(a) "The Fundamental Rights may be said to constitutionalise social values of existing society." Explain and illustrate. 10 (b)…

(a)

• The idea: Part III does not create rights in a vacuum. It gives constitutional force to values that Indian society had already come to hold through the freedom struggle and the social reform movements. Those values include equality, dignity, liberty, religious tolerance and the protection of minorities.
• Illustrations of existing social values made enforceable:
• equality and non-discrimination: Arts 14–16, including access to shops, wells and public places (Art 15(2));
• the anti-caste reform movement: the abolition of untouchability (Art 17), made punishable by the Protection of Civil Rights Act, 1955;
• opposition to exploitation: Art 23 bans begar and trafficking, and Art 24 bans child labour in hazardous employment;
• India's tradition of religious pluralism: freedom of conscience (Art 25), together with the State's power to throw open Hindu temples to all classes (Art 25(2)(b));
• cultural and linguistic diversity: Arts 29–30.
• But also transformative: the rights do more than mirror existing society. Courts have used constitutional morality to override prevailing social morality:
• Navtej Singh Johar v Union of India (2018) decriminalised consensual same-sex relations;
• Joseph Shine v Union of India (2018) struck down adultery as an offence;
• Indian Young Lawyers Association v State of Kerala (2018) opened Sabarimala to women.
• Conclusion: Fundamental Rights constitutionalise the best values of society. They also act, in Granville Austin's words, as instruments of a social revolution, reforming values that conflict with dignity and equality.

(b)

• Meaning: the phrase is Upendra Baxi's. PIL, which he preferred to call social action litigation, was not created by statute or by litigants. The judges themselves led it, by innovating procedure, and induced it, by inviting and initiating cases.
• Judge-led: procedural innovation
• Relaxed locus standi: any public-spirited person may approach the court for those who cannot (S.P. Gupta v Union of India (1981)).
• Epistolary jurisdiction: letters were treated as writ petitions (Sunil Batra v Delhi Administration (1980), on a prisoner's letter; PUDR v Union of India (1982), on Asiad workers).
• Non-adversarial fact-finding: the Court appointed commissions and experts (Bandhua Mukti Morcha v Union of India (1984), on bonded labour).
• Continuing mandamus: the Court supervised investigating agencies over time (Vineet Narain v Union of India (1998)).
• Judicial legislation in a vacuum: the Court laid down guidelines where no law existed (Vishaka v State of Rajasthan (1997)).
• Judge-induced: the Court as initiator
• ***Hussainara Khatoon v State of Bihar* (1979):** proceedings arose from newspaper reports on undertrial prisoners, and led to the right to a speedy trial.
• Suo motu cases: examples include the migrant workers' case (2020) and oxygen and medicine distribution during COVID-19 (2021).
• Long-running "green bench" cases: T.N. Godavarman (forests, since 1995) and the M.C. Mehta cases (Ganga, vehicular pollution, the CNG transition), which the Court kept alive and expanded.
• Criticism and correction:
• critics point to judicial overreach and to misuse through publicity-interest, private-interest and political-interest litigation;
• State of Uttaranchal v Balwant Singh Chaufal (2010) laid down guidelines to screen frivolous PILs.

(c)

• Why education is the base: without education, freedom of speech (Art 19), dignity (Art 21), political participation and equality of opportunity cannot be meaningfully exercised. This is recognised in Art 26 UDHR and Art 28 of the UN Convention on the Rights of the Child.
• Judicial foundation:
• Mohini Jain v State of Karnataka (1992) held that the right to education flows from Art 21;
• Unni Krishnan v State of AP (1993) limited it to free education up to the age of 14.
• Constitutional and legislative efforts:
• The 86th Amendment (2002):
• inserted Art 21A, providing free and compulsory education for children aged 6–14;
• substituted Art 45, on early childhood care and education below 6;
• added the parental duty in Art 51A(k).
• The RTE Act, 2009 (in force from 1 April 2010):
• neighbourhood schools;
• 25% of seats in private unaided schools for disadvantaged and weaker-section children (s.12(1)(c)), upheld in Society for Unaided Private Schools of Rajasthan v Union of India (2012). Minority schools are exempt (Pramati Educational & Cultural Trust v Union of India (2014));
• a ban on capitation fees and screening (s.13);
• pupil–teacher ratio and infrastructure norms;
• School Management Committees;
• monitoring by the NCPCR.
• The 2019 amendment allowed detention in Classes 5 and 8.
• Schemes:
• Samagra Shiksha (2018), which merged Sarva Shiksha Abhiyan, RMSA and teacher education;
• PM POSHAN, formerly the Mid-Day Meal scheme;
• NIPUN Bharat (2021), for foundational literacy and numeracy;
• PM SHRI schools;
• NEP 2020, which targets universal access from pre-school to secondary.
• Evaluation: enrolment is near-universal at the elementary level. However, learning outcomes, as reported by ASER, secondary-level dropout and teacher vacancies remain challenges.

(d)

• The relationship:
• India follows the Westminster model. Executive power is vested in the President (Art 53), who is the formal head.
• Real power lies with the Council of Ministers headed by the Prime Minister (Art 74(1)), which is collectively responsible to the Lok Sabha (Art 75(3)).
• The PM must communicate decisions to the President and furnish information when asked (Art 78).
• The President acts on advice, and the question whether any, and if so what, advice was tendered cannot be inquired into by any court (Art 74(2)).
• Is the President bound?
• Case law: even before 1976, Ram Jawaya Kapur v State of Punjab (1955) and Shamsher Singh v State of Punjab (1974, seven judges) held that the President is a constitutional head who must act on ministerial advice.
• The 42nd Amendment (1976): made the advice expressly binding ("shall act in accordance with such advice").
• The 44th Amendment (1978): added a proviso allowing the President to return advice once for reconsideration. The President must act on the advice tendered after reconsideration.
• Areas of limited discretion:
• appointing a PM when no party has a clear majority;
• dismissing a ministry that has lost confidence and refuses to resign;
• dissolving the Lok Sabha when a government has lost its majority;
• the pocket veto, since Art 111 fixes no time limit. For example, President Zail Singh withheld action on the Indian Post Office (Amendment) Bill, 1986.
• This discretion is exercised within constitutional conventions. Action taken on advice, such as a proclamation under Art 356, remains subject to judicial review, and Art 74(2) does not shield the material on which the advice is based (S.R. Bommai v Union of India (1994)).
• Conclusion: yes, the President is bound. The President's real role is that of a constitutional guardian with a right to be informed, to advise and to warn.

(e)

• The constitutional position:
• The Constitution neither expressly permits nor expressly prohibits delegation. However, it recognises delegated legislation: Art 13(3)(a) includes rules, regulations and notifications within "law", which makes them subject to Fundamental Rights.
• Delegation is justified by the pressure on Parliament's time, the technical nature of many matters, and the need for flexibility.
• The test: essential legislative functions cannot be delegated
• ***In re Delhi Laws Act* (1951), seven judges: the legislature may delegate, but it cannot abdicate its essential legislative function**, which is to lay down the policy and standards. The power to repeal or modify an Act in its essential features cannot be delegated.
• ***Rajnarain Singh v Chairman, Patna Administration Committee* (1954):** power to extend Acts with modifications cannot be used to change essential policy.
• ***Harishankar Bagla v State of MP* (1954):** delegation under the Essential Supplies Act was upheld because the policy was sufficiently declared.
• Excessive delegation struck down:
• ***Hamdard Dawakhana v Union of India* (1960):** s.3(d) of the Drugs and Magic Remedies Act was struck down for giving the executive an uncanalised power to add diseases.
• ***Devi Das Gopal Krishnan v State of Punjab* (1967):** unguided power to fix sales tax rates was struck down.
• ***Jalan Trading Co v Mill Mazdoor Sabha* (1967):** a "Henry VIII" clause allowing the executive to modify the Act (s.37 of the Payment of Bonus Act) was invalidated.
• Flexibility in fiscal matters:
• ***Municipal Corporation of Delhi v Birla Cotton Mills* (1968):** delegating the fixing of tax rates to an elected municipal body was upheld.
• ***Gwalior Rayon v Assistant Commissioner of Sales Tax* (1974): the majority applied the policy-and-guidelines test. Mathew J preferred the abdication test**, under which delegation is valid so long as the legislature retains control.
• **Grounds of challenge (Indian Express Newspapers v Union of India (1985)):**
• subordinate legislation may be challenged as ultra vires the parent Act;
• on the same grounds as primary legislation;
• for manifest arbitrariness.
• Parliamentary control: laying requirements and the Committees on Subordinate Legislation.