Legislation to give effect to the provisions of this Part

Notwithstanding anything in this Constitution,—

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws— (i)with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
(ii)for prescribing punishment for those acts which are declared to be offences under this Part;
and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);
(b)any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.
Explanation.—In this article, the expression “law in force” has the same meaning as in article 372.

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