You are on page 1of 129

SALIENT FEATURES OF

CONSTITUTION OF INDIA
JANUARY 1, 2017

The constitution of India is unique in many ways. It has several special features that distinguish
it from other constitutions of the world such as:

(1) Size of the Constitution– It is the lengthiest Constitution ever given to any nation. It is a
very comprehensive document and includes many matters which could legitimately be the
subject matters of ordinary legislation or administrative action. This happened because the
government of India Act, 1935, which was after all basically a statute, was used as a model and
an initial working draft and large portions of it got reproduced in the constitution.

(2) Types of Constitution (written or unwritten): Constitutions may be written like the US
constitution or unwritten and based on conventions like the British. Indian constitution is written
even though conventions also play a part insofar as they are in keeping with the provisions of the
constitution. It originally contained 395 articles and 8 schedules. It presently contains 395
articles (total number-448) divided into 22 parts and 12 schedules.

Rigid or Flexible: Constitutions may be called rigid or flexible on the ground of the amending
procedure being difficult or easy. Federal constitutions are usually classified as rigid because of
their difficult amending processes. Indian constitution may be said to be a combination of rigid
and flexible inasmuch as certain provisions of the constitution can be amended like ordinary
legislation by simple majority in the houses of parliament, other provisions can be amended by a
special majority.

(3) Parliamentary or Presidential system of government- India is a republic (i.e. the supreme
power rests in all the citizens entitled to vote- the electorate, and is exercised by representatives
elected, directly or indirectly, by them and responsible to them) and the head is the president in
whom all the executives power vests and in whose name it is to be exercised. He is also the
supreme commander of the armed forces. However, unlike the US president, Indian president is
only a nominal or constitutional head of the executive; he acts only with the aid and advice of the
real political executive which is the council of ministers. The ministers are collectively
responsible to the popular house of parliament.

It would, however, be wrong to assert that we have adopted the British parliamentary system in
toto. There are several fundamental differences and departures. To name a few; the UK
constitution is still largely unitary, while ours is largely federal. They are a monarchy with a
hereditary king while we are a republic with an elected president. Unlike the British, we have a
written constitution and our parliament, therefore, is not sovereign and legislation passed by it is
subject to judicial review. Our constitution includes a charter of justiciable fundamental rights
which are enforceable by the courts not only against the executive but also against the legislature
unlike the position in UK.

Dr. Ambedkar had said in the constituent assembly: “the draft constitution in recommending the
parliamentary system of executive has preferred more responsibility to more stability.” However,
some commentators argue that it causes political instability and dysfunction viz. hung
parliaments or compulsions of coalition dharma.

(4) Parliamentary Sovereignty or Judicial Supremacy in India- The constitution has arrived
at a compromise between the British sovereignty of parliament and American judicial
supremacy. We are governed by the rule of law and judicial review of administrative action is an
essential part of rule of law. Thus, courts can determine not only the constitutionality of the law
but also the procedural part of administrative action. But, since we have a written constitution
and the powers and functions of every organ are defined and delimited by the constitution, there
is no question of any organ – not even parliament – being sovereign. Both parliament and the
Supreme Court are supreme in their respective spheres. While the Supreme Court may declare a
law passed by parliament ultra vires as being violative of the constitution, parliament may within
certain restrictions amend most parts of the constitution.

(5) Universal Adult Franchise: – Dr. Ambedkar said in the constituent assembly that by
parliamentary democracy we mean ‘one man, one vote’. Almost as an act of faith, the founding
fathers decided to opt for ‘universal adult suffrage’ with every adult Indian without any
distinction at once having equal voting rights. This was particularly remarkable in the context of
the vast poverty and illiteracy of the Indian populace.
(6) Secular State India has been declared secular state because of its policy of non-
discrimination towards any religion. All religions are held equally in high esteem by the state and
there is no state religion (unlike a theocratic state) or a preference for a particular religion.

(7) Charter of Fundamental Rights: – Fundamental rights incorporated in part III of the
constitution are the inviolable rights of the individual against the state. Any law or executive
action depriving an individual citizen of his freedom, for example, can be challenged in the
Supreme Court or High Court. The constitution also lays down the machinery and mechanism
for the enforcement of these rights. In the US Constitution, the fundamental rights were
expressed in absolute terms. But there can be no absolute individual rights. For, the rights of
each individual are limited at least by similar rights of other individuals.

(8) Directive Principles: – The directive principles of state policy inspired by the Irish precedent
are a unique feature of our constitution. Most of the socio-economic rights of the people have
been included under this head. Even though said to be not enforceable in courts of law, these
principles are expected to guide the governance of the country. They are in the nature of ideals
set by the founding fathers before the state and all the organs of the state must strive to achieve
them. In recent years, the directive principles have increasingly assumed greater relevance and
importance not only for the legislatures but also in the eyes of the courts.

(9) Fundamental Duties: – The 42nd amendment to the constitution inter alia added a new part
to the constitution under the head fundamental duties. It lays down a code often duties for all the
citizens of India. Inasmuch as there can be no rights without corresponding duties and rights of
citizens have no meaning without respect for political obligations of the citizens towards the
state, it is unfortunate that the code of fundamental duties of the citizens has not so far been
accorded the importance it deserves.

(10) Citizenship: – In keeping with their aim of building an integrated Indian fraternity and a
united nation, the founding fathers provided the ‘one single citizenship’ despite the federal
structure. In federal states like USA and Switzerland, there is a dual citizenship, viz., the federal
or national citizenship and the citizenship of the state where a person is born or permanently
resides. Unlike the US, there was to be no separate citizenship of the union and of the states and
all citizens were entitled to same rights all over the country without any discrimination subject to
a few special protections in case of the state of Jammu and Kashmir, tribal areas etc.
(11) Independent Judiciary – The constitution of India establishes an independent judiciary
with powers of judicial review. The High Courts and the Supreme Court form a single integrated
judicial structure with jurisdiction over all laws – union, state, civil, criminal or constitutional.
Unlike the US, we do not have separate federal and state court systems. The entire judiciary is
one hierarchy of courts. it not only adjudicates disputes and acts as the custodian of individual
rights and freedoms but also may from time to time need to interpret the constitution and review
legislation to determine its vires vis-a-vis the constitution.

(12) Union and its Territories: – The constitution of India does not protect territorial integrity
of states. Part 1 of the constitution comprising articles 1 to 4 provides a self-contained
mechanism for effecting changes in the constitution of states or union territories of the union of
India. There are at present 29 states and 7 union territories in the union of India.

(13) Special status of Jammu and Kashmir: – By virtue of article 370 of the constitution, the
state of Jammu & Kashmir enjoys a special status within the Indian union. It is the only state
possessing a separate constitution which came into force on 26th January, 1957. However, it is
included in the list of states in the first schedule of the constitution of India. The jurisdiction of
parliament is limited to matters in the union list and only some matters in the concurrent list. The
provisions of Indian constitution did not automatically apply to Jammu and Kashmir. They were
gradually made applicable (some in modified form) under article 370. Art. 370 was incorporated
in the constitution in pursuance of the commitment made by pundit Jawaharlal Nehru to
maharaja Hari Singh in October 1947 at the time of signing the instrument of accession of
Jammu and Kashmir to India.

(14) Panchayati Raj and Nagar Palika institutions: – The constitution 73rd amendment act,
1992 and the 74th amendment act, 1992 have added new parts 9 and 9-A to the constitution.
Under these two parts, 34 new articles (243 to 243-ZG) and two new schedules (11 and 12) have
been added. These amendments do not apply to the states of Meghalaya, Mizoram, Nagaland and
j & k, union territory of Delhi, hill areas in Manipur and Darjeeling in West Bengal. Also, these
do not apply unless extended to scheduled areas and tribal areas under article 244.
PREAMBLE TO THE
CONSTITUTION OF INDIA
SEPTEMBER 16, 2016

The preamble to the Constitution of India is a brief introductory statement that sets out the
guiding purpose and principles of the document. The preamble-page, along with other pages of
the original Constitution of India was designed and decorated solely by renowned painter Ram
Manohar Sinha of “Jabalpur”. As such, the page bears Deodhar Ram Manohar Sinha’s short
signature Ram in Devanagri lower-right corner.

That the preamble is not an integral part of the Indian Constitution was first decided upon by the
Supreme Court of India in the Beru Bari case; therefore it is not enforceable in a court of law.
However, the Supreme Court of India has, in the Kesavnanda case, recognised that the preamble
may be used to interpret ambiguous areas of the constitution where differing interpretations
present themselves. In the 1995 case of Union Government vs. LIC of India also the Supreme
Court has once again held that the Preamble is an integral part of the Constitution.

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to
all its citizens:

JUSTICE, social, economic and political;

LIBERTY, of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; ”

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO


HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Enacting formula

It signifies the democratic principle that power ultimately rests in the hands of the people. It also
emphasizes that the constitution is made by and for the Indian people and is not given to them by
any outside power (such as the British Parliament). The wording is close to the preamble to the
constitution, which had been adopted in 1937; it reads “We, the people of India … Do hereby
adopt, enact, and give to ourselves this Constitution”. The phrase “we the people” emphasizes
upon the concept of popular sovereignty as laid down by J. J. Rousseau. All the power emanates
from the people and the political system will be accountable and responsible to the people.

Sovereign

The word sovereign means supreme or independence. India is internally and externally sovereign
– externally free from the control of any foreign power and internally, it has a free government
which is directly elected by the people and makes laws that govern the people. She allies in
peace and war. The Popular sovereignty is also one of the basic structures of constitution of
India. Hence, Citizens of India also enjoy sovereign power to elect their representatives in
elections held for parliament, state legislature and local bodies as well. People have supreme
right to make decisions on internal as well as external matters. No external power can dictate the
government of India. All the people are free in a limit to do their work in their own opinion.

Socialist

The word socialist was added to the Preamble by the Forty-second Amendment during the
Emergency in 1976. It implies social and economic equality. Social equality in this context
means the absence of discrimination on the grounds only of caste, colour, creed sex, religion or
language. Under social equality, everyone has equal status and opportunities. Economic equality
in this context means that the government will endeavour to make the distribution of wealth
more equal and provide a decent standard of living for all. This is in effect emphasized a
commitment towards the formation of a welfare state. India has adopted a socialistic and mixed
economy and the government has framed many laws to achieve the aim.

Secular
The word secular was added to the Preamble by the Forty-second Amendment during the
Emergency in 1976. Citizens have complete freedom to follow any religion, and there is no
official religion. The Government treats all religious beliefs and practices with equal respect and
honour.

Democratic

The first part of the preamble “We, the people of India” and, its last part “give to ourselves this
Constitution” clearly indicate the democratic spirit involved even in the Constitution. India is a
democracy. The people of India elect their governments at all levels (Union, State and local) by a
system of “one man one vote”. Every citizen of India, who is 18 years of age and above and not
otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any
discrimination on the basis of caste, creed, colour, sex, religion or education.

Republic

As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a
lifetime or until he abdicates from the throne, a democratic republic is an entity in which the
head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected
by an electoral college for a term of five years. The post of the President of India is not
hereditary. Every single citizen of India is eligible to become the President of the country. The
leaders of the state and local bodies are also elected by the people in similar manner.

These objectives are four in number: ‘Justice’, ‘Liberty’, ‘Equality’ and ‘Fraternity’. The essence
of justice is the attainment of the common good. It embraces the entire social, economic and
political spheres of human activity.

The term ‘liberty’ used in the Preamble is not merely a negative, but a positive concept. It
signifies not only the absence of any arbitrary restraint on the freedom of individual action but
also the creation of conditions which are essential for the development of the personality of the
individual. ‘Liberty’ and ‘Equality’ are complementary. Equality does not mean that all human
beings are equal mentally and physically. It signifies equality of status, the status of free
individuals and availability of opportunity to everyone to develop his potential capacities.
Finally, it is the spirit of brotherhood that is emphasised by the use of the term “fraternity” in the
Preamble. India being a multilingual and multi-religious state, the unity and integrity of the
nation can be preserved only through a spirit of brotherhood that pervades the entire country,
among all its citizens, irrespective of their differences.

The Preamble of the Constitution of India is one of the best of its kind ever drafted. Both in ideas
and expression it is a unique one. It embodies the spirit of the constitution to build up an
independent nation which will ensure the triumph of justice, liberty, equality and fraternity. One
of the members of the Constituent Assembly (Pundit Thakur Das Bhargav) rose to poetic heights
when he said, “The Preamble is the most precious part of the Constitution. It is the soul of the
Constitution. It is a key to the Constitution. It is a jewel set in the Constitution.”[1]

Amendment of Preamble

In Berubari case, the Supreme Court held that preamble is not a part of Constitution and thus not
a source of any substantive powers and doesn’t import any limitations. However, in
Keshavanand’s case the court held that preamble is part of Constitution and it is of extreme
importance; and Constitution should be read and interpreted in the light of grand and noble
vision expressed in preamble. In fact the preamble was relied on in imposing implied limitations
on amendment under the art. 368 and held that since preamble is part of Constitution, It can be
amended, but ‘basic features in it can’t be amended. As edifice of our Constitution is based upon
these features and if they removed, it will not be the ‘same’ Constitution. Amending power can’t
change the Constitution in such a way that it ceases to be a ‘sovereign democratic republic.

It may be noted that in exercise of the amending power under art. 368, The Constitution (42nd)
amendment act, 1976 amended the preamble inserting the terms ‘socialist’, ‘secular’ and
‘integrity.
PREAMBLE : A SOURCE TO THE
MOST IMPORTANT DOCUMENT
OF THE COUNTRY
“CONSTITUTION OF INDIA’, 1950
MARCH 9, 2017

THE PREAMBLE: SOURCE OF THE CONSTITUTION

Every Constitution either written or unwritten all over the world has a preamble associated with
it. It generally sets the ideals and goals which the makers of the Constitution intend to achieve
through that Constitution.[1] Therefore, it is also regarded as a “key to open the mind of the
makers of the constitution which may show the general purposes for which they made the
constitution.[2] For that reason the preamble is also a legitimate aid in the interpretation of the
provisions of the Constitution. Generally, for the purpose of interpretation, the preamble of the
Constitution stands on the equal footing as the preamble of an Act.[3] The preamble indicates the
source from which the constitution comes viz. the people of India. It is ordained by the people of
India through their representatives assembled in a sovereign constituent assembly. The preamble
declares clearly that it is the people of India who have adopted, enacted and given to themselves
the constitution. The preamble embodies the great purposes, objectives and the policy underlying
its provisions apart from the basic character of the state which was to come into existence i.e. a
sovereign democratic republic. The preamble to the Indian constitution reads:

“We, the people of India, having solemnly resolved to constitute India into a sovereign,
socialist, secular, democratic republic and to secure to all its citizens:

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and of opportunity;


And to promote among them all

Fraternity assuring the dignity of the individual and the unity and integrity of the nation:

In our constituent assembly, this twenty-sixth day of November 1949, do hereby adopt, enact
and give to ourselves this constitution.” (the words ‘socialist’ and ‘secular’ have been added to
the preamble by the 42nd amendment act, 1976. also, ‘unity of the nation’ was amended to read
‘unity and integrity of the nation’).

The objectives of the preamble are: justice, liberty, equality and fraternity. The ultimate goal is
that of “securing the dignity of the individual and unity and integrity of the nation.” The
preamble sets out the aims and aspirations of people, and these have been translated into various
provisions of constitution. The people will continue to be governed under the constitution so
long as it is acceptable to them and its provisions promote their aims and aspirations. Following
the course of Indian history and pattern of Indian politics, it may be said that, unlike the western
society, it is the elite of Indian society rather than people themselves who have set the tone for
reformation of society.[4] The constitution though not ratified by people, came into force in
1949.

Besides the fact that the preamble provides it is the people of India who have enacted and given
to themselves the constitution, the successful working of the constitution and its continued
acceptance by people over the years, leads to no other conclusion that the binding force of
constitution is the sovereign will of people of India. In Powell v. Kempton Park Race
Course,[5] Lord Halsbury LC said: “ Two propositions are quite clear: one that a preamble may
afford useful light as to what the Statute intends to reach; and another, that if an enactment is
itself clear and unambiguous, no preamble can qualify or cut down the enactment.”

If at any stage of history, the people find that constitution is not serving the needs of society, they
may set in motion a machinery which provides for a system suited to aims and aspirations of
people. it may, therefore, be rightly observed that the ‘sovereignty’ lies with the people of India
– preamble declares that source of authority under the constitution is the people of India
(sovereignty, is not located in parliament, as it is bound by constitution…. which in a sense may
appear to be sovereign as it is supreme law. however, it is the people who have given …
constitution). Thus, the source of the constitution are the people themselves from whom the
constitution receives its ultimate sanction. The constitution has not been imposed on them by any
external authority, but is the work of the Indians themselves.

UTILITY OF PREAMBLE

The preamble represents the quintessence, the philosophy, the ideals, the soul or spirit of the
entire constitution of India. It had the stamp of “deep deliberation”, was “marked by precision”:
it was “an epitome” of the broad features of the constitution which were an amplification or
concretization of the concepts set out in the preamble[6]. The preamble does not grant any power
but it gives a direction and purpose to the constitution. The utility of the preamble is as follows:

1. It contains the enacting clause which brings the constitution into force.
2. It indicates the source of constitution.
3. It declares the basic type of government and polity which is sought to be established in
the country.
4. A statement of objectives of the constitution – which the legislation is intended to achieve
(example implementation of directive principles). It epitomizes principles on which the
government is to function.
5. It serves as a challenge to the people to adhere to the ideals enshrined in it (justice,
liberty, equality, fraternity, etc.).
6. It is a sort of introduction to the statute and many a times very helpful to understand the
policy and legislative intent. It is a ‘key-note’ i.e. key to the minds of the framers of the
constitution.
7. Several decisions of the Supreme Court pointed out the importance and utility of it. By
itself, it is not enforceable in a court of law, yet it states objects and aids legal
interpretation of the constitution, where language is ambiguous….. Construction which
fits the preamble may be preferred (however, the preamble cannot override the express
provisions of an act).

Amendment of preamble

In Berubaris’ case[7], the Supreme Court held that preamble is not a part of constitution and thus
not a source of any substantive powers and doesn’t import any limitations. However, in
Keshavananda Bharti’s case[8] the court held that preamble is part of constitution and it is of
extreme importance; and constitution should be read and interpreted in the light of grand and
noble vision expressed in preamble. In fact the preamble was relied on in imposing implied
limitations on amendment under the art. 368. held that since preamble is part of constitution, it
can be amended, but ‘basic features in it can’t be amended. As edifice of our constitution is
based upon these features and if they removed, it will not be the ‘same’ constitution. Amending
power can’t change the constitution in such a way that it ceases to be a ‘sovereign democratic
republic. It may be noted that in exercise of the amending power under art. 368, the constitution
(42nd) amendment act, 1976 amended the preamble inserting the terms ‘socialist’, ‘secular’ and
‘integrity’.

By – Monika Sharma

[1] “The Preamble contains in a nutshell its ideals and aspirations,” per Subba Rao, C.J. in I.C.
Golak Nath v. State of Punjab, AIR 1967 SC 1643, 1655: (1967) 2 SCR 762

[2] Berubari v. Union and Exchange of Enclaves, Re, AIR 1960 SC 845, 856: (1960) 3 SCR 250

[3] Maxwell: The Interpretation of Statutes, 6-9 (12th Edn, 1969)

[4] Radhika Seth, “ Constitutional Law and its Perspectives” pp.6-8

[5] 1899 AC 143 at 153

[6] Madhlokar, j. in Sajjan Singh v. State of Rajasthan 1965 AIR 845: (1965) SCR (1) 933

[7] Berubari Union & Exchange of Enclaves, Re, AIR 1960 SC 845, 856

[8] Keshvanand Bharti v. State of kerala, (1973) 4 SCC 225


Indian Constitution: Federal or Quasi-
Federal
SEPTEMBER 15, 2016

Indian Constitution: Federal or Quasi-Federal

The Indian federalism was designed on the basis of the working of the federalism in USA,
Canada and Australia. Yet it deviates from those federalism in many respects and establishes its
own distinctive features. There is a difference of opinion among scholars about the nature of
Indian constitution — whether it is federal or not.

Federal characteristics of Indian constitution

There is a dual polity i.e. central and state government. There is a supreme constitution. Our
constitution is a written and rigid constitution. It can be amended only to the extent of and in
accordance with the provisions contained therein article 368. Further, the constitution establishes
an apex court in the form of the Supreme Court to maintain the authority of the courts.

The constitution does incorporate the concept of federalism in various provisions. the provisions
which establish the essence of federalism i.e. having states and a center, with a division of
functions between them with sanction of the constitution include, among others, lists 2 and 3 of
the seventh schedule that give plenary powers to the state legislatures; the authority to parliament
to legislate in a field covered by the states under article 252, only with the consent of two or
more states; the competence of parliament to legislate in matters pertaining to the state list, only
for a limited period, under article 249, “in the national interest”, and, under article. 258 (1) to
entrust a state government (with the governor’s consent) functions in relation to which executive
power of the union extends; decentralization of power through 73rd and 74th amendments; etc.

Deviations from federal characteristics: Unitary features of Indian constitution

In the following matters, it is pointed out, the Indian constitution modifies the strict application
of the federal principle:-
(1) Legislative relations – Under the art. 249, parliament is empowered to make laws with
respect to every matter enumerated in the state list, if it is necessary in the national interest. In
case of inconsistency between the laws made by parliament and laws made by legislature of
states, the laws made by parliament whether passed before or after the state law in matters
enumerated in concurrent list, to the extent of repugnancy prevail over the state law. In case of
an overlapping between the matters of three lists i.e. union, state and concurrent list,
predominance has been given to the union (article 246). Previous sanction of the president is
required for introduction of certain bills in the state legislatures (viz. art. 304).

(2) Administrative or Executive relations – All planning is at the union level (via planning
commission), the states only implement the plans formulated by the union. The executive power
of every state has to be exercised as to ensure compliance with the laws made by parliament.
article 365 authorizes the president to hold that a situation has arisen in which government of a
state cannot be carried on in accordance with the provisions of constitution, if the state fails to
comply with or give effect to any directions given in exercise of the executive power of the
union.

(3) Financial relations – the states depend largely upon financial assistance from the union
(through grants-in-aids). power of taxation (which is exercisable by the states in comparatively
minor fields, the more important such as income-tax, wealth-tax, excise-duties other than those
on certain specified articles and customs, being reserved to the union) conferred by various
entries under list ii on the states is also severely restricted.

(4) Parliament’s power to form new states and alter boundaries of existing states – The very
existence of the state thus, under article. 3, depends upon the sweet will of union.

(5) Appointment of governors – The governors of states is appointed by president and


answerable to him. They hold the office at the pleasure of the president. They thus act in a
manner suitable to the president even at the cost of the interest of the states of which they are
governors. There are provisions in constitution under which the governor is required to send
certain state laws for the assent of president and the president is not bound to give his assent.

(6) Emergency provisions – under emergency, the normal distribution of powers between the
center and states undergo a vital change (in the favour of the center). Under article. 356, the state
legislature can be dissolved and president’s rule can be imposed either on the governor’s report
or otherwise when there is a failure of the constitutional machinery in a state.

(7) Single and uniform citizenship – for the whole country.

(8) Uniform and integrated judicial system – for the whole country.

(9) Inter-State council – if at any time it appears to the president that the public interests would
be served by the establishment of a council charged with the duty of- (a) inquiring into and
advising upon disputes which may have arisen between states; (b) investigating and discussing
subjects in which some or all of the states, or the union and one or more of the states, have a
common interest; or (c) making recommendations upon any such subject and, in particular,
recommendations for the better co-ordination of policy and action with respect to that subject, it
shall be lawful for the president to establish such a council, and to define the nature of the duties
to be performed by it and its organization and procedure (article. 263).

(10) Freedom of trade and commerce — for the whole country. The comprehensive provisions
of part 13 seek to make India a single economic unit for purposes of trade and commerce under
the overall control of the union parliament and the union executive.

Thus, in certain circumstances, the constitution empowers the center to interfere in the state
matters and thus places the states in a subordinate position or converts the union into a unitary
state, which violates the federal principle.

Criticism of Wheare’s Views

The term “quasi-federal” as suggested by wheare is very vague as it does not denote how
powerful the center is, how much deviation there is from the pure ‘federal model’, etc. it may be
that center has been assigned a larger role than the states but that by itself does not detract from
the federal nature of constitution, for it is not the essence of federalism to say that only so much,
and not more power, is to be given to the center.

The federalism varies from place to place, and from time to time depending on factors like –
historical, geographical, economic and political. Indian constitution is sufficiently federal, and it
is no less federal than American federalism. The framers of Indian constitution kept in view the
practical needs of country designed on federal structure not on the footing that it should conform
to some theoretical or standard pattern, but on the basis that it should be able to sub serve the
need of the vast and diverse country like India.

Conclusions: Indian federalism is ‘unique’

India adopted a federal structure as the different parts of the country were at different stages of
development and it would have been difficult to control from one center; and to ensure
minorities their due place.

However, the Indian federalism is unique because of its mode of formation i.e. from union to
states (creation of autonomous units and then combining them into a federation), and not vice
versa. It is to be noted that term ‘union of states’ (article. 1) and not ‘federation’ is used in the
constitution. Also, the units have no right to secede (as in a confederation).

The constitution of India is neither purely federal nor purely unitary, but is a combination of
both. It is a union of composite states of a novel type. Neither the parliament not the state
legislation is ‘sovereign’ because each being limited by the constitutional provisions affecting
the distribution of powers. The constitution enshrines the principle that in spite of federalism, the
national interest ought to be paramount. Thus, the Indian constitution is mainly federal with
unique safeguards for enforcing national unity and growth.

The scope of application of federal principle in India is shown by the scope of state legislatures.
However, Indian federation is not defective; the defect is political because there is a conflict
between opposition-party ruled states and the central government. Also, federalism is not dead in
India, as evidenced by the fact that new regions are demanding statehood and union has yielded,
thus states like Manipur, Tripura, Goa, etc. have been created. Moreover, in spite of conflicts, the
opposition-party ruled states do exist.
CONSTITUTIONAL LAW

State Under Article 12 of The


Constitution Of India
MARCH 6, 2017

Most of the Fundamental rights provided to the citizens are claimed against the State and its
instrumentalities and not against the private bodies. Art. 13(2), bars the ‘state’ from making any
‘law’ infringing a Fundamental Right. Art. 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 framers of the Constitution used the words
‘the State’ in a wider sense than what is understood in the ordinary or narrower sense. The word
‘includes’ suggests that the definition is not exhaustive. The expanding dimension of the words
‘the State’ through the judicial interpretation must be within the limitation otherwise the
expansion may go much beyond what even the framers of Article 12 may have thought of.[1]

Article 12 reads as: 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 State
and all local or other authorities within the territory of India or under the control of the
Government of India.

According to Article 12, the term ‘State’ includes:

(i) The Government and Parliament of India: the term “State” includes Government of India
(Union Executive) and the Parliament of India (i.e., the Union Legislature)
(ii) The Government and the Legislature of a State i.e., the State Executive and the legislature of
each state.

(iii) All local authorities; and

(iv) Other authorities within the territory of India; or under the control of the Central
Government.
Here three important terms need to be interpreted:

1. Territory of India: Territory of India should be taken to mean territory of India as


defined in Article 1(3).[2] According to Article 1(3) the territory of India shall comprise
the territories of the States, the Union Territories specified in the first schedule and such
other territories as may be acquired.
2. Local Authority: according to sub-section (31) of Section 3 of the General Clauses Act,
1897 “Local Authority” shall mean a municipal committee, district board, body of
commissioner or other authority legally entitled to or entrusted by the Government within
the control or management of a municipal or local fund. According to Entry 5 of the List
II of 7th Schedule ‘ local government’ includes municipal corporation, improvement trust,
district boards, mining settlement authorities and other local authorities for the purpose of
local self-government or village administration. Village panchayat is also included within
the meaning of the term local authority[3]. In Mohammad Yasin v. Town Area
Committee[4] , the Supreme Court held that the Bye-laws of a Municipal Committee
charging a prescribed fee on the wholesale dealer was an order by the State Authority
contravened Article 19(1) (g). These bye-laws in effect and in substance have brought
about a total stoppage of the wholesale dealers’ business in the commercial sense. The
Supreme Court has ruled that to be characterized as a ‘local authority’ the authority
concerned must have separate legal existence as a corporate body, it must not be a mere
government agency but must be legally an independent entity; it must function in a
defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the
inhabitants of the area. It must also enjoy a certain degree of autonomy either complete or
partial, must be entrusted by statute with such governmental functions and duties as are
usually entrusted to locally like health and education, water and sewerage, town planning
and development roads, markets, transportation, social welfare services, etc. Finally, such
body must have the power to raise funds for furtherance of its activities and fulfilment of
its objectives by levying taxes, rates, charges or fees.
3. Other Authorities: The term ‘other authorities’ in Article 12 has nowhere been defined.
Neither in the Constitution nor in the general clauses Act, 1897 nor in any other statute of
India. Therefore, its interpretation has caused a good deal of difficulty, and judicial
opinion has undergone changes over time.

Today’s government performs a large number of functions because of the prevailing philosophy
of a social welfare state. The government acts through natural persons as well as juridical
persons. Some functions are discharged through the traditional governmental departments and
officials while some functions are discharged through autonomous bodies existing outside the
departmental structure, such as, companies, corporations etc. Hence, the term ‘other authorities’
has been interpreted by the following judicial pronouncements in accordance with the facts and
circumstances of different cases.
In the case of University of Madras v. Santa Bai[5], the Madras High Court held that ‘other
authorities’ could only indicate authorities of like nature, i.e., ejusdem generis. So construed it
could only mean authorities exercising governmental or sovereign functions. It cannot include
persons, natural or juristic. Such as, a university unless it is ‘maintained by the State’.

But in Ujjammabai v. State of U.P.[6], The Court rejected this restrictive interpretation of the
expression ‘other authorities’ given by the Madras High Court and held that the ejusdem generis
rule could not be resorted to the in interpreting tis expression. In Article 12 the bodies
specifically named are the Government of Union and the States, the Legislature of the Union and
States and local authorities. There is no common genus running through these named bodies nor
can these bodies so placed in one single category on any rational basis.

In Electricity Board, Rajasthan v. Mohan Lal[7], the Supreme Court held that ‘other
authorities’ would include all authorities created by the constitution or statute on whom powers
are conferred by law. It was not necessary that the statutory authority should be engaged in
performing government or sovereign functions. The court emphasized that it is not material that
some of the power conferred on the concerned authority are of commercial nature. This is
because under Art. 298 the government is empowered to carry on any trade or commerce. Thus,
the court observed : “ The circumstances that the Board under the Electricity Supply Act is
required to carry on some activities of the nature of trade or commerce does not, therefore give
any indication that the ‘Board” must be excluded from the scope of the word ‘State’ is used in
Article 12.

The next important case relating to the interpretation of the term ‘other authorities’ is, Sukhdev
Singh V. Bhagatram[8], The Supreme Court, following the test laid down in Electricity Board
Rajasthan’s Case by 4:1 majority has stated that the three statutory bodies viz., LIC, ONCG &
FCI were held to be ‘authorities’ and thus fall within the term ‘State’ in Article 12. These
corporations were created by the statutes, had the statutory power to make binding rules &
regulations and were subject to the pervasive governmental control. These corporations do have
independent personalities in the eyes of law, but that does not mean that “they are not subject to
the control of the government or they are not instrumentalities of the government. The
employees of these statutory bodies have a statutory status and they are entitled to declaration of
being in employment when their dismissal or removal is in contravention of statutory provisions.
The employees are entitled to claim protection of Articles 14 and 16 against the corporations.
Mathew, J., in a separate but concurring judgement, held that the Public Corporations is a new
type of institution which sprang from the new social and economic functions of the government,
and instead of classifying it into old legal category, it should be adopted to the changing time and
conditions. The State being an abstract entity, could undertake trade or business as envisaged
under Article 298 through an agency, instrumentality or juristic person. He preferred a broader
test that if the functions of the Corporation are of public importance and closely related to
governmental functions it should be treated an agency or instrumentality of government and
hence a ‘State’ within the ambit of Article 12 of the Constitution.

In simple terms, Statutory corporations are agencies or instrumentalities of the state for carrying
on trade or business which otherwise would have been carried out by the state departmentally.
Therefore it has to be seen whether a body is acting as an agency or instrumentality of the state.

The approach in Sukhdev Singh case, was reiterated with approval in R D Shetty V.
International Airport Authority[9], Bhagwati, J., speaking for the Court, pointed out the
corporations acting as instrumentality or agency of government would obviously be subject to
the same limitation in the field of constitutional or administrative as the government itself,
though in the eye of the law they would be distinct and independent legal entities. If the
government acting through its officers is subject to certain constitutional and public law
limitations, it must follow a fortiori, that government acting through the instrumentality or
agency of corporations should equally be subject to the same limitations.

Bhagwati, J., discussed in detail various factors relevant for determining whether a body is an
instrumentality or agency of the state. These factors as they were finally summarized by him
in Ajay Hasia V. Khalid Mujib,[10] are:
1. if the entire share capital of the corporation is held by the government, it would go a long way
towards indicating that the corporation is an instrumentality or authority of the government.

2. Where the financial assistance of the state is so much as to meet almost entire
expenditure of the corporation it would afford some indication of the corporation being
impregnated with government character.
3. Whether the corporation enjoys monopoly status which is state conferred or state
protected.
4. Existence of deep and pervasive state control may afford an indication of that the
corporation is a state agency or instrumentality.
5. If the functions of the corporation are of public importance and closely related to
government functions it would be relevant factor in classifying a corporation as an
instrumentality or agency of government.
6. If a department of the government is transferred to corporation it would be a strong factor
supporting the inference of the corporation being an instrumentality or agency of
government.
The Supreme Court ruled in the instant case that where a corporation in an
instrumentality or agency of the government, it must be held to be an authority under
Article 12.However, these tests are not conclusive or clinching, and it must be realised
that it would not be stretched so far as to bring in every autonomous body which has
some nexus with the government within the sweep of the expression. Following this
approach, it was held that the international Airport Authority constituted under the
International Airport Agency Act, 1971 was an authority and, therefore, ‘State’ within the
meaning of Article 12.

“The concept of the instrumentality or agency of the government is not limited to a corporation
created by statute but is equally applicable to a company or society.”

This line of approach to the meaning of other authorities has been finally confirmed in Som
Prakash Rekhi V. Union of India[11]. Applying the criteria laid down in the International
Airport Authority case, the Supreme Court reached the conclusion that there is enough material
to hold that the Bharat Petroleum Corporation registered as a company under the Companies Act,
is State within the enlarged meaning of Art. 12. Consequent upon takeover of Burmah Shell
under the Burmah Shell (Acquisition of Undetakings in India) Act, 1976, the right, title and
interest of the company stood transferred and vested in the Government of India. Thereafter, the
Central Government took necessary steps for vesting the undertaking in the BPC Ltd. which
became the statutory successor of the petitioner employer. Krishna Iyer, J., speaking for
himself and Chinnapa Reddy. J., Pathak, J.concurring, observed that the various provisions of
the Act of 1976 have transformed the corporation into an instrumentality of the Central
Government with a strong statutory flavour super-added are clear indicia of power to make it an
‘authority’. Although registered as a company under the Companies Act, the BPC is clearly a
creature of the statute, a limb of government, an agency of the State and is recognized and
clothed with rights and duties by the Statute.

In Ajay Hasia v. Khalid Mujib[12], the question arose whether the Regional Engineering
College, Srinagar, established, administered and managed by a society registered under the J &
K Registration of Societies Act, was a State within the meaning of Article 12. Bhagwati,
J., speaking for the unanimous five judge-bench, reiterated that the tests for determining as to
when a corporation falls within the definition of State in Article 12 is whether it is an
instrumentality or agency of government. The enquiry must be not how the juristic person is born
but why it has been brought into existence. It is, therefore, immaterial whether the corporation is
created by the statute or under a statute. The concept of instrumentality or agency of government,
is not limited to a corporation created by the statute but is equally applicable to a company or
society considering the relevant factors as explained in the International Airport Authority
case.[13] Applying this criterion, it was held that the Society registered under the J&K
Registration of Societies Act was an instrumentality or agency of the State and the Central
Government, for the reason that these governments had full control of the working of the society
and the society was merely a projection.

Following the law laid down in the Ajay Hasia case[14], the Indian Statistical Institute[15],
Indian Council of Agricultural Research[16], Sainik School Society[17], U.P. State
Cooperative Land Development Bank Ltd.[18], all societies registered under the Societies
Registration Act; Project and Equipment Corporation of India Ltd., a Government of India
Undertaking[19]; Food Corporation of India[20], a statutory corporation; the Steel Authority of
India Ltd., a public limited company owned, controlled and supervised by the Central
Government[21]; the Indian Oil Corporation, a company registered under the Companies Act of
2013, a State-aided school, whose employees enjoy statutory protection and which is subject to
regulations made by the State education department[22]; a medical college run by a municipal
corporation[23]; several electricity boards[24] created on the lines of Rajasthan Electricity
Board; Central Government and two State Governments[25]; a Government Company
constituted as a development authority under a State town Planning Act[26]; regional rural
banks established under the Regional Rural Banks Act, 1976[27]; port trusts created under the
Major Port Trusts Act, 1889 or 1963[28] have been held to be “other authorities” within the
meaning of Article 12.

In this expansive trend, there have been some discordant notes as well. One such example is
furnished by Tekraj Vasandi v. U.O.I., where the Supreme Court held the ‘Institute of
Constitutional and Parliamentary Studies’, a society registered under the Societies Registration
Act, 1860, as not being an ‘authority’ under Article 12, The Institute is a registered society
receiving grants from the Central Government and having the President of India, Vice-President
and the Prime Minister among its honorary members. The Central Government exercises a good
deal of control over the Institute. Inspite of the government funding and control, the court has
refused to hold it as an authority.

On the same basis, in the case of Chandra Mohan Khanna v. NCERT[29], NCERT, has been
held to be outside the scope of Article 12. NCERT is a society registered under Societies
Registration Act. It is largely an autonomous body; its activities are not wholly related to
governmental functions; governmental control is confined mostly to ensuring that its funds are
properly utilized; its funding is not entirely from government sources.
Another example of the expansive interpretation of the expression ‘other authorities’ in Art. 12 is
furnished by the decision of the Supreme Court in Pradeep Kr. Biswas V. Indian Institute of
Chemical Biology[30]. In this case, the Supreme Court held that the Council of Scientific and
Industrial Research (CSIR) is an authority under Art. 12 and was bound by Art. 14. The Court
has ruled that the “Control of the Government in CSIR is ubiquitous. The court has now laid
down the following proposition for identification of ‘authority’ within Art. 12.

The question in each case would be – whether in the light of the cumulative facts as established,
the body is financially, functionally and administratively dominated by or under the control of
the government. Such control must be particular to the body in question and must be pervasive.
If this is found then the body is a state within Article 12. On the other hand, when control is
merely regulatory whether under statute or otherwise it would not serve to make the body a state.
IS JUDICIARY INCLUDED IN THE WORD ‘STATE’?

Unlike in U.S.A, where the judicial decision implies ‘ State action’ for the purposes of
enforcement of fundamental rights, in India the ‘judiciary’ is not specifically mentioned in Art.
12. The judicial view is that the judgements of courts cannot be challenged on the ground that
hey contravene fundamental rights. Now, the question arises does it mean that the term judiciary
is not be included in the concept of ‘state’? The answer depends upon the distinction between the
judicial and non-judicial functions of the courts. In the exercise of the non-judicial functions, the
courts fall within the definition of the ‘State’. The exercise of judicial functions will not occasion
the infringement of fundamental rights and, therefore, the question of bringing the courts within
the definition of the ‘state’ would not arise.[31]

In Naresh v. State of Maharashtra[32], it was held that even if a court is thee State a writ under
Art. 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders,
because such orders cannot be said to violate the fundamental rights. What the judicial decisions
purports to do is to decide the controversy between the parties and nothing more. The court said
that the ‘judiciary’ while exercising its rule-making power under Art. 145 would be covered by
the expression ‘State’ within the meaning of Art. 12, but while performing its judicial functions,
it is not so included.

In Rupa Ashok Hurra v. Ashok Hurra[33], the apex court has re-affirmed and ruled that no
judicial proceeding could be said to violate any of the fundamental rights. It was said to be
settled position of law that the superior courts of justice did not fall within the ambit of ‘State’ or
‘other authorities’ under Art. 12.

In A. R. Antulay v. R.S. Nayak[34], it was held that the court could not pass an order or issue a
direction which would be violative of the fundamental rights, thus, it can be said that the
expression ‘state’ includes judiciary also.

It is submitted that the judiciary, though not expressly mentioned in Art. 12, it should be
included so, since the courts are set up by statute and exercise power conferred by law. It is so
suggested that discrimination may be brought about… even (by) judiciary. The courts, like any
other organ of the state, are limited by the mandatory provisions of the Constitution.

By – Monika Sharma

[1] Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111: JT 2002
(4) SC 146, per seven judge bench, ; Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC
661

[2] Masthan Sahib v. Chief Commissioner, Pondicherry, AIR 1963 SC 533

[3] Ajit Singh v. State of Punjab, AIR 1967 SC 856

[4] AIR 1952 SC 115.

[5] AIR 1954 Mad.67


[6] AIR 1962 SC 1621

[7] AIR 1967 SC 1857

[8] AIR 1975 SC 1331

[9] AIR 1979 SC 1628

[10] AIR 1981 SC 487

[11] (1981) 1 SCC 449; AIR 1981 SC 212. In Som Prakash these factors are laid down in SCC p.
471 and in AIR at 225. It may be noted that Krishna Iyer, J., who wrote Som Prakash opinion,
was common to both the cases and since the decision in both the cases were pronounced on the
same day it is natural, that Krishna Iyer, J., fully knew what was being said by his brother
Bhagwati, J., in Ajay Hasia.

[12] (1981) 1 SCC 722; AIR 1981 SC 487

[13] Raman Dayanand Shetty v. International Airport Authority of India, (1979) 3 SCC 489; AIR
1979 SC 1628

[14] Ajay Hasia v. Khalid Mujib, 1981) 1 SCC 722; AIR 1981 SC 487

[15] B.S. Minhas v. Indian Statistical Institute,(1983) 4 SCC 582; AIR 1984 SC 363

[16] P.K. Ramchandra Iyer v. Union of India, (1984) 2 SCC 141; S.M. Illyas (Dr.) v. Indian
Council For Agriculture Research, (1993) 1 SCC 182

[17] All India Sainik School Employees’ Association v. Sainik Schools Society, 1989 Supp (1)
SCC 205

[18] U.P. State Cooperaive Land and Development Bank Ltd. v. Chandra Bhan Dubey, AIR
1999 SC 753

[19] A.L. Kalra v. Project and Equipment Corpn., (1984) 3 SCC 316
[20] Workmen of FCI v. FCI, (1985) 2 SCC 136; Food Corporation of India Workers’ Union v.
Food Corpn. Of India, (1996) 9 SCC 439

[21] Bihar State Harijan Kalyan Parishad v. Union of India, (1985) 2 SCC 644; Balbir Kaur v.
Steel Authority of India, (2000) 6 SCC 493

[22] Manmohan Singh Jaitla v. Governor, Union Territory of Chandigarh, 1984 Supp. SCC 540

[23] Dinesh Kumar v. Motilal Nehru Medical College, Allahabad,(1985) 3 SCC 542

[24] Rohtas Industries Ltd. v. Bihar S.E.B., 1984 Supp SCC 161 and Surya Narain Yadav v.
Bihar S.E.B., (1985) 3 SCC 38; W.B. State Electicity Board v. Desh Bandhu Ghosh,(1985) 3
SCC 116

[25] Central Inland Water Transport Corp. Ltd. v. Brojo Nath Ganguly,(1986) 3 SCC 156

[26] Star Enterprises v. City and Industrial Development Corpn. Of Maharastra Ltd., (1990) 3
SCC 280

[27] Prathama Bank v. Vijay Kumar Goel, (1989) 4 SCC 441

[28] Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293

[29] AIR 1992 SC 76

[30] (2002) 5 SCC 111

[31] Cf. H.M. Seervai: Constitutional law of India, 225 ff (3rd Edn. 1983) for a forceful argument
that judiciary is ‘the State’ even in the exercise of its judicial functions. This would also seem the
view taken by Mukharjee, J., in A.R. Antulay v. R.S. Nayak

[32] AIR 1967 SC 1

[33] AIR 2002 SC 1771

[34] AIR 1988 SC 1531


What is State – ARTICLE 12
SEPTEMBER 15, 2016

The constitution of India has defined the word ‘State’ for the purpose of Part –III and Part
IV. Part III and Part IV carry a theme of Human Rights, Dignity of Individual and also of the
unity and dignity of the nation. These parts are respectively as negative obligation of the State
which does not to interfere with liberty of the individual and positive obligation of the State to
take steps for the welfare of the Individual.

Sate under Art. 12 of the constitution has Four Components:

1. The Government and Parliament of India-Government mean any department or


institution of department; Parliament shall consist of the President, the House of People
and Council of State.
2. The Government and Legislature of each State.-State Legislatures of each State
consist of the Governor, Legislative Council, and Legislative Assembly or any of them.
3. All Local Authorities- It means, Municipal boards Panchayats, Body of Port
Commissioner, and other legally entitled to or entrusted by the government.
4. Other Authorities within the territory of India or under the control of Government
of India.The first two categories included the legislative and executive wings of the
Union and State in all their possible varieties. They are quite specific and self-
explanatory.

Judicial Scrutiny

The letter two categories, particularly the last are not so specific and require some explanation.
To give a wider dimension to FR the Judiciary has interpreted “State” in different context at
different time.

Principle of Ejusdem Generis:

In University of Madras v/s Santa Bai, the Madras High Court evolved the principle of
ejusdem generis i.e. of the like nature. It means that those authorities are covered under the
expression ‘other authorities which perform governmental or sovereign functions.
In Ujjam Bai v/s Union of India ,the Supreme Court rejected the principle of ejusdem
generis .It observed that there is no common genus between the authorities mentioned in Article
12 And by giving the reference of Art 19 (1) (g), and Art 298 which contemplated engagement of
state in the performance of commercial activity, and Art. 46 provide promotion of education or
economic interest.

In Rajasthan State Electricity Board v/s Mohan Lal, it was held that to be State, it is not
necessary that the authority must be performing governmental or sovereign functions .It
should-

(i) Be created by the Constitution of India;


(ii) Have power to make laws;

In R.D. Shetty v/s International Airport Authority, the Court laid down five tests to be other
authority-
( i ) Entire share capital is owned or managed by State.
( ii ) Enjoys monopoly status.
( iii ) Department of Government is transferred to Corporation.
( iv ) Functional character governmental in essence.
( v ) Deep and pervasive State control.

In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a juristic
person is State is not how it has been brought but why it has been brought. In Union of India v/s
R.C.Jain , to be a local authority, an authority must fulfill the following tests-
( i ) Separate legal existence.
(ii) Function in a defined area.
(iii) Has power to raise funds.
(iv) Enjoys autonomy.
(v) Entrusted by a statute with functions which are usually entrusted to municipalities.

In Prem Garg v/s Excise Commissioner H.P, the Supreme Court held that when rule making
power of judiciary is concerned, it is State. Other jurists say that since judiciary has not been
specifically mentioned in Article 12, it is Not State, therefore if the Judge or magistrates are not
note State while there are functioning as a Judiciary. But if they are also functioning as
Administrator then they will be treated as State within the meaning of Art 12. The Chief
Justice of High court shall have functions in dual role:

1. Chief Justice of High Court


2. Chief Administrative of High Court.

If any citizen aggrieved by the act of the Chief Justice , while he was function as chief
administrator of the high court then that chief justice has no remedy and he shall be treated as a
State under the Art 12.

Conclusion
The word ‘State’ under Article 12 has been interpreted by the courts as per the changing times .It
has gained wider meaning which ensures that Part-III can be applied to a larger extent. We hope
that it would continue to extent its width in coming times.
Introduction to the Fundamental
Rights of an Individual: As provided
against the State
MARCH 5, 2017

Part III of the Constitution contains a long list of fundamental rights. This Chapter of the
Constitution of India has very well been described as the Magna Carta of India.[1] The inclusion
of a Chapter of Fundamental Rights in the Constitution of India is in accordance with the trend
of modern democratic thought, the idea being to preserve that which is an indispensable
condition of a free society. The aim of having a declaration of fundamental rights is that certain
elementary rights, such as right to life, liberty, freedom of speech, freedom of faith and so on,
should be regarded as inviolable under all the conditions and that the shifting majority in
Legislature of the Country should not have a free hand in the Barnet.[2]

“Fundamental rights are the rights having a noble pedigree. They are the natural rights which are
in the nature of external conditions necessary for the greatest possible unfolding of the capacities
of a human being. These secured and guaranteed conditions are called fundamental rights. It is
generally agreed that these natural rights are inherent in man and cannot be taken away by the
State.”[3]

These fundamental rights substantially covers all the traditional civil and political rights
enumerated in the Universal Declaration of Human Rights. Dr. Ambedkar described them as “the
most criticized part” of the Constitution.

Fundamental rights were deemed to be essential to protect the rights and liberties of the people
against the encroachment of the power delegated by them to their government. They are the
limitations upon all the powers of the Government, legislative as well as executive.

In Maneka Gandhi Case[4], Bhagwati, J., observed: “These Fundamental rights represent the
basic values cherished by the people of this country 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 the human rights, and impose negative obligations on the State not to encroach on
the individual liberty in its various dimensions.”

The object behind inclusion of them in the Constitution is to establish ‘a government of law and
not of man’. The object is to establish rule of law. The object is not merely to provide security
and equality of citizenship of the people living in this land and thereby helping the process of
nation building, but also and not less important to provide certain standards of conduct,
citizenship, justice and fair play.[5]

In M. Nagraj v. Union of India,[6] the Supreme Court speaking about the importance of the
fundamental rights- the fundamental rights are not the gifts from the State to citizens. Part III
does not confers fundamental rights but confirm their existence and give them protection.
Individuals possess basic human rights independently of any Constitution by reason of basic fact
that they are human race. These rights are important as they possess intrinsic values. Its purpose
is to withdraw certain subjects from the area of political controversy to place them beyond the
reach of majorities and officials and to establish them as legal principles to be applied by the
Courts.

NEW JUDICIAL TRENDS IN INTERPRETING PROVISIONS OF PART III:

 Widest Interpretation of provisions of Part III- in Maneka Gandhi Case[7], the


Supreme Court has held that the provisions of Part III should be given widest possible
interpretation. Delivering the judgement, Bhagwati, J., said, “The correct way of
interpreting the provisions of Part III is that attempt of the court should be to expand the
reach and ambit of the fundamental rights rather than to attenuate their meaning and
content”. In Gopalan’s case[8], the Court had taken the view that each Article dealt with
separate rights and there was no relation with each other. In other words, they were
mutually exclusive. This view has been held to be wrong in Maneka Gandhi’s
case[9] where the Court has taken the view that they are mutually exclusive but form a
single scheme in the Constitution that is they are all parts of an integrated scheme in the
Constitution.

The validity of a law infringing fundamental rights can be judged not only with reference to
particular Article under which such a law is enacted but also with reference to other articles.
In Gopalan’s case[10] it was held that the validity of a deprivation law enacted under Article 21
could not be tested under Article 19. This view has now been overruled in Maneka Gandhi’s
case[11] and it has been held that a law depriving a person of his personal liberty under Article
21 must also satisfy the test of ‘reasonableness’ under Articles 14 and 19 of the Constitution.

 Natural Justice and due Process – in Maneka Gandhi’s case[12] the Supreme Court
has held 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. “Natural justice is a distillate of
due process” observed Krishna Iyer, J., the concept of natural justice and due process
which were rejected in Gopalan’s case forming part of our Constitutional scheme
guaranteeing fundamental rights.
 Prisoners’ rights and Prison Reforms- the Supreme Court has considerably widened
the scope of Article 21 and has held that its protection will be available for safeguarding
the fundamental rights of the prisoners and for effecting prison reforms. Convicts are also
human beings and until they are hanged they are entitled to live in jail as human beings
and not slaves. Inhuman and barbarous treatment with Solitary confinement, hand-
cuffing, harsh labour, degrading jobs and punishments in jail without judicial approval
violate the mandate of Article 21 of the Constitution. Speedy trial and legal aid to the
poor prisoners are constitutional rights available to them and does not depend upon the
mercy of the state.
 Expanding the role of writ of Habeas Corpus- the dynamic role of judicial remedies
after the Sunil Batra’s case[13] imparts to the writ of habeas corpus with a versatile
vitality and operational utility as bastion of liberty even within the jails. Wherever the
right of prisoner either under the Constitution or under other law are violated the writ
power of the Court can and should run to rescue. The habeas corpus writ can be issued
not only for releasing of a person from illegal detention but also for directing the jail
authorities to provide necessary amenities to the prisoners and to protect them from
inhuman and barbarous treatment. In ABSK Sangh (Rly.) v. Union of India[14], it has
been held that even an unregistered association can maintain a petition for relief under
Article 32 of the Constitution if there is common grievance. Thus, Article 32 is not
confined to protect only individual’s fundamental rights but is capable of doing justice
wherever it is found and the society has an interest in it. “Access to justice through ‘class
actions’, ‘public interest litigation’ and ‘representative proceedings’ is the modern
jurisprudence”, declared Krishna Iyer, J., in the historic judgement of Judges Transfer
case[15].
 Human Rights Jurisprudence- the Supreme Court has now moved to more of Human
rights, particularly for protecting from inhuman and barbarous treatment. Krishna Iyer, J.,
in Sunil Batra’s case[16] has said “today, human rights jurisprudence in India has
Constitutional Status.”

In 1979, India became the party to ICCPR. Article 10 of the ICCPR provides that “all persons
deprived of their liberty shall be treated with humility and with respect for the inherent dignity of
the human persons. Article 5 of the U.N. Declaration of Human Rights, 1948 says, “No one shall
be subject to the torture or to cruel, inhuman or degrading treatment or punishment”. In Prem
Shankar v. Delhi Administration[17], Krishna Iyer, J., said that in interpreting the
Constitutional and statutory provisions the Court must not forget the core principle found in
Article 5 of UDHR, 1948. Homage to human rights which calls for prisons, prison staff and
prisoners reform, his Lordship Declared.

SUSPENSION OF FUNDAMENTAL RIGHTS:

Fundamental rights are the natural rights of individuals but to avoid its misuse it has been
imposed with certain restrictions. Fundamental rights are not absolute rights, the Constitution
provides for the curtailment and suspension of fundamental rights in the following
circumstances:

1. During the time of emergency: Article 358 provides that when the proclamation of
emergency is made by the President under Article 352 the freedoms guaranteed by
Article 19 are automatically suspended and would continue to be so for the period of
emergency.
2. President’s order to suspend the rights under Article 359: Article 359 further
empowers the President to suspend the right to move to the Court for enforcement of
rights conferred by part III of Constitution (except Article 20 and 21) during the
continuance of emergency.

CLASSIFICATION OF FUNDAMENTAL RIGHTS:

The Fundamental Rights as incorporated in the Indian Constitution can be classified under the
following six groups:’

1. Right to Equality (Articles 14-18)


2. Right to Freedom ( Articles 19-22)
3. Right against Exploitation ( Articles 23-24)
4. Right to Freedom of Religion (Articles 25-28)
5. Cultural and Educational Rights (Articles 29-30)
6. Right to Constitutional Remedies ( Articles 32-35)

The 44th Amendment has abolished the right to property as a fundamental right as guaranteed by
Article 19(1) (f) and Article 31 of the Constitution, and hence, Article 19(1) (f) and Article 31
has been omitted.
The rights which are given to the citizens as fundamental rights are a guarantee against state
actions as distinguished from the violation of such rights by private parties. Private action is
sufficiently protected by the ordinary law of land.

By- Monika Sharma

[1] V. G. Ram Chandran – Fundamental Rights and Constitutional Remedies., Vol.1(1964), p.1

[2] 319 US 624: 87 Led 1928

[3] B.K. Sharma, Introduction to the Constitution of India, PHI, p. 58(2007)

[4] Maneka Gandhi v. Union of India, AIR 1978 SC 597 at p. 619

[5] Moti Lal v. State of Uttar Pradesh, AIR 1951 All. 257

[6] AIR 2007 SC 71

[7] Maneka Gandhi v. Union of India, AIR 1978 SC 597

[8] A.K. Gopalan v. State of Madras, AIR 1950 SC 27

[9] Maneka Gandhi v. Union of India, AIR 1978 SC 597

[10] A.K. Gopalan v. State of Madras, AIR 1950 SC 27

[11] Maneka Gandhi v. Union of India, AIR 1978 SC 597

[12] Maneka Gandhi v. Union of India, AIR 1978 SC 597

[13] Sunil Batra(No. 2) v. Delhi Administration, AIR 1980 SC 1579

[14] AIR 1981 SC 298

[15] S.P. Gupta and others v. President of India and others, AIR 1982 SC 149
[16] Sunil Batra(No. 2) v. Delhi Administeration, AIR 1980 SC 1579

[17] AIR 1980 SC 1535

CONSTITUTIONAL LAW
Fundamental Rights – Nature, Scope
and importance
SEPTEMBER 16, 2016

India guarantees a set of rights considered essential for protecting human dignity which is known
as Fundamental Rights. The Fundamental Rights, as embedded in the Indian Constitution, ensure
equal and fair treatment of the citizens before the law.[1] The rights that are basic to the
advancement of the human race are called Fundamental Rights. All other rights are derived from
these rights as direct implications or application of their principles. It is an accepted belief among
the philosophers that these rights are nothing but “natural human rights”, which distinguish
between humans and animals and which have been so instrumental in bringing humans from the
stone age to the present age. Among all, the right to life and liberty is considered to be the most
basic.

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.

Need for Fundamental Rights

1. Rule of Law – These rights are a protection to the citizens against the govt. and are
necessary for having the rule of law and not of a govt. or a person. Since explicitly given
by the constitution to the people, these rights dare not be transgressed by the authority.
The govt. is fully answerable to the courts and is fully required to uphold these rights.
2. First fruits of the freedom struggle – After living in subjugation for such a long time,
people had forgotten what is meant by freedom. These rights give people hope and belief
that there is no stopping to their growth. They are free from the whims of the rulers. In
that sense, they are first fruits of the lengthy freedom struggle and bring a sense of
satisfaction and fulfillment.
3. Quantification of Freedom – Even citizens in gulf countries or communist countries are
free. Then how is our freedom different from theirs? The list of fundamental rights is a
clear measurement for how free we really are. As an example, every Indian citizen in
free to practice a religion of his choice, but that is not so in the gulf countries. Our right
to speech and expression allows us to freely criticize the govt. but this is not so in China.

Fundamental Rights in India.

Technically speaking, the rights specified in Part III (Art 12 to 35) of the constitution are the
fundamental rights available to the citizens of India. In the case of Menaka Gandhi vs Union of
India AIR 1978, J. Bhagvati has said that these rights represent the values that are cherished by
the people of this country since the vedic ages and are calculated to protect the dignity of
individual and to create conditions in which every human being is able to develop his personality
to the fullest. These rights are necessary for a human being for attaining full social, intellectual,
and spiritual status.

These rights can be grouped into 6 categories –

1. Articles 14-18 Right to Equality – Art. 14 ensures that all citizens are treated equally. It
enshrines the principle of “Equality before law and Equal protection of law”. However,
this brings us to an important question. Should people living in unequal circumstance be
treated equally? In Indian Constitution, the answer is a resounding no. We have adopted
the mantra of “equal treatment under equal circumstances”. This is reflected in Art 15,
which, while prohibits the state from discriminating between the citizens only on the
grounds of Caste, Race, Religion, Sex, and Place of Birth or all of them[ Art 15(1) ], also
allows the state to make special provisions for Women and Children [Art 15(3)] and for
Backward classes [Art 15(4)].

Art. 16 takes the same principle further to employment in govt. jobs.


Art. 17 abolishes untouchability and Art. 18 abolishes various titles such as Rai Bahadur that
used to be given in the British rule.
The cases of 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 v Union of India 1982 (Equal pay for equal work)
illustrate the principle of equality.
The SC judgment in Indra Sawhney v 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.

2. Articles 19-22 Right to Freedom – A citizen of India is given freedom of Speech and
Expression, freedom of Assembly, freedom of Association, freedom of Movement,
freedom of Residence, and Freedom of Profession and Occupation through Art. 19.
20 gives protection with respect to conviction of offenses. This includes the principles of
 Ex-post facto law: A person can only be with charged with an offence of an action if the
said action was illegal as per the law of the time when the action was committed.
 Double jeopardy: A person cannot be charged with the same crime if he has already been
produced before the court and a verdict has been pronounced.
 Self- incrimination: A person will not be forced to testify against himself.

Art. 21, which is the most important and diverse of all the rights to freedom, is the Protection of
Life and Personal Liberty. SC in Menaka Gandhi v Union of India AIR 1978 was a landmark
case that gave wide interpretation of this right. In this case the SC held that his right is not only
about having any kind of life but a life of dignity. The freedom is not just physical but mental as
well as spiritual. This encompasses several rights such as right to travel abroad (Satvant Singh v
Ass. Passport Office AIR 1967) and right to pollution free water and air (Subhash Kumar v State
of Bihar AIR 1991). Further, Constitution Amendment Act 86, 2002 makes free and compulsory
education to children under 14 a fundamental right.

Art. 22 gives protection from illegal arrest or detention. It provides that a person must be
informed of the grounds of arrest as soon as possible, be allowed to speak to a lawyer of his
choice, and be produced before a magistrate within 24 hrs. of detention.

3. Art 23-24 Right Against Exploitation – Under Art. 23, the govt. has banned trade in
human beings. This includes flesh trade and forced work or work without pay (begar
system).
24 prohibits children from being employed in factories and hazardous conditions.
4. Art 25-28 Freedom of Religion – Unlike several countries of the world, we are free to
practice, profess, and propagate any religion under Art. 25. Art. 26 allows us to establish
and maintain institutions for religious and charitable purposes. It also gives the right to
manage our own religious matters. Art. 27 provides tax benefits for promotion of religion
and art. 28 prohibits religious teaching in govt. and govt. aided schools.
5. 29-30 Cultural and Educational Rights – Art. 29 allows any section of citizens living
anywhere in India who have a distinct language, script, or culture, to preserve the
same. Art. 30 allows minorities to establish and maintain educational institutions. To
prevent discrimination, however, art 29(2) prohibits them from discrimination
in admissions only on the grounds of religion, race, caste, language, or any of them.
6. Art 32 Right to Constitutional Remedies – Dr. Ambedkar, the chief architect of our
constitution, has said that Article 32 is the soul of our constitution. All the talk of rights is
useless if there is no recourse against their transgression. Under this article, a citizen is
free to go to the Supreme Court for violation of his rights.

Scope of Fundamental Rights

Widest Possible Interpretation – SC in A K Gopalan v State of Madras AIR 1950 had held that
the various rights given under part III talk about different things and are not be interlinked. This
view, however, has been rightly rejected by the SC in Menaka Gandhi v Union of India AIR
1978 case. In this case, J Bhagvati said that the role of SC should be to interpret these rights in
the widest possible manner and it should not attenuate these rights by being confined to their
narrow definition. All these rights are not mutually exclusive and form an integrated theme of the
constitution. J Beg said that their waters must mix to form a grand flow of unimpeded and
impartial justice. Thus, any law that takes away the life or liberty of a person, must also satisfy
the test of reasonableness under art. 14.
Natural Justice and Due Process

In Menaka Gandhi’s case, SC has held that any law that takes away the life or liberty of a person
under art. 21, must be just, fair, and reasonable. It must satisfy the principle of natural justice,
which is a basic component of fair procedure under Art. 21. While Art 21 does not contain the
“due process” clause of the American Constitution, the effect is the same because natural justice
is a distillate of due process i.e. natural justices can only be delivered through due process.

Expanding the role of writ of Habeas Corpus

The case of Sunil Batra v Delhi Admin AIR 1980 has given tremendous power to the writ of
Habeas Corpus. It allows the judiciary to even enforce the fundamental rights in a prison. Even
prisoners are humans and must be treated with dignity. They cannot be stripped off of their
fundamental rights, thus menial or forced work without pay, solitary confinement, degrading
punishment, is not allowed. This case has also allowed people who are not directly involved but
have any kind of interest to approach the court. The objective is to remove injustice wherever it
is found in the society.

Absoluteness of Fundamental Rights

“Your freedom ends where my freedom starts” is a well-known saying. The constitution gives
you the right to propagate your religion. But does that mean you should force me to hear
religious activities over the loudspeaker? The constitution gives you the freedom of speech and
expression. But does that mean you can publish and sell pornography freely in open market?
These things clearly tell us that no right is absolute. Indian Constitution also takes the same stand
and specifies the limits of these rights. These rights extend only until they do not affect security
of the state, public order, and social decency. The constitution allows reasonable restrictions to
be placed on these rights. SC in A K Gopalan v State of Madras 1950 has also held that
Fundamental Rights are not absolute.
Suspension of Fundamental Rights

Under art 358, freedoms given under art 19 are suspended when the president proclaims
emergency. Further, under art 359, president may suspend the right to move courts for violation
of rights given in part III except art 20 and 21.
Critical Analysis

Indian Constitution was written after a thorough analysis of existing constitution of the world.
The framers of the constitution have incorporated the good things from all the places. As such it
is more fair and consistent than religious books. It is for the foresight of the framers of the
constitution that the country is integrated and has progressed. While the framers had thought
about a lot of things, the one thing that they probably missed was the safeguards against the
degrading morality of politicians.

CONSTITUTIONAL LAW
RIGHT TO EQUALITY UNDER
ARTICLE 14 OF CONSTITUTION
MARCH 5, 2017

Introduction
Right to Equality is the first fundamental right assured to the people of India. Article 14-18 of
the Constitution guarantees this right to every citizen of India. Equality is one of the
magnificent corner-stones of the Indian democracy. “In other constitutions generally this right
embodied in Article 14. As such this right was considered to be a negative right of an individual
not to be discriminated in access to public offices or places or in public matters generally. It did
not take account of the existing inequalities arising even from public policies and exercise of
public powers. The makers of Indian Constitution were not satisfied with such type of
undertaking. They knew of the widespread social and economic inequalities in the country
sanctioned for thousands of years by public policies and exercise of public power supported by
religion and other social norms and practices.”[1]

They were of the opinion that only Article 14 would not be sufficient enough to deal with these
inequalities so they introduced Articles 15-18 in the Constitution along with Article 14 which
deals specifically in and expressly abolished and prohibited some of the existing
inequalities. “Thus, the right to equality in the Constitution of India is not merely a negative
right not to be discriminated against but also a positive right to be treated as an equal.
Under the later aspect of the right, which is the essence and core of the right to equality, the
State is under the obligation to take necessary steps so that every individual is given equal
respect and concern which he is entitled to as a human being.”[2]

Article 14 embodies the idea of equality expressed in the preamble. It lays down the general
principles of equality before the law and prohibits unreasonable discrimination between the
persons. The Succeeding Articles 15, 16, 17 and 18 lays down specific applications of the
general rules laid down in Article 14. Article 14 is the equality clause because of its wide ambit
and applicability. It applies to all persons while Article 15 and others cover only citizens. Article
15 relates to prohibition of discrimination on grounds of Religion, race, caste, sex or place of
birth. Article 16 guarantees equality of opportunity in matters of public employment. Article 17
abolishes untouchability and Article 18 abolishes title.

ARTICLE 14: 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.”…………………………………………………. (Art. 14)

Article 14 guarantees to every person the right to equality before the law or the equal protection
of laws. The first expression ‘equality before the Law’ which is taken from English
Common Law, is somewhat a negative concept. It is a declaration of equality of all persons
within the territory of India, implying thereby the absence of any special privilege in favor of any
individual. Every person, whatever be his rank or position, is subject to the jurisdiction of the
ordinary courts. It means no man is above law and that every person, high or low, is subject to
the ordinary law of the land. Prof. Dicey in explaining the concept of legal equality, as operating
in England, said: “With us, every official, from the Prime Minister down to a constable or
collector of taxes, is under the same responsibility for every Act done without any legal
justification as any other citizen.”[3]

The second expression, “equal protection of laws”, which is rather a corollary of the first
expression, and is based on the last clause of the first section of the Fourteenth Amendment
to the American Constitution, directs that equal protection shall be secured to all persons
within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges
without favouritism or discrimination. It is a more positive concept (as it expects a positive
action from the state) implying equality of treatment in the equal circumstances. In other words,
all persons who are in the same circumstances will be governed by the same set of rules. It is a
guarantee of equal treatment. An equal law should be applied with an equal hand to all persons
who are the equals. The rule is that the like should be treated alike[4] and not that unlike should
be treated alike. The same or uniform treatment of unequals is as bad as unequal treatment of
equals.[5] It has been said that the equal protection of the law is a pledge of protection or
guarantee of equal laws.

Thus, the two expressions in Article 14 make the concept of equal treatment a binding principle
of State Action. In Sri Srinivasa Theatre v. Govt. of Tamil Nadu[6], the Supreme Court
explained that the two expressions equality before the law and equal protection of law do not
mean the same thing even if there may be much in common between them. Equality before the
law is a dynamic concept having many facets. One facet is that there shall be no privileged
person or class and that none shall be above law. Another facet is the obligation upon the State to
bring about, through the machinery of law, an equal society or, equality before the law can be
predicated meaningfully only in equal society.

Article 14 uses the term ‘any person’, natural or artificial, whether he is a citizen or alien, is
entitled to the protection under the provision.[7]

EQUALITY BEFORE LAW


According to Dr. Jennings, “Equality before the law means that among equals the law should be
equal and should be equally administered, that the like should be treated alike. The right to sue
and be sued, to prosecute and to be prosecuted for the same kind of action should be same for all
citizens of full age and understanding without distinctions of race, religion, wealth, social status
or political influence.[8]

In State of West Bengal v. Anwar Ali Sarkar[9], the Court rightly observed that the second
expression is the corollary of the first and it is difficult to imagine a situation in which the
violation of equal protection of laws will not be the violation of the equality before the law.
Thus, in substance, the two expressions mean one and the same thing.

In Re Special Courts Bill, 1978[10], Chandrachud, J., observed: “The underlying principle of
the guarantee of Art. 14 was that all persons similarly circumstanced should be treated alike both
in privileges conferred and liabilities imposed.”

Rule of law- the guarantee of equality before the law is an aspect of what Dicey calls the rule of
Law in England.[11] Rule of law requires that no person shall be subjected to harsh, uncivilized
or discriminatory treatment even when the object is the securing of the paramount exigencies of
law and order.[12]

Prof. Dicey gave three meanings to Rule of Law, they are –


1. The absence of Arbitrary Power or Supremacy of Law – in other words, a man may be punished
for a breach of law but he can be punished for nothing else. It means the absolute supremacy of
Law as opposed to the arbitrary power of the Government.
2. Equality before the Law – it means subjection of all classes to the ordinary law of the land
administered by ordinary law courts. This means that no one is above law with the sole exception
of the monarch who can do no wrong.
3. The Constitution is the result of the ordinary law of the land – it means that the source of the
right of individuals is not the written Constitution but the rules as defined and enforced by the
Courts.

The first and second aspects apply to the Indian system but the third aspect of the Dicey’s rule of
law does not apply to Indian system as the source of rights of individuals is the Constitution of
India. The Constitution is the supreme Law of the land and all laws passed by the legislature
must be consistent with the provisions of the Constitution

EXCEPTION TO THE RULE OF EQUALITY


Under Art. 359, when the proclamation of emergency is in operation, the enforcement of Art. 14
may be suspended during that period. Art. 361 provides that president and governors shall not be
answerable to any Court for the exercise and performance of the powers and duties of the office.
They also enjoy immunity from criminal and civil proceedings until certain conditions are
fulfilled.

Members of Parliament and of State Legislature are not liable in respect of anything done or said
within the House (Arts. 105 and 194). Foreign Diplomats are immune from the jurisdiction of
Courts. Art. 31 C forms an exception by excluding some laws [for implementing any of the
directive principles specified in Art. 39(b) or (c)] from the purview of Art. 14.

EQUAL PROTECTION OF LAWS


It is a guarantee of equal treatment. An equal law should be applied with an equal hand to all
persons who are the equals. The rule is that the like should be treated alike[13] and not that
unlike should be treated alike. The same or uniform treatment of unequals is as bad as unequal
treatment of equals.[14] It has been said that the equal protection of the law is a pledge of
protection or guarantee of equal laws.
The rule of law imposes a duty upon the state to take special measure to prevent and punish
brutality by police methodology.[15] The Rule of Law embodied in Article 14 is the ‘basic
feature’ of the Indian Constitution and hence it cannot be destroyed even by an amendment of
the Constitution under Article 368 of the Constitution.[16]

ARTICLE 14 PERMITS REASONABLE


CLASSIFICATION BUT PROHIBITS CLASS
LEGISLATION
Article 14 does not mean that all laws must be general in character or that the same laws should
apply to all persons or that every law must have universal application, for, all persons are not, by
nature, attainment or circumstances, in the same positions. The State can treat different persons
differently if circumstances justify such treatment. In fact, identical treatment in unequal
circumstances would amount to inequality. The legislature must possess the power to group
persons, objects and transactions with a view to attaining specific aims. So, a reasonable
classification is not permitted but necessary if society is to progress.

By the process of classification, the State had the power of determining who should be regarded
as a class for purposes of legislation and in relation to a law enacted on a particular subject.
Classification meant segregation in classes which had a systematic relation, usually found in
common properties and characteristics. It postulated a rational basis and did not mean herding
together of certain persons and classes arbitrarily[17]

The class legislation is that which makes an improper discrimination by conferring particular
privileges upon a class of persons arbitrarily selected. And no reasonable distinction can be
found justifying the inclusion of one and exclusion of other from such privilege. While Art. 14
forbids class legislation, it permits reasonable classifications of persons, objects, and transactions
by the legislature for the purpose of achieving specific ends. In other words, what Art. 14
prohibits is class legislation and not a classification for the purpose of the legislation.[18]
TEST OF REASONABLE CLASSIFICATION
Article 14 forbids class legislation; it does not forbid reasonable classification of persons,
objects, and transactions by the Legislature for the purpose of achieving specific ends.
Classification to be reasonable should fulfill the following two tests:

1. It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia,


some real and substantial distinction, which distinguishes persons or things grouped together in
the class from another left out of it.
2. The differentia adopted as the basis of classification must have a rational or reasonable nexus
with the object sought to be achieved by the statute in question.

In Re Special Courts Bill[19], the Supreme Court has however warned against over-emphasis
on classification. The Court has explained that ‘the doctrine of classification is only a subsidiary
rule evolved by the courts to give practical content to the doctrine of equality, over-emphasis on
the doctrine of classification or anxious or sustained attempt to discover some basis for
classification may gradually and imperceptibly erode the profound potency of the glorious
content of equity enshrined in Art. 14 of the Constitution. The over-emphasis of classification
would inevitably result in the substitution of the doctrine of classification for the doctrine of
equality.

If there are two laws covering a situation, one more drastic than the other, there is the danger of
discrimination if the Administration has the discretion to apply any of these laws in a given case.
Of the two persons placed in a similar situation, one may be dealt with under the drastic law and
the other under the softer law. To minimize any chance of such discrimination, the court insists
that the drastic law should lay down some rational and reasonable principle or policy to regulate
administrative discretion as to its application. If the drastic law fails to do so, then it will be void
under Art. 14.

This proposition was applied by the Supreme Court in Northern India Caterers V. State of
Punjab[20]. To evict a person from the unauthorized occupation of public premises, a Punjab
Act provided for a Summary procedure. The collector had two choices; he could either himself
order eviction under the special law, or could file an ordinary suit in a court for eviction under
the general law. The Punjab law was declared void under Art. 14 because being a drastic law it
laid down no policy to guide the collector’s choice as to which law to follow in what cases; the
matter was left to his unguided discretion and so there could be discrimination within the same
class inter se, viz., unauthorized occupants of public premises.

In Maganlal Chhagganlal V. Greater Municipality[21], the validity of certain provisions of


Bombay Municipal Corporation Act, which conferred powers on the authorities to initiate special
eviction proceedings against unauthorized occupants of Corporation and government premises
was challenged. Following the N.I. Caterers case, it was argued that the availability of two
procedures, one under the CPC and other under the two Acts of which the former was onerous
and harsher than the latter, the former was hit by Article 14 in the absence of any guidelines as to
which procedure might be adopted. The majority did not agree with the N.I. Caterers case.

Analysing the whole line of cases on the subject he drew a distinction between the statutes which
themselves make a classification and those which authorize the executive to make the
classification. While in the first case the statute will be invalid if it fails to satisfy the
requirements of Article 14 (reasonable classification), in the second case the statute is valid so as
it provides guidance to the executive about the exercise of its discretion in making the
classification. Such guidance need not be provided expressly and specifically in the provisions of
the statute; it may be gathered either from the preamble and other surrounding circumstances and
facts which necessitated the enactment of the statute or from the general object or policy or the
statute gathered from other operative provisions applicable to analogous or of the statue gathered
from other operative provisions applicable to analogous or comparable situations. If such
guidance is missing then only the statute will be invalid. Otherwise only the act of classification
by the executive will be examined. In that case, if the classification fails to satisfy the
requirements of Article 14 it will be ultra vires not only the Constitution but also the statute
under which it is undertaken.

The Court observed that it was inevitable that when a special procedure is prescribed for a
defined class of persons, such as occupiers of municipal or government premises, discretion
which is guided and controlled by the underlying policy and purpose of the legislation has
necessarily to be vested in the administrative authority to select occupiers of municipal or
government premises for bringing them within the operation of the special procedure.

In State of West Bengal V. Anwar Ali Sarkar[22], was involved a Bengal law permitting
setting up of special courts for the ‘speedier trial’ of such ‘offence’, or ‘classes of offences’ or
‘cases’, or ‘classes of cases’, as the State Government might direct by a general or special order.
These courts were to follow a procedure less advantageous to the accused in defending himself
than the procedure followed by the ordinary criminal courts.

The Act was held invalid as it made no reasonable classification, laid down “no yardstick or
measure for the grouping either of persons or of cases or of offenses” so as to distinguish them
from others outside the purviews of the Act. The government had the power to pick out a case of
a person and hand it over to the special tribunal while leaving the case of another person
similarly situated to be tried by the ordinary criminal courts. It gave ‘uncontrolled authority’ to
the executive ‘to discriminate’. The necessity of ‘speedier trial’ was held to be too vague,
uncertain and indefinite criterion to form the basis of a valid and reasonable classification.

On the other hand, in Kathi Ranining Rawat V. Saurashtra[23], a provision practically similar
to the one involved in the Anwar Ali Case, was held valid because the Court found that a policy
was stated in the preamble to the Act and that the government was expected to select such
offences, classes of offences and classes of cases for trial in special courts as were calculated to
affect public safety, maintenance of public order, etc.

Comparing the above two cases, it would appear that the main difference in the terms of the
statutes, which resulted in different judicial verdicts as to their validity, was that the preamble in
the Saurashtra Act was more elaborately worded than that to the Bengal Act. While the term
‘speedier trial’ used in the Bengal Act to set up special courts was held to be indefinite, the
words ‘public safety, etc.’ in the preamble to the Saurashtra Act were held to be more definite
and as giving a guiding principle to control administrative discretion.

In essence, therefore the difference would appear to be more of a drafting nature than of
substance. For sometimes, a new orientation is being given to Art. 14. As has been explained by
Bhagwati, J., in Bachan Singh V. State of Punjab[24], Rule of law which permeates the entire
fabric of the Indian Constitution excludes arbitrariness. “Whenever we find arbitrariness or
unreasonableness there is the denial of rule of law”. Art. 14 enacts primarily a guarantee against
arbitrariness and inhibits state action, whether legislative or executive, which suffers from the
vice of arbitrariness. “Every state action must be non-arbitrary and reasonable. Otherwise, the
court would strike it down as invalid.”
This new dimension of Art. 14 transcends the classificatory principle. Art. 14 is no longer to be
equated with the principle of classification. It is primarily a guarantee against arbitrariness in
state action and the doctrine of classification has been evolved only as a subsidiary rule for
testing whether a particular state action is arbitrary or not. It a law is arbitrary or irrational it
would fall foul of Art. 14.

A common tendency in modern democracies is to confer a discretionary power on the


government or administrative officers. In order to ensure that discretion is properly exercised, it
is necessary that the statute in question lays down some norms or principles according to which
the administrator has to exercise the discretion. Many a time the statutes do not do this and leave
the administrator free to exercise his power according to his judgment. This creates the danger of
official arbitrariness which is subversive of the doctrine of equality. To mitigate this danger, the
courts have invoked Art. 14. In course of time, Art. 14 has evolved into a very meaningful
guarantee against any action of the Administration which may be arbitrary, discriminatory or
unequal.

In Air India V. Nargesh Meerza[25], a regulation made by Air India International, a statutory
corporation, providing for termination of service of an air hostess on her first pregnancy has been
held to be arbitrary and abhorrent to the notions of a civilized society. The regulation also fixed
the normal age of retirement of air hostess at 35 years but authorized the managing directors to
extend the same to 45 years at his option subject to other conditions being satisfied. The
regulation was held bad as it armed the managing director with uncanalized and unguided
discretion to extend the age of retirement of an air hostess. No guidelines, principles or norms
were laid down subject to which the power was to be exercised. Nor was there any procedural
safeguards available to an air hostess who was denied the extension.

In J. Jayalalitha V. Union of India, Section 3 of the Prevention of Corruption Act, 1988,


empowers the State Government to appoint as many special Judges as may be necessary “for
such case or group of cases” as may be specified in the notification. The validity of this provision
was challenged under the Art. 14 on the grounds that confer unfettered, unguided and absolute
discretion on the Government and is thus capable of leading to abuse of power by the
Government.
The Supreme Court has however upheld the validity of this provision. The court has agreed with
the proposition that conferment of discretionary power on the executive which in the absence of
any policy or guidelines permits it to pick and choose it unconstitutional. But, in the instant case,
the court has ruled that S. 3(1) does not confer unfettered or unguided power because the object
of the Act and S. 3 indicate when and under what circumstances, the power conferred by S. 3 has
to be exercised. The policy can be gathered from the preamble, the provisions of the enactment
and other surrounding circumstances.

One of the objects of the Act is to provide speedy trial for cases of corruption. This is the policy
of the Act and, therefore, while exercising the power under S. 3, the Government shall have to be
guided by the said policy. The Legislature could not have anticipated as to how many special
Judges would be needed in an area. Therefore, the Legislature could not have laid down any
fixed rule or guidelines. It had to leave this matter to the discretion of the State Government as it
would be in a better position to know the requirement. This is why discretion has been conferred
on the State Government to appoint as many special Judges as may be necessary.

The situation where the statute itself does not suffer from any such vice, but the administrative
authority may implement it in a discriminatory manner, or may not follow the policy or principle
laid down in the Act to regulate its discretion. In such a case, the charge of violation of equal
protection may be laid against the Administrative and its action quashed under Art. 14.

Every action of the state must be informed by reason and guided by public interest. Actions
uninformed by reason may be questioned as arbitrary. Whenever there is arbitrariness in state
action, Art. 14 springs to life and judicial review strikes such an action down. Arbitrariness is the
antithesis of Art. 14 Equality and arbitrariness are sworn, enemies. Art. 14 strikes at arbitrariness
in state action and ensures fairness and equity of treatment.

Statute based on a reasonable classification does not become invalid merely because the class to
which it applies consists of only one person. A single body or institute may form a class. A
legislation specifically directed to a named person or body would be valid if, on account of some
special circumstances, or reasons applicable to that person, and not applicable to others, the
single persons could be treated as a class by himself. The Act may, however, be bad if there are
no special circumstances differentiating the person concerned from the rest, or if other having the
same attributes are not covered by the Act.
In Chiranjit Lal Chawdhary V. Union of India[26], the petitioner approached the Supreme
Court for the protection against the enforcement of a Central Act, the Sholapur Spinning and
Weaving Co. (Emergency Provisions) Act, 1950. The petitioner was an ordinary shareholder of
the Sholapur Spinning and Weaving Co. Ltd. On Account of mismanagement and neglect of the
affairs of the Company, a situation had arisen that brought about the closing down of the mill.
The action of the company prejudicially affected the production of an essential commodity, apart
from causing serious unemployment amongst certain sections of the community. The Central
Government thereupon issued an Ordinance which was later replaced by the above-mentioned
Act. By this Act, the management and administration of the assets of the Company were placed
under the control of the directors appointed by the government. As regards the shareholders, the
Act declared that they could neither appoint a new director not could they take proceedings for
the winding up of the Company. The contention of the petitioner was that the impugned Act
infringed the rule of equal protection of the laws embodied in Article 14 because a single
company and its shareholders were being subjected to disabilities vis-à-vis other companies and
held the legislation validly.

In Ameerunnisa Case,[27] a dispute between two rival parties regarding succession to the estate
of a deceased Nawab was pending and after several vicissitudes for which the Nizam himself or
his legal advisers were primarily responsible, a report was prepared by the legal advisers of the
State in a particular way which, contrary to the opinion given by an earlier special commission,
negatived the claim of one party, i.e. of two ladies and their children. To give effect to the report,
the Nizam, who at that time exercised the powers of the Hyderabad Legislature, passed an Act,
the Wali-ud-Dowla Succession Act, 1950. By this Act, the claim of the two ladies was dismissed
and the property adjudged to the other party. Obviously, the effect of the Act was that the two
ladies and their children were deprived of the right to enforce their claim in a court of law in
accordance with the Mohammedan Law. They, in fact, were discriminated against the rest of the
community in respect of a valuable right which the law secures to all, namely, the right of free
access to the court.

The discrimination made against the two ladies could only be valid if there were some
reasonable ground for the differentiation made by the law. Two reasons were put in justification
of the classification or differentiation made by the Act. First, that there was an adverse report
against them by the State legal advisers and, second, that the dispute was of a long standing. The
Supreme Court held that neither of these grounds could serve as a reasonable basis for the
differentiation made by the law. As regards the first, the dispute regarding succession to the
estate of the Nawab was a legal dispute, and without determination of the points in issue by a
properly constituted tribunal of law, a legislation based upon the reports of a non-judicial
authority and made applicable to specific individuals, who were deprived thereby of valuable
rights, which were enjoyed by all other persons occupying the same position, did plainly come
within the constitutional inhibition of Article 14.

If the legislature makes the report of the legal adviser as the ground on which it deprives one
specific person of his rights to have his say in a court of law, that law would be arbitrary and
unreasonable. The second ground put in support of the classification was also rejected. The Court
pointed out that the continuance of a dispute even for a long period of time between two sets of
rival claimants to the property of a private person is not a circumstance of such an unusual nature
as would invest a case with special or exceptional features and made it a class by itself justifying
its differentiation from all other cases for succession disputes. Thus there was nothing to
distinguish the dispute between the parties under the Wali-ud-Dowla Act which is not found in
any other dispute between private parties.

In Ram Prasad V. State of Bihar[28], the two appellants had obtained a settlement of land in
Bihar which at that time was under the management of the Court of Wards on behalf of the
disqualified proprietress. The lands were settled at the prevailing rate or rent but the salami or
premium was fixed at the half of the usual rate as a concession to the appellants who happened to
be distant relations of the proprietress. For some reasons, there was an agitation amongst the
tenants of the locality against the lease held by the appellants. The matter was brought to the
notice of the Congress Working Committee which found the settlement illegal and against the
public interest. The lessees, therefore, were asked to vacate the land which they refused.
Thereupon the Bihar State Legislature passed the impugned Act.

The Act terminated the contract of lease and directed the lessees to quit the land immediately.
The lessees contended the Act was unconstitutional because it denied o them the equal protection
of laws. The Supreme Court accepted the appellants’ contention and held the Act ultra vires the
Bihar Legislature because it appeared that there were numerous persons occupying the same
position as the Alternatively, the dispute being between private parties, it was a matter for
determination by duly constituted courts in accordance with the normal procedure. But what the
legislature had done was to single out the two individuals and denied them the right which every
Indian Citizen possesses to have his rights adjudicated in accordance with the laws. The reasons
given for the extraordinary procedure were indeed remarkable for ‘their disturbing implications’.

It was said that the agitation amongst the tenancy of the locality and opposition on the part of
persons living in the locality against the appellants’ possession of the land had led to the breach
of peace and institution of criminal cases. This could not be a rational basis to discriminate
against the two named individuals. When on the face of a statute there is no classification at all
and no attempt has been made to select any individual or group with reference to any
differentiating attribute peculiar to that individual or group and not possessed by other, this
presumption is of little or no assistance.

These and some other cases seem to establish that except in Charanjit Lal case, the singling out
of the individuals has never been seen with favor, particularly when such singling out has been
done for the purpose of hostile discrimination. As a matter, of course, single person laws are
prima facie violative of Article 14 because they do not make a classification on the basis of some
general or particular characteristics which may be found in any individual or class of individuals
now or in future; rather they make one individual their target excluding every possibility of
bringing any other person within their reach even if that other person also depicts those
characteristics.

By – Monika Sharma

References:
[1] V.N. Shukla, Constitution of India, 10th Ed. , p. 37

[2] V.N. Shukla, Constitution of India, 10th Ed. , p. 37

[3] Dicey: Law of Constitution, 10th Edn. , p. 193

[4] Jennings: Law of Constitution, p.94


[5] All India Sainik Schools Employees’ Assn. v. Sainik Schools Society, 1989 Supp (1) SCC
205,212

[6] (1992) 2 SCC 643

[7] Chiranjit Lal Chawdhary v. Union of India, AIR 1951 SC 51

[8] Dr. Jennings, Law of Constitution, (3rd Edn.), p. 49

[9] AIR 1952 SC 75

[10] AIR 1979 SC 478

[11] Dicey- Law of Constitution, pp. 202-3 (10th Ed.)

[12] Rubinder Singh v. Union of India, AIR 1983 SC 65

[13] Jennings: Law of Constitution, p.94

[14] All India Sainik Schools Employees’ Assn. v. Sainik Schools Society, 1989 Supp (1) SCC
205,212

[15] Raghubir Singh v. State of Haryana, AIR 1980 SC 1087

[16] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299

[17] Re Special Courts Bill, 1978 AIR 1979 SC 478

[18] State of A.P. v. N.R. Reddi (2001) 7 SCC 708

[19] 1978(AIR 1979 SC 478)

[20] AIR 1967 SC 1581

[21] AIR 1974 SC 2009

[22] AIR 1952 SC 75


[23] AIR 1952 SC 123

[24] AIR 1980 SC 898

[25] AIR 1981 SC 1829

[26] AIR 1950 SC 41

[27] Ameerunnisa Begum v. Mahboob, AIR 1953 SC 91

[28] AIR 1953 SC 215


RESERVATION: UNDER ARTICLES
15 AND 16 OF THE CONSTITUTION
MARCH 3, 2017

Reservation in simple language implies to an act of withholding, reserving or keeping back some
of the seats for the upliftment of status and standard of living of socially and educationally
backward sections, classes or groups. Reservation in Indian law is a form of affirmative
action whereby a percentage of seats are reserved in the public sector units, union and state
civil services, union and state government departments and in all public and private
educational institutions, except in the religious/ linguistic minority educational institutions,
for the socially and educationally backward communities and the Scheduled Castes and
Tribes who are inadequately represented in these services and institutions.

The major reason for the inclusion of reservation scheme in Indian Constitution is that the
framers of the Constitution believed that, due to the caste system, SCs and the STs were
historically oppressed and denied respect and equal opportunity in Indian society and were thus
under-represented in nation-building activities. Thus, to enhance their standards this scheme was
made a provision under Article 15 and 16 as follows:
Article 15. : – Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth. :-

 The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, and place of birth or any of them.
 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 regards 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.
 Nothing in this article shall prevent the State from making any special provision for
women and children.
 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 Scheduled Tribes.
 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 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.

“Article 14 embodies the general principle of equality before the law. A specific application of
the same principle is provided in Article 15. Article 15 concretises and enlarges the scope of
Article 14. It prohibits certain classifications even though they may be justified under Article 14
and expressly asks for making certain classifications which may be impliedly be within the reach
of Article 14.”[1]

Article 15(1) would have come in the way of making favourable provisions for backward
sections of society. Clause (1) prohibits the State from discriminating against citizens on grounds
only of religion, race, sex, caste, and place of birth or any of them. The right guaranteed in clause
(1) is conferred on a citizen as an individual and is available against his being subjected to
discrimination in the matter of rights, privileges and immunities pertaining to him as a citizen
generally.

The Supreme Court in Nain Sukh Das v. State of U.P.[2], invalidated an Act of the State
Legislature which provided for elections on the basis of separate electorates for members of
different religious communities.

In D.P. Joshi v. State of Madhya Pradesh[3], the Supreme Court held that a law which
discriminates on the ground of residence does not infringe Article 15. Place of birth is distinct
from residence.

Restriction provided in Clause (2) will apply only if the places mentioned in the Clause are either
maintained wholly or partly out of State funds or dedicated to the use of the general public.

Accordingly, a private well or tank does not come within the meaning of this clause. A burial
ground shall be a place of public resort if it is maintained wholly or partly by the State, and shall
be open for all. Where a place of public resort is not maintained by the State, it must be
dedicated by the owner to the use of general public. Places of public resort are places which are
frequented by the public like a public park, a public road, a public bus, ferry, public urinal or
railway, a hospital, etc. Even before the commencement of the Constitution in Laksmidhar
Mishra v. Rangalal[4], the Privy Council held that there cannot be a dedication only to a limited
section of the public like the inhabitants of a village, though such a right can be claimed on the
basis of custom.

On grounds only – Attention is drawn to the word ‘only’ in Clause (1) and (2) of Article 15, viz.
the State shall to discriminate against any person on grounds only of religion, race caste, sex,
place of birth or any of them. It is the effect or operation of the statute which is the determining
factor and not its purpose or motive. Accordingly, the court should hold a law repugnant to the
guarantee given by Article 15(1) if, as a result of the law, a person is denied any right or
privilege solely because of his religion, caste, race, sex or place of birth.

Clause (1), (2) and (3) together it will follow that while there can be no discrimination in general
on the ground of sex, special provision in the case of women and children are permissible. Thus
it would be no violation of Article 15 if institutions are set up by the State exclusively for women
or places are reserved for women at public entertainments or in public conveyances.
Clause (4) was added by the Constitution (First Amendment) Act, 1951 as a result of the
decision of the Supreme Court in State of Madras V. Champakam Dorairajan[5]. In that case
the Court struck down the communal G.O. of the Madras Government which, with the object to
help the backward classes, had fixed the proportion of students of each community that could be
admitted into the State medical and engineering colleges. Although the Directive Principles of
State Policy embodies in Article 46 of the Constitution lays down that the State should promote
with special care the educational and economic interests of the weaker sections of the people and
protect them from social injustice, the court held that “the Directive Principles of State Policy
have to conform to and run as subsidiary to the Chapter of Fundamental rights”. Now clause (4)
enables the State to make special provisions for the advancement of socially and educationally
backward classes of citizen or for the Scheduled Castes and Scheduled Tribes. Such provisions
include reservations or quotas and can be made in the exercise of executive powers without any
legislative support.

The two most contentious issues in the application of Article 15(4) as well as Article 16(4)
have been: (i) determination of backward classes and (ii) extent or quantum of reservation.
Although Article 16(4) does not qualify ‘backward class of citizens’, as does Article 15(4), by
the words ‘socially and educationally’, the problem of determining such classes is similar under
both the provisions.
From the several judicial pronouncements concerning the definition of backward classes, several
propositions emerge. First, the backwardness envisaged by Art. 15(4) in both social and
educational and not either social or educational. This means that a class to be identified a
backward should be both socially and educationally backward.

In Balaji[6], the Court equated the “social and educational backwardness” to that of the
“Schedule Castes and Schedule Tribes”. The Court observed: “It was realized that in the Indian
society there were other classes of citizens who were equally, or may be somewhat less,
backward than the Scheduled Castes and Scheduled Tribes and it was thought that some special
provision ought to be made even for them.”

Secondly, poverty alone cannot be the test of backwardness in India because by and large people
are poor and, therefore, large sections of population would fall under the backward category and
thus the whole object of reservation would be frustrated.

Thirdly, backwardness should be comparable, though not exactly similar, to the scheduled Castes
and Scheduled Tribes.

Fourthly, ‘caste’ may be a relevant factor to define backwardness, but it cannot be the sole or
even the dominant criterion. If classification for social backwardness were to be based solely on
caste, then the caste system would be perpetuated in the Indian society. Also this test would
break down in relation to those sections of society which do not recognize caste in the
conventional sense as known to the Hindu Society.

Fifthly, poverty, occupations, place of habitation, all contribute to backwardness and such factors
cannot be ignored.

Sixthly, backwardness may be defined without any reference to caste. As the Supreme Court has
emphasized, Art. 15(4) “does not speak of castes, but only speaks of classes”, and that ‘caste’
and ‘class’ are not synonymous. Therefore, exclusion of caste to ascertain backwardness does
not vitiate classification if it satisfies other tests.
In M.R. Balaji v. State of Mysore[7], it was held that the caste of a group of persons cannot be
the sole or even predominant factor though it may be a relevant test for ascertaining whether a
particular class is a backward class or not. Backwardness under Article 15(4) must be social and
educational, and that social backwardness is, in the ultimate analysis, the result of poverty. One’s
occupation and place of habitation could be the other relevant factors in determining social
backwardness. The Court invalidated the test of backwardness which was based predominantly,
if not solely, on caste.
In this case the validity of a Mysore Government Order reserving 68 per cent of the seats in the
engineering and medical colleges and other technical institutions in favour of backward classes
including the Scheduled Castes and Scheduled Tribes was challenged. The Supreme Court
characterized Art. 15(4) as an exception to Art. 15(1) [as well as to Art. 29(2)]. The Court held:
“A special provision contemplated the Article 15(4) like reservation of posts and appointments
contemplated by Article 16(4) must be within reasonable limits. In this matter again, we are
reluctant to say definitely what would be provision should be less than 50 per cent; how much
less than 50 per cent would depend upon the relevant prevailing circumstances in each case.”
Reservation of 68 per cent of seats in that case was found by the Court plainly inconsistent with
Article 15(4).

In the State of U.P. V. Pradeep Tandon[8], in admission to medical colleges in U.P. in favour
of candidates from- (a) rural areas, (b) hill areas and (c) Uttrakhand area was challenged. The
classification was based on geographical or territorial considerations because in governments
view the candidates from these areas constituted socially and educationally backward classes of
citizens. The Court held that the accent under Article 15(4) was on classes of citizens and the
Constitution did not enable the State to bring socially and educationally backward areas within
the protection of Article 15(4). It was emphasized that the backwardness contemplated under
Article 15(4) was both social and educational and the socially and educationally backward
classes of citizens were groups other than the groups based on castes. The traditional unchanging
conditions of citizens could contribute to social and educational backwardness. The place of
habitation and its environment could be a determining factor in judging the social and
educational backwardness. The Court upheld reservations for persons from hill and Uttrakhand
areas. It was found that the absence of means of communication, technical processes and
educational facilities kept the poor and illiterate people in the remote and sparsely populated
areas backward. However, reservation of seats for rural areas was invalidated because the
division of the people on the ground that the people in the rural areas were poor and those in the
urban areas were not, was not supported by the facts. Further, the rural population was
heterogeneous and not all of them were educationally backward.
The question was again considered in Jayasree v. State of Kerala[9], where the Supreme Court
was called upon to determine whether the constitutional protection could be extended to a person
who belonged to a backward community but the family’s income exceeded the prescribed limit
of certain amount per annum. The court held that in ascertaining social backwardness of a class
of citizens, it may not be irrelevant to consider the caste of group of citizens. Castes cannot,
however, be made the sole or dominant test as social backwardness which results from poverty is
likely to be aggravated by considerations of caste. This shows the relevance of both caste and
poverty in determining the backwardness of the citizens but neither caste alone nor poverty alone
can be the determining test of social backwardness. It was, therefore, held that the impugned
order prescribing the income limit was valid, as the classification was based not on income but
on social and educational backwardness. IT was recognized that only those among the members
of the mentioned castes, whose economic means were below the prescribed limit were socially
and educationally backward, and the educational backwardness was reflected to a certain extent
by the economic conditions of the group.
Upholding the validity of a total of 49.5 per cent reservation (22.5 per cent for SCs and STs and
27 per cent for SEBCs) in the Mandal Commission case[10], the Court held that barring any
extraordinary situation Court mentioned of a far-flung remote area whose population needs
special treatment for being brought into the mainstream. For such cases the Court suggested
extreme caution and making out of a special case. The 50 per cent limit does not include those
members of SEBCs who get selected on their own merit. They are entitled to get adjusted against
the open category. The 50 per cent limit, however, applies to all reservations, including those
which can be made under Article 16(1), i.e., altogether the reservation should not exceed 50 per
cent limit. But this limit applies only to reservations and not to exemption, concessions and
relaxations. Therefore 50 per cent limit may not apply to many situations under Article 15(4) and
16(4). For the application of 50 per cent rule a year should be taken as the unit and not the entire
strength of the cadre service or the unit, as the case may be. So long as this limit is observed,
carry forward rule is permissible.

The policy of reservation has to be operated year-wise and there cannot be any such policy in
perpetuity. The State can review from year to year the eligibility of the class of socially and
educationally backward class of citizens. Further, it has been held that Art. 15(4) does not mean
that the percentage of reservation should be in proportion to the percentage of the population of
the backward classes of the total population.
The Court in the Mandal Commission case[11] has clearly held that Article 15(4) and 16(4) are
not exceptions to clauses (1) and (2) of those articles or to Article 14. They are rather the means
of achieving the right to equality enshrined in those articles.
Following the Court’s direction the Centre and the States have appointed backward class
commissions for constant revision of such classes and for the exclusion of creamy layer from
amongst them. Unreasonably high standards for determining the creamy layer have been
invalidated and wherever any government has failed to implement the requirement of appointing
a commission and exclusion of creamy layer it has issued necessary directions compelling them
to do so.

In Jagdish Saran V. Union of India[12], a rule reserving 70 per cent of the seats in the post-
graduate medical course to Delhi University medical graduates and keeping 30 per cent open to
all, including the Delhi University graduates, was challenged by a medical graduate from Madras
University as violating Article 14 and 15. Though the rule was not invalidated in view of
imperfect, scanty, fragmentary and unsatisfactory materials, Krishna Iyer, J., explained that (i)
where the aspiring candidates are not an educationally backward class, institution-wise
segregation or reservation has no place in Article 15; (ii) equality is not negated or neglected
where special provisions are made with the larger goal of the disabled getting over their
disablement consistently with the general good and individual spirit; (iii) exceptional
circumstances cannot justify making of reservations as a matter of course in every University and
in every course; (iv) the quantum of reservation should not be excessive or societally injurious,
measured by the overall competency of the end product, viz., degree holders; (v) the burden is on
the party who seeks to justify the ex-facie deviation from equality. Speaking generally, Krishna
Iyer, J. asserted that unless there is a vital nexus with equal opportunity, broad validation of
university-based reservation cannot be built on the vague ground that all universities are
practicing it, or that medical graduates resorted to hunger strike to press for higher percentage of
reservation of seats.

Article 16. Equality of Opportunity in matters of public Employment. :-

 There shall be quality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
 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.
 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 office under 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.
 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 service under the State.

(4-A) 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 the Scheduled Castes and the Scheduled Tribes which, in the opinion
of the State, are not adequately represented in the service under the State.

(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a
year which are reserved for being filled up in (4) or Clause (4-A) 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 fifty per cent reservation on total number of vacancies of that year.

 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.

Article 16 is an instance of the application of the general rule of equality before law laid down in
Article 14 and of the prohibition of discrimination in Article 15(1) with respect to the
opportunity for employment or appointment to any office under the State. Explaining the relative
scope of Articles 14, 15 and 16. Das, J., said:

“Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same
right in favour of citizens in some special circumstances. Article 15 is more general than Article
16, the latter being confined to matters does not mention descent as one of the prohibited
grounds of discrimination as Article 16 does.”[13]

This relationship has been further emphasised in State of kerala v. N.M. Thomas[14], and
the Mandal Commission case[15] discussed under Section 15(4) and Section 16(4).

Art. 16(1) is a facet of Art. 14. Arts. 14 and 16(1) are closely inter-connected. Art. 16(1) takes its
roots from Art. 14. An important point of distinction between Arts. 14 and 16 is that while Art.
14 applies to all persons, citizens as well as non-citizens, Art. 16 applies only to citizens and not
to non-citizens. The goal of Articles 14 and 16 is limited to equality among comparable, a
necessary implication of which is permissibility of reasonable classification, having nexus with
the object to be achieved.

Art. 16 deals with a very limited subject, viz., public employment. The Scope of Art. 15(1) is
much wider as it covers the entire range of state activities. The ambit of Art. 16(2) is restrictive
in scope than that of Art. 15(1) because Art. 16(2) is confined to employment or office under the
state, meaning services under the Central and State Governments and their instrumentalities, Art.
15 being more general in nature covers many varied situations of discrimination. Further, the
prohibited grounds of discrimination under Art. 16(2) are somewhat wider than those under Art.
15(2) because At. 16(2) prohibits discrimination on the additional grounds or descent and
residence apart from religion, race, caste, sex and place of birth.
In Clause (1) the general rule is laid down hat there shall be equal opportunity for citizens in
matters relating to ‘employment’ or ‘appointment to any office’ under the State. What is
guaranteed is the equality of opportunity.

Clause (2) lays down specific grounds on the basis of which citizens are not to be discriminated
against each other in respect of any appointment or office under the State. The scope of clause
(1) of Article 16 is wider than the scope of clause (2), because discrimination on grounds other
than those mentioned in clause (2) of the Article 16 has to be weighed and judged in the light of
the general principles laid down in clause (1).

Under Clause (3) Parliament is competent to regulate the extent to which it would be permissible
for a State to depart from the law laid down in clause (2). It is Parliament alone which can
prescribe such conditions, and that too in regard to State and not the Union appointments.
Explaining the nature of Art. 16(4), the Supreme Court has stated that it is “an enabling
provision” conferring a discretionary power on the state for making any provision or 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 service of the state. Art. 16(4) neither imposes any
constitutional duty nor confers any Fundamental Right on any one for claiming reservation.
The equality of opportunity guaranteed by Art. 16(1) is to each individual citizen of the country
while Art. 16(4) contemplates special provision being made in favour of the socially
disadvantaged classes. Both must be balanced against each other. Neither should be allowed to
eclipse the other. Accordingly, the rule of 50% reservation in a year should be taken as a unit and
not the entire strength of the cadre, service or the unit as the case may be.
In Devadasan case[16], the Supreme Court was required to adjudge the validity of the carry
forward rule. The carry forward rule envisaged that in a year, 17½ per cent posts were to be
reserved for Scheduled Castes/Tribes; if all the reserved posts were not filled in a year for want
of suitable candidates from those classes, then the shortfall was to be carried forward to the next
year and added to the reserved quota for that year, and this could be done for the next two years.
The result of the rule was that in a year out of 45 vacancies in the cadre of section officers, 29
went to the reserved quota and only 16 posts were left for others. This meant reservation upto
65% in the third year, and while candidates with low marks from the Scheduled Castes and
Scheduled Tribes were appointed, candidates with higher marks from other classes were not
taken.

Basing itself on the Balaji principle, the Supreme Court declared that more than 50 per cent
reservation of posts in a single year would be unconstitutional as it per se destroys Art. 16(1).
The Court emphasized that in the name of advancement of backward communities, the
Fundamental Rights of other communities should not be completely annihilated. The Court held
that as Article 16(4) was a proviso or an exception to Art. 16(1), it should not be interpreted so as
to nullify or destroy the main provision, as otherwise it would in effect render the guarantee of
equality of opportunity in the matter of public employment under Art. 16(1) wholly illusory and
meaningless.

The overriding effect of Cl. (4) of Art. 16 on Cls. (1) and (2) could only extend to the making of
a reasonable number of reservations of appointments and posts in certain circumstances. A
‘reasonable number’ is one which strikes a reasonable balance between the claims of the
backward classes and those of other citizens.
The Court emphasized that each year of recruitment has to be considered by itself and the
reservation for backward communities should not be as excessive as to create a monopoly or to
disturb unduly the legitimate claims of other communities.

In State of Kerala V. N.M. Thomas[17], the Supreme Court held that it was permissible to give
preferential treatment to Scheduled Castes/Tribes under Art. 16(1) outside Art. 16(4). In this case
in a dissenting opinion, Subba Rao, J., had express the opinion that Art. 16(4) was not an
exception to Art. 16(1), but was a legislative device by which the framers of the Constitution had
sought to preserve a power untrammelled by the other provisions of the Article. It was a facet of
Art. 16(1) as “it fosters and furthers the idea of equality of opportunity with special reference to
under privileged and deprived classes of citizens.

The majority accepted this view of Subba Rao, J. Accordingly, and the Court observed: Art.
16(4) is not in the nature of an exception of Art. 16(1). It is a facet of Art. 16(1) which fosters
and furthers the idea of equality of opportunity with special reference to an under privileged and
deprived class of citizens. Thus, Art. 16(1) being a facet of the doctrine of equality enshrined in
Art. 14 permits reasonable classification just as Art. 14 does. The majority ruled that Art. 16(4) is
not an exception to Art. 16(1). Art. 16(1) it permits reasonable classification for attaining
equality of opportunity assured by it.

Thomas marks the beginning of a new judicial thinking on Art. 16 and leads to greater
concessions to SC, ST and other backward persons. If the Supreme Court had stuck to the view
propagated in earlier cases that Art. 16(4) was an exception to Art. 16(1), then no reservation for
any other class, such as army personnel, freedom fighters, physically handicapped, could have
been made in services.

The fact situated in Thomas was that the Kerala Government made rules to say that promotion
from the cadre of lower division clerks to the higher cadre of upper division clerks depended on
passing a test within two years. For SCs and STs, exemption could be granted for a longer
period. These classes were given two extras years to pass the test. This exemption was
challenged as discriminatory under Art. 16(1) on the ground that Art. 16 permitted only
reservation in favour of backward classes but it was not a case of reservation of posts for SCs
and STs under Article 16(4) and that these persons were not entitled to any favoured treatment in
promotion outside Art. 16(4).

By majority, the Supreme Court rejected the argument. It ruled that Art. 16(1) being a facet of
Art. 14, would permit reasonable classification and, thus, envisaged equality between the
members of the same class of employees but not equality between members of a separate,
independent class. Classification on the basis of backwardness did not fall within Art. 16(2) and
was legitimate for the purposes of Art. 16(1). Giving preference to an under-represented
backward community was valid and would not contravene Arts. 14, 16(1) and 16(2). Art. 16(4)
removes any doubt in this respect. The classification of employees belonging to SC and ST for
allowing them an extended period of two years for passing the special tests for promotion is a
just and reasonable classification having rational nexus to the object of providing equal
opportunity for all citizens in matters relating to employment or appointment to public office.
The majority adopted a very liberal attitude in Thomas as regards SCs and STs and backward
classes. The result of the pronouncement is to enable the state to give the backward classes a
preferential treatment in many different ways other than reservation of posts as envisaged in Art.
16(4). Preferential treatment for one is discriminatory treatment for another and, therefore, it is
necessary to draw a balance between the interests of the backward classes and the other classes.
The Supreme Court has shown consciousness of this danger and, therefore, has laid down a few
criteria which a classification must fulfil, viz.:

 the basis of the classification has to be backwardness;


 the preferential treatment accorded to backward classes has to be reasonable and must
have a rational nexus to the object in view, namely, adequate representation of the under-
represented backward classes;
 The overall consideration of administrative efficiency should be kept in view in giving
preferential treatment to the backward classes.

It is obvious that in Thomas, the Court has taken a more flexible view of Art. 16(1) than had
been taken by it is earlier cases. It is now clearly established that Art. 16(4) does not cover the
entire field covered by Arts. 16(1) and (2) and some of the matters relating to employment in
respect of which equality of opportunity is guaranteed by Arts. 16(1) and (2) do not fall within
Art. 16(4).

In Akhil Bhartiya Soshit Karamchari Sangh (Railway) V. Union of India,[18] the Supreme
Court again went into the question of reservation in public services vis-à-vis Art. 16. The Court
upheld reservation of posts at various levels and making of various concessions in favour of the
members of the SC and ST.

The Court reiterated the Thomas proposition that under Art. 16(1) itself, the state may classify,
“based upon substantial differentia, groups or classes” for recruitment to public services and
“this process does not necessarily spell violation of Article 14 to 16”
Art. 16(2) expressly forbids discrimination on the basis of ‘caste’. SC and ST are not castes
within the ordinary meaning of caste. These are backward human groups. There is a great divide
between these persons and the rest of the community.
Thus, reservation in selection posts in railways for SC and St was held valid. The quantum of
reservation (17½%) in railway services for SC and ST was held not excessive and the field of
eligibility was not too unreasonable. The carry forward rule for three years was held not bad.

Under the Carry forward rule, the quota for SC and ST could go up to a maximum of 66% of
posts. This was upheld with the remark that figures on paper were not so important as the facts
and circumstances in real life which showed that the quota was never fully filled. But this
fixation was subject to the rider that, as a fact, in any particular year, there would not be a
substantial increase over 50% in induction of reserved candidates. Here the Court took the actual
facts, rather than the paper rules, into consideration.

In Indra Sawhney[19], the Supreme Court has taken cognizance of many complex but very
momentous questions having a bearing on the future welfare and stability of the Indian Society.
The Supreme Court has delivered a very thoughtful, creative and exhaustive opinion dealing with
various aspects of the reservation problem. Basically reservation in government services, is anti-
meritocracy, because when a candidate is appointed to a reserved post it inevitably excludes a
more meritorious candidate. But reservation is now a fact of life and it will be the ruling norm
for years to come. The society may find it very difficult to shed the reservation rule in the near
future. But the Court’s opinion has checked the system of reservation from running riot and has
also mitigated some of its evils.

Three positive aspects of the Supreme Court’s opinion may be highlighted:

 the over-all reservation in a year is now limited to a maximum of 50%.


 amongst the classes granted reservation, those who have been benefited from reservation
and have thus improved their social status (called the ‘creamy layer’ by the Court),
should not be allowed to benefit from reservation over and over again. This means that
the benefit of reservation should not be misappropriated by the upper crust but that the
benefit of reservation should be allowed to filter down to the lowliest so that they may
benefit from reservation to improve the position.
 Three, an element of merit has now been introduced into the scheme of reservation. This
has been done in several ways, e.g.:
1. promotions are to be merit-based and are to be excluded from the reservation rule;
2. certain posts are to be excluded from the reservation rule and recruitment to such posts is
to be merit based;
3. Minimum standards have to be laid down for recruitment to the reserved posts. IN facts,
the Courts has insisted that some minimum standards must be laid down even though the
same may be lower than the standards laid down for the non-reserved posts.

In his opinion in Indra Sawhney, Jeevan Reddy, J., has emphasized upon the member of a
backward class reaching an “advanced social level or status”, he would no longer belong to the
backward class and would have to be weeded out. The Court has opined that exclusion of creamy
layer, i.e., socially advanced members, will make the class a truly backward class and would
more appropriately serve the purpose and object of Art. 16(4). Jeevan Reddy, J., has stated that
there are sections among the backward classes who are highly advanced socially and
educationally, and they constitute the forward section of the community. These advanced
sections do not belong to the true backward class. “After excluding them alone, would be the
class be a compact class. In fact, such exclusion benefits the truly backward.”
Accordingly to Jeevan Reddy, J., the exclusion of the creamy layer must be on the basis of social
advancement and not on the basis of economic interest alone. It is difficult to draw a line where a
person belonging to the backward class ceases to be so and becomes part of the ‘creamy layer’.
In Ashoka Kumar Thakur V. State of Bihar[20], the Supreme Court has assessed the validity
of unrealistically high levels of income or holdings of other conditions prescribed by the
Legislatures of UP and Bihar as criteria to identify the creamy layer. For example, while the
Supreme Court in the Mandal case has categorically said that the Children of IAS or IPS, etc.
without anything more could not avail the benefit of reservation, in the scheme drawn in UP and
Bihar, a few more conditions were added for falling in the creamy layer, such as, he/she should
be getting a salary or Rs. 10,000/- p.m. or more; the wife or husband to be a graduate and owing
a house in an urban area. OR, if a professional doctor, surgeon, lawyer, architect, etc., he should
be having an income not less than Rs. 10 lakh, his/ her spouse is a graduate and having family
property worth Rs. 20 Lakhs. Similar conditions were added in case of others, such as, traders,
artisans, etc.

The Supreme Court has quashed these conditions as discriminatory. The Court has ruled that
these conditions laid down by the two States have no ‘nexus’ with the object sought to be
achieved. The criterion laid down by the two States to identify the creamy layer are violative of
Art. 16(4), wholly arbitrary, violative or Art. 14, and against the law laid down by the Supreme
Court in the Mandal case, where the Court has expressed the view that a member of the All India
Service without anything more ought to be regarded as belonging to the “creamy layer”.
By – Monika Sharma

[1] V. N. Shukla, Constitution of India, 10th Edn., p. 70

[2] AIR 1953 SC 384

[3] AIR 1955 SC 334. See also Arun v. State of Karnataka, AIR 1977 Kar. 174

[4] AIR 1950 PC 56: 76 IA 271

[5]AIR 1951 SC 226

[6] M.R. Balaji v. State of Mysore, AIR 1963 SC 649

[7] AIR 1963 SC 649

[8] (1975) 1 SCC 267: AIR 1975 SC 563. See also Arti Sapru v. State of J& K, AIR 1981 SC
1009

[9] AIR 1976 SC 2381

[10] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477

[11] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477

[12] AIR 1980 SC 820

[13] Gazula Dasaratha Rama Rao v. State of A.P., AIR 1961 SC 564

[14] AIR 1976 SC 490

[15] Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217

[16] Devdasan v. Union of India, AIR 1964 SC 179; B.N. Tewari v. Union of India, AIR 1965
SC 1430

[17] AIR 1976 SC 490


[18] (1981) 1 SCC 246: AIR 1981 SC 298

[19] Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217

[20] (1995) 5 SCC 403


ARTICLE 19: RIGHT TO FREEDOM
SEPTEMBER 15, 2016

ARTICLE 19: RIGHT TO FREEDOM

Clause (a) to (g) of Article 19(1) guarantee to the citizens of India six freedoms, viz., of ‘speech
and expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’, and
‘practicing any profession and carrying on any business’.

These various freedoms are necessary not only to promote certain basic rights of the citizens but
also certain democratic values in, and the oneness and unity of, the country. Art. 19 guarantee
some of the basic, values in, and the oneness and unity of, the country. Art. 19 guarantee some of
the basic, valued and natural rights inherent in a person.

These rights are not exhaustive of all the rights of a free man who has far more and wider rights.
The freedoms enumerated in Article 19(1) are those great and basic rights which are recognized
as the natural inherent in the status of a citizen. According to Supreme Court, it is possible that a
right does not find express mention in any clause of Art. 19(1) and yet it may be covered by
some clause therein. This gives an additional dimension to Article 19(1) in the sense that even
though a right may not be explicit, it may yet be implicit in the various clauses of Art.19.

The principle on which the power of the State to impose restriction is based is that all individual
rights of a person are held subject to such reasonable limitations and regulations as may be
necessary or expedient for the protection of the general welfare. In the words of Das, J., “social
interest in individual liberty may well have to be subordinated to other greater social interests.
Indeed, there has to be a balance between individual rights guaranteed under Article 19(1) and
the exigencies of the State which is the custodian of the interests of the general public, public
order, decency or morality and of other public interests which may compendiously be described
as social welfare.”

A law restricting the exercise of any of the seven freedoms guaranteed by clause (1) of Article 19
to be constitutionally valid, must satisfy two conditions, namely:-
(1) The restriction must be for the particular purpose mentioned in the clause permitting the
imposition of the restriction on that particular right, and permitting the imposition of the
restriction.

(2) The restriction must be a reasonable restriction.

It may be emphasized that the requirement that a restriction should be reasonable is of great
constitutional significance, for it acts as a limitation on the power of the legislature, and
consequently, widens the scope of judicial review of laws restraining the exercise of freedoms
guaranteed by Article 19.

Freedom of speech is essential for the proper functioning of the democratic process. The freedom
of speech and expression is regarded as the first condition of liberty. It occupies a preferred
position in the hierarchy of liberties giving succor and protection to all other liberties.
The test of reasonableness has to be applied to each individual statute impugned and no abstract
standard or general pattern of reasonableness can be laid down as applicable to all cases. The
meaning would vary according to which of the six rights guaranteed under clause (1) is being
restricted by the impugned law. Some of the principles which the Supreme Court has affirmed in
ascertaining the reasonableness of restrictions on the exercise of the rights secured under this
article.
1. Reasonableness demands proper balancing: – The phrase ‘reasonable restrictions’ connotes
that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of
an excessive nature. Legislation which arbitrarily or excessively invades any of the six freedoms
cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance
between the freedoms guaranteed under Article 19(1) and social control permitted by clauses (2)
to (6) of Article 19, it must be held to be wanting in reasonableness.

2. Reasonableness both substantive and procedural: – In determining the reasonableness of a


statute, the court would see both to the nature of the restriction and procedure prescribed by the
statute for enforcing the restriction on the individual freedom. Principles of natural justice are an
element in considering the reasonableness of a restriction where Article 19 is applicable.Absence
of provision for review makes the provisions unreasonable.

3. Reasonableness and objective concept: – The reasonableness of a restriction has to be


determined in an objective manner and from the standpoint of the interests of the general public
and not from the point of view of the persons upon whom the restrictions are imposed or upon
abstract considerations.

4. Reasonableness of restriction and not of law: – The court is called upon to ascertain the
reasonableness of the restriction and not of the law which permits the restriction. A law may be
reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.

5. Reasonableness includes total prohibition: – The word ‘restriction’ also includes cases of
prohibition and the State can establish that a law, though purporting to deprive a person of his
fundamental right, under certain circumstances amounts to a reasonable restriction only.

6. Reasonableness and American ‘Due Process’: – The Constitution framers deliberately


avoided the use of the expression ‘due process’ with its comprehensiveness, flexibility and
attendant vagueness, in favour of the somewhat more definite word, ‘reasonable’, and caution
has, therefore, to be exercised before the literal application of American decisions. Our
Constitution provides reasonably precise general guidance in this matter.

7. Reasonableness and Directive Principles of State Policy: – That the restrictions are imposed
in carrying out the Directive Principles of State Policy is a point in favour of the reasonableness
of the restrictions.

8. Reasonableness of Taxes: – Prima facie a tax is not a restriction on any of the freedoms
guaranteed under Article 19. Mere excessiveness of a tax is not a ground for challenging it as a
restriction on one of the freedom in Article 19(1).

Art. 19(1)(a) guarantees to all citizens the right to ‘freedom of speech and expression’. Under
Article 19(2), reasonable restrictions can be imposed on the exercise of this right for certain
purposes. Any limitation on the exercise of the right under Art. 19(1)(a) not falling within the
four corners of Art. 19(2) cannot be valid.

The freedom of speech under Article 19(1) (a) includes the right to express one’s views and
opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture,
film, movie, etc. It thus includes the freedom of communication and the right to propagate or
publish opinion. But this right is subject to reasonable restrictions being imposed under Art.
19(2).
The ‘freedom of speech and expression’ includes the right to acquire information and
disseminate the same. It includes the right to communicate it through any available media
whether print or electronic or audio-visual. This freedom includes the freedom to communicate
or circulate one’s opinion without interference to as large a population in the country, as well as
abroad, as is possible to reach.

Freedom of the press is implied from the freedom of speech and expression guaranteed by
Article 19(1) (a). There is no specific provision ensuring freedom of the press as such. The
freedom of the press is regarded as a “species of which freedom of expression is a genus. Thus
being only a right flowing from the freedom of speech, the freedom of the press in Indian stands
on no higher footing than the freedom of speech of a citizen, and the press enjoys no privilege as
such distinct from freedom of the citizen.

The prime purpose of the free press guarantee is regarded as creating a fourth institution outside
the government as an additional check on the three official branches- executive, legislative and
the judiciary. It is the primary function of the press to provide comprehensive and objective
information on all aspects of the country’s social, economic and political life. The press serves as
a powerful antidote to any abuse of power by government officials and as a means for keeping
the elected officials responsible to the people whom they were elected to serve.

The Supreme Court has emphasized that the freedom of the press is not so much for the benefit
of the press as for he benefit of the general community because the community has a right to be
supplied with information and the government owes a duty to educate the people within the
limits of its resources.

Imposition of pre-censorship on publication is, therefore, unless justified under clause (2),
violative of freedom of speech and expression. In Brij Bhushan V. State of Delhi, an order
issued under East Punjab Safety Act, directing the editor and publisher of a newspaper “to
submit for scrutiny, in duplicate, before publication ,till further orders, all communal matters and
news and views about Pakistan, including photographs and cartoons”, was struck down by the
Supreme Court observing, there can be little doubt that the imposition of pre-censorship on a
journal is a restriction on the liberty of the press which is an essential part of the freedom of
speech and expression declared by Art. 19(1)(a).
Das C.J. said in Virendra V. State of Punjab, that “It is certainly a serious encroachment on the
valuable and cherished right to freedom of speech if a newspaper is prevented from publishing
its own view or views of its correspondents”.

Freedom of speech and expression includes the freedom of propagation of ideas and is ensured
by the freedom of circulation. In Romesh Thappar V. State of Madras, the notification
banning the entry into or circulation, sale, or distribution in the State of Madras or any part of it
of the newspaper entitled ‘Crossroads’ published at Bombay was held invalid because, “without
liberty of circulation, the publication would be of little value”.

The right of freedom of speech is infringed not only by a direct ban on the circulation of a
publication, but also by an action of the government which would adversely affect the circulation
of the paper. In Sakal Papers (p) ltd. V. Union of India, a government order which fixed the
number of pages and size which a newspaper could publish at a price was challenged by the
petitioners on the ground that it infringed the liberty of the press implicit in the terms of Art.
19(1)(a). The order affected the liberty of the press because its adoption would mean, the
petitioners explained, either the reduction in the existing number of pages or raising of the price.
In either case, there would be reduction in the volume or circulation of the paper and therefore a
direct violation of the liberty of the press. On behalf of the State, the law was justified as a
reasonable restriction on the business activity of a newspaper in the interests of the general
public.

The Court agreed that newspapers have two aspects-dissemination of news and views and
commercial. The two aspects are different, the former falls under Art. 19(1)(a) read with Art.
19(2), and the latter falls under Art. 19(1)(g) and can be regulated under Art. 19(6). However, the
state cannot seek to place restriction on business by directly immediately curtailing any other
freedom of the citizen guaranteed by the constitution and which is not susceptible of abridgement
on the same grounds as are set out in Art. 19(6). “Therefore, the right of freedom of speech
cannot be taken away with the object of placing restrictions on the business activities of a citizen.

The Court accepted the plea of the petitioners that the order affected the circulation and so
restrained the dissemination of news and views which a newspaper had the freedom to do. The
order was struck down and held to be inoperative. Therefore, referring the press as a business
and justifying the impugned restriction under Art. 19(6) as a proper restriction on the right to
carry on the business of publishing a newspaper “would be wholly irrelevant for considering
whether the impugned Act infringes or does not infringes the freedom guaranteed by Art.
19(1)(a).” This means the freedom of speech cannot be restricted for the purpose of regulating
the commercial aspects of the activities of the newspapers.

Bennett Coleman & Co. V. Union of India, is a case of great significance in the area of
freedom of speech and expression. India faces a shortage of indigenous newsprint. Because of
the shortage of foreign exchange, quantity of newsprint imported was not adequate to meet all
requirements. Some restrictions, therefore, become necessary on the consumption of newsprint.
Accordingly, s system of newsprint quota for newspapers was evolved. The actual consumption
of newsprint by newspaper during 1970-71 & 1971-72, whichever was less, was taken as the
base. For dailies with a circulation up to 1,00,000 copies, 10% increase in the basic entitlement
was to be granted, but for newspapers with a larger circulation, the increase was to be only 3%.
Newspapers with less than 10 pages daily could raise the number of pages by 20% subject to the
ceiling of 10. A few more restrictions were imposed on the user of newsprint. This newsprint
policy was challenged in the Supreme Court.

By a majority, the Supreme Court declared the policy unconstitutional. While the Government
could evolve a policy of allotting newsprint on a fair and equitable basis, keeping in view the
interests of small, medium and big newspapers, the Government could not, in the grab of
regulating distribution of newsprint, control the growth the circulation of newspapers. In effect,
here the newsprint policy became the newspaper control policy. While newsprint quota could be
fixed on a reasonable basis, post-quota restrictions could not be imposed. The newspapers should
be left free to determine their pages, circulation and new editions within their fixed quota. The
policy of limiting all papers whether small or large, to 10 pages was held to be discriminatory as
it treated unequal as equals. The restrictions imposed cut at the very root of the guaranteed
freedom. In the words of the Court, “Freedom of the press is both qualitative and quantitative.
Freedom lies both in circulation and in content.”

The Supreme Court in concluded in Tata Press Case that “commercial speech” cannot be denied
the protection of Art. 19(1)(a) merely because the same is issued by business man. “Commercial
Speech” is a part of freedom of speech guaranteed under Art. 19(1)(a). The public at large has a
right to receive the “commercial speech”. The protection of Art. 19(1)(a) is available both to the
speaker as well as the recipient of the speech.
The Supreme Court accepted as valid the printing of yellow pages by the Tata Press. Printing of
a directory of telephone subscribers is to be done exclusively by the Telephone Department as a
part of its service to the telephone subscribers. But yellow pages only contain commercial
advertisements and Art. 19(1)(a) guarantee freedom to publish the same.

In LIC V. Manubhai D. Shah, the Supreme Court stated a liberal interpretation should be given
to the right of freedom of speech and expression guaranteed by Rt. 19(1)(a) . The Court has
characterized this right as a “basic human right”. This right includes “the right to propagate one’s
views through the print media or through any other communication channel, e.g. the radio and
television”. Thus, every citizen “has the right to air his or her views through the print and/or the
electronic media subject, of course, to permissible restrictions imposed under Art. 19(2) of the
Constitution.
In this case the Supreme Court has taken cognizance of two situations. One, the respondent
circulated a research article suggesting that the LIC was charging unduly high premiums from
those who took out life insurance policies. The LIC published a counter reply to this paper in a
daily newspaper and also in its own in-house magazine. The respondent then prepared a
rejoinder and got it printed in the same daily newspaper. He also wanted the LIC to print his
rejoinder in their magazine, but the LIC refused to do so. The Supreme Court was called upon to
decide the question whether the LIC was right in refusing to publish the rejoinder the responded
in magazine. Answering in the negative the court pointed out that the attitude of the LIC was
both “unfair and unreasonable”-unfair because fairness demanded that both view points were
placed before the readers and unreasonable because there was no justification for refusing
publication. By refusing to print and publish the rejoinder the LIC had violated the respondent’s
Fundamental Right.

Every free citizen has an undoubted right to lay what sentiments he pleases before the public.
Freedom of speech and expression is subject only to the restrictions imposable under Art. 19(2).
Efforts by intolerant authorities to curb or suffocate this freedom must be firmly replied, more so
when public authorities betray autocratic, tendencies.

LIC is a ‘state’ within the meaning of Art. 12. The LIC Act enacted by Parliament requires LIC
to function in the best interest of the community. The community is, therefore, entitled to know
whether or not, this requirement of the statute is being satisfied in the functioning of the LIC.
The right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to
be imposed by the latter has been recognized. On further consideration in Secretary, Ministry
I&B V. Cricket Association of Bengal, the Court has held that air waves or frequencies are
public property, their use must be controlled and regulated by a public authority in the interest of
public and to prevent the invasion of their rights. As the electronic media involves the use of the
air wages, this factor creates an inbuilt restriction on its use as in the case of any other public
property. This limitation in the nature of public property involved in the electronic media is in
addition to the grounds of restriction on the right of freedom of speech and expression under Art.
19(2). Accordingly, while an individual has a right under Art. 19(1)(a) to have an access to
telecasting, this right is subject to the limitation on account of use of public property, i.e. the air
waves involved in the exercise of the right can be controlled and regulated by the public
authority even on grounds not strictly covered under Art. 19(2). The Court also asked the Central
Government to take immediate steps to establish an independent autonomous public authority
representative of all sections and interests of the society to control and regulate the use of air
waves. The provision for the Prasar Bharti seems to be taking care of this issue.

Virendra V. State of Punjab, The general principle is that it is unreasonable to leave absolute
and arbitrary discretion to an administrative officer to regulate the freedom of speech and
expression. The discretion to be valid must be exercisable for purposes specified in Art. 19(2),
and subject to legislative policy and procedural safeguards. Like, banning of publication in any
newspaper of any matter relating to a particular subject or class of subjects would be obnoxious
to the right of free speech.

The significant judicial pronouncement in the area is Virendra V. State of Punjab. This is an
important decision of the Supreme Court illustrating the Scope of Permissible restriction on the
right of freedom of speech and expression. Punjab Special Powers (Press) Act empowered the
State Government to:

 Prohibit the Printing or Publication of any article, report news item, letter or any other
material relating to or connected with “Save Hindi Agitation”;
 The imposition of ban against the entry and circulation of the said papers published from
New Delhi in the State of Punjab and
 Authorizing the State Government of its delegate to impose Pre-censorship, for a
maximum period of two months in any issue of a newspaper.
These provisions were challenged on the ground of giving arbitrary and uncontrolled discretion
to the government to curtail freedom of speech ‘on its subjective satisfaction’. The Supreme
Court pointed out that there existed in Punjab serious tension amongst the various communities
and in such a situation, conferment of wide powers to be exercised in the subjective satisfaction
of the government could not be regarded as an unreasonable restriction. The State Government
being in possession of all material facts, was the best authority to take anticipatory action for
prevention of threatened breach of peace. Therefore, determination of necessity be left to the
judgment and discretion of the government. To make the exercise of those powers justiciable
would defeat the very purpose of the Act.

The first provision relating to ban on publication of news, etc. was upheld in the time of tension
brought about or aided by the ‘Save Hindi Agitation’, taking into consideration the safeguard
provided therein, as being a reasonable restriction and procedurally reasonable were:

(a) The positive requirement of the existence of the satisfaction of the authority as to the
necessity for the making of order for the specific purposes mentioned in the Act.

(b) The discretion was given in the first instance to the State Government and not to every
subordinate officer to determine the necessity of passing the order.

(c) The order could remain in force only for two months from the making thereof.

(d) The aggrieved party was given the right to make representation to the State government
which could, on consideration thereof, modify, confirm or rescind the order.

The second provision of the Act mentioned above, namely the power to impose a ban against the
entry and the circulation of the paper, was not sustained as a reasonable restriction on the
freedom of speech because there was no time-limit for the operation of an order made against a
paper and also because there was no provision made for any representative being made to the
State Government.

Further the court held that a law conferring discretion on the executive could not be invalid if it
laid down the policy so that discretion was exercised to effectuate the policy. The law in question
satisfied this test for it laid down the purpose for which the power could be exercised. Further
there were two safeguards subject to which the government was to exercise its power, viz., an
order could remain in force only for two months, and the aggrieved person could make a
representation to the government against the order, and so Act as a whole was valid of the order,
nor did it provide for any representation to the government against the order.

CONSTITUTIONAL LAW
ARTICLE 21: PROTECTION OF
PERSONAL LIFE AND LIBERTY
SEPTEMBER 15, 2016

Article 21: Protection of Personal Life and Liberty: – No person shall be deprived of his life
or personal liberty except according to procedure established by law.

Article 21, though couched in negative language, confers on every person the fundamental right
to life and personal liberty. The two rights have been given paramount position by our Courts.
The right to life which is the most fundamental of all is also the most difficult to define.
Certainly it cannot be confined to a guarantee against the taking away of life; it must have a
wider application. With reference to a corresponding provision in the 5th and 14th amendments
of the U.S. Constitution, which says that no person shall be deprived of his “life, liberty or
property without due process of law”.

The word ‘due’ in this clause is interpreted to mean ‘just’, ‘proper’ or ‘reasonable’, according to
the judicial view. Due process has two aspects. Substantive due process envisages that the
substantive provisions of a law should be reasonable and not arbitrary. Procedural due process
envisages a reasonable procedure, i.e., the person affected should have fair right of hearing
which includes four elements;

 notice,
 opportunity to be heard,
 an impartial tribunal and
 an orderly procedure

The term ‘life’ as here used something more is meant than mere animal existence by which life is
enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm
or leg, or the putting out of an eye, or the destruction of any other organ of the body through
which the soul communicates with the outer world.
For some time the Court held that the view that right of life in Art. 21 does not include right to
livelihood. After some controversy on the issue the Court has clearly held that right to livelihood
is included in the right of life “because no person can live without the means of living, that is, the
means of livelihood.

The Court has also observed that life ‘includes all that give meaning to a man’s life including his
tradition, culture and heritage and protection of that heritage in its full measure’. Again, the
Court has held that right to life includes the right to ‘a reasonable accommodation to live in’ and
right to shelter, includes the necessary infrastructure to live with human dignity. The offence of
rape has also been held to be a violation of the right of life under Art. 21. Right to self-
preservation has also been recognized under the Article. Art. 21 has also been invoked for the
upliftment of and dignified life for the prostitutes.

More importantly, in Unni Krishanan V. State of A.P. the Court has recognized a fundamental
right to education in the right to life under Art.21. Taking help from Article 41 and 45 it has held
that ‘every child/citizen of this country has a right to free education until he completes the age of
fourteen years. Thereafter his right to education is subject to the limits of economic capacity and
development of the State. But this right does not include the right to participate in the student
union activities and to contest union elections.

In Article 21, in contrast to with the American Constitution, the word ‘liberty’ is qualified by the
word ‘personal’, leading to an inference that the scope of liberty under our Constitution is
narrower than in the U.S. Constitution. Seemingly that was the impression drawn by some of the
judges in A.K. Gopalan V. State of Madras. Though that case was concerned about the
constitutionality of preventive detention of the petitioner which in any case was an infringement
of the ‘personal liberty’ even in the narrowest sense of the term and therefore it may be said that
the scope of ‘personal liberty’ was not an issue in that case, yet some of the learned judges
looking at the difference in the expression in U.S. and Indian Constitutions and relying upon the
meaning given to ‘personal liberty’ by some English jurists concluded that ‘personal liberty’ was
confined to freedom from detention or physical restraints. “But there was no definite
pronouncement made on this point since the question before the Court was not so much the
interpretation of the words ‘personal liberty’ as the inter-relation between Article 19 and 21.
For the First time the meaning and scope of ‘personal liberty’ came up pointedly for
consideration in Kharak Singh V. State of U.P. In that case validity of certain police
regulations which, without any statutory basis, authorized the police to keep under surveillance
persons whose names were recorded in the ‘history-sheet’ maintained by the police in respect of
persons who are or are likely to become habitual criminals. Surveillance as defined in the
impugned regulation included secret picketing of the house, domiciliary visits at night, periodical
inquiries about the person, an eye on his movements, etc. The petitioner alleged that this
regulation violated his fundamental right to movement in Article 19(1) (d) and ‘personal liberty’
in Art. 21. For determining the claim of the petitioner the Court, apart from defining the scope of
Art. 19(1) (d) had to define the scope of ‘personal liberty’ in Art. 21.

The Court rejected that ‘personal liberty’ was confined to “freedom from physical restraint or
freedom from confinement within the bounds of a prison” and held that “personal liberty” is used
in the article as a compendious term to include within itself all the varieties of rights which go to
make up the ‘personal liberty’ of man other than those dealt with in several clauses of Art.19(1).
In other words, while Article 19(1) deals with particular species or attributes of that freedom,
‘personal liberty’ in Art. 21 takes in and comprises the residue. He concluded that “an
unauthorized intrusion into a person’s home and the disturbance caused to him thereby” violated
‘personal liberty’ enshrined in Art. 21 and therefore the regulation was invalid insofar as it
authorized domiciliary visits but the rest of it did not violate either Article 1(91)(d) or Art. 21.
He also held that “the right to privacy is not a guaranteed right under our Constitution and
therefore the attempt to ascertain the movement of an individual which is merely a manner in
which privacy is invaded is not an infringement of a fundamental right.

Right to Privacy

Subba Rao, J. held that right to privacy “is an essential ingredient of personal liberty” and that
the right to personal liberty is “a right of an individual to be free from restrictions or
encroachments on his person, whether those restrictions or encroachments are directly imposed
or indirectly brought about by calculated measures”.

Right to Travel

In Satwant Singh Sawhney V. A.P.O., New Delhi, it was held that right to travel abroad is
included within the expression ‘personal liberty’ and, therefore, no person can be deprived of his
right to travel except according to the procedure established by law. Since a passport is essential
for the enjoyment of that right, denial of a passport amounts to deprivation of personal liberty. In
the absence of any procedure prescribed by the law of land sustaining the refusal of a passport to
a person, its refusal amounts to an unauthorized deprivation of personal liberty guaranteed by
Art. 21. This decision was accepted by Parliament and the infirmity was set right by the
enactment of the Passport Act.

In A.K. Gopalan V. State of Madras, it was held that the expression ‘procedure established by
law’ means procedure enacted by a law made by the State. The Supreme Court, by a majority,
rejected that the argument that the ‘law’ in Art. 21 is used in the sense of jus and lex, and that it
means the principles of natural justice on the analogy of ‘due process of law’ as interpreted by
American Supreme Court.

In Maneka Gandhi V. Union of India, the passport authorities impounded the passport of
Maneka Gandhi under S. 10(3) of the Passport Act which provides authorizes if it deems it
necessary to do so in the interest of the sovereignty and integrity of India. Maneka challenged the
order on the ground of violation of her fundamental right under Art. 21. One of the major
grounds of challenge was that the order impounding the passport was null and void as it had been
made without affording her an opportunity of being heard in her defence.

Bhagwati, J. in Maneka Gandhi case, established that the requirement of reasonableness of


procedure in Art. 21 through Art. 14, some of the judges in that case and in some other
subsequent cases have read it in Art. 21 itself and particularly in the word ‘law’ leading to the
conversion of ‘procedure established by law’ into ‘due process of law’ in the American sense
which the Constitution-makers had intended to avoid by replacing the latter expression by the
former. Thus in Maneka Gandhi, it was said that the procedure in Art. 21 “has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary”. The ‘law’ in Art. 21 “is reasonable law, not any
enacted piece”.

The Court reiterated the proposition that Arts. 14, 19 and 21 are not mutually exclusive. A nexus
has been established between these Articles. This means that a law prescribing a procedure for
depriving a person of ‘personal liberty’ has to meet the requirements of Art. 19. Also, the
procedure established by law in Art. 21 must answer the requirement of Art. 14 as well.
According to K. Iyer. J., no Article in the Constitution pertaining to a Fundamental Right is an
island in itself. Just as a man is not dissectible into separate limbs, cardinal rights in an organic
constitution have a synthesis.

Court held that as the right to travel abroad falls under Art. 21, natural justice must be applied
while exercising the power of impounding a passport under the Passport Act. Although the
Passport Act does not expressly provide for the requirement of hearing before a passport is
impounded, yet the same has to be implied therein.

Again in Sunil Batra V. Delhi Administration, it was held that “true our Constitution has no
‘due process’ clause but the consequence is same” and added that Art. 21 is the counterpart of
the procedural due process in the U.S.

The Supreme Court has made a novel use of Art. 21 viz., to ensure that the female workers are
nor sexually harassed by their male co-workers at their work. In Vishaka V. State of
Rajasthan, the Supreme Court has declared sexual harassment of a working woman at her place
of work as amounting to violation of rights of gender equality and right to life and liberty which
is a clear violation of Art. 14, 15 and 21 of the constitution.

In Mithu V. State of Punjab, a constitutional bench, for the first time and unanimously
invalidated a substantive law – Section 303 of the IPC – which provided for the mandatory death
sentence for murder committed by a life convict.

After posing the question of reasonableness of Section 303 under Art. 21 the Court concluded
that “it is difficult to hold that the prescription of the mandatory sentence of death answers the
test of reasonableness” and added that “a provision of law which deprives the Court of the use of
its wise and beneficent discretion in a matter of life and death, without regard to the
circumstances in which the offence was committed and, therefore, without regard to the gravity
of the offence, cannot but be regarded as harsh, unjust and unfair”. Relying exclusively on Art.
21 it was concurred that “so final, so irrevocable the sentence of death that no law which
provides for it without involvement of the judicial mind can be said to be fair, just and
reasonable. Thus not merely procedure but a substantive law was invalidated under Art. 21.
In Mr. X V. Hospital Z, the Supreme Court was called upon to decide a very crucial questioning
the modern social context, viz., can a doctor disclose to the would be wife of a person that he is
HIV positive? Does it infringe the right to privacy of the person concerned?
The Court has answered both of these question in the negative. The Court has argued that the
lady proposing to marry such a person is also entitled to all the human rights which are available
to any human being.

The ‘right of life’ guaranteed by Art. 21 “would positively include the right to be told that a
person with whom she was proposed to be married, was the victim of a deadly disease, which
was sexually communicable”. Moreover when two Fundamental Rights clash, viz., that of the
person concerned (right to Privacy) and that of the would be wife (to live a healthy life also
guaranteed by Art. 21) “the Right which would advance the public morality or public interest
would alone be enforced through the process of Court.

It has been noted that the impression of exclusiveness among different fundamental rights,
particularly between Art. 19 and 21, which Gopalan had left has been removed by Maneka
Gandhi. It has also been noted that by establishing a relationship among Art. 14, 19 and 21,
particularly between Art. 14 and 21, a requirement of reasonableness of law providing for
deprivation of life or liberty has been created. The creation of requirement of reasonableness is
different thing, but otherwise no controversy apparently ever existed about the relationship
between Art. 14 and 21.

It is only in respect of relationship between Art. 19 and 21 that the controversy has exited. The
test is whether the law penalizes an activity protected by Art. 19. if it does, its validity shall have
to be tested under Art. 19 though it may also be tested under Art. 21 if the reasonableness of
procedure for penal sanctions is also questioned.

There are many more heads concerning the expansion of Art. 21 in different directions such as:
(i) Right of Prisoners:- In Sunil Batra V. Delhi Administration, the solitary confinement of a
prisoner, who was awarded the capital sentence for having committed the offence of murder
under the Prisons Act, was held bad as it was imposed not as a consequence of violation of the
prison discipline but on the ground that the prisoner was one under sentence of death. Court
pointed out that ground that the conviction of a person for a crime did not reduce him to a non-
person vulnerable to major punishment imposed by jail authorities without observance of
procedural safeguards.

(ii) Right of Inmates of Protective Homes: – Appropriate directions have been given by the
courts to the inmates of protective and remand homes for woman and children for providing
suitable human conditions in the homes and for providing appropriate machinery for effective
safeguard of their interests.

(iii) Right to Legal Aid: – Right to free legal aid at the cost of the State to an accused who
cannot afford legal services for reasons of poverty, indigence or incommunicado situation is part
of fair, just and reasonable procedure under Art. 21.

(iv) Right to Speedy Trial:- In Hussainara Khatoon V. Home Secretary, Bihar, it was held
that a procedure which keeps such large numbers of people behind bars without trial so long
cannot possibly be regarded reasonable, just or fair so as to be in conformity with the
requirement of Art. 21. Bhagwati, J. observed that although the right to speedy trial is not
specifically mentioned as a fundamental right, it is implicit in the broad sweep and content of
Art. 21. The court re-emphasized the expeditious review for withdrawal of cases against under
trial for more than two years. The court reiterated that the investigation must be completed
within a time-bound program me in respect of under trials and gave specific orders to be
followed for quick disposal of cases of under trials. It was held that continuance of such
detention of under trials held by periods more than the maximum term imposable on them on
conviction, is clearly illegal and in violation of that fundamental right under Art. 21.

(v) Right against Cruel and Unusal Punishment.

(vi) Right of Release and Rehabilitation of Bonded Labour: – Art. 21 read with the Directive
Principles of State Policy and the Bonded Labour System (Abolition) Act obliges the State to
identify release and suitably rehabilitate the bonded labourers. The bonded labourers also have
the right to live with human dignity enshrined in Art. 21.

(vii) Right of Compensation:- Right to claim monetary compensation for the violation of the
right in Art. 21 has also been recognized in several cases.

(viii) Right to Know: – The courts have also recognized the right to know in Art. 21 as a
necessary ingredient of particularly democracy.
Right To Education With Special
Emphasis To Minority Education
Institutions
SEPTEMBER 16, 2016

INTRODUCTION:

“A man without education is equal to animal”

Education is a basic human right. For the success of democratic system of government, education
is one of the basic elements. The Constitutional framers realising the importance of education
have imposed a duty on the state u/a 45 as one of the directive policy of state to provide free and
compulsory education to all children until they completed the age of 14 years within 10 years
from the commencement of this constitution. The constitution framers were also view that in
view of a financial condition of a new state it was not feasible to make a Fundamental Right. But
it is unfortunate that since lapse of 60 years from the commencement of constitution they didn’t
take any step to implement this directive and still 40 % population of country is illiterate.

After lapsing of 45 years this matter encroach to court in Mohini Jain v. State of
Karnataka[1] case the matter was raised by the petitioners that the right of education is a
fundamental right under article 21.The court held that right to education at all level is a
fundamental right u/a 21 of the constitution. The matter was again raised in Unni Krishnan v.
State of A.P.[2] where the court specifically held that the right to education for the children of
the age of 6 to 14 years is a fundamental right. The court overruled the decision of the Mohini
Jain case and held that the right to education is only available up to 14 years of age. The court
has said that after the 14 years of age the obligation of the State depended on the economic
development. Even after this case there was no improvement in situation. Consequently, the
article 45 is deleted and the Government enacted Constitution (86th amendment) Act, 2002 has
added a new article 21A and has made a education for all children of 6 to 14 years a fundamental
right. It provides that “the state shall provide free and compulsory education to all children of the
age 6 to 14 years in such a manner as state may, by law determine.”
Ultimately after a lapse of 8 years for enforcement of 86th amendment Act, 2002 Parliament has
passed the Right of children to Compulsory Education Act, 2009. It provides responsibility of the
Central & State Gov., teachers, parents, and community members in ensuring that all children of
the age of 6 and 14 years received free and compulsory education.

ISSUE:

1. WHETHER THE OBJECT OF ARTICLE 21A IS FULFILLED OR NOT?


2. WHETHER THE RESERVATION FOR SEBCs UNDER MINORITY
EDUCATIONAL INSTITUION IS VALID OR NOT?

ANALYSIS:

Despite of constitutional provisions and legislative enactment passed by the Legislature which
provides free and compulsory education to all children of 6 to 14 years of age is not achieved.
This is a big problem and has remained unsolved, even after 67 years of independence and even
today elected government of the country did not take any concrete steps to implement Article
21A from that 30% population of the country is still illiterate.

On coming on the first issue the main reason behind that the population of the country has
considerably increased and number of children of age from 6 to 14 are in crores. The government
does not have money at present to run its own educational institutions. Majority of higher
secondary schools are run by private persons where there is no provision for free education. They
charge high fees. Only middle class and rich peoples can afford to send their children to these
schools. Today there are no schools how would government implement it? If proper amounts of
schools are there the court will obliged to give an order for its enforcement.

On coming on the second issue reservation for SEBCs under the minority educational institutions
is not valid. Under article 30 of the constitution of India tells about the Right of minorities to
establish and administer educational institutions- it provides that all minorities, whether based on
religion or language, shall have the right to establish and administer educational institutions of
their choice.

In other words, religious and linguistic minorities have a special constitutional right to establish
and administer educational schools of their choice and Courts has repeatedly held that the State
has no power to interfere with the administration of minority institutions and can make only
regulatory measures and has no power to force admission of students from amongst non-minority
communities, particularly in minority schools, so as to affect the minority character of the
institutions.

There is a National Commission for Minority Educational Institutions which was established to
protect and safeguard the educational institutions which are established by the minorities
in India. This also ensures rights of minorities to establish and administer educational institutions
of their choice as provided in the Article 30 of the Constitution of India.

Here are some cases who describe about that why SEBCs reservation is not included in Article
30(1):-

In Dr. M. Ismail Faruqui and Others v. Union of India and Ors[3].-In this case the Court has
held that the Preamble of the Constitution read in particular with Articles 15 to 28 indicates that
the concept of secularism embodied in the constitutional scheme is adopted by the Indian people.
Hence, secularism is no doubt a basic feature of the Constitution, but we fail to appreciate how
clause (5) of Article 15 of the Constitution which excludes religious minority institutions in
clause (1) of Article 30 of the Constitution is in any way violative of the concept of secularism.

In Smt. Vidya Verma v. Dr. Shiv Narain Verma [4] case that the fundamental right of
personal liberty under Article 21 of the Constitution is available against only the State and not
against private individuals. He submitted that, therefore, the word “State” in Article 21A of the
Constitution would not include private unaided educational institutions or private individuals.

In Kerala Educational Bill case to argue that admitting children other than those of the minority
community which establish the school cannot be forced upon the minority institutions, whether
aided or unaided.

Also in the Right of children to Compulsory Education Act, 2009, in particular Sections 12(1) (c)
and Section 18(3), infringe the fundamental rights guaranteed to unaided minority schools u/a
30(1) of the Constitution and therefore the Act shall not apply to such unaided minority schools.

In Society for Unaided Private Schools of Rajasthan v. Union of India[5]-The court has taken
a view that the 2009 Act will not apply to unaided minority schools but will apply to aided
minority schools.
The 2009 Act was amended by the Right of Children to Free And Compulsory Education
(Amendment) Act, 2012, so as to provide in subsection (4) of Section 1 of the 2009 Act that
subject to the provisions of Articles 29 and 30 of the Constitution, the provisions of the 2009 Act
shall apply to conferment of rights on children to free and compulsory education. So, 2009 Act
will not apply to unaided minority schools but will apply to aided minority schools.

CONCLUSION:

In India minority generally consists of Christians (2.5%), Sikhs (2%), Jain (1%) and Muslims
(12%), which is world’ third largest. In India majority consist of Hindus, their population
includes more that 80% of India’ population and constitution of India provides for special rights
to both linguistic and religious minorities “to establish and administer educational institutions of
their choice” under Article 30. As in the St Xavier’s College[6] case, the Supreme Court has
rightly pointed out, “The whole object of conferring the right on the minorities under Article 30
is to ensure that there will be equality between the majority and the minority. If the minorities do
not have such special protection they will be denied equality.”

The only alternative is to encourage nongovernmental organisations to come forward and


participate it in to fulfil the mandate of constitution but There should also be necessary steps
should be taken by the Government that to run its own institutions, help the NGO’s and to see
that teachers and employees working in these private educational institutions get minimum salary
to survive and make the scheme successful.

[1] AIR 1992 SC 1858

[2] (1993) 1 SCC 645

[3] AIR 1994 SC 547

[4] AIR 1956 SC 108

[5] AIR 2012 SC 3445

[6] AIR1974 SC 1389


Secularism in India – An Overview
Article 25-28
INTRODUCTION – Secularism
India is the birthplace of four major world religions: Hinduism, Jainism, Buddhism, and Sikhism.
Yet, India is one of the most diverse nations in terms of religion and secularism. Many scholars
and intellectuals believe that India’s predominant religion, Hinduism has long been a most
tolerant religion. India is a country built on the foundations of a civilization that is fundamentally
non-religious.||Secularism means a State which does not recognize any religion as a State
religion.

The Preamble of Indian Constitution aims to constitute India a Sovereign, Socialist, Democratic
Republic. The terms socialist and secular were added to it by the 42nd amendment, 1976.The
whole Constitution is summarized in the preamble. It is the mirror to the spirit of the
Constitution.

The term religion has not been defined in the Constitution but the meaning given by the S.C. of
India to the religion can be referred here, the S.C. in Commissioner H.R.E vs. L.T.
Swammiar[1] held, Religion is a matter of faith with individuals or communities and it is not
necessarily theistic. A religion has its basis in a system of beliefs or doctrines, which are
regarded by those who prefer that religion as conducive to their lay down a code ethical rules for
its followers to accept, it might prescribe rituals and observances, ceremonies and modes of
worship, which are regarded as integral parts of religion and these forms and observance might
extend even to matters of food and dress.

The freedom of religion guaranteed under Indian Constitution is not confined to its citizen but
extends to all persons including an alien. This point was underlined by the Supreme Court
in Ratilal Panchand vs. State of Bombay[2] as it is very important because a substantial
number of foreign Christian missionaries in India were engaged at that time in propagating their
faith among the adherents of other religions.
Proposed Amendments
On two different occasions, attempts were made to amend the Constitution with a view to further
strengthening and clarifying its provisions on secularism, but the Bills moved for this purpose
could not be enacted for technical reasons. Among these Bills were:

 Constitution (Forty-fifth) Amendment Bill 1978 – It proposed to define the expression ‘Secular
Republic’ as ‘a Republic in which there is equal respect for all religions’.
 Constitution (Eightieth Amendment) Bill 1993 – It proposed to empower Parliament to ban
parties and associations if they promote religious disharmony and disqualify members who
indulge in such misconduct.
SECULARISM AND CONSTITUTION OF INDIA
Secularism means a State which does not recognize any religion as a State religion. It treats all
religions equally. Secularism, as contemplated by the Constitution of India, has the following
distinguishing features:

 The state guarantees to everyone the right to profess whatever religion one chooses to follow, it
will not accord any preferential treatment to any of them.
 No discrimination will be shown by the state against any person on account of his religion or
faith.
 The right of every citizen, subject to any general condition, to enter any offices under the state
and religious tolerance form the heart and soul of secularism as envisaged by the Constitution. It
secures the conditions of creating a fraternity of the Indian people which assures both the dignity
of the individual and the unity of the nation.

In Bal Patil vs. Union of India[3] S.C. held that the State has no religion and State has to treat
all religions and religious people equally and with equal respect without in any manner
interfering with their Individual rights of religion, faith and worship.

In St. Xavier College vs. State of Gujarat[4], the SC said that “although the word ‘secular
state’ is not expressly mentioned in the Constitution there can be no doubt that constitution
makers wanted to establish such a state.”

In Aruna Roy vs. Union of India[5] SC held that secularism has a positive meaning that is
developing, understanding and respect towards different religions.
In the S.R. Bommai vs. Union of India[6], various judges of the SC of India individually
explained the significance and place of secularism under the Constitution in very meaningful
words sampled below:

 The Constitution has chosen secularism as its vehicle to establish an egalitarian social order.
Secularism is part of the fundamental law and basic structure of the Indian political system.
 Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of
the Constitution, the concept of secularism was very much embedded in our constitutional
philosophy from the very beginning. By this amendment what was implicit was made explicit.
 Constitutional provisions prohibit the establishment of a theocratic State and prevent the State
from identifying itself with or otherwise favoring any particular religion.
 Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal
treatment of all religions.
 When the State allows citizens to practice and profess their religion, it does not either explicitly
or implicitly allow them to introduce religion into non-religious and secular activities of the State.
The freedom and tolerance of religion are only to the extent of permitting pursuit of spiritual life
which is different from the secular life. The latter falls in the exclusive domain of the affairs of
the State.

In Indra vs. Rajnarayan[7] the basic feature of the secularism was explained by the Hon’ble
SC which held, “Secularism means that state shall have no religion of its own and all persons of
the country shall be equally entitled to the freedom of their conscience and have the right freely
to profess, practice and have the right freely to profess, practice and propagate any religion”.

In S.R.Bommai vs. Union of India[8], The Hon’ble SC held that secularism is the basic feature
of the Constitution.

What is Religion?
The Constitution uses but does not define the expressions ‘religion’ and ‘religious denomination’
and therefore the courts have found it necessary to explain the meaning and connotation of these
words.

In S.P. Mittal vs. Union of India[9], the SC has observed “In the background of the provisions
of the Constitution and the light shed by judicial precedent we may say that religion is a matter
of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of man. It
must be capable of expression in word and deed, such as worship or ritual.”
GENERAL CONSTITUTIONAL PROVISIONS ON
RELIGIONS
Equality & Non-Discrimination
The Constitution of India contains in its Chapter on Fundamental Rights several provisions that
emphasize the complete legal equality of its citizens irrespective of their religion and creed and
prohibit any kind of religion-based discrimination between them. Among these provisions are the
following:

1. According to Article 14, “The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.”
2. According to Article 15, “The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth, or any of them, either in general or in the matter of access
to or use of general and public places and conveniences.”
3. According to Article 16, “There shall be equality of opportunity for all citizens in the matter of
employment or appointments under the State and no citizen shall, on grounds only of religion be
ineligible for, or discriminated against, in respect of any employment or office under the State.”
4. According to Article 17, “The traditional religious concept of ‘untouchability’ stands abolished
find its practice in any form is strictly forbidden.”
5. According to Article 32 clause (2), “If the State imposes compulsory service on citizens for
public purposes no discrimination shall be made in this regard on the ground of religion only.”

To meet the demands of Article 17 noted above, soon after the commencement of the
Constitution Parliament had enacted an Untouchability (Offenses) Act, which was later amended
and renamed as the Protection of Civil Rights Act 1955. The Act prescribes penalties for the
practice of untouchability in various specified forms. A second law enacted in this respect is the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.

FREEDOM OF RELIGION
Individual’s Rights

Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all persons’


within the following parameters:

1. According to Article 25 clause (1), “All persons are equally entitled to freedom of conscience and
the right freely to profess, practice and propagate religion.”
2. According to Article 27, “There shall be freedom as to payment of taxes for promotion of any
particular religion by virtue of which 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 religious denomination.”
3. According to Article 28, “No religious instruction is to be provided in the schools wholly
maintained by State funding; and those attending any State- recognized or State-aided school
cannot be required to take part in any religious instruction or services without their (or if they are
minor their guardian’s) consent.”
Group Rights

Freedom of religion is guaranteed by the Constitution of India as a group right in the following
ways:

1. According to Article 26, “Every religious denomination or any section thereof has the right to
manage its religious affairs; establish and maintain institutions for religious and charitable
purposes; and own, acquire and administer properties of all kinds.”
2. According to Article 29, “Any section of the citizens having a distinct language, script or culture
of its own shall have the right to conserve the same.”
3. According to Article 30, “Religious and linguistic minorities are free to establish and administer
educational institutions of their choice, which shall not be discriminated against by the State in
the matter of giving aid or compensation in the event of an acquisition.”

In Punjab Rao vs. DP Meshram[10] the SC observed, “To profess a religion means the right to
declare freely and openly one’s faith.”

In Ismail Paruqi vs. Union of India[11], the SC held, “The right to profess, practice and
propagate religion does not extend to the right of worship at any or every place of worship so
that any hindrance to worship at a particular place per se will infringe religious freedom.”

In SK Mittal v Union of India[12], “To claim to be a religious denomination a group has to


satisfy three conditions: common faith, common organization, and designation by a distinctive
name.”

Fundamental Duties
The Chapter on Fundamental Duties, inserted into the Constitution by the Constitution (Forty-
second Amendment) Act 1976, includes the following among the basic national obligations of all
the citizens:
1. According to Article 51 clause a subclause (e), “To promote harmony and the spirit of common
brotherhood amongst all the people of India transcending religious, linguistic and regional or
sectional diversities.”
2. According to Article 51 clause a subclause (f), “To value and preserve the rich heritage of our
composite culture.”
LIMITS TO FREEDOM OF RELIGION
The Fundamental Right to religious freedom cannot be enjoyed in an absolutely unrestricted
way. There are limitations within which these rights can be exercised, as also lawful restrictions
which can be imposed by the State on such rights, as detailed below:

1. According to Article 25, “The right to freedom of religion is, in general, subject to public order,
morality, health and the other provisions of the Constitution.”
2. According to Article 25 clause (2), “ Despite the right to religious freedom, the State can pass
laws providing for social welfare and reform and also regulate or restrict any secular activity –
economic, financial, and political, etc. – even though it may be traditionally associated with
religion.”
3. According to Article 29 clause(2), “Despite the minorities’ right to establish and maintain
educational institutions, no citizen can be kept away from any State-aided or State- maintained
educational institution only on religious grounds.”
ROLE IN ELECTIONS
By a dictate of the constitution, religion has no role to play in elections to Parliament and State
Assemblies and Councils. For all elections to central and state legislatures, the electoral rolls for
every constituency shall be general and common and no person can either be excluded from or
included in, any such roll only on the basis of his or her religion – Article 225.

To implement this provision of the Constitution the election law contained in the Representation
of the People Act 1951 incorporates provisions declaring the use of religion during
electioneering both a ‘corrupt practice’ that will vitiate the election of the winning candidate and
also a punishable offense.

Scenario in India
The political parties in India have tended to use religion and caste factors for the promotion of
their political interests and thus greatly undermined the secular values.
The growing communalism has also greatly hampered the growth of genuine secularism in India.
Despite the abandonment of communal electorates and a ban on the use of religion for soliciting
votes, the various political parties and groups have frequently made use of communal factors to
get into power. In this regard, both the minorities as well as the majority communities are equally
to blame. Unless this feeling of communalism is shunned, secularism cannot take firm roots in
the Indian soil.

Nature of Special Provisions

Side by side with the foretasted general provisions relating to religious neutrality of the State and
religious liberties of the people, we find within the Constitution of India a number of religion-
based and religion-related provisions for certain communities who can be classified as follows:

 The Hindus, Buddhists, Jains and Sikhs, who are mentioned in the Constitution by their
denominational names; and
 Certain groups who are mostly Christian by religion but the special provisions do not mention
them as denominational groups.
Provisions for Hindus, Buddhists, Jains & Sikhs

The Constitution includes the following special provisions for the Hindu, Buddhist, and Jain and
Sikh communities:

 Declaration of the abolition of untouchability (mainly a Hindu religious custom) and prohibition
of its practice in any form – Article 17.
 A Directive Principle of State Policy requiring the State to take steps to prohibit the slaughter of
cows and calves (reverence for whom is customary among the Hindus) – Article 48.
 Declaration of the validity of pre-existing and future laws made to throw open Hindu places of
worship to all sects and sections of the Hindus (with a supplementary provision giving the power
for the Buddhist, Jain and Sikh shrines) – Article 25, Explanation I.
 A special provision for the grant of specified annual maintenance- allowances to be given from
the State exchequer for the upkeep of Hindu temples of a certain denomination in two South
Indian states, Kerala and Tamil Nadu – Article 290 clause(a).
 Declaration of wearing and carrying a kirpan (sword) a Fundamental Right for the Sikhs – Article
25, Explanation II.
Provisions for mainly Christian Groups

The following special provisions were included in the Constitution for certain communities
which are mainly Christian by religion:
 Some special provisions of a transitory nature for the Anglo- Indian community – Articles 331,
333, 336,337, 366 clause (2).
 A provision for the protection of the customary law and its administration among the Nagas in the
Christian-dominated State of Nagaland – Article 370 clause (a).
 A similar provision for the Mizos in the Christian- dominated State of Mizoram – Article 370
clause (g).
Religious Establishments

There are in India various official establishments for religion, statutory and non-statutory, set up
both by the Central and State Governments. Among these are:

 Departments of Religious Affairs in some States including Jammu and Kashmir and Uttar
Pradesh;
 Minority Welfare Departments in most States;
 Union Ministry of Minority Welfare;
 Special bodies to manage certain religious matters of particular communities.

Among the bodies mentioned in clause (iv) above there are Hindu Religious Endowment Boards,
Muslim Wakf Boards, Sikh Gurdwara Committees, State-appointed boards or committees to
manage particular shrines, Central Hajj Committee, etc.

IS INDIA STILL A SECULAR STATE?


India is diversified when it comes to religions, for which the constitution stands for a secular
India.

 Multiple religions like Hindu’s, Christians, Muslims, and Buddhists exist in our country making
it secular. There is no one particular religion which is being followed.
 The roots of the Indian constitution ricochets that all citizens are equal and this asserts that the
religion of a native is not applicable especially when it comes to his fundamental rights.
 The secular state is usually defined as a state where people have the right to make independent
choices, which is very much prevalent in India.
 None of the public funds are allotted especially for any particular religion.
 In spite of India being a secular state, Caste system still rubrics the ancestries, not only at the time
of politics but while choosing a groom/ bride, making companions, hiring workers.
 The main purpose of not following any religion in India was to keep the state secular, which is
not being followed.
 The recent riots in Muzaffarnagar, U.P. the main reason was that of the Hindu – Muslim fights,
especially where both the religions exist.
Conclusion:
The entire human race is considered to be one large clan, secularism leads to a modern and a
reformist approach. India has constantly believed in oneness and does not rift humanity into
incontrovertible partitions on the basis of religion, race, country or nation.

WRIT JURISDICTION OF THE


SUPREME AND HIGH COURTS
JANUARY 1, 2017

WRIT JURISDICTION OF THE SUPREME AND HIGH COURTS

A writ is a quick remedy against injustice, a device for the protection of the rights of citizens
against any encroachment by the governmental authority. writs originated in Britain where they
were king’s or queen’s ‘prerogative’ writs and were commands to the judicial tribunals or other
bodies to do or not to do something. Since writs carried the authority of the crown they were to
be obeyed. Later, writs came to be enjoyed by the judges of the King’s Bench. In India, the
power to issue writs has been vested in the Supreme Court and the high courts. It is
an extraordinary remedy which can be expected in special circumstances.

The Supreme Court has been empowered to issue writs in the nature of habeas corpus,
mandamus, prohibition, and certiorari and quo warranto for protecting the fundamental rights
[article 32(2)]. Similar power has been conferred on the high courts via article 226. The high
court can issue the above writs for protecting the fundamental as well as statutory and common
law rights. The high courts can issue writs to any governmental authority outside their territorial
jurisdiction, provided the cause of action arises (in whole or in part) within their territorial
jurisdiction.

A writ is a discretionary remedy and the high court can refuse it on the ground of acquiescence,
laches (delay), available alternative remedy and no benefit to the party. Under article 226(3), a
high court can grant interim relief by way of interlocutory orders.

While the jurisdiction of the high court is more extensive than that of the Supreme Court, art.
226 (4) provides that the powers conferred on a high court shall not be in derogation of the
powers conferred on the supreme court by article 32(2). In L Chandra Kumar verses UOI, held
that a person cannot go directly to the Supreme Court from a decision of a tribunal, without first
going to the high courts. Thus, the aggrieved person has got another remedy by way of a writ
petition before the high court concerned. Thus, what was earlier two-tier litigation has now
become three-tier litigation. The tribunals cannot oust the jurisdiction of the high courts under
articles 226/227.

The scope of the writs in Indian law is wider than that of the prerogative writs in England. This is
because, firstly, the constitution uses the words “writs in the nature of which does not make our
writs identical with those in England but only draws an analogy from the latter. Secondly, article.
32(2) do not require the Supreme Court to observe all procedural technicalities which were
relevant for the issuance of writs under English law. Therefore, even if the conditions for the
issue of any of the writs are not fulfilled, the court may still issue a writ in an appropriate case
(except cases of government policy).

Thirdly, our high court can issue directions, orders or writs other than the prerogative writs. This
enables the courts to mould the reliefs to meet peculiar and complicated requirements of this
country. Under article 226, writs can be issued to “any persons or authority” (any person or body
performing public duty).

There are five well-known writs:

(a) Habeas Corpus

It literally means ‘a demand to produce the body’ or ‘you may have the body’ (whether dead or
alive). the issuance of the writ means an order to the detaining authority or person to physically
present before the court the detained person and show the cause of detention so that the court can
determine its legality or otherwise (however, the production of the body of the person alleged to
be unlawfully detained is not essential). If the detention is found to be illegal, the detained person
is set free forthwith. Its purpose is not to punish the wrongdoer but merely to secure the release
of the person illegally detained.

Since now, article 21 cannot be suspended even during the proclamation of emergency; this
becomes a very valuable writ for safeguarding the personal liberty of the individual. While the
Supreme Court can issue the writ of habeas corpus only against the state in cases of violation of
fundamental rights, the high court can issue it also against private individuals illegally or
arbitrarily detaining any other person.

Writ of habeas corpus can be filed by any person on behalf of the person detained or by the
detained person himself. In Sunil Batra verses Delhi Administration, a letter written by a
convict to one of the judges of the Supreme Court was treated as a writ petition. The court
employed this writ for the neglect of state penal facilities. The writ was also issued when a ban
was imposed on the law students to conduct interviews with prison mates for affording them
legal relief.

(b) Mandamus

It is a command to act lawfully and to desist from perpetrating an unlawful act. Where it has a
legal right which casts certain legal obligations on b, a can seek a writ of mandamus directing to
perform its legal duty? Mandamus may lie against any authority, officers, government or even
judicial bodies that fail to or refuse to perform a public duty and discharge a legal obligation.

The Supreme Court may issue a mandamus to enforce the fundamental right of a person when its
violation by some governmental order or act is alleged. The high courts may issue this writ to
direct an officer to exercise his constitutional and legal powers, to compel any person to
discharge duties cast on him by the constitution or the statute, to compel a judicial authority to
exercise its jurisdiction and to order the government not to enforce any unconstitutional law.

mandamus is a judicial remedy in the form of “‘an order’ to do or to forbear from doing some
specific act” which that agency is obliged to do or to refrain from doing under the law and which
is in the nature of a public duty or a statutory duty. It is considered as a residuary remedy of the
public law.

It is a general remedy whenever justice has been denied to any person. It may be issued not only
to compel the authority to do something but also to restrain it from doing something. Therefore,
it is both negative and positive and hence can do the work of all other writs. It can be issued on
all those counts on which certiorari and prohibition can be issued.

Mandamus would lie only to enforce a duty which is ‘public’ in nature. There must be a specific
demand for the fulfillment of duty and there must be specific refusal by the authority. The
applicant must’ve a legal right to the performance of a legal duty. If the rights are purely of a
private character no mandamus can be issued. A ‘public duty’ is one which is created either by a
statute, the constitution or by some rule of common law. The public duty enforceable through
mandamus must also be an absolute duty i.e. which is mandatory and not discretionary.
Mandamus would not lie where the duty is ministerial in nature i.e. where the authority has to act
on the instructions of his superior. The remedy of mandamus will not be available against any
person involved in the election process.

In Jatinder Kumar verses State of Punjab, held that article 320(3) of the constitution which
provided that before a government servant was dismissed, the UPSC should be consulted, did not
confer any right on a public servant and hence failure to consult the public service commission
did not entitle the public servant to get mandamus for compelling the government to consult the
commission. However, if the authority is under law obliged to exercise discretion, mandamus
would lie to exercise it in one way or the other.

In Praga Tools Corporation verses CVI Manual, held that a mandamus could issue against a
person or body to carry out the duties placed on them by the statutes even though they are not
public officials or statutory body. Technicalities should not come in the way of granting that
relief under article. 226. In Unni Krishnan verses Union of India, held that a private
medical/engineering college comes within the writ jurisdiction of the court irrespective of the
question of aid and affiliation.

In hearing the petition for mandamus, the court does not sit as a court of appeal. The court will
not examine the correctness or otherwise of the decision on merits. It cannot substitute its own
wisdom for the discretion vested in the authority unless the exercise of discretion is illegal. this is
true for other writs also.

In UOI verses Prakash P. Hindu , it was held that parliament exercises sovereign power to
enact laws and no outside power or authority can issue a direction to enact a particular piece of
legislation. Similarly, no mandamus can be issued to enforce an act which has been passed by the
legislature. therefore, the direction issued by the apex court in Vineet Narain case regarding
conferment of statutory status on CVC cannot be treated to be of such a nature the non-
compliance whereof may amount to contempt.

Where, however, the issuance of mandamus directing the investigating agencies to investigate
into offences was found futile, the court forged out a new tool of “continuing mandamus”
requiring the agencies to report the progress to the court so that monitoring by the court could
ensure continuance of the investigation.

(C) Certiorari

‘Certiorari’ is a Latin word meaning ‘to inform’ or ‘to certify.’ it was essentially a royal demand
for information. The king wishing to be certified of some matter ordered that the necessary
information be provided for him. ‘certiorari’ may be defined as a judicial order operating
in personam and made in the original legal proceedings, directed to any constitutional, statutory
or non-statutory body or person, requiring the records of any action to be certified by the court
and dealt with according to law.

it can be issued against constitutional bodies (legislature, executive and judiciary or their
officers), statutory bodies like corporations, non-statutory bodies like companies and cooperative
societies and private bodies and persons. Certiorari can be issued to quash judicial, quasi-judicial
as well as administrative actions (AK Kraipak verses Union of India ). In this case, the writ of
certiorari was issued to quash the action of a selection board, on the ground of personal bias.

The writ is corrective in nature, thus its scope of operation is quite large. The purpose of
certiorari is not only negative (to quash an action) but it contains affirmative or positive action
also. In Gujarat steel tubes v Mazdoor Sabha , held that while quashing the dismissal order, the
court can also order reinstatement and the payment of back wages.
Grounds for the issue of certiorari are:

(1) lack of jurisdiction; or the authority declining jurisdiction where it legally belongs to it.

(2) excess of jurisdiction.

(3) abuse of jurisdiction.

(4) violation of the principles of natural justice.

(5) error of law apparent on the face of the record – it includes not a mere error but a manifest
error based on clear ignorance or disregard of the law, or on a wrong proposition of the law, or
on clear inconsistency between facts and the law and the decision.

In Syed Yakoob verses Radhakrishnan, held that the jurisdiction of the high court to issue a writ
of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an
appellate court. An error of law which is apparent on the face of the record can be corrected by a
writ, but not an error of fact, howsoever grave it may appear to be. However, if a finding of fact
is based on ‘no evidence,’ that would be regarded as an error of law which can be corrected by
certiorari.

(D) Prohibition

Prohibition is a judicial order to the agencies (constitutional, statutory or non-statutory) from


continuing their proceedings in excess or abuse of their jurisdiction or in violation of the
principles of natural justice or in contravention of the law of the land. it is issued primarily to
prevent an inferior court or tribunal from exercising its jurisdiction (i.e. exercising power or
authority not vested in them).

Prohibition does not lie against an authority discharging purely administrative or executive
functions, it issues only against an authority discharging judicial functions (Isha
Beevi verses Tax Recovery Officer).
Before the writ of prohibition can be issued there must be something to be done. It is a ‘writ of
right’. Prohibition has much in common with certiorari’, both are ‘jurisdictional writs’ issued
against judicial or quasi-judicial authorities on similar grounds. however, prohibition is issued
while judicial process is in motion to prevent it from proceeding further, certiorari is issued to
quash the proceedings and is therefore issued when the judicial process has ended in a decision
(i.e. on completion of the proceeding). Thus, the object of the writ of prohibition is in short
‘prevention’ rather than cure, while certiorari is used as a ‘cure.’

However, these remedies may be applied simultaneously, certiorari to quash the proceedings and
prohibition to stop the tribunal from continuing to exceed its jurisdiction. The usual practice is to
pray for prohibition and alternatively certiorari because it may happen that pending proceedings
for prohibition the agency may hand over its final decision.

(e) Quo-Warranto

Quo-warranto is a question asking ‘with what authority or warrant’. The writ may be sought to
clarify in public interest the legal position in regard to claim of a person to hold a public office.
An application seeking such a writ may be made by any person provided the office in question is
a substantive public office of a permanent nature created by the constitution or law and a person
has been appointed to it without a legal title and in contravention of the constitution or the laws.

It can be issued against offices created by the constitution such as the advocate-general, the
speaker of legislative assembly, officers under the municipal act, members of a local government
board, university officials and teachers, but it will not issue against the managing committee of a
private school which is not appointed under the authority of a statute.
DIRECTIVE PRINCIPLE OF STATE
POLICY
JANUARY 1, 2017

DIRECTIVE PRINCIPLE OF STATE POLICY

Article 36 to 51 of the Constitution of India embodies the Directive Principles of State policy and
for these we are indebted to the Constitution of Ireland. The objective is to establish a social and
economic democracy in India.

Article 37 reveals that:

1. The Directive Principles are not justiciable


2. They are Fundamental to the governance of the country
3. It shall be the duty of the State to apply these Directive Principles while formulating
policies or making laws for the governance of the State

Classification of DPs

1. Socialist Principles

Article 38 – the state shall endeavor to formulate such social system which will secure social,
economic and political justice to all in all the spheres of life.

Article 39(a) – the state shall try to formulate its policy in such a manner so as to secure adequate
means of livelihood for all its citizens.

Article 39(b) – the ownership of material resources would be controlled in such a manner so as
to subserve the common good.

Article 39(c) – the economy of the state will be administered in such a manner so that wealth
may not yet be concentrated in a few hands and the means of production may not be used against
the public interest.
Article 41 – the State will work within the limits of its economic viability and progress, provide
to the citizens the right to work, the right to education and general assistance in the event of
unemployment, old age, disease and other disabilities.

Article 42 – the state will make provisions for the creation of just and humane conditions of
work. It will also ensure maternity relief. Article 43 – the state will ensure adequate wages, good
life and rest to the labourers. The state will also endeavor to make available to the labourers
various socio-cultural facilities.

2. Liberal Principles

Article 44 – The State shall endeavour to formulate and implement a Uniform Civil Code for all
the people living throughout the territory of India.

Article 45 – the State shall endeavour to provide early childhood care and education for all the
children until they complete the age of six years.

Article 47 – the State shall strive to raise the level of nutrition and the standard of living. Thus, it
will endeavour to improve upon the health of the people.

Article 48 – the State shall strive to organise agriculture and husbandry on modern and scientific
lines. It will also try to maintain and improve upon the breed of the animals.

Article 50 – the state will try to separate the judiciary from the executive in the case of public
service.

3. Gandhian Principles

Article 4 – the State will strive to organise Panchayats in villages and will endow them with such
powers which enable them to act as units of self-government.

Article 43 – the state shall strive to develop the cottage industry in the rural areas both, on
individual or cooperative basis.

Article 47 – the state will strive to ban the consumption of wine, other intoxicating drinks and all
such commodities which are considered injurious to health.
Article 48 suggests that the State will ban slaughtering of cows, calves and other milch cattle.

4. International principles

Article 51(a) – The State will strive to promote international peace and security.

Article 51(b)- The State will strive to maintain just and honourable relations among various
states in the world.

Article 51(c)- The State will endeavour to promote respect for International treaties, agreements,
and law.

Article 51(f)- The State will strive to settle international disputes by arbitration.

‘Fundamentalization’ of Directive Principles The Supreme Court has, in a number of judgments,


referred to the importance of the Directive Principles. It has called these principles the
“conscience” and the “core” of the Constitution. These principles are the “goals” to be achieved
by Part III of the Constitution. They are intended to ensure “distributive justice” for removal of
inequalities and disabilities and to achieve a fair division of wealth amongst the members of the
society. The Supreme Court held that the courts can look at the Directive Principles for the
purpose of interpretation of the fundamental rights. The courts will adopt that interpretation
which makes the fundamental rights meaningful and efficacious. The courts have to make every
attempt to reconcile the fundamental rights with the Directive Principles remembering that the
reason why the Directive Principles were left by the founding fathers as non-enforceable was to
give the Government sufficient latitude to implement them. Directives contained in other parts
besides the directives contained in Part IV, there are certain other directives addressed to the
state in other part of the Constitution. These directives are also non-judicial.

There are:

1. Article 350 A enjoins every state and every local authority within the state to provide
adequate facilities for instruction in the mother tongue at the belonging to linguistic
minority groups.
2. Article 351 enjoins the union to promote the spread of Hindi and to develop it so that it
may serve as a medium of expression of all the elements of the composite culture of
India.
3. Article 335 enjoins that the claims of the members of the Scheduled Castes and
Scheduled Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and posts in
connection with the affairs of the union or a state. Though the Directives contained in
Article 335, 305A and 351 are not included in Part IV, courts have given similar attention
to them on the application of the principle that all part of the Constitution should be read
together.

Fundamental Rights vs Directive Principles

The directives differ from the fundamental rights in Part III of the Constitution or the ordinary
laws of the land, the following ways:

1. While the fundamental rights constitute limitations upon state action, the directive
principles are in the nature of instruments of instruction to the government of the day to
achieve certain ends by their actions.
2. Fundamental rights are justiciable, but the directive principles are non-justiciable.
3. The directives, however, require to be implanted by legislation, and so long as there is no
law carrying out the policy laid down in a Directives, neither the state nor individual can
violate any existing law or legal right under colour of following a Directives.
4. The fundamental rights lay down the negative obligation of the state. They are prohibitive
in character and are, in fact, in the nature of injunctions requiring the state not to do
certain things. Directive principles are, on the contrary, affirmative directions dealing
with the positive obligations of the state towards the citizens.
5. The main objective of fundamental rights is to establish political democracy, by
guaranteeing equality, liberty, religious freedom and cultural rights but the aim of
directive principles of state policy is to establish just social and economic order.
6. The court cannot declare any law as void on the ground that it contravenes the directives.
Relative Importance of DPs vis-a-vis FRs During the first sixteen years of the operation
of the Constitution, the directive principles were considered subordinate to the
fundamental rights: the courts struck down a number of laws enacted to implement
directive principles on the ground that they violated the fundamental rights. The conflict
has its root in the fact that fundamental rights are enforceable by the courts, while the
directive principles are not so.

However, the government tried to overcome the problem by amending the Constitution. When
the Supreme Court laid down in the Golaknath Case that the fundamental rights cannot be
abridged to implement the directive principles, the Government tried to overcome the limitation
in 1971 through the 24th Amendment which gave Parliament the right to amend fundaments I
rights. In the same year, the 25th Amendment Act inserted Article 31c ensuring that certain laws
meant to implement Directives in clauses 39 (b) and 39 (c) will prevail even if these laws violate
the rights granted in Article 14 and 19. An attempt to enhance the scope of Article 3IC was made
by the 42nd Amendment Act which gave primacy to any or all the directive principles and
deprived the courts of the right to look into such cases.

This attempt was foiled by the Supreme Court majority judgement in Minerva Mills Case which
asserted that such total exclusion of judicial review would offend the basic structure of the
Constitution. On the whole, however, the conflict between these two features of the Constitution
is meaningless as they are, in reality complementary to each other. The courts have increasingly
based their judgment on a harmonious reading of Part III and IV of the Constitution. The
Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the
Fundamental Rights and Directive Principles being complementary to each other, each
supplementing the other’s role in aiming at the same goal of establishing a welfare state.

Criticism of DPs

 Can lead to ‘situations of conflict’ between the center and the states o If the Parliament
passes a law to enforce DPs, even if it is beyond the fiscal reach of the states to
implement the laws, failure to do so will be subject to art 256 (state governments are
supposed to exercise their executive powers in accordance with the laws passed by the
Parliament). If the state does not follow 256, then by art 365 (if the state does not follow
the mandates of the Parliament, then the President can deem this to be a ‘breakdown of
constitutional machinery’)
 Social values combined with sentimental values – prevention of cow-slaughter and
alcohol consumption combined with principles of social and economic justice (39b, 39c)!
 It is said they imbibe the spirit of Fabian socialism – which is now losing relevance o The
ideas of 5 year plans, setting up large and diversified public sector and nationalization of
key industries came from erstwhile USSR o However, unlike USSR, India became a
democracy with a Fabian aim of socialism – that is – achieve socialism through
evolution, not revolution (e.g. Bolshevik Revolution of 1917)

After Liberalization, Privatization, Globalization (LPG) in 1991, leading to a restricted role of


public sector, the very idea of socialism is under threat “The judicial approach should be
dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. This Court
while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens
of the country must try to strike a just balance between the fundamental rights and the larger and
broader interests of society so that when such a right clashes with a larger interest of the country
it must yield to the latter.” – Supreme Court in Kesavananda Bharati judgment The Doctrine of
Basic Structure (1973) From the Kesavananda case emerged this doctrine, which suggested that
there can be no law in violation of the “basic structure” of the constitution. Although, what it
exactly comprises of is subject to some debate, usually the following come under this doctrine –
The supremacy of the constitution. Republican and democratic form of government. The secular
character of the Constitution. Maintenance of the separation of powers. The federal character of
the Constitution. ü e.g. Right after independence, we acquired land from the big landlords and
distributed it to the landless tillers – now we do the opposite – we acquire land from poor farmers
and hand it over to big capitalists!

 These are Non-justiciable – then how can the courts monitor their implementation.
Although, the courts, especially since the 1990s, have started giving significance to the
DPs through ‘judicial activism’.
 No proper classification is done – the segregation into Socialist, Gandhian, Liberal and
International principles was not there in the Constitution.
 Some Directive Principles are not practicable – strict nation-wide ban on alcohol can
never be practically enforced.
 No mention of methods to implement these – no time frame, no process, no agencies
prescribed. Importance of DPs Lay down the foundation of Economic Democracy
Measuring rods to judge the achievements of the Govt They establish welfare state These
are Fundamental in the Governance of the country. These Principles supplement
Fundamental rights Guiding Principles for courts They bring stability and continuity in
State

Relationship between Fundamental Rights and Directive Principles of State Policies (DPSPs)

Fundamental Rights and Directive Principles of State Policy as enshrined in the Constitution of
India together comprise the human rights of an individual.[1] The idea of constitutionally
embodied fundamental rights emerged in India in 1928 itself. The Motilal Committee Report of
1928 clearly envisaged inalienable rights derived from the Bill of Rights enshrined in the
American Constitution to be accorded to the individual.[2] These undeniable
rights were preserved in Part III of the Indian Constitution.[3]

The concept of Directive Principles embedded in the Constitution was inspired by and based on
Article 45 of the Irish Constitution.[4]The Directive Principles imposed a duty upon the state to
not only acknowledge the Fundamental Rights of an individual but also to achieve certain socio-
economic goals.[5] Directive Principles were enumerated in Part IV of the Constitution. Parts III
and IV of the Indian Constitution were once described by CJ. Chandrachud to be the conscience
of the Constitution.[6]

However, there has perennially been a controversy surrounding the constitutional relationship
between Fundamental Rights and Directive Principles, as there would be a conflict between the
interest of an individual at the micro level and the community’s benefit at a macro level.

Central part of this controversy is the question pertaining to which part of the Constitution would
have primacy in the case of conflict between Parts III and IV. In this brief paper, an attempt is
made to ascertain and comprehend the constitutional
relationship between fundamental rights and directive principles. The author seeks to map out
three different perspectives of the judiciary and the legislature with regards to the relationship
between Fundamental Rights and Directive Principles.

1. FUNDAMENTAL RIGHTS VIS-À-VIS DIRECTIVE PRINCIPLES

The primary distinction between the Fundamental Rights and Directive Principles as visualized
by the drafters of the Constitution was with regards to the question of enforceability. Part III of
the Constitution was enforceable against the state but Article 37 expressly provided that Part IV
was not enforceable in a court.[7]

Earlier Supreme Court decisions attributed paramount importance to Fundamental Rights based
on this aforementioned Constitutional position and provision.[8] In the landmark judgment of
State of Madras vs. Srimathi Champakam[9] which subsequently led to the 1st Constitutional
Amendment, Justice Das stated that directive principles were expressly made unenforceable by
Article 37 and therefore could not override the fundamental rights found in Part III, which were
enforceable pursuant to Article 32.[10]The court opined that fundamental rights were sacrosanct
and could not be curtailed by Directive Principles and asserted that the directive principles
although important in their own respect were required to adhere to the Fundamental Rights and
in the case of conflict Part III would prevail over Part IV.[11] This view of the apex court was
reaffirmed in subsequent landmark decisions such as
Mohd. Hanif Quareshi v State of Bihar[12]13 and In re Kerala Education Bill[13], 1957.

These decisions of the apex court were subject to much criticism due to the excess importance
endorsed to Fundamental Rights resulting in the complete neglect
of principles that promoted socio-economic change and development.[14]

The legislature was disappointed with the judiciary’s interpretation and believed that it was
contradictory to what the framers of the Constitution believed. Pandit Nehru in his speeches in
relation to the 1st and 4th Constitutional Amendments expressly stated his disappointment. He
stated, “There is difficulty when the Courts of the Land have to consider these matters and lay
more stress on the Fundamental Rights than on the Directive Principles. The result is that the
whole purpose behind the Constitution which was meant to be a dynamic Constitution leading to
a certain goal step by step, is somewhat hampered and hindered by the static element being
emphasized a little more than the dynamic element.”[15]

It is therefore evident that the legislature believed that Fundamental Rights were to assist the
Directive Principles and not vice-versa.[16]

This subsequently led to a transformation in the interpretation of the


relationship between Fundamental Rights and Directive Principles to be more inclusive and
harmonious. In Chandra Bhawan Boarding and Lodging Bangalore v State of Mysore[17],
the Minimum Wages Act, 1948 was challenged for conferring unrestricted, unfettered and
arbitrary power on the state in determining the minimum wages. The state argued that it was
obligated to provide for minimum wages in accordance with the Directive Principles. The court
held that the provisions of the Constitution were created to facilitate progress, as intended by the
Preamble and it would be fallacious to assume that the Constitution provided only for rights and
no duties.

Furthermore, it was stated that although Part III encompasses Fundamental Rights, Part IV was
essential in the governance of the country and were therefore supplementary to each other.

This view was reaffirmed in Kesavanda Bharati v State of Kerala[18] where it was held that
the directive principles were in harmony with the country’s aims and objectives and the
fundamental rights could be amended to meet the needs of the hour implying that Parts III and
IV needed to be harmoniously construed. Although these judgments were more dynamic in
comparison to the previous approach that the apex court had extended, it still did not satisfy the
ideals of the legislature. It could easily be speculated that the 42nd Amendment in 1976 was to
accord primacy to the Directive Principles over the Fundamental Rights. The purpose of the
amendment was to make the Directive Principles comprehensive and accord them precedence
over the fundamental rights “which have been allowed to be relied upon to frustrate socio-
economic reforms for the implementing of Directive Principles”.[19]

This resulted in the resurgence of the debate on the relationship between Fundamental Rights and
Directive Principles. In Minerva Mills Ltd. v Union of India[20], the court believed that the
harmonious relation between Fundamental Rights and Directive Principles was a basic feature of
the Constitution. It was stated that Part III and Part IV together comprised of the core of the
constitution and any legislation or amendment that destroyed the balance between the two would
be in contravention to the basic structure of the Constitution. Chandrachud CJ. reasserted that
Parts III and IV are complementary to each other and together they constitute the human rights of
an individual. Reading these provisions independently would be impossible, as that would render
them incomplete and thereby inaccessible. However, this was not settled as law yet and there
was another hiccup in the subsequent judgments. In Sanjeev Coke Mfg. Co. v M/s Bharat
Coking Coal Ltd.[21], the Supreme Court held that the part of the Minerva Mills judgment that
dealt with Article 31 C of the Constitution was merely obiter dictum and therefore not binding.
The court thus upheld the Coking Coal Mines (Nationalization) Act, 1972 by granting greater
importance to Directive Principles than Fundamental Rights in accordance with Article 31C that
provided for the same.

The Sanjeev Coke judgment resulted in a divergence of opinion, which was ultimately settled
in State of Tamil Nadu v L. Abu Kavier Bai.[22] The court referred to the decision of
Constituent Assembly to create two parts for these core constitutional concepts. It was stated that
the purpose of the two distinct chapters was to grant the Government enough latitude and
flexibility to implement the principles depending on the time and circumstances. The court
therefore considered the Minerva Mills case precedent and recommended a harmonious
construction of the two parts in public interest and to promote social welfare. This view has been
consistently adopted ever since and has been endorsed in Mohini Jain v State of
Karnataka[23] and Unni Krishnan v State of Andhra Pradesh[24]. It can therefore be
construed to be well settled that a harmonious interpretation of Fundamental Rights and
Directive Principles is quintessential in ensuring social welfare and the apex court is promoting
the same view after much deliberation.

Although it appears to be well established that there is a need for balance and unanimity in
interpreting Fundamental Rights and Directive Principles, this debate is far from over. The
courts off late have played a proactive role in facilitating socio-economic development at a
macro level which requires compromise on a micro level. Therefore in light of the benefit of the
community at large, the Directive Principles may be used to determine the extent of public
interest to limit the scope of Fundamental Rights.[25]

[1] V.N. Shukla, Constitution of India (Eastern Book Co., 2001) 23

[2] Vuayashri Sripat, ‘Toward Fifty Years of Constitutionalism and Fundamental Rights in
India: Looking Back to See Ahead (1950-2000)‘ [1998-1999] 14 Am. U. Int’l L. Rev. , 428.

[3] Constitution of India 1950, Part III.

[4] Maureen Callahan, The Role of the Judiciary in India’s Constitutional Democracy, [1996-
1997] 20 Hastings Int’l & Comp. L. Rev., 103.

[5] M.P Jain, Indian Constitutional Law (Lexis Nexis 2010) 549.

[6] Minerva Mills v Union of India [1980] 2 SCC 591.

[7] Constitution of India 1950, Article 37; V.N. Shukla, Constitution of India (Eastern Book Co.,
2001)23.

[8] I.P. Massey, Nehru’s Constitutional Vision (1st, Deep & Deep Publications, 1991) 47.

[9] State of Madras v Srimathi Champakam [1951] SCR 525.

[10] J. Das in State of Madras v Srimathi Champakam [1951] SCR 525.

[11] Bertus De Villiers, Directive Principles of State Policy and Fundamental Rights: The

Indian Experience, [1992] 8 South African Journal on Human Rights, 41.


[12] Mohd. Hanif Quareshi v State of Bihar AIR 1958 SC 731

[13] In re Kerala Education Bill, 1957 [1959] SCR 995.

[14]SK.Sharma, Justice and Social Order in India (1984) 26 as cited in Bertus De Villiers,
Directive Principles of State Policy and Fundamental Rights: The Indian Experience, [1992] 8
South African Journal on Human Rights, 44.

[15] Parliamentary Debates, Vol. XII-XIII, Part II at 8820-22, May 16, 1951.

[16] I.P. Massey, Nehru’s Constitutional Vision (1st, Deep & Deep Publications, 1991) 54

[17] Chandra Bhawan Boarding and Lodging Bangalore v State of Mysore [1969] 3 SCC 84.

[18] Kesavanda Bharati v State of Kerala [1973] 4 SCC225.

[19]The Constitution (Forty-Second Amendment) Act 1976, Statement of Objects and Reasons,p-
3.

[20] Minerva Mills Ltd. v Union of India [1980] 2 SCC 591.

[21] Sanjeev Coke Mfg. Co. v M/s Bharat Coking Coal Ltd.AIR 1983 SC 239.

[22] State of Tamil Nadu v L. Abu Kavier Bai AIR 1984 SC 725.

[23] Mohini Jain v State of Karnataka[1992] 3 S.C.C. 666.

[24] Unni Krishnan v State of Andhra Pradesh1993 AIR 2178.

[25]Bertus, Directive Principles of State Policy and Fundamental Rights: The Indian Experiene,
[1992] 8 South African Journal on Human Rights, 49.
FUNDAMENTAL DUTIES
SEPTEMBER 15, 2016

The Chapter of Fundamental duties was inserted in our Constitution by 42nd Amendment of the
Constitution in 1976. By 42nd Amendment after Part-IV of Constitution, Part IVA and Article
51-A is inserted in the Constitution which lays down Fundamental Duties of the citizens.
Fundamental Duties was added on the recommendation of Swaran Singh Committee. These
are non-justifiable i.e their compliance cannot be enforced by law, but serves as moral
responsibility on the citizens. Originally 10 Fundamental Duties, 11th Fundamental Duty was
added by 86th Amendment in 2002. At Present we have 11 Fundamental Duties .Fundamental
rights and Fundamental duties are correlated. Either of them cannot be ignored. To create a
general awareness of the provisions of fundamental duties amongst the citizens on the lines
recommended by the Justice Verma Committee in 1999. India borrowed the concept of
Fundamental Duties from USSR.

Fundamental Duties of the Indian Citizens

(a) It is the duty of every citizen to abide by the constitution and respect its ideal and institutions,
the National Flag and the National Anthem.

(b) It is the duty to cherish and follow the noble ideals which inspired our national struggle for
freedom.

(c) It is the duty to uphold and protect the sovereignty, unity and integrity of India.

(d) It is the duty of every citizen to defend the country and render national service when called
upon to do.

(e) It is the duty to promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic and regional or sectional diversities to renounce
practices derogatory to the dignity of women.

(f) It is the duty of every citizen to value and preserve the rich heritage of our composite culture.

(g) It is the duty to protect and improve the natural environment including forests, lakes, rivers
and wild life and have compassion for living creatures.

(h) It is the duty of the citizen to develop the scientific temper, humanism and the spirit of
inquiry and reform.

(i) It is the duty of every citizen to safeguard public property and to abjure violence.
(j) It is the duty of every citizen to strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher levels of endeavour and
achievements.

Legal Provisions Regarding Fundamental Duties

1. In order to ensure that no disrespect is shown to the National Flag, Constitution of India
and the National anthem, the Prevention of Insults to National Honour Act, 1971 was
enacted.
2. The Emblems and Names (Prevention of Improper Use) Act 1950 was enacted soon after
independence, inter alia, to prevent improper use of the National Flag and the National
Anthem.
3. In order to ensure that the correct usage regarding the display of the National Flag is well
understood, the instructions issued from time to time on the subject have been embodied
in Flag Code of India, which has been made available to all the State Governments, and
Union territory Administration (UTs).
4. There are a number of provisions in the existing criminal laws to ensure that the activities
which encourage enmity between different groups of people on grounds of religion, race,
place of birth, residence, language, etc. are adequately punished. Writings, speeches,
gestures, activities, exercise, drills, etc. aimed at creating a feeling of insecurity or ill-will
among the members of other communities, etc. have been prohibited under Section 153A
of the Indian Penal Code (IPC).
5. Imputations and assertions prejudicial to the national integration constitute a punishable
offence under Section 153 B of the IPC.
6. A Communal organization can be declared unlawful association under the provisions of
Unlawful Activities (Prevention) Act 1967.
7. Offences related to religion are covered in Sections 295-298 of the IPC (Chapter XV).
8. Provisions of the Protection of Civil Rights Act, 1955 (earlier the Untouchability
(Offences) Act 1955).
9. Sections 123(3) and 123(3A) of the Representation of People Act, 1951 declares that
soliciting of vote on the ground of religion and the promotion or attempt to promote
feelings of enmity or hatred between different classes of citizens of India on the grounds
of religion, race, caste, community or language is a corrupt practice. A person indulging
in a corrupt practice can be disqualified for being a Member of Parliament or a State
Legislature under Section 8A of the Representation of People Act, 1951.

DRAWBACKS – The fundamental duties are not precisely defined. Their ambiguity and
vagueness confound the citizens as to what they are supposed to do.
1. Most significantly. They are merely moral postulates and do not have justifiability. They
are not enforced by Law.
2. Place in the constitution: It has been added in the Part IVA i.e. after Part IV (Which
belongs to the Directive Principles of State Policy which are non-enforceable even with
the court of law). It has given the Fundamental Duties a nature of non-obligation. Instead
it should have been placed as the Part IIIA i.e. after Part III (it belongs to the
Fundamental Rights). It should have been given power at par with Fundamental Rights.
3. Fundamental Duties prescribe duties for the citizens and not for the Government for
better life and social progress.
4. Another point of criticism is that some Fundamental Duties are vague and it is not
possible for an average man to understand them. For example, the duties pertaining to
upholding the noble ideals of the freedom struggle or the development of a “scientific
temper and humanism and spirit of enquiry and reform” are not understood by the
ordinary citizens.
5. Another drawback of the Fundamental Duties lies in their incorporation in Part IV of the
Constitution. Without appropriate legal sanctions, the Fundamental Duties are mere pious
wishes.
6. There is overlapping and repetition in description of Fundamental Duties.
7. Fundamental duties miss some important duties such as cast vote, pay taxes, family
planning etc.

JUDICIAL REVIEW
JANUARY 1, 2017

JUDICIAL REVIEW
Basis and Scope

Philosophy of judicial review is rooted in the principle that constitution is the fundamental law,
all governmental organs must not do anything which is inconsistent with the provisions of
constitution; and the theory of ‘limited government.’ when a contradiction between the
constitution and enacted law exists, it is the duty of judges to resolve it. Thus, judicial review
makes constitution legalistic. In a federal system, it is a necessary consequence to have an
independent and impartial judiciary to resolve disputes.

‘Judicial Review’ means that the judiciary can declare a law or legislation as unconstitutional if
it is beyond the competence of legislature according to the distribution of powers (under article
246), or it is in contravention of fundamental rights or any of the mandatory provisions of the
constitution (For Example, article 301, 304). Even in the absence of such express constitutional
provisions, the court can invalidate a law which contravenes any right or is ultra vires, for such
power of judicial review follows from the very nature of the constitutional law. Thus, under
article 132, the substantial question of law as to the interpretation of constitution is referred to
the Supreme Court. The ‘reasonable restrictions’ in case of fundamental rights are subject to
court’s supervision. Judicial review is thus ‘the interposition of judicial restraint on the
legislative as well as executive organs of the government.

In AK Gopalan verses State of Madras, the power of judicial review was firmly established and
the limitations for its exercise were clearly enunciated. In India, the position of the judiciary is
somewhere in between the courts in England and the US. In England, a law duly made by
parliament cannot be challenged in any court. The English courts have to interpret and apply the
law; they have no authority to declare such a law illegal or unconstitutional. In United States, the
Supreme Court is supreme and can declare any law unconstitutional on the ground of its not
being in “due process of law.”

Our constitution, unlike the English constitution, recognizes the court’s supremacy over the
legislative authority, but such supremacy is a very limited one, for it is confined to the field
where the legislative power is circumscribed by limitations put upon it by the constitution itself.
Within this restricted field the court may, on a scrutiny of law made by the legislature, declare it
void if it is found to have transgressed the constitutional limitations. Unlike the USA
constitution, the courts in India have no authority to question the wisdom or policy of the law
duly made by the legislature.

Limited Supremacy of Courts

Under Article 245(1), the legislative powers conferred under article 246 are also made “subject
to the provision of constitution.” Article 13(2) provides as follows: “the state shall not make any
law which takes away or abridges the right conferred by this part and any law made in
contravention of this clause shall, to the extent of the contravention, be void.” thus, this article
protects the fundamental rights.

Scope of Judicial Review

While the basis of judicial review of legislative acts is far more secure under our constitution
(because of express and implied provisions in constitution), its potentialities are much more
limited as compared to that in USA this is due to the detailed provisions of constitution and the
easy method of its amendment – major portion of constitution is liable to be amended if the
judiciary proves too obtrusive. Also, during emergency, the legislature given supremacy, as it
represents the will of the community.

In India, the exercise of power of judicial review is itself made subject to the limitations,
expressly provided in the constitution example articles 32,226, 74, 77, 163, 166, 105, 194, 12,
212. The Supreme Court has also evolved certain self-imposed limitations on its powers of
judicial review, as found in res judicata, laches, standing, waiver, etc.

Nevertheless, in several cases, it has been held that the Supreme Court can act as the custodian,
defender of rights of people, and democratic system of government only through the judicial
review. In Keshavanand Bharti’s case, it was held that the judicial review is a ‘basic feature’ of
the constitution and cannot be amended.

The scope of judicial review is sufficient in India, to make supreme court a powerful agency to
control the activities of executive and the legislature. In no way, judicial review makes the
Supreme Court a rival of the parliament.
Limits of Judicial Review – Scope of articles 32/226: Standing and Public Interest
Litigation

Dr. Ambedkar in the drafting committee of the constituent assembly stated that article. 32 were
the “most important” article and that “it is the very soul of the constitution and the very heart of
it.” Article 32(1) guarantees the right to move Supreme Court by ‘appropriate proceedings’ for
the enforcement of fundamental rights (Part III of the constitution). Clause (2) – deals with
Supreme Court’s power to issue directions, order or writs, whichever may be appropriate, for the
enforcement of fundamental rights.

Article 32 thus provides an expeditious and inexpensive remedy for the protection of
fundamental rights from legislative and executive interference. However, a petition under article
32 may be filed to challenge the validity of a law with reference to a provision other than those
involving fundamental rights, provided it inevitably causes a restriction on the enjoyment of
fundamental rights.

The Supreme Court cannot refuse relief under article 32 on the ground that the aggrieved person
may have his remedy from other court (a person need not first exhaust the other remedies and
then go to the supreme court); the disputed facts have to be investigated before the relief given;
and that petitioner has not asked for proper writ applicable to his case.

In RN Kumar verses Municipal Corp. Of Delhi, a two-judge bench of the supreme court held
that the citizens should not come to the court directly for the enforcement of their fundamental
rights, but they should first seek remedy in the high courts and then if the parties are dissatisfied
with the high court’s judgment, they can approach the supreme court by way of appeal. In this
case, the petitioner challenged the imposition of various taxes on their hotel. Disposing the
petition the apex court laid down following guidelines for the exercise of the right under art. 32:

(1) The scope of article. 226 are wider than article. 32.

(2) Hearing of the case at the level of high courts is more convenient to the parties. it saves lot of
time.

(3) The high court has its own tradition and eminent judges/ lawyers,
(4) The Supreme Court’s workload is too much with cases pending before it for the last 10-15
years.

Similarly, in Kanubhai Brahmbhatt verses State of Gujarat, the apex court directed the
petitioner to first seek remedy in the high court.

Suspension of Fundamental Rights


Effect of proclaiming emergency on fundamental rights (articles 358-359)

As soon as the emergency is proclaimed on the ground of war or external aggression, all the
freedoms guaranteed by article 19 are automatically suspended. art. 358 make it clear that in the
case of proclamation under article. 352, article. 19 shall not restrict the power of the state to
make any law or to take any executive action abridging or taking away the fundamental rights
guaranteed by art. 19. But, any law so made shall, to the extent of the incompetency, cease to
have effect as soon as the proclamation ceases to operate. However, things done or omitted to be
done during emergency cannot be challenged even after the emergency was over on the ground
of the concerned emergency law had violated article 19.

It may be noted that 44th amendment excluded the ground of ‘armed rebellion’; thus, if
emergency is declared on this ground, freedoms guaranteed by art. 19 cannot be suspended.
Further, the amendment made it clear that article 358 will only protect ’emergency laws’ from
being challenged in a court of law and no other laws which are not related to the emergency.
Prior to this, the validity of even other laws, which were not related to emergency, could not be
challenged under article 358.

article 359(1) lays down that where a proclamation of emergency is in operation, the president
may by order declare that the right to move any court for the enforcement of such of the rights
conferred by part 111 (except articles 20 and 21) as may be mentioned in the order and all
proceedings pending in any court for the enforcement of the rights so mentioned shall remain
suspended for the period during which the proclamation is in force or for such shorter period as
may be specified in the order. Thus, the president has the power to suspend the right to move
courts for the enforcement of any of the fundamental rights (except articles. 20 and 21) for a
period not exceeding the proclamation of emergency.

The main difference between article 358 and article 359 is that fundamental rights are
automatically suspended during emergency (article. 358), while under article. 359 it is president
who gives the order. However, every order made under clause (1) shall, as soon may be after it is
made, be laid before each house of parliament. Further, under article. 359, the fundamental rights
are not suspended, it is the right to seek remedy that is suspended.

The constitution (38th amendment) act, 1975, added a new clause (1-a) in art. 359 which provide
that while an order under article. 359(1) is in operation, nothing in part 3 shall restrict the power
of the state to make any law or to take any executive action. But, any law so made shall, to the
extent of the incompetency, cease to have effect as soon as the proclamation ceases to operate
(except as respects things done or omitted to be done before the law so ceases to have effect).
The 44th amendment, besides saving articles 20 and 21 from the purview of emergency also
provides that those laws that are not related to the emergency can be challenged in a court even
during the emergency.

The proclamation of emergency does not invalidate a law which was valid before the
proclamation.