John Locke’s Social Contract Theory and the Constitution of India: Convergence and Divergence
Social Contract Theory, nearly as old as philosophy itself, is the view that persons’ moral and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live. Socratesuses something quite like a Social Contract argument to explain to Critowhy he must remain in prison and accept the death penalty. However, Social Contract Theory is rightly associated with modern moral and political theory and is given its first full exposition and defense by Thomas Hobbes. After Hobbes, John Locke and Jean-Jacques Rousseau are the best known proponents of this enormously influential theory, which has been one of the most dominant theories within moral and political theory throughout the history of the modern West. In the twentieth century, moral and political theory regained philosophical momentum as a result of John Rawls’ Kantian version of Social Contract theory, and was followed by new analyses of the subject by David Gauthier and others.
So, basically, it was Hobbes, Locke, Rousseau and Kant who expounded the Social Contract Theory. According to this theory, the origin of the state is due to general agreement freely entered into by equal and independent individuals living in a state of nature to form themselves in to a community and obey a government established by them for the protection of their natural rights. According to this theory, the state is a result of an agreement between the people to unite together at the first instance, and then an agreement between the people and the ruler by which the authority and power was given to the ruler.
Social Contract Theory expresses two fundamental ideas to which the human mind always clings the value of liberty; the idea that “will” and not “force” is the basis of government; and the value of justice or the idea that “right” and not “might” is the basis of all political society and of every system of political order.
The theory seeks to explain the formation of societies and governments. Despite the great variations on some points, the Social Contract Theory mainly focuses on the voluntary consent that people give to the formation of the government.
Austin had criticized the theory of Social Contract on the ground that this theory cannot stand the test of scrutiny for there is hardly any historical evidence available showing that any political organization had been established in this manner. Sir Henry Maine also does not believe in the theory of the Social Contract. He says that in the primitive society there was hardly any value of promise. Moreover, in primitive society, he believes, the unit of society was not the individual but the family.
Although the antecedents of Social Contract Theory are found in antiquity, in Greek and Stoic philosophy and Roman and Canon Law, as well as in the Biblical idea of the covenant, the heyday of the Social Contract was the mid-17th to early 19th centuries, when it emerged as the leading doctrine of political legitimacy. The starting point for most Social Contract theories is a heuristic examination of the human condition absent from any political order that Thomas Hobbes termed the "state of nature". In this condition, individuals' actions are bound only by their personal power and conscience. From this shared starting point, Social Contract theorists seek to demonstrate, in different ways, why a rational individual would voluntarily consent to give up his or her natural freedom to obtain the benefits of political order.
Hugo Grotius (1625), Thomas Hobbes (1651), Samuel Pufendorf (1673), John Locke (1689), Jean-Jacques Rousseau (1762), and Immanuel Kant (1797) are among the most prominent of 17th- and 18th-century theorists of Social Contract and natural rights. Each solved the problem of political authority in a different way. Grotius posited that individual human beings had natural rights; Hobbes asserted that humans consent to abdicate their rights in favor of the absolute authority of government (whether monarchial or parliamentary); Pufendorf disputed Hobbes's equation of a state of nature with war.
However, it was the idea of natural rights that played an important role in the legal and political philosophy of Locke. He, in fact, made life, liberty, and property, his three cardinal rights, which greatly dominated and influenced the Declaration of American Independence in 1776. Locke’s view was that the state was designed to guarantee and protect natural rights of the individuals. His ‘inalienable’ rights of the individual came to be embodied in many Constitutions and were guaranteed to the individual.
John Locke’s Social Contract Theory
John Locke (29 August 1632 – 28 October 1704), was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers and known as the "Father of Classical Liberalism". Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to Social Contract Theory. He developed his Social Contract Theory in his famous book “Two Treatises on Civil Government (1690)”. His work greatly affected the development of epistemology and political philosophy. His writings influenced Voltaire and Rousseau, many Scottish Enlightenment thinkers, as well as the American revolutionaries. His contributions to classical republicanism and liberal theory are reflected in the United States Declaration of Independence.
The new political theories which emerged as a result of renaissance, favored absolute sovereignty of the State- undermining the importance of the individual. Therefore, in order to support the rights of the individual against the absolute power of the sovereign, a new interpretation of the natural law and Social Contract theories became more or less necessary. John Locke had witnessed the Glorious Revolution of 1688 and the wave of individualism in England which greatly influenced the political and legal theories in Britain at that time. He therefore, came out with a new interpretation of the Social Contract rejecting Hobbes’ earlier concept of state of nature.
State of Nature
Locke stated that the life in the state of nature was not as miserable and brutish as depicted by Hobbes, instead it was reasonably good and enjoyable. Unlike Thomas Hobbes, Locke believed that human nature is characterized by reason and tolerance. Like Hobbes, Locke believed that human nature allowed men to be selfish. In a natural state all people were equal and independent, and everyone had a natural right to defend his “Life, health, Liberty, or Possessions". According to him, the state of nature was a golden age except that the property was insecure. Property plays an essential role in Locke’s argument for civil government and the contract that establishes it. According to Locke, private property is created when a person mixes his labor with the raw materials of nature. So, for example, when one tills a piece of land in nature, and makes it into a piece of farmland, which produces food, then one has a claim to own that piece of land and the food produced upon it. (This led Locke to conclude that America didn’t really belong to the natives who lived there, because they were, on his view, failing to utilize the basic material of nature. In other words, they didn’t farm it, so they had no legitimate claim to it, and others could therefore justifiably appropriate it.) Given the implications of the Law of Nature, there are limits as to how much property one can own: one is not allowed to take more from nature than one can use, thereby leaving others without enough for themselves. Because nature is given to all of mankind by God for its common subsistence, one cannot take more than his own fair share. Property is the linchpin of Locke’s argument for the Social Contract and civil government because it is the protection of their property, including their property in their own bodies, that men seek when they decide to abandon the State of Nature.
It was for the purpose of protection of property that man entered into the ‘Social Contract’. By property was meant life, liberty and estate. Locke says “every man has a property in his own person”. Property was insecure because (i) there was no established law, nor (ii) an impartial judge, and (iii) the natural power to execute natural law was not always commensurate with the claim. To remedy this flaw man entered into the Social Contract by which he yields to the sovereign, not all his rights, but only the power to preserve order and enforce the law of nature. People made two contracts, namely social and political contracts. The Social Contract was made between the people themselves. They surrendered only some of their rights- the right of interpreting and enforcing the law of nature. It was only a limited surrender and not a complete surrender of their rights. Moreover, they surrendered their rights to the community as a whole and not to any particular individual. Thus, they established a civil society. The second contract, called the governmental contract was made between the people and the rule. It was made to enforce the first contract. By this the government came into existence. The state of nature was put to an end by means of these two contracts.
Government as a Trust
Thus, the individual retained the natural rights to life, liberty and estate, for they were the natural and inalienable rights of man. The purpose of government and law is to uphold and protect the natural rights. So long as the government fulfils their purpose, the laws given by it are valid and binding but when it ceases to do that, its law have no validity and the people have a right to revolt against the government and overthrow it. The state of nature which precedes the Social Contract, was not one of anarchy, as Hobbes had imagined, but was ‘a state of liberty, not of license’. Locke advocated a state for the general good of the people; the subject conditionally surrenders his liberty to the sovereign.
It may be stated that Locke’s idea of Social Contract was founded on new secular approach to natural law whereby the power of the government was conceded on trust by the people to the rulers and any infringement of the conduct by the rulers was treated as a breach of the people’s fundamental natural rights which justified revolt against the government. Locke pleaded for a constitutionally limited government. The nineteenth century doctrine of laissez faire was the result of individual’s freedom in matters relating to economic activities which found support in Locke’s theory. Unlike Hobbes who supported State authority, Locke pleaded for the individual liberty.
John Locke argued that sovereignty resided in the people for whom governments were trustees and that such government could be legitimately overthrown if they failed to discharge their functions to the people. He attempted to erect effective safeguards against violations of natural law by the government. Locke said that the sovereign did not take all rights; the principal rights remained with the people. Locke’s Social Contract was devoted to sovereignty and law. Sovereignty derived from the people’s will. This will remained with the people. He argued that sovereignty did not reside in the state but with the people, and that the state was supreme, but only if it was bound by civil and natural law.
Locke believed in the governed as the basis of sovereignty and the state as the guarantor of individuals’ liberty. To Locke, under Social Contract power was surrendered not to the sovereign but to the community. He said there and there only was a political society where everyone in the society had quitted his natural power, resigned it up into the hands of the community. John Locke used the phrase “there and there only” to emphasize the importance of the WILL of the people in forming a political society. Thus, every member of the community surrendered his natural power with free will explicitly or implicitly and resigned it into the hands of the community in exchange for the discharge of functions to the people, hence a political society becomes with power to preserve property and punish offences. However, the power cannot be more than that the people had in a state of nature before they entered into a society and gave it to the community for nobody can give more than what he has. The term community as is used by John Locke above signifies the government of the people by the people for the people, thus community rights should prevail over individual rights and the rights are surrendered into community because the sovereign is the people and only comes from the people. Thus, hands of the community mean the governor who is governing by the WILL of the people.
Separation of Powers
Locke, thus championed a constitutionally limited sovereign and framed the doctrine of separation of powers. The legislative power creates the rules to give effect to and protect the inalienable rights. There is the executive power by which the law is enforced; and there is the federative power which concerns the making of war and peace and controls the external relations of the state. Locke says that it is desirable to confer legislative and executive powers in different organs because there is the danger of entrusting the law makers with the power to carry out the laws which they themselves make. He did not advocate separation between the executive and federative power, since both are dependent on force.
A Comparative Analysis of John Locke’s Social Contract Theory and the Constitution of India.
John Locke’s Social Contract Theory is very much reflected in the Constitution of India. According to Locke’s theory, man in the ‘State of Nature’ felt the need to protect their property and for the purpose of protection of their property, men entered into the “Social Contract”. Under the contract, people came together and made two agreements, namely, Pactum Unionis and Pactum Subjectionis. Through the Pactum Unionis, the people formed an association in order to move themselves from the state of nature into civil society thereby making an attempt to sought protection of their lives and property. As a result of it, a society was formed where people undertook to respect each other and live in peace and harmony. The Pactum Unionis was made between the people themselves wherein they surrendered their rights to the community as a whole and not to any particular individual thereby creating a political society and government through their consent. Through the Pactum Subjectionis the people united together and pledged to obey an authority and surrendered part of their freedom and rights to the authority. The authority, on the other hand guaranteed to everyone protection of life, property and to a certain extent liberty. The Pactum Subjectionis was made between the people and the rule. Thus, through the second agreement the people empowered the authority to enforce the initial agreement i.e., the Pactum Unionis.
The Preamble to the Constitution of India begins with the phrase “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN…”. This shows the people of India coming together to form a sovereign authority i.e., the Sovereign of India. This can aptly be related to the Pactum Unionis as described in Locke’s theory. The Preamble ends with “… DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.” This reflects the attempt made by the people of India to unite together and pledge to obey an authority i.e., the Constitution of India thereby forming the Government of India. Thus, the people of India enter into a contract to ensure the certainty and security to their lives, liberties and properties.
According to Locke, under the Social Contract the people did not surrender all their rights to the sovereign authority i.e., the Government, but they surrendered only the right to preserve/maintain order and enforce the law of nature. The individual retained with them the other rights i.e., right to life, liberty and estate because these rights were considered natural and inalienable rights of men. Thus, we see that Locke advocates a limited surrendering of rights by the people.
The Constitution of India contains a long list of Fundamental Rights (Articles 14 to 35) in Part III. These rights are regarded as fundamental because they are most essential for the attainment of full intellectual, moral and spiritual status of the individual. Under Article 21 the Constitution of India ensures to every citizen the protection of life and personal liberty. It is supplemented by Articles 20 and 22 which provides the necessary safeguards to prevent against unjust and illegal conviction and detention of a person. In the historical decision of Maneka Gandhi v. Union of India, Bhagwati J., observed, “ the Fundamental Rights represent the basic values cherished by the people of the country (India) since the vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a ‘pattern of guarantee’ on the basic structure of human rights, and impose negative obligations on the state not to encroach on individual liberty in its various dimensions”. Thus, we see that the state is limited in its power to encroach upon the Fundamental Rights and liberties as guaranteed under the Constitution of India. This is reflected under Article 359 of the Constitution of India which states that in case of National Emergency proclaimed by the President of India under Article 352 and 358, the fundamental rights under Article 19 will automatically be suspended. However, Articles 20 and 21 cannot be suspended even during emergencies thereby restricting the sovereign authority to curtail the Right to Life which is a natural right.
Prior to the 44th Amendment to the Constitution of India the Right to Property was a fundamental right under Article 19 (1) (f). However, with the 44th Amendment, the Right to Property was removed from Part III and inserted in Article 300A. This was done in order to ensure an economic welfare pattern. However, in case the statutory authority deprives an individual from his personal property for the sake of public interest, there has to be a fair compensation made to that individual for his loss of property thereby withholding Locke’s view of ‘fair compensation’.
However, if people are given complete and absolute liberty without any social control, the result would be ruin. Liberty has to be limited. For liberty of one must not offend liberty of others. In A.K. Gopalan v. State of Madras, Patanjali Shastri J., observed, “man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desire by other individuals.” Thus, the fundamental rights guaranteed under Article 19(1) (a), 19(1) (b), 19 (1) (c), 19 (1) (d), 19 (1) (e) are restricted by the Article 19 (2), 19 (3), 19 (4), 19 (5) and 19 (6). Also Article 21, though cannot be suspended but nonetheless, it can be limited according to the procedure established by law. However, such restrictions should be just and reasonable. In Maneka Gandhi v. Union of India, it was held that the order withholding the reasons for impounding the passport was not only in breach of statutory provisions (Passport Act) but also in violation of the rule of natural justice. The principle of reasonableness, which is an essential element of equality or non-arbitrariness, pervades Article 14. This ensures that the procedure depriving a person of his ‘life or personal liberty’ must be just, fair and reasonable. It must satisfy the requirement of natural justice which is an essential component of fair procedure under Article 21.
The phrase ‘reasonable restrictions’ in Article 19(6) means that the restrictions imposed on a person in the enjoyment of his rights should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ‘reasonable’ implies intelligent care and deliberation which reason dictates.
In Locke's Letter Concerning Toleration, he develops several lines of arguments that are intended to establish the proper spheres for religion and politics. His central claims are that government should not use force to try to bring people to the true religion and that religious societies are voluntary organizations that have no right to use coercive power over their own members or those outside their group, thereby barring governments from using force to encourage people to adopt religious beliefs. This, is also reflected in the Constitution of India wherein under Articles 25 and 26 it guarantees religious freedom to every citizen. However, such freedom is not absolute and can be obstructed on the ground of public health and morality and to uphold the secular character of the Constitution of India.
Moreover, Locke claims that legitimate government is based on the idea of separation of powers. First and foremost of these is the legislative power. Locke describes the legislative power as supreme (Two Treatises) in having ultimate authority over “how the force for the commonwealth shall be employed”. The legislature is still bound by the law of nature and much of what it does is to set down laws that further the goals of natural law and specify appropriate punishments for them. The executive power is then charged with enforcing the law as it is applied in specific cases. Interestingly, Locke’s third power is called the “federative power” and it consists of the right to act internationally according to the law of nature. Since countries are still in the state of nature with respect to each other, they must follow the dictates of natural law and can punish one another for violations of that law in order to protect the rights of their citizens. This, therefore, contains the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth.
The Indian Constitution also embodies Locke’s theory of separation of powers to some extent, the only difference being that instead of the ‘federative power’ as propounded by Locke in his theory of separation of power, the Constitution of India has adopted the ‘judicial power’ as the third branch of the Government. Under Article 50 of the Constitution of India the judicial power is separated from the executive power in order to endure the independence of the judiciary. The legislative power is established under the Articles 245, 246, 248, 249, 250, 252, 253 and 368 r/w the Seventh Schedule of the Indian Constitution.
Parliamentary democracy existing in the modern day India today is mainly influenced by John Locke’s idealism. His ideas gave theoretical form to the reaction against absolutism and the preparation of parliamentary democracy.
Moreover, John Locke’s doctrines of liberty and equality have exercised a strong influence upon Fundamental Rights as guaranteed under the Constitution of India. Liberty and equality of an individual are highly respected and thus protected by the government and sovereignty resides in the people as per John Locke’s ideas.
Political power derived from Social Contract entails such power coming from the people and not from above, whether from divine law or the grace of God. Thus, Social Contract Theory of John Locke is a forerunner of democratic theory i.e. the government of the people, by the people and for the people. Thus, the modern democratic government as we see in India, i.e., adhering to free and fair election principles have their basis in social contract theory.
It can thus be said that Social Contract Theory is exercised in India through the elections of some people to form the government. The major problem facing our country is non adherence by the governments to the Social Contract principles as propounded by John Locke. The said principles require the government and the people to exist under Pactum Unionis and Pactum Subjectionis with due respect and adherence to the duties and rights arising there from. In every political community of people there is a Constitution and the Constitution is supposed to reflect the WILL of the people. And since the Constitution of India reflects the WILL of the people, it then enjoins every person to abide the provisions of this Constitution, that is, to live according to their agreed procedures and respect the community. The jurisprudence behind Social Contract Theory is to promote peace and harmony as that it is the bed rock of democratic societies such as India.
The Constitution of India
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# Thomas Hobbes of Malmesbury (5 April 1588 – 4 December 1679), in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy. His 1651 book Leviathan established social contract theory, the foundation of most later Western political philosophy, available at http://en.wikipedia.org/wiki/Thomas_Hobbes, visited on 9th September, 2014.
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# Immanuel Kant (22 April 1724 – 12 February 1804) was a German philosopher who is widely considered to be a central figure of modern philosophy. He argued that fundamental concepts structure human experience, and that reason is the source of morality. His thought continues to have a major influence in contemporary thought, especially the fields of metaphysics, epistemology, ethics, political philosophy, and aesthetics, available at http://en.wikipedia.org/wiki/Immanuel_Kant, visited on 9th September, 2014.
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# John Austin (3 March 1790 – 1 December 1859) was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence, available at http://en.wikipedia.org/wiki/John_Austin_(legal_philosopher), visited on 9th September, 2014.
# Sir Henry James Sumner Maine, (15 August 1822 – 3 February 1888), was a British comparative jurist and historian. He is famous for the thesis outlined in Ancient Law that law and society developed "from status to contract." Maine can be seen as one of the forefathers of modern sociology of law, available at http://en.wikipedia.org/wiki/Henry_James_Sumner_Maine, visited on 9th September 2014.
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# No person shall be deprived of his life or personal liberty except according to procedure established by law.
# Protection in respect of conviction for offences.
# Protection against areest and detention in certain cases.
# AIR 1978 SC 597
# Suspension of the enforcement of the rights conferred by Part III during emergencies.
# Proclamation of Emergency by the President of India.
# Suspension of provisions of Article 19 during emergencies.
# Protection of certain rights regarding freedom of speech etc.
# Omitted from Part III of the Indian constitution and inserted as Article 300A by the 44th Amendment to the Constitution of India.
# Persons not to be deprived of property save by authority of law.
# AIR 1951 SC 21
# AIR 1978 SC 597
# 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 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
# The State shall not be prevented from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by this Article and, in particular, nothing in this 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.
# Dr. S.R. Myneni, “Jurisprudence (Legal Theory)”, Asia Law House, Hyderabad, 2012 P.416.
# Richard Aaron, “John Locke”, Oxford University Press, Oxford, 1937, P. 85
# Freedom of conscience and free profession, practice and propagation of religion
# Freedom to manage religious affairs subject to public order, morality and health.
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# Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State No law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation.
# Subject matter of laws made by Parliament and by the Legislatures of States
# Residuary powers of legislation
# Power of Parliament to legislate with respect to a matter in the State List in the national interest
# Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation
# Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State
# Legislation for giving effect to international agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body
# Power of Parliament to amend the Constitution and procedure