Author: Lexfolio Team

Read this in Hindi: हिंदी में पढ़ें

Maneka Gandhi v. Union of India, decided by a seven-judge bench of the Supreme Court on 25 January 1978, held that the “procedure established by law” under Article 21 must be fair, just and reasonable, not arbitrary or oppressive. It also held that Articles 14, 19 and 21 are not separate compartments, so a law restricting personal liberty must satisfy all three, and that the right to travel abroad is part of personal liberty.

Facts of the case

Maneka Gandhi was issued a passport on 1 June 1976 under the Passports Act, 1967. By a letter dated 2 July 1977, the Regional Passport Officer, Delhi, directed her to surrender her passport within seven days. The passport was impounded under Section 10(3)(c) of the Act, which allows impounding when the authority considers it necessary “in the interests of the general public”.

She asked for the reasons, as Section 10(5) of the Act normally requires a brief statement of reasons to be supplied. On 6 July 1977, the Ministry of External Affairs refused, stating that it had been decided not to furnish reasons in the interests of the general public. No hearing was given to her before the order was passed.

She filed a writ petition under Article 32 challenging the impounding order and the validity of Section 10(3)(c). In its affidavit, the government indicated that her presence was likely to be required in connection with proceedings before a Commission of Inquiry.

The bench

The case was heard by seven judges: Chief Justice M.H. Beg and Justices Y.V. Chandrachud, P.N. Bhagwati, V.R. Krishna Iyer, N.L. Untwalia, S. Murtaza Fazal Ali and P.S. Kailasam. The leading opinion was written by Justice Bhagwati. It is reported as (1978) 1 SCC 248 and AIR 1978 SC 597.

Key holdings

1. Right to travel abroad is part of personal liberty

Following Satwant Singh Sawhney v. Assistant Passport Officer (1967), the Court confirmed that the expression “personal liberty” in Article 21 is of the widest amplitude and includes the right to go abroad. So the State cannot take it away except according to procedure established by law.

2. Procedure must be fair, just and reasonable

This is the core of the case. The Court held that the procedure contemplated by Article 21 cannot be any procedure that a legislature chooses to enact. It must be right, just and fair, and not arbitrary, fanciful or oppressive. A procedure that fails this standard is no procedure at all for the purposes of Article 21. This reading effectively brought a substantive due process element into Indian constitutional law, even though the framers had deliberately chosen the phrase “procedure established by law” instead of “due process of law”.

3. Articles 14, 19 and 21 form a single scheme

In A.K. Gopalan v. State of Madras (1950), the majority had treated each fundamental right as an independent code. A preventive detention law, tested under Article 21, did not also have to meet Article 19. Maneka Gandhi rejected this approach, building on R.C. Cooper v. Union of India (1970). A law depriving a person of personal liberty must satisfy Article 21, and if it also affects a freedom under Article 19, it must meet that Article’s test of reasonableness. Since Article 14 strikes at arbitrariness, the procedure must also be non-arbitrary. This is popularly called the “golden triangle” of Articles 14, 19 and 21.

4. Natural justice applies to administrative action

The Court held that the rule of audi alteram partem (hear the other side) applies to administrative orders that affect a person’s rights, and not only to judicial or quasi-judicial bodies. Where a statute is silent, a right to be heard can be implied. In urgent cases, a hearing may be given after the order is made, but it must be a genuine and prompt post-decisional hearing.

5. Reasons cannot be withheld casually

The power to refuse reasons “in the interests of the general public” is exceptional and must be used sparingly. In this case, the refusal to give reasons was found unjustified.

6. Section 10(3)(c) was not struck down

The Court held that the phrase “in the interests of the general public” has a well-understood legal meaning and is not vague. Section 10(3)(c) was read as requiring a hearing and therefore survived.

7. Travel abroad and Article 19(1)(a)

The majority did not treat the right to go abroad as itself part of the freedom of speech and expression under Article 19(1)(a). But an order that directly and inevitably restricted that freedom could be challenged under Article 19.

The Attorney General’s statement

During the hearing, the Attorney General stated that the government would consider any representation Maneka Gandhi made against the impounding and would decide it expeditiously. The Court treated this as curing the natural justice defect in the order, as she would now get a hearing.

Gopalan vs Maneka: the shift at a glance

Impact of the case

Maneka Gandhi opened the door to the expansive reading of Article 21 that followed. Within a few years, the Court recognised speedy trial (Hussainara Khatoon, 1979), the right to live with human dignity (Francis Coralie Mullin, 1981) and the right to livelihood (Olga Tellis, 1985). The nine-judge bench in Puttaswamy (2017) relied heavily on Maneka Gandhi’s approach in recognising privacy as a fundamental right.

Exam angle

• Basic facts: CLAT and AIBE ask the year (1978), the bench strength (seven judges), the statute (Passports Act, 1967) and the provision (Section 10(3)(c)).
• Overruling: Maneka Gandhi departed from the Gopalan approach. Expect “which case was overruled” questions.
• Golden triangle: Judiciary prelims and UGC NET test the inter-relationship of Articles 14, 19 and 21.
• Administrative law: For judiciary mains and UGC NET, use the case for audi alteram partem in administrative action and post-decisional hearing.
• Phrase recall: “Fair, just and reasonable” is the phrase to remember.

Quick quiz

Practise more

Constitutional law carries the largest share of CLAT PG and judiciary papers. Try the free CLAT PG 2027 mock, read 30 important Supreme Court judgments of 2026, and register for the All India CLAT Open Mock on 15 November.

Sources

• Supreme Court of India: Maneka Gandhi v. Union of India, (1978) 1 SCC 248; AIR 1978 SC 597 (Writ Petition No. 231 of 1977)
• Passports Act, 1967: Sections 10(3)(c) and 10(5)
• Constitution of India: Articles 14, 19 and 21
• Supreme Court of India: A.K. Gopalan v. State of Madras (1950)

Read this in Hindi: हिंदी में पढ़ें

Kesavananda Bharati v. State of Kerala, decided on 24 April 1973 by a 13-judge bench of the Supreme Court, held that Parliament can amend any part of the Constitution, including fundamental rights, but cannot alter or destroy its “basic structure”. The verdict was by a 7:6 majority, overruled Golak Nath (1967), and remains the foundation of constitutional review of amendments in India.

Background: the battle over the amending power

From the 1950s, Parliament and the Supreme Court were locked in a dispute over land reform and property rights. Parliament kept amending the Constitution to protect land reform laws, and the Court kept examining whether those amendments could cut down fundamental rights.

In Shankari Prasad (1951) and Sajjan Singh (1965), the Court held that Parliament could amend fundamental rights. Then, in I.C. Golak Nath v. State of Punjab (1967), an 11-judge bench by a 6:5 majority held that a constitutional amendment is “law” under Article 13, so Parliament could not take away or abridge fundamental rights.

Parliament responded with a series of amendments:

• 24th Amendment (1971): declared that Article 13 does not apply to amendments made under Article 368, and made clear that Parliament’s power under Article 368 extends to amending any provision.
• 25th Amendment (1971): replaced “compensation” with “amount” in Article 31(2) and inserted Article 31C, which protected laws giving effect to certain Directive Principles and barred courts from questioning a law that declared it was for that purpose.
• 29th Amendment (1972): placed two Kerala land reform laws in the Ninth Schedule.

Facts of the case

Swami Kesavananda Bharati was the head of the Edneer Mutt in Kasaragod, Kerala. The Mutt’s land was affected by Kerala’s land reform legislation. He challenged the Kerala laws, and the petition grew into a challenge to the validity of the 24th, 25th and 29th Amendments. The petitioners were led by senior advocate N.A. Palkhivala.

To reconsider Golak Nath, a bench of 13 judges was constituted, the largest in the Court’s history. Hearings ran for 68 days, from 31 October 1972 to 23 March 1973. Judgment was delivered on 24 April 1973. The case is reported as (1973) 4 SCC 225 and AIR 1973 SC 1461.

The bench and the 7:6 split

The judges wrote several separate opinions. Six judges in the majority found implied limits on the amending power. Six in the minority found none. Justice H.R. Khanna held the balance: he accepted that Parliament could amend every provision, including fundamental rights, but held that the word “amendment” does not include the power to abrogate the Constitution or change its basic structure or framework. His view therefore tipped the majority.

A short summary titled “View by the majority” was signed by nine of the thirteen judges. Its key line was that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

What the Court held

• Golak Nath overruled: a constitutional amendment is not “law” under Article 13. Parliament can amend any part, including Part III.
• 24th Amendment upheld.
• 25th Amendment: the change from “compensation” to “amount” was upheld, as was the first part of Article 31C. But the second part of Article 31C, which barred judicial scrutiny of a law merely because it declared that it gave effect to the Directive Principles, was struck down.
• 29th Amendment upheld.
• Basic structure limit: the amending power under Article 368 cannot be used to damage or destroy the basic structure of the Constitution.

What is “basic structure”?

The phrase does not appear anywhere in the Constitution. The Court did not give a closed list. Different judges in the majority mentioned features such as supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers and federal character. Later decisions have added others, including judicial review, rule of law, free and fair elections, and the limited nature of the amending power itself.

The Court has always treated the list as open. Whether a feature is basic is decided case by case.

Aftermath and later development

Supersession of judges

Two days after the judgment, on 26 April 1973, Justice A.N. Ray, who was in the minority, was appointed Chief Justice of India. Three senior judges from the majority, Justices Shelat, Hegde and Grover, were superseded. This was widely seen as a reaction to the verdict.

Indira Nehru Gandhi v. Raj Narain (1975)

The basic structure doctrine was applied for the first time to strike down an amendment. The Court invalidated the relevant part of the 39th Amendment, which had tried to put the election of the Prime Minister beyond judicial scrutiny, on the ground that free and fair elections are part of the basic structure.

The 42nd Amendment and Minerva Mills (1980)

The 42nd Amendment (1976) inserted clauses (4) and (5) in Article 368 to bar courts from questioning amendments and to declare that there was no limitation on the amending power. In Minerva Mills v. Union of India (31 July 1980), a five-judge bench struck these clauses down. It held that limited amending power is itself a basic feature, and that a limited power cannot be converted into an unlimited one.

Waman Rao and I.R. Coelho

The date of the Kesavananda judgment became a legal cut-off. In Waman Rao (1981), the Court used 24 April 1973 as the dividing line for testing Ninth Schedule additions against the basic structure. In I.R. Coelho (2007), a nine-judge bench held that laws placed in the Ninth Schedule after that date can also be examined against the basic structure.

Exam angle

• Numbers: 13 judges, 7:6 majority, decided 24 April 1973, 68 days of hearing. Expect these as one-liners in CLAT and AIBE.
• Amendment outcomes: Judiciary prelims ask which amendments were upheld (24th, 29th) and which part of the 25th (the second part of Article 31C) was struck down.
• Chronology: Shankari Prasad, Sajjan Singh, Golak Nath, Kesavananda, Indira Gandhi, Minerva Mills, Waman Rao, I.R. Coelho. Order-based questions are common in UGC NET.
• Khanna J: Know why his opinion is decisive, and do not confuse him with his dissent in ADM Jabalpur (1976).
• Not in the text: “Basic structure” is a judicial doctrine and is not written in the Constitution.

Quick quiz

Practise more

Constitutional law carries the largest share of CLAT PG and judiciary papers. Try the free CLAT PG 2027 mock, read 30 important Supreme Court judgments of 2026, and register for the All India CLAT Open Mock on 15 November.

Sources

• Supreme Court of India: Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461
• Supreme Court of India: Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789
• Constitution of India: Articles 13, 31C and 368; Constitution (Twenty-fourth, Twenty-fifth and Twenty-ninth Amendment) Acts
• LiveLaw: commentary on the 50th anniversary of the Kesavananda Bharati judgment (April 2023)

Read this in Hindi: हिंदी में पढ़ें

Article 32 gives every person a fundamental right to move the Supreme Court for enforcement of fundamental rights, while Article 226 empowers High Courts to issue writs for fundamental rights and also “for any other purpose”, meaning ordinary legal rights. Both courts can issue the five writs: habeas corpus, mandamus, prohibition, certiorari and quo warranto. Article 226 is wider in scope; Article 32 is itself a guaranteed fundamental right.

Why these two Articles matter

A right without a remedy is only a promise on paper. Articles 32 and 226 turn the rights in the Constitution into enforceable claims. When the State unlawfully detains, refuses to perform a legal duty, or acts beyond its powers, the writ jurisdiction allows a citizen to go straight to a constitutional court.

In L. Chandra Kumar v. Union of India (1997), a seven-judge bench held that the power of judicial review vested in the Supreme Court under Article 32 and in the High Courts under Articles 226 and 227 is part of the basic structure of the Constitution. Parliament cannot take it away even by constitutional amendment.

Article 32: right to constitutional remedies

Article 32 is in Part III, so the right to approach the Supreme Court is itself a fundamental right. It has four clauses:

• Clause (1): guarantees the right to move the Supreme Court “by appropriate proceedings” to enforce Part III rights.
• Clause (2): empowers the Supreme Court to issue directions, orders or writs, including the five named writs.
• Clause (3): allows Parliament to empower any other court to exercise these powers within its local limits, without affecting the Supreme Court’s powers.
• Clause (4): says the right shall not be suspended except as the Constitution provides.

Draft Article 25, which became Article 32, was debated in the Constituent Assembly on 9 December 1948. Dr B.R. Ambedkar described it as the most important article of the Constitution, calling it “the very soul of the Constitution and the very heart of it”.

In Romesh Thappar v. State of Madras (1950), the Supreme Court said it is the protector and guarantor of fundamental rights, and it cannot refuse to entertain applications seeking protection against infringement of those rights.

Article 226: power of High Courts to issue writs

Article 226 is in Part VI, in the chapter on High Courts. It is not a fundamental right, but it is a constitutional power and, because of L. Chandra Kumar, part of the basic structure. Its key features:

• A High Court can issue writs to any person or authority, including the government, within its territory.
• It can do so for enforcement of Part III rights and “for any other purpose”, so ordinary statutory and legal rights are also covered.
• Under clause (2), a High Court can issue writs even to an authority located outside its territory if the cause of action arises, wholly or in part, within its territory.
• Relief is discretionary. A High Court may decline, for instance, where an efficacious alternative remedy exists or the petitioner has delayed unreasonably.

Article 32 vs Article 226: the differences

The five writs

1. Habeas corpus

Meaning “you may have the body”. It directs a person or authority holding someone in custody to produce that person before the court and justify the detention. If the detention is unlawful, the court orders release. It lies against public authorities as well as private persons, and a relative or friend can file it for the detained person.

2. Mandamus

Meaning “we command”. It directs a public official, public body, corporation, lower court or government to perform a public duty it is legally bound to perform but has failed to do. It does not lie against a private individual or private body enforcing a purely private right, nor against the President or the Governor of a State, who are protected from court proceedings for official acts by Article 361.

3. Prohibition

Meaning “to forbid”. A higher court issues it to a lower court or tribunal to stop it from continuing proceedings in excess of its jurisdiction or without jurisdiction. It is preventive.

4. Certiorari

Meaning “to be certified”. A higher court issues it to quash an order already passed by a lower court, tribunal or authority, for excess or lack of jurisdiction, violation of natural justice or an error of law apparent on the face of the record. It is corrective. Courts have extended it to administrative authorities affecting the rights of individuals.

A simple way to remember: prohibition stops a proceeding before the decision; certiorari quashes the decision after it is made.

5. Quo warranto

Meaning “by what authority”. It asks a person holding a public office to show the legal authority under which he holds it. If the holder is not qualified or the appointment is illegal, the court can oust him. The office must be a substantive public office created by statute or the Constitution, not a private or merely ministerial post. Unlike the other writs, any member of the public may seek it, even without being personally aggrieved.

Exam angle

• “Heart and soul”: CLAT and AIBE love the question on which Article Ambedkar called the heart and soul of the Constitution. Answer: Article 32.
• Scope difference: Article 226 is wider because it covers “any other purpose”. This is the single most tested difference.
• Writ identification: Judiciary prelims give a fact pattern (illegal detention, illegal appointment, pending case without jurisdiction) and ask which writ fits.
• Basic structure: UGC NET and judiciary mains ask about L. Chandra Kumar (1997) and the status of judicial review under Articles 32, 226 and 227.
• Prohibition vs certiorari: Remember the timing test: before decision (prohibition) versus after decision (certiorari).

Quick quiz

Practise more

Constitutional law carries the largest share of CLAT PG and judiciary papers. Try the free CLAT PG 2027 mock, read 30 important Supreme Court judgments of 2026, and register for the All India CLAT Open Mock on 15 November.

Sources

• Constitution of India: Articles 32, 226, 359 and 361 (Legislative Department, Government of India)
• Constituent Assembly Debates, 9 December 1948 (draft Article 25)
• Supreme Court of India: Romesh Thappar v. State of Madras (1950)
• Supreme Court of India: L. Chandra Kumar v. Union of India, AIR 1997 SC 1125