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The history of legally enforceable fundamental rights probably starts from Magna Carta, which was a
list of rights extracted from Kind John by the people of England in 1214 AD. This was followed by the
"Bill of Rights" in 1689 in which Englishmen were given certain civil and political rights that could not
be taken away. Later on the French compiled the "Declaration of the rights of Man and of the Citizen"
after the French Revolution in 1789.
The most important advancement in history of fundamental rights occurred when the USA
incorporated certain fundamental rights in the form on "Bill of Rights" in their constitution by the way
of first 10 amendments. These rights were deemed to be beyond the vagaries of politics. The
protection by the constitution meant that these rights could not be put to vote and were not
dependent on the whims of politicians or of the majority.
After this, nearly all democracies of the world have given a constitutional sanctity to certain inalienable
rights available to their citizens
In enacting fundamental rights in part III of our Constitution, the founding fathers showed that they
had the will, and they were ready to adopt the means to confer legally enforceable fundamental rights.
First, against whom were the fundamental rights to be enforced? Broadly speaking, against the
State, not as ordinary understood but as widely defined by Art. 12.[viii]
Secondly, against what activity were fundamental rights enforceable? They were enforceable against
laws and executive actions, which violated fundamental rights. In brief, all laws contravening and/or
violating fundamental rights were declared to be pro tantovoid as defined in Art. 13.[ix]
Article 12 is the first Article in Part III of the Constitution of India. It states that:
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.[x]
Article 12 gives an extended significance to the term state. Art 12 clarifies that the term state
occurring in Art 13(2), or any other provision concerning Fundamental Rights, has an expansive
meaning.
The definition of Article 12 is only for the purpose of application of the provisions contained in Part III. It
cannot be used to interpret any provision outside Part III, e.g., Art. 311.[xiii] Within the territory of India
or under the control of the Government of India is limited in its application only to Part III and by virtue
of Art. 36, to Part IV: it does not extend to other provisions of the Constitution and hence a juristic
entity which may be a State for the purpose of Part III and Part IV would not be so for the purpose of
Part XIV or any other provisions of the Constitution.[xiv]
Hence, even though a body of persons may not constitute State within the instant definition, a writ
under Art. 226 may lie against it on the non-constitutional grounds or on ground of contravention of
some provisions of theConstitution outside Part III, e.g., where such body has a public duty to perform
or where its acts are supported by the State or public officials.
,the definition of State in Art. 12 will include not only the Executive and Legislative[xix] organs of the
Union and the States, but also local bodies (such as municipal authorities) as well as other
authorities,[xx] which include the instrumentalities and agencies of the State, or bodies or
institutions which discharge public functions of a governmental character,[xxi] or in other words, it
comprises all acts which can be brought within the fold of State action.
Definition of Authority:
Literally authority means a person or a body exercising power,[xxiii] or having a legal right to
command and be obeyed.[xxiv]
In Art. 12 State has not been defined. It is merely an inclusive definition. It includes all the
authorities within the territory of India or under the control of the Government of India
Local Authorities
A local authority having a legal grievance may be able to take out a writ. Thus, a writ was issued on
the petition of a local authority against a public utility concern, for the latters failure to fulfil its
statutory obligation to supply power to the local authority, a consumer;
Case Law:
Corporation of City of Nagpur v. N.E.L & Power Co., AIR 1958 Bom 498
OTHER AUTHORITIES
Laying down the propositions in Electricity Board, Rajasthan v. Mohan Lal case, the Supreme Court held
that other authorities would include all authorities created by the Constitution or statute on which
powers are conferred by law. It was not necessary that the statutory authority should be engaged in
performing government or sovereign functions
List of other authorities coming under Art. 12
List of other authorities coming under Art. 12:
There is no common feature running through the various bodies,[xxxv] which have been held to be
covered by the expression other authorities.
Doctrine of Severability
Article 13 of the Indian Constitution provides for Doctrine of Severability which states that All laws in
force in India before the commencement of Constitution shall be void in so far they are inconsistent
with the provisions of the Constitution.
A law becomes invalid only to the extent to which it is inconsistent with the fundamental rights. So
only that part of the law will be declared invalid which is inconsistent, and the rest of the law will
stand. However, on this point a clarification has been made by the courts that invalid part of the law
shall be severed and declared invalid if really it is severable, i.e if after separating the invalid part the
valid part is capable of giving effect to the legislatures
intent, then only it will survive, otherwise the court shall declare the entire law as invalid.
Case Laws:
A.K. Gopalan v. State 0f Madras held that the preventive detention minus section 14 was valid as the
omission of the Section 14 from the Act will not change the nature and object of the Act and therefore
the rest of the Act will remain valid and effective.
D.S. Nakara v. Union of India
the Act remained valid while the invalid portion of it was declared invalid because it was severable
from the rest of the Act.
R.M.D.C. v.Union of India, AIR 1957 S.c. 628
1. The intention of the legislature is the determining factor in determining whether the valid parts of a
statue are severable from the invalid parts.
2. If the valid and invalid provisions are so inextricably mixed up so that they cannot be separated
from the other, then the invalidity of a portion must result in the invalidity of the Act in its entirety.
3. Even when the provisions which are invalid, are distinct and separate from those which are invalid if
they form part of a single scheme which is intended to be operative as a whole, then also the invalidity
of a part will result in the failure of the whole.
4. If after the invalid portion is expunged from the Statute what remains cannot be enforced without
making alterations and modifications therein, then the whole of it must be stuck down as void as
otherwise it will amount to judicial legislation.
Doctrine of Eclipse
It states that an existing law which is inconsistent with a fundamental right become inoperative from
the date of the commencement of the constitution, it cannot be accepted as dead altogether. The
Doctrine of Eclipse is based on the principle that a law which violates fundamental rights, is not nullity
or void ab initio but becomes, only unenforceable i.e. remains in a moribund condition. It is over-
shadowed by the fundamental rights and remains dormant, but it is not dead. .
State of Gujarat vs. Ambica Mills SC AIR 1974 Overruled Deep Chands case and held that Doctrine
of Eclipse is
applicable to non-citizens.
Art. 13(2) provides that any law made by any legislature or other authority after the commencement of
the Constitution, which contravenes any of the fundamental rights included in Part III of the
Constitution shall, to the extend of the contravention, be void.
The modem tendency is to enforce the same law over all persons in the State and to give all persons
equal rights and privileges in the protection of their civil liberties. Democracy can only exist and
flourish in a society of equals.
The Constitution of India makes social and civil equality the bedrock of Indian polity. It guarantees
equality of all persons before the law, prohibits discrimination on grounds of religion, race, caste, sex
or place of birth as between citizens, and abolishes untouchability on the one hand and titles on the
other. The concept of equality of all persons before the law has a significant bearing and it is one of the
ingredients of what Dicey calls the Rule of Law. The Rule of Law means three things with Dicey. It
means, in the first place, the absolute supremacy of 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.
It is the core article under Right to Equality. It deals with two kinds of rights. It states that the State
shall not deny to any person
Right to equality before the law.
Right to Equal Protection before the law.
1. Right to Equality before the law
It is a negative concept because it means that no man is above the law or in other words all individuals
are subject to the Law of the land. Rule of law means the absolute supremacy of ordinary law of land
as opposed to the influence of arbitrary power of the ruler.
2. Equal protection before Law
It means equality of treatment in equal circumstances. Among equals the law shall be equal and
equally administered. The like should be treated alike. All the persons placed in equal circumstances
shall be treated similarly. Therefore, it ensures equality among equals. It does not mean inequality
among equals.
= It allows State to classify individuals on a reasonable basis into similar groups. Once such a
classification is made, the law shall apply equally among all the people within a group. Then no person
within a group shall be treated differently. However, the State is free to discriminate people between
the groups.
Art 15 states that the state shall not discriminate against any citizen on grounds only of religion, race,
caste sex, place of birth or any of them. This article ordains that no citizen shall be denied
Art. 16 guarantees equality of opportunity in matters of public employment. The article states that:
There shall be equality of opportunity for all citizens in matters relating to employment or appointment
to any office under the state. The article also forbids discrimination on grounds only of religion, race,
caste, sex, descent, and place of birth or any of them in matters of public employment. There are five
exceptions to prohibition of discrimination under Art. 16. (I) The Parliament may lay down residence
qualification for some appointments in states.
The state may reserve some appointments for backward classes if they are not adequately
represented in the state services.
Offices in the religious institutions may be kept reserved for the followers of the religion concerned.
Posts in the state services may be kept reserved for the scheduled castes and tribes.
Finally Art. 16 forbid discrimination in matters of state employment only on the grounds stated in the
article itself. It does not forbid preferential treatment on other grounds such as efficiency or mercy.
Art. 17 of the constitution says, Untouchability is abolished and its practice in any form is forbidden.
The position is further fortified by the Abolition of the Untouchability Act of 1955. Though the term
untouchability has not been defined in either the constitution or the Act of 1955, practice of
untouchability in any form is strictly forbidden. Refusing admission to public institutions like schools
and hospitals on grounds of untouchability is a punishable crime.
Art. 18 forbid titles except military or academic distinctions. Title from foreign governments such as
knighthood is forbidden. However honors conferred by the government of India such as Bharat Ratna
or Podmashri etc. are not titles but are only recognition of meritorious services. Right to equality in all
its forms are available to Indian constitutional remedies against the violation of fundamental right to
equality.
However the President is empowered to suspend the right during the pendency of a National
Emergency under Art 352 of the constitution
aricle 15 BP joshi v st of madhya bharat Air 1960 sc 1208
the rules of a medical college provided that non residents of the state would have to pay the capitation
fee for admision whereas the residents would not . sc held that the discrimainton is based on the place
of residents not on the place of birth hence it did not violates the art 15(1)
Lindsley v Natural Carbonic Gas Co, US SC 1910 and Chiranjit Lal v Union of India SC AIR 1951 are
important cases that illustrate the concept of equal protection of the laws. In these cases, the SC of
both the countries held that all persons similarly circumstanced should be treated equally. Only like
should be treated alike and thus a reasonable classification can be done.
Several cases such as Randhir Singh vs Union of India 1982 (Equal pay for equal work) illustrate the
principle of equality.
The SC judgment in Indra Sawhney vs Union of India AIR 1993 incorporates the element of fairness in
dealing with inequalities in the society, while balancing the aspirations of the socially forward classes.
There must be difference between the two things classified, and such difference must have some
connection and such difference must have some relation with the purpose with regard to the
classification made.
Thus what Article 14 forbids is class-legislation but it does not forbid reasonable classification. The
classification however must not be arbitrary, artificial or evasive but must be based on some real
and substantial foundation involving a just and reasonable relation to the object sought to be achieved
by the Legislation. Article 14 applies where equals are treated differently without any justifiable
reasonings.
In Chiranjeet Lal Chaudhary v/s Union of India, the Court observed that the Legislature is within its
power to determine and classify the subject of its laws, and if equal treatment in equal circumstances
is given, then there is no denial of equal protection before the Law.
LEGITIMATE EXPECTATION
it is not a legal right. It is an expectation of a benefit, relief or remedy that may ordinarily flow from a
promise or established practice. The term 'established practice' refers to a regular, consistent
predictable and certain conduct, process or activity of the decision-making authority. The expectation
should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic
or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate
expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by courts, for
judicial review of administrative action. It is procedural in character based on the requirement of a
higher degree of fairness in administrative action, as a consequence of the promise made, or practice
established."
Citizens of India are guaranteed the right of freedom of speech and expression. Every Indian, including
press reporters, can express ideas and views freely through press and public platform.
Freedom of expression enables one to express ones own voices as well as those of others. But
freedom of the press must be subject to those restrictions which apply to the freedom of speech and
expression. The restrictions mentioned in Article 19 are defamation, contempt of court, decency or
morality, security of the state, friendly relations with other states, incitement to an offence, public
order and maintenance of the sovereignty and integrity of India.
The status of freedom of the press is the same as that of an ordinary citizen. The press cannot claim
any immunity from taxation, is subject to the same laws regulating industrial relations, and press
employees are subject to the same laws regulating industrial employment.
Again, the press enjoys normal freedom of expression guaranteed by Article 19 of Indian Constitution.
Hence no law can be passed to abridge its freedom of expression, cannot be subjected to excessive or
prohibitive burdens to curtail its circulation and cannot be subjected to specific tax deliberately
imposed to limit circulation of information. In gist, the constitution does not grant any power to the
government to impose arbitrary restrictions on the press. Politicians in power often feel very tempted
to pass laws restricting press freedom, to withhold information likely to generate unfavorable reactions
among the people.
In 1976, during the emergency, the Parliament enacted the Prevention of Publication of Objectionable
Matter Act. The Janata Government in 1978 repealed the Act. However, the 44th amendment adopted
in 1978 has given the Parliament substantial powers to regulate press freedom. A new article, Article
361A has been added to the constitution with this object in view.
The censorship of the Press is a very crucial and sensitive issue in every democracy. In general press
censorship is regarded as very unhealthy check on the freedom of free expression of views. In India,
the constitution does not specifically forbid press censorship. Hence only check on the state in
resorting to censorship is that it should be reasonable. Even this check on the government was not
there before the 1st amendment of the constitution in 1951. But in two cases, Brij Bhusan vs. the State
of Delhi and Ramesh Thapar vs. State of Madras, the Supreme Court held that censorship imposes
obvious restrictions on freedom of speech and expression. After the last amendment, censorship is
permitted if it is reasonable and if it is called for in the interest of public order.
Thus the present position is censorship is valid in times of emergency if it is reasonable and if in the
interest of public order. In times of emergency under Article 352 censorship is valid when Article 19
itself stands suspended under Article 358 of the constitution
REASONable RESTRICTIONS
Art 19 (2) says that nothing in Art 19 (1) (a) shall affect the operation of any law or prevent the state
from making any law, in so far as such law imposes reasonable restrictions on exercise of the right
conferred by the said clause in the interest of -
sovereignty and integrity of the country.
security of the state
friendly relations with foreign states.
public order
decency and morality
defamation
contempt of court
incitement of an offence.
Reasonable restriction means intelligent care and discussion that the restriction is not beyond what is
required for public interest. It should not be arbitrary and excessive. Further, the restriction can only be
imposed by law and not by executive or departmental decision.
It is the courts and not the legislature that will decide whether a law is reasonable or not.
Reasonable means that the law is not arbitrary and the restriction is not beyond what is required in
public interest. The time and duration of the restriction cannot be unlimited.
There is no fixed standard for reasonableness. Each case must be decided on its own merits.
The restriction must be reasonable from substantiative as well as procedural stand point.
Restrictions imposed due to implementation of Directive Principles may deemed to be reasonable
Ranjit Udeshi vs State of Mah. AIR 1965 SC : In this case, a bookseller was prohibited from selling book
containing obscene material