The Supreme Court and Fundamental Rights PDF

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THE SUPREME COURT AND

FUNDAMENTAL RIGHTS
M.P. Jain
The Declaration of the French Revolution, 1789, which may be

regarded as a concrete political statement on human rights,
declared: 'The aim of all political association is the conservation
of the natural and inalienable rights of man'. The preamble to the
Universal Declaration of Human Rights declares, inter alia:
'Whereas recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world....'
The concept of human rights has a respectable pedigree; it can
be traced to the Natural Law thinking of the seventeenth century.
The Natural Law philosophers, such as Locke and Rousseau,
philosophized over such inherent human rights and sought to
preserve these rights by propounding the theory of social
compact. 1 The concept of human rights represents an attempt to
protect the individual from oppression and injustice.
In modern times, it is widely accepted that the right to liberty
is the essence of a free society and that it must be safeguarded at
^ e e Lloyd's Introduction to Jurisprudence (1985), 117-23. The

American Constitution went on to embody Lockean ideas about the
protection of life, liberty and property. See B. Bailyn, Ideological Origins
of the American Revolution (1967).
2 FIFTY YEARS OF THE SUPREME COURT
all times. The idea of guaranteeing certain freedoms is to ensure

that a person will have a minimum guaranteed freedom. The
underlying idea is to remove certain basic and fundamental values
out of the reach of transient political majorities. The concept of
basic rights protects a person against oppression and injustice and
against excesses by the State.
The framers of the US constitution in 1787 were the first to
give concrete shape to the concept of human rights by putting
these rights into the constitution, and making them justiciable
and enforceable through the instrumentality of the courts. 2
During the British regime in India, human rights were widely
violated by the rulers. Therefore, the framers of the Constitution,
most of whom had suffered long incarceration under the British,
had a very positive attitude towards these rights. Accordingly,
human rights were incorporated in the Constitution under the
title of 'Fundamental Rights' in Part III, articles 12 to 35.
In his closing address to the Constituent Assembly, Dr B.R.
Ambedkar emphasized that the principles of liberty, equality and
fraternity were not to be treated as separate entities but as a
trinity. They formed the union or trinity in the sense that to
divorce one from another was to defeat the very purpose of
democracy. Liberty couid not be divorced from equality. Equality
could not be divorced from liberty. Nor could equality and liberty
be divorced from fraternity. Without equality, liberty would
produce supremacy of law. Equality without liberty would kill
individual initiative. Without fraternity, liberty and equality
would not become a natural course of things. Accordingly, the
Constitution puts due emphasis on equality, fraternity and liberty.
The preamble declares that the Constitution of India has been
adopted by the people to promote justice, liberty, equality,
and fraternity. Several constitutional provisions amongst the
fundamental rights also protect these values.
The entrenched fundamental rights have a dual aspect. From
one point of view, these rights confer justiciable rights on the
people which can be enforced through the courts. From another
point of view, the fundamental rights constitute restrictions and
2
The original Constitution did not contain any fundamental rights. In
response to the public criticism, fundamental rights were incorporated in
the Constitution through the first ten amendments immediately after the
Constitution was ratified and became operational.
T H E SUPREME COURT AND FUNDAMENTAL RIGHTS 3
limitations on governmental action. The government cannot take

any action, administrative or legislative, by which a fundamental
right may be infringed. Entrenchment means that the guaranteed
rights cannot be taken away by an ordinary law; such a law
curtailing or infringing an entrenched right would be declared to
be unconstitutional. If ever it is thought desirable to curtail an
entrenched right, that can be done only by the elaborate and more
formal procedure by way of constitutional amendment. 3
The Supreme Court discharges a multi-faceted role in relation
to the fundamental rights. In the first place, it acts as the
protector and guardian of these rights. In the second place, it acts
as the interpreter of fundamental rights and in the third place, it
has been seeking to integrate directive principles with funda
mental rights. In this essay, each of these three major trends is
discussed at some length.
Supreme Court as Guardian of

Fundamental Rights
As the protector and guardian of fundamental rights, from the
very beginning the Supreme Court has adopted the stance that it
acts as the 'sentinel on the qui vive' vis-a-vis fundamental rights
and has stressed this role in several cases. The Constitution
underlines this role of the court through article 32(1), which
reads:
The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this
article.
The Constitution-makers made the right of a citizen to move
the Supreme Court under article 32, and claim an appropriate
writ against the unconstitutional infringement of his funda
mental rights, itself a fundamental right. Commenting on this role
entrusted to itself, the court observed in Daryao v State of Uttar
Pradesh:
3
On the question of amendment of fundamental rights in India, see
infra.
The fundamental rights are intended not only to protect individual's

rights but they are based on high public policy. Liberty of the
individual and the protection of his fundamental rights are the very
essence of the democratic wav of life adopted by the Constitution, and
it is the privilege and the duty of this Court to uphold those rights.
This Court would naturally refuse to circumscribe them or to curtail
them except as provided by the Constitution itself.4
In the very first year of the Constitution coming into force,
the Supreme Court emphasized in Romesh Thappar v State of
Madras,5 that 'this Court is thus constituted the protector and
guarantor of the fundamental rights, and it cannot, consistently
with the responsibility so laid upon it, refuse to entertain
applications seeking protection against infringement of such
rights.'
The protective role of the Supreme Court, has in course of
time manifested itself in the following ways, namely (a)
declaration of a law as unconstitutional in case it comes in conflict
with a fundamental right; (b) prohibition on an individual from
bartering away his fundamental rights; (c) non-amendability of
the constitutional provisions guaranteeing fundamental rights;
(d) protection of its own protective function from being
demented either by legislation or constitutional amendment. A
few words need be said to explain each of these aspects.
Constitutionality of a Statute
Article 13 gives teeth to the fundamental rights and makes them
justiciable. Article 13(2) declares that the State 'shall not make
any law' which takes away or abridges the fundamental rights:
and a law contravening a fundamental right is, to the extent of
the contravention, void. The effect of article 13 is that the
fundamental rights cannot be infringed by the government. It is
the function of the court to assess individual laws vis-a-vis the
fundamental rights so as to ensure that no law infringes a
fundamental right. The court performs the onerous task of
declaring an Act of the legislature unconstitutional if it infringes
a fundamental right.
4
AIR 1961 SC 1457 at 1461.
5
AIR 1950 SC 124.
Fundamental rights are claimed mostly against the State, and

the State is defined by article 12 in an expansive manner, to
include the government and Parliament of India, the government
and the legislature of a state, and all local or 'other authorities1
within the territory of India. The actions of these bodies
comprised within the term State can be challenged before the
courts on the ground of violating fundamental rights. It is
obvious that the wider the meaning given to the term 'other
authorities' in article 12, the wider will be the coverage of
fundamental rights, i.e. more and more bodies can be brought
within the discipline of fundamental rights.
The court has the function of ensuring that no statute violates
a fundamental right. A statute is declared unconstitutional and
void if it conflicts with a fundamental right. A void statute is
unenforceable, non-est, devoid of any legal force; courts take no
notice of such a statute. 6
Article 13 is the key provision as it makes fundamental rights
justiciable. It confers a power, and imposes an obligation, on
the courts to declare a law void if it is inconsistent with a
fundamental right. This is a power of great consequence for the
courts. The Supreme Court figuratively characterized this role of
the courts as that of a 'sentinel on the qui vive\7
The courts do not declare a statute unconstitutional lightly,
generally leaning towards the constitutionality of a statute on
the premise that a legislature understands the needs of the
people.
To adjudicate whether a statute is inconsistent with a funda
mental right, the Supreme Court has expounded several formulae
and, speaking generally, the particular formula which may
promote the validity of the statute in question, may be adopted
by the court in the specific situation. One such formula is that a
law cannot be challenged under a fundamental right unless the
law is directly in respect of the fundamental right concerned.
Thus, a law can be attacked under article 19(l)(a) (freedom of
speech), if it directly abridges the freedom of speech; but if it
b
Behram v State of Bombay AIR 1955 SC 123; State of Gujarat v Shri
Ambica MiUs AIR 1974 SC 1300.
7
State of Madras v VG Row AIR 1952 SC 196.
touches the article only incidentally or indirectly, it cannot be

challenged under this article.8
Another test applied in some cases, very much like the above
test, is that of 'pith and substance'. It involves determining what
is the 'pith and substance' of the law in question and which
fundamental right does it affect.9 In some cases, the test of 'real
effect and impact' of the impugned legislation on the funda
mental right in question has been applied.10 Clearly, the Supreme
Court keeps a number of options open to itself. This gives to the
judicial review some flexibility and elasticity and to the courts a
good deal of manoeuvrability in discharging their function of
judicial review.
Waiver of Fundamental Rights
Early in the day, the Supreme Court was faced with the question:
can a person waive any of his fundamental rights?
To begin with, Venkatarama Ayyar, J, in Behram v State
of Bombay,'' divided the fundamental rights into two broad
categories: rights conferring benefits on individuals, and rights
conferring benefits on the general public. The judge opined that
a law would not be a nullity but merely unenforceable if it was
repugnant with a fundamental right in the former category,
and that the affected individual could waive such an un-
constitutionality, in which case the law would apply to him. For
example, the right guaranteed under article 19(l)(f) was for the
benefit of property-owners. When a law was found to infringe
this provision it was open to any person whose right had been
s
Naresh v State of Maharashtra AIR 1967 SC 1. Also see Ram Singh v
State of Delhi AIR 1951 SC 270. For discussion on article 19(1 )(a)" see
infra.
9
See State of Bombay v RMDC AIR 1957 SC 699. Also Dwarkadas v
Sholapur Mills AIR 1954 SC 119.
l0
See In re the Kerala Education Bill AIR 1958 SC 956; Express
Newspapers v India AIR 1958 SC 578; R.C. Cooper v Union of India AIR
1970 SC 564; Sakal Papers v Union of India AIR 1962 SC 305.
n
Supra, note 6.
infringed to waive his fundamental right. 12 In case of such a

waiver, the law in question could be enforced against the
individual concerned. The majority on the bench, however,
repudiated this view, holding that the fundamental rights were not
put in the Constitution merely for individual benefit. These rights
were there as a matter of public policy and, therefore, the doctrine
of waiver could have no application in case of fundamental rights.
A citizen could not invite discrimination by telling the State 'you
can discriminate', or get convicted by waiving the protection
given to him under articles 20 and 21. 1 3
Waiver of fundamental rights was discussed more fully by the
court in Basheshar Natb v Income-tax Commissioner.1* The case was
referred to the Income-Tax Investigation Commission under
section 5(1) of the relevant Act. After the commission had
decided upon the amount of concealed income, the petitioner
agreed on 5 September 1954, as a settlement, to pay in monthly
instalments over Rs 3 lak by way of tax and penalty. In 1955, the
court declared section 5(1) ultra vires article 14. The petitioner
thereupon challenged the settlement between him and the
commission, but the plea of waiver was raised' against him. The
court upheld the petitioner's contention, but in their judgements
the judges expounded several views regarding waiver of
fundamental rights:
1. Article 14 cannot be waived, it being an admonition to the

State as a matter of public policy with a view to implement
its object of ensuring equality. No person can, therefore, by
act or conduct, relieve the State of the solemn obligation
imposed on it by the Constitution.
2. A view, somewhat broader than the first, was that none of
the fundamental rights can be waived by any person. The
fundamental rights are mandatory on the State and no citizen
can by his act or conduct relieve the State of the solemn
12
Article 19(l)(f), which was repealed in 1978, guaranteed to the
Indian citizens a right to acquire, hold and dispose of property. Article
19(5), however, permitted the State to impose by law reasonable
restrictions on this right in the interests of the general public or for the
protection of the interests of any Scheduled Tribes.
13
For comments on article 21, see infra.
14
AIR 1959 SC 149.
obligation imposed on it. A large majority of the people in

India are economically poor, educationally backward and
politically not yet conscious of their rights. Individually or
even collectively, they cannot be pitted against the State and,
therefore, it is the duty of the judiciary to protect their rights
against themselves.
3. The minority took the view that an individual could waive a
fundamental right which was for his benefit. This was reiteration
of the view expressed by Venkatarama, J, as stated above.
In view of the majority decision, it is now established that an
individual cannot waive any of his fundamental rights. 15 This
proposition has been applied in a number of cases. For example,
the Bombay High Court has stated: 'The State cannot arrogate to
itself a right to commit breach of the fundamental rights of any
person by resorting to principles of waiver or estoppel or other
similar principles'. 16 Similarly, the Gauhati High Court has
explained that the fundamental rights have been embedded in the
Constitution not merely for the benefit of a particular individual
but also as a matter of constitutional policy and for public good,
and, therefore, the doctrine of waiver or acquiescence cannot be
applied thereto. Ά citizen cannot voluntarily get discrimination or
waive his fundamental right against discrimination' as the right of
not being discriminated against is enshrined in article 14 and is
a fundamental right.17
It may be of interest to know that in the USA, a fundamental
right can be waived.18 The doctrine of non-waiver developed by
the Supreme Court of India is a manifestation of its role of
protector of the fundamental rights.
Fundamental Rights and Constitutional Amendment

From time to time, since the inauguration of the Constitution,
the question has arisen whether fundamental rights can be diluted
15
N.L. Nathanson, 'Waiver of Constitutional Rights in Indian and
American Constitutional Law', 4 JILI (1962) 157.
16
TousufAUAbdulla Fazatbhoy v M.S. Kasbekar AIR 1982 Bom 135 at
143.
17
Omega Advertising Agency v State Electricity Board AIR 1982 Gau 37.
ls
Pierce Oil Corporation v Phoenix Refining Co. 259 U.S. 125 (1922);
Boykin v Alabama, 395 U.S. 238 (1969); also supra, note 15.
or taken away by a constitutional amendment. This question

pertains to the 'protective' role of the Supreme Court because
apprehension has been expressed that if the fundamental rights are
held to be amendable, then, in course of time, all fundamental
rights may be abolished and a democratic system may thus be
converted into a dictatorial regime.
Within a year of the Constitution coming into force, in
Shankan Prasad Singh v Union ofIndia,]9 the question was raised
whether the Constitution (First Amendment) Act, 1951, seeking
to curtail the right to property guaranteed by article 31, 2 0 was
constitutionally valid. The argument against its validity was that
article 13(2) prohibited enactment of a law infringing or
abrogating a fundamental right. The word 'law' in article 13(2),
it was argued, included any law, even a law amending the
Constitution and, therefore, the validity of such a law could
be assessed with reference to the fundamental rights which
it could not infringe. 21 Adopting a literal interpretation of the
Constitution, 22 the court rejected the argument and ruled that
article 13 referred to a 'legislative' law, i.e. an ordinary law made
by a legislature, but not to a 'constituent' law, i.e. a law made to
amend the Constitution. The fundamental rights were not
immunized from the process of constitutional amendment under
article 368. These rights were immune only against an ordinary
law, i.e. a law made under legislative powers, outside article 368.
Article 13 must be read subject to article 368, and, thus, the court
disagreed with the view that the fundamental rights were
sacrosanct, inviolable and beyond the reach of the process of
constitutional amendment as laid down in article 368.
The court adopted a similar view in 1964 in Sajjan Singh v State
of Rajasthan23 when it upheld the validity of the Constitution
19
AIR 1951 SC 458.
20
See infra.
21
Article 13(2) reads: 'The state shall not make any law which takes
away or abridges the rights conferred by this Part and any law made in
contravention of this clause shall, to the extent of the contravention, be
void.' (emphasis added)
22
This was the period, as is clear from Gopalan in 1950, when the
Supreme Court was prone to adopt a literal, rather than a liberal,
interpretation of the Constitution. For Gopalan, see infra.
23
AIR 1965 SC 845.
(Seventeenth Amendment) Act, 1964, again adversely affecting

the fundamental right to property.24 The majority reiterated the
conclusion of the court on the question of relationship between
article 13 and article 368, as expressed in Shankari Prasad. The
majority refused to accept the argument that fundamental rights
were 'eternal, inviolate, and beyond the reach of article 368'. The
majority again distinguished between an Ordinary law' and a
'constitutional law' made in exercise of 'constituent' power and
held that only the former, but not the latter, fell under article 13.
But the minority raised doubts whether article 13 would not
control article 368. Hidayatullah J, observed: Ί would require
stronger reasons than those given in Shankari Prasad's case
to make me accept the view that fundamental rights were not
really fundamental but were intended to be within the powers of
amendment in common with the other parts of the Constitution
and without the concurrence of the States' because 'the
Constitution gives so many assurances in Part ΙΠ that it would be
difficult to think that they were playthings of a special majority.'25
Mudholkar, J, another minority judge, was not sure whether
article 13 excludes an amendment act and whether it was
competent to Parliament to make any amendment at all to Part ΙΠ
of the Constitution. But he adopted a much broader argument.
His basic argument was that every constitution has certain
fundamental features which could not be changed. As will be seen,
Golak Nath, the next case, was based on Justice Hidayatullah's
argument of non-amendability of fundamental rights while
Kesavananda was based on Justice Mudholkar's argument of basic
features.
Golak Nath26 arose in 1967. Eleven judges participated in the
decision and they were divided 6:5. Again, the constitutional
validity of the Seventeenth Constitutional Amendment affecting
property rights was questioned. The majority now changed its
stance and cried halt to the process of amending fundamental
rights through the constitutional amending procedure under
article 368, over-ruling the earlier judgements in Shankari Prasad
and Sajjan Singh. The majority now adopted the view that the
24
See infra under 'Demise of Property Right'.
2S
Supm, note 23 at 862.
26
I.C. Golak Nath v State of Punjab AIR 1967 SC 1643.
fundamental rights, embodied in Part III of the Constitution, had

been given a 'transcendental position' by the Constitution, so that
no authority functioning under the Constitution, including
Parliament exercising the amending power under article 368,
would be competent to amend the fundamental rights. The
fundamental rights fell outside the amendatory process if the
amendment sought to abridge or take away any of these rights.
The majority refused to accept the thesis that there was any
distinction between 'legislative' and 'constituent' process. The
majority went even further and asserted that the amending
process in article 368 was merely 'legislative' and not 'constituent'
in nature. This was the crux of the whole argument.
On the other hand, the minority upheld the power of
Parliament to amend fundamental rights. The minority stuck tó
the arguments which had already been developed in Shankari.
Prasad and Sajjan Singh?1
The question of amendability of fundamental rights came
before the court once again in Kesavananda Bharati v State of
Kerala.28 The court now ruled by majority that Parliment is
competent to amend under article 368 fundamental rights just as
any other part of the Constitution, subject to the doctrine that the
'basic' or 'fundamental' features of the Constitution cannot be
amended. The majority ruled that while Parliament can amend
any constitutional provision by virtue of article 368, such a power
is not absolute and unlimited and that the courts can still go
into the question whether or not an amendment destroys a
fundamental or basic feature of the Constitution. An amendment
which does so will be constitutionally invalid. The justification for
this view is that article 368 uses the expression 'amend', which
has a restrictive connotation, and cannot comprise a fundamental
change in the Constitution. The formulation 'amendment of the
Constitution in article 368 could not have the effect of destroying
or abrogating the basic structure of the Constitution' means that
while fundamental rights en bloc may not be regarded as non-
amendable, some of these rights may be characterized as
constituting the 'basic' feature of the Constitution, and hence are
non-amendable. Therefore, while the Golak Nath formulation was
27
For a fuller discussion on Golak Nath, see M.P. Jain, Indian
Constitutional Law (1987), 878-83.
28
AIR 1973 SC 1461.
rigid in so far as it rendered all fundamental rights non-

amendable, the Kesavananda ruling is somewhat flexible, leaving
it for the court to decide from case to case which fundamental
right is to be treated as a 'basic' feature. The right to property has
not been treated as such and, therefore, it has been abrogated. 29
On the other hand, the right to personal liberty (article 21) 3 0 or
the right to equality (articles 14 and 15) 31 may be regarded as
'basic' features of the Constitution. This question has not so far
arisen before the Supreme Court.
The doctrine of 'basic' features has now been very well
established in Indian constitutional jurisprudence and has been
reiterated in several cases.32 It is also worth noting that since
1973 (Kesavananda case), Parliament has not attempted to curtail
or abrogate any fundamental right, which may be regarded as the
effect of the court ruling. Kesavananda constitutes the high water
mark of judicial creativity.
In retrospect, it would appear that the court adopted the
technique of literal interpretation of the Constitution in Shankari
Prasad and Sajjan Singh and, thus, concluded that there were no
restrictions on the amending power. Things changed, however,
when Subba Rao, CJ, took over the leadership of the court and
had an opportunity to preside over the bench deciding Golak
Nath. The decision on the question whether the amending power
should be restricted or not involved a high policy-making function
on the part of the judiciary It was not a question which could be
decided merely by resorting to logical arguments, as arguments
could be found on both sides of the line. It was a conscious
'policy' decision of the court, first in Golak Natb, and then in
Kesavananda, to read implied limitations on the amending power
in order to preserve what the court thought to be the basic,
central, core of the Constitution against the onslaught of a
transient majority in Parliament. Several judges of the court were
convinced that certain ideals and values in the Constitution
should be preserved, and not destroyed by any process of consti-
29
See infra, under 'Demise of Property Right'.
30
For discussion on article 21, see infra.
31
For discussion on these provisions, see infra.
32
See Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299; Minerva
Mills Ltd v Union of India AIR 1980 SC 1789; Woman Rao v Union of
India AIR 1981 SC 271.
T H E S U P R E M E C O U R T AND FUNDAMENTAL R I G H T S 13
tutional amendment. The Constitution is based o n the national

consensus. Should such a Constitution be amendable merely by a
two-thirds vote in Parliament when the truth is that two-thirds in
the Lok Sabha does not represent a very broad national consensus,
as not more than 4 6 per cent electorate votes at a parliamentary
election and the Rajya Sabha has n o popular mandate?
T h e philosophy underlying the doctrine of non-amendability
of the basic features of the Constitution, evolved by the majority
in Kesavananda, has been aptly explained by H e g d e and
Mukherjee, JJ, as follows:
Our Constitution is not a mere political document. It is essentially a
social document. It is based on a social philosophy and every social
philosophy like every religion has two main features, namely, basic and
circumstantial. The former remains constant but the latter is subject to
change. The core of a religion always remains constant but the
practices associated with it may change. Likewise, a constitution like
ours contains certain features which are so essential that they cannot
be changed or destroyed. 33
Judicial Review
Another crucial dimension of the 'protective' function of the
Supreme Court is the proposition laid down by it that judicial
review is a 'basic' feature of the Constitution. Protection of the
institution of judicial review is crucially interconnected with the
protection of fundamental rights, for depriving the court of its
power of judicial review would mean that the fundamental rights
become non-enforceable, 'a mere adornment', as they will become
rights without remedy. 34 As Khanna, J, emphasized in Kesavananda:
3i
Supra note ,28 at 1624.
3+
The US constitution does not specifically provide for judicial review.
But, as early as 1803, in Marbury v Madison 1 Cranch 137, the Supreme
Court asserted that it would review the constitutionality of the
congressional Acts. Marshall, CJ, expounded the theory of judicial review
of the constitutionality of Acts of Congress as follows:
It is emphatically the province and duty of the judicial department to say what
the law is. Those who apply the rule to particular cases must of necessity
expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either decide that
case conformably to the law, disregarding the constitution; or conformably to
the constitution, disregarding the law, the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty.
14 F I F T Y YEARS O F T H E S U P R E M E C O U R T
As long as some fundamental rights exist and are a part of the

Constitution, the power of judicial review has also to be exercised
with a view to see that the guarantees afforded by those rights are not
contravened... Judicial review has thus become an integral part of our
constitutional system...35
In Minerva Mills, Chandrachud, CJ, speaking for the majority,

observed:
It is the function of the Judges, nay their duty, to pronounce upon the
validity of laws. If Courts are totally deprived of that power, the
fundamental rights conferred on the people will become a mere
adornment because rights without remedies are as writ in water. A
controlled constitution will then become uncontrolled. 36
In his minority judgement, Bhagwati, J, observed:

It is for the judiciary to uphold the constitutional values and to
enforce the constitutional limitations. That is the essence of the rule
of law, which inter alia requires that 'the exercise of powers by the
government whether it be the legislature or the executive or any other
authority, be conditioned by the Constitution and the law'. The
power of judicial review is an integral part of our constitutional
system... the power of judicial review... is unquestionably... part of the
basic structure of the Constitution. 37
Ahmadi, CJ, speaking o n behalf of a bench of seven judges in

L. Chandra Kumar v Union of India has recently observed:
The Judges of the superior Courts have been entrusted with the task
of upholding the Constitution and to this end, have been conferred
the power to interpret it. It is they who have to ensure that the
balance of power envisaged by the Constitution is maintained and
that the legislature and the executive do not, in the discharge of their
functions, transgress constitutional limitations.... We, therefore, hold
that the power of judicial review over legislative action vested in
the High Courts under Article 226 and in this court under Article 32
of the Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure. Ordinarily,
therefore, the power of the High Courts and the Supreme Court to
test the constitutional validity of legislation can never be ousted or
excluded.38
3S
Supra, note 28.
36
Sttpra, note 32.
37
Ibid. at 1825.
38
AIR 1997 SC 1125 at 1149-50.
Thus, the position now is that in respect of the power of

judicial review, the jurisdiction of the high courts under articles
226 and 227 cannot be excluded even by a constitutional
amendment. The same principle applies to the power of the
Supreme Court under article 32. Accordingly, the Supreme
Court has declared unconstitutional clause 2(d) of article 323A
and clause 3(d) of article 323B, to the extent they exclude
jurisdiction of die high courts and the Supreme Court under articles
226, 227 and 32. 40 The court has observed in this connection:
The jurisdiction conferred upon the High Courts under Articles 226/
227 and upon the Supreme Court under Article 32 of the
Constitution is part of the inviolable basic structure of our
Constitution. While this jurisdiction cannot be ousted, other Courts
and Tribunals may perform a supplemental role in discharging the
powers conferred by Articles 226/227 and 32 of the Constitution ....41
By ensuring that judicial review is an inseparable part of
the Constitution, and that it cannot be excluded even by a
constitutional amendment, the Supreme Court has ensured that
the fundamental rights ever remain enforceable.
Supreme Court as Interpreter of

Fundamental Rights
As Bhagwati, J, observed in State of Rajasthan v Union of India,
the Supreme Court is the 'ultimate interpreter' of the
Constitution. 'It is for this Court to uphold the constitutional
values and to enforce the constitutional limitations. That is the
essence of the rule of law'· 4 2 As the interpreter of the fundamental
rights provisions in the Constitution, the court has, by and large,
interpreted these provisions in a liberal manner. The court has
laid emphasis on this aspect from time to time. For instance, in
Pathumma v State of Kerala*1 the court stated: 'This Court while
acting.as a sentinel on the qui vive to protect fundamental rights
i
39
Ibid. at 1156.
^L. Chandra Kumar v Union of India, supra, note 37.
41
Ibid. at 1156.
42
AIR 1977 SC 1361 at 1413.
43
AIR 1978 SC 771 at 774.
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 .... The court added in Pathumma that
in inter-preting the Constitution, 'the judicial approach should be
dynamic rather than static, pragmatic and not pedantic and elastic
rather than rigid.' In Mctneka Gandhi v Union of India,44 the court
observed: 'The attempt of the Court should be to expand the reach
and ambit of the Fundamental Rights rather than to attenuate
their meaning and content by a process of judicial construction.'
In interpreting the fundamental rights, the Supreme Court has
displayed judicial creativity of a high order. Out of the innum
erable creative opinions delivered by the court, a few are
mentioned below. The high-water mark of judicial creativity was
reached in such cases as Golak Nath, Kesavananda Bharati and
Maneka Gandhi. The court does not seek to conceal its law-
creative role in the area of constitutional jurisprudence. It
avowedly advocates that it seeks to play such a role. For example,
in Golak Nath, Subba Rao, CJ, claimed openly a law-making role
for the Supreme Court in the following words:
... Articles 32, 141.and 142 are couched in such wide and elastic terms
as to enable this Court to formulate legal doctrines to meet the ends
of justice ... To deny this power to the Supreme Court on the basis
of some outmoded theory that the court only finds the law but does
not make it is to make ineffective the powerful instrument of justice
placed in the hands of the highest judiciary of this country. 4S
This attitude of the court has had a very healthy and profound
influence on the development and delineation of fundamental
rights in several ways. One, in course of time, the court has been
able to expand generally the scope of several fundamental rights.
Two, the most dramatic expansion has taken place with respect to
the protection of life under article 2 1 . 4 6 Three, the court has
"AIR 1978 SC 597.

*5Supra, note 26 at 1668-9. The court is here referring to the
outmoded theory, which prevailed in Britain for long, that the judges
only declared the law but did not make law. This declaratory theory of
judicial process has now been discarded even in Britain. The general
consensus of opinion at the present day is that new law is created by the
judiciary. See Lloyd's Introduction to Jurisprudence (1985), 1128-38.
"^For discussion on article 21, see infra.
implied certain fundamental rights in addition to what are

specifically stated in the Constitutiion. 47 Each of these aspects is
discussed below separately.
Forced, Bonded and Child Labour

Articles 23 and 24, though fundamental rights, lay dormant for
almost thirty-two years and were hardly ever invoked by any
litigant. Since 1982, however, these articles have assumed great
significance and have become potent instruments in the hands of
the Supreme Court to ameliorate the pitiable condition of the
poor labourers in the country.
Article 23(1) prohibits traffic in human beings, begar and
similar other forms of forced labour. Any contravention of this
provision 'shall be' an offence punishable in accordance with law.
The term begar means compulsory work without any payment.
For example, withholding the pay of a government employee as
a punishment has been held to be invalid in view of article 23
which prohibits begar. 'To ask a man to work and then not to pay
him any salary or wages savours of begar. It is a fundamental
right of a citizen of India not to be compelled to work without
wages.' 48
The expression 'traffic in human beings', commonly known as
slavery, implies buying and selling of human beings as if they are
chattels, and such a practice is constitutionally abolished. Traffic
in women for immoral purposes is also covered by this
expression. 49
A significant feature of article 23 is that it protects the indi
vidual not only against the State but also against other private
persons. The Supreme Court has given an expansive significance
to the term 'forced labour' used in article 23 in a series of cases,
beginning with the Asiad case in 1982. 50 It has insisted that this
article is intended to abolish every form of forced labour even if
it has origin in a contract. It strikes at forced labour in whatever
47
See infra.
4S
Suraj v State of Madhya Pradesh AIR 1960 MP 303.
49
Raj Bahadur v Legal Remembrancer, Govt. of West Bengal AIR
1953 Cal 522; Shama Bat v State of Uttar Pradesh AIR 1959 All 57.
50
People's Union for Democratic Rights v Union of India AIR 1982
SC 1473.
form it may manifest itself, because it is violative of human dig

nity and is contrary to basic human values. Even if remuneration
is paid, labour supplied by a person would be hit by article 23 if
it is forced labour, that is, labour supplied not willingly but as a
result of force or compulsion.
Giving a very expansive interpretation to article 23, the court
has ruled that payment of wages less than the minimum wages
amounts to forced labour. Bhagwati, J, has argued that ordinarily
no one would willingly supply his labour for less than the
minimum wages; he will do so only under the force of some
compulsion. Bhagwati, J, has emphasized that 'force' which
would make labour or service 'forced labour' may arise in several
ways. It may be physical force compelling a person to provide
labour or service to another; or force exerted through a legal
provision, such as a provision for imprisonment or fine for failure
to provide forced labour or service; or even 'compulsion arising
from hunger and poverty, want and destitution'. Any factor
depriving a person of a choice of alternatives and compelling him
to adopt one particular course of action may properly be regarded
as force and if labour or service is compelled as a result of such
'force', it would amount to 'forced labour'. In the words of
Bhagwati, J:
Where a person is suffering from hunger or starvation, when he has
no resources at all to fight disease or to feed'his wife and children or
even to hide their nakedness, where utter grinding poverty has broken
his back and reduced him to a state of helplessness and despair and
where no other employment is available to alleviate, the rigour of his
poverty, he would have no choice but to accept any work that comes
his way, even if the remuneration offered to him is less than the
minimum wage. He would be in no position to bargain with the
employer; he would have to accept what is offered to him. And in
doing so he would be acting not as a free agent with a choice between
alternatives but under the compulsion of economic circumstances and
the labour or service provided by him would be clearly 'forced
labour.'51
Therefore, emphasized Bhagwati, J, there is no reason why the

word 'forced' in article 23 should be read in a narrow and
restricted manner so as to he confined only to 'physical or legal
Ibid, at 1491.
force'. The word 'force' ought to be interpreted to include not

only physical or legal force but also force arising from the
compulsion of economic circumstances 'which leave no choice of
alternatives to a person in want and compels him to provide
labour or service even though the remuneration received for it is
less than the minimum wage'.
Thus, a complainant can come to the court that he is not being
paid minimum wages by the government contractors. He can
come to the court for enforcement of his fundamental right under
article 23 and the court can direct payment of minimum wage to
him. But the court also emphasized that it is the constitutional
obligation of the State to ensure that the fundamental right of
people is not violated, 'particularly when he belongs to the weaker
section of humanity and is unable to wage a legal battle against
a strong and powerful opponent who is exploiting him'.
The Supreme Court has ruled in Sanjit Roy v State of
Rajasthansi that even those persons who were employed on
famine relief work should be paid the legal minimum wages and
not less, as that would be invalid under article 23. Bhagwati, J,
insisted, after referring to his ruling in Asiad, that every person
providing labour or service to another is entitled at least to the
minimum wage. H e emphasized that article 23 'is intended to
eradicate the pernicious practice of "forced labour" and to wipe
it out altogether from the national scene'. Rejecting the argument
of the State that it was endeavouring to provide relief to the
persons affected by drought and famine and that its potential to
help people would be reduced if it were made to give the legal
minimum wages to the workers, Bhagwati, J, observed:
The State cannot be permitted to take advantage of the helpless
condition of the affected persons and extract labour or service from
them on payment of less than the minimum wage. No work of utility
and value can be allowed to be constructed on the blood and sweat
of persons who are reduced to a state of helplessness on account of
drought and scarcity conditions. The state cannot under the guise of
helping these affected persons extract work of utility and value from
them without paying them the minimum wage. Whenever any labour
or service is taken by the State from any person, whether he be
affected by drought and scarcity conditions or not, the State must pay,
52
AIR 1983 SC 328.
at the least, minimum wage to such person on pain of violation of

article 23.... 53
The court has also attacked the root of the system of bonded labour,
which is a relic of the feudal hierarchical society, designed to enable a
few socially and economically powerful persons to exploit the weaker
sections of people. The Supreme Court has ruled bonded labour as
unconstitutional under article 23 as it can be regarded as a form of
forced labour. In' Bandhua Mukti Marcha v Union of India,5*
Bhagwati, J, characterized the system of bonded labour as 'totally
incompatible with the new egalitarian socio-economic order which we
have promised to build and it is not only an affront to basic human
dignity but also constitutes gross and revolting violation of
constitutional values'. He characterized the process of identification
and release of bonded labourers as 'a process of discovery and
transformation of non-beings into human beings'. He emphasized
that this is a 'constitutional imperative' that 'the bonded labourers
must be identified and released from the shackles' of bondage so that
they can assimilate themselves in the mainstream of civilized human
society and realize the dignity, beauty and worth of human existence'.
Linking articles 23 and 21, Bhagwati, J, observed: 'It is the
fundamental right of every one in this country, assured under the
interpretation given to article 21 ... to live with human dignity, free
from exploitation'.55 On the question of identifying bonded labour,
the court observed: 'whenever it is found that any workman is forced
to provide labour for no remuneration or nominal remuneration, the
presumption would be that he is a bonded labourer unless the
employer or the state government is in a position to prove otherwise
by rebutting such presumption'.56 The court insisted not only on the
release of bonded labourers but also on their proper rehabilitation, for
otherwise they will relapse into bondage. The court has squarely
placed the whole responsibility for this on the State. For example, in
53
Ibid. at 333-4. Also see Labourers Wtrkmg on Salal Hydro-Project v
State ofjammu & Kashmir AIR 1984 SC 177.
54
AIR 1984 SC 802. For comments on article 23, sec M.P. Jain, Indian
Constitutional Law (1987), 631-5.
55
Also see Neerja Chowdhary v State of Madhya Pradesh AIR 1984 SC
1099.
^Ibid. at 1103.
Neetja Chowdhaty, the court directed the state government to provide

rehabilitation assistance to the released bonded labourers with the
following observation:
Poverty and destitution are almost perennial features of Indian rural
life for large numbers of unfortunate, ill-starred humans in this
country and it would be nothing short of cruelty and heartlessness to
identify and release bonded labourers merely to throw them at the
mercy of the existing social and economic system which denies to
them even the basic necessities of life such as food, shelter and
clothing.... It is the plainest requirement of articles 21 and 23 of the
Constitution that bonded labourers must be identified and released
and on release, they must be suitably rehabilitated'.57
An interesting question was considered by the Supreme Court

in State of Gujarat v Hon'ble High Court ofGujarat.ss The question
was: can prisoners be made to do hard labour against their will?
Is it hit by article 23? The court ruled that a prisoner sentenced
to rigorous imprisonment can be made to do hard labour. Even
so, he should'be paid equitable wages for his work. The court
directed each state government to appoint a wage-fixing body to
determine the quantum of equitable wages payable to prisoners. 59
Another critical human and economic problem is child labour.
Poor parents seek to augment their meagre income through
employment of their children. Employers of children also stand to
gain financially. Since total prohibition on child labour may not
be feasible in the socio-economic environment prevailing in India,
article 24 puts only a partial restriction on child labour. The
article prohibits the employment of a child below the age of 14
years to work in any factory or mine or in any other hazardous
employment. The Supreme Court emphasized in Asiad60 that
article 24 embodies a fundamental right 'which is plainly and
indubitably enforceable against every one'. Children below 14
S7
Supra, note 54 at 1100.
58
(1998) 7 SCC 392.
59
Also see Gaurav Jain v Union of India AIR 1997 SC 3021, where the
Supreme Court has given some directions for the rehabilitation of
prostitutes, especially of the child prostitutes and the children of the
prostitutes.
'"'Supra, note 50.
cannot be employed in construction work by contractors. The

court reiterated this ruling in Labourers W>rkin¿¡ on Salal Hydro-
Project.61 The court also directed the central government and
various governmental agencies to enforce this prohibition. It has
generally told the government to persuade the workmen to send
their children to any such school and provide for free education
there. The court observed:
This is an economic problem and it cannot be solved merely by
legislation. So long as there is poverty and destitution in this country,
it will be difficult to eradicate child labour. But even so an attempt has
to be made to reduce, if not eliminate the incidence of child labour.62
Right to Life—Article 21
Over the years, a notable achievement of the Supreme Court has
been not only to resurrect article 21 from the· oblivion into which
it was relegated by the court's own decision as early as 1950 in
A.K Gopalan v State of Madras63 but to give it such an expansive
and liberal interpretation as to raise it to a high pedestal. A
dramatic transformation has occurred in the fortunes of article 21
since 1978, giving eloquent proof of the avowedly law-creative
role played by the court.
Article 21 says: TSIo person shall be deprived of his life or
personal liberty except according to procedure established by law'
Although the article is worded in negative terms, it is now well
established that it has both a negative as well as an affirmative
dimension.
To begin with, the court took an extremely static, mechanical,
literal and positivistic view of article 21 in Gopafan, the very first
case which arose immediately after the inauguration of the
Constitution. In this case, the court interpreted article 21
extremely literally and opined that the expression 'procedure
established by law' only meant any procedure which was laid
down in the statute by the competent legislature to deprive a
person of his life or personal liberty, and that it was not
61
Sec supra, note 53.
"Ibid at 183.
63
AIR 1950 SC 27.
permissible to read in the article any such concept as natural

justice, or due process of law, or reasonableness. Also, the court
ruled that each fundamental right was independent of each other
and that article 19 did not apply where article 21 applied. Article
19 applied to a free man and not to a person in preventive
detention. Thus, the procedure could not be challenged even if it
were not reasonable or not consistent with natural justice. It
meant that a person could be deprived of his life or personal
liberty according to the procedure laid down in the relevant law
passed by the legislature and that the court could not go into
the question whether the procedure was reasonable or not.
The legislature was free to lay down any procedure. As thus
interpreted, article 21 ceased to be a restriction on the legislature;
it only constituted a restriction on the executive which must act
according to the law while depriving a person of his life or
personal liberty.64
Gopalan, a very much criticized decision,65 held the field for
over twenty-five years, during which period the 'right to life' did
not have much of a security. Article 21 played a very insignificant
role in offering any protection to a person in respect of his life
or personal liberty. The judicial attitude, however, underwent a
metamorphosis after the traumatic experiences under the internal
emergency imposed in 1975 which was lifted in 1977. 6 6 In
Maneka Gandhi,67 the very first case which came before the court
after the emergency, the court nailed some of the prevailing
heresies about article 21. By majority, the court now decided—
(i) that articles 21 and 19 were not mutually exclusive, they had
to be read together and so the procedure affecting any of the
^For a fuller discussion on Gopalan, see M.P. Jain, Indian Consti

tutional Law (1987), 576-84.
65
K. Subba Rao, former Chief Justice of India, about Gopalan: 'The
preponderance of view among the jurists is that it is wrongly decided. It
has in effect destroyed one of the greatest of the fundamental rights, i.e.
personal liberty5. Some Constitutional Problems (1970), 115.
66
For a discussion on Emergency Provisions in the Constitution, see M.P.
Jain, Indian Constitutional Law, 358-87, 721-36. For the happenings
during the Emergency of 1975-77, see ibid. 727-36.
67
See supra, note 44.
rights had to be reasonable; (ii) that the procedure established by

law in article 21 must conform to article 14 as well; (iii) tliat the
word 'procedure' in article 21 in itself meant 'right and just and
fair' procedure, and not 'arbitrary, fanciful or oppressive' and any
procedure which was not 'right, just and fair' was no procedure
at all, and failed to meet the standard of article 21. The court
stated that 'the "procedure" in article 21 must not be arbitrary,
fanciful or oppressive; otherwise, it would be no procedure at all
and the requirement of article 21 would not be satisfied.' The
court further held that the concept of reasonableness must be
projected in the procedure contemplated by article 21. This was
because of the link between articles 21, 19 and 14. Suggesting
that the expressions 'life' and 'personal liberty' in article 21 /ought
to be given broad and liberal interpretation, the court ruled: 'It
is obvious that Article 21, though couched in negative language,
confers the fundamental right to life and personal liberty.'68 As
regards 'personal liberty', the court said that it is of the 'widest
amplitude' and 'it covers a variety of rights which go to constitute
the personal liberty of man'.
Maneka Gandhi thus completely overturned Gopalan; and
ushered in a revolution in judicial thinking about article 21. It
gave a new life to article 21 and, thus, extended substantive and
procedural protection to life and personal liberty. The court took
a great step forward by interpreting 'procedure' in article 21 as
'fair, reasonable, and just procedure; thus introducing elements of
procedural due process in Indian law. The courts can now insist
on better procedural safeguards in cases of deprivation of personal
liberty. In the area of personal liberty, procedural safeguards play
a crucial role as is clear from the following observation in a
Supreme Court case: 'The history of personal liberty is largely the
history of insistence on observance of procedure. And observance
of procedure has been the bastion against wanton assaults on
personal liberty over the years.'69
In the post-Manéka era the words 'according to procedure
established by law' became indirectly transformed into 'due
"Ibid, at 620.
^Pmbhu Dayal v District Magistrate, Kamrup AIR 1974 SC 183 at
199.
process of law Since Maneka, article 21 has emerged as the

Indian version of the American concept of due process of law and
has become the source of many substantive rights and procedural
safeguards to the people. The term 'personal liberty5 has been
given a very wide connotation, covering a variety of rights which
constitute personal liberty. Its deprivation shall be only as per
procedure established by law, but the procedure has to be 'fair,
just and reasonable'. The Supreme Court underlined this meta
morphosis in its attitude towards article 21 in the following
words:
Article 21 got unshackled from the restrictive meaning placed upon it

in Gopalan. It came to acquire a force and vitality hitherto un-
imagined. A burst of creative decisions of this Court fast on the heels
of Maneka Gandhi gave a new meaning to the Article and expanded
its content and connotation.71
A nexus has been established between articles 2 1 , 19 and 14. 72
This means that the 'procedure' in article 21 does not mean
any procedure: it must answer the test of reasonableness. The
reincarnation of article 21 that Maneka Gandhi brought about has
had a deep impact on contemporary constitutional jurisprudence.
Some aspects of this development are discussed below.
70
In the USA, Amendment V says: '...nor shall any person be...
deprived of life, liberty or property, without due process of law...' The
'due process' clause has been used by the US Supreme Court to extend
both procedural and substantive safeguards to 'Life, liberty and
property.' See Corwin, The Constitution and What It Means Today
(1973), 326-36. Douglas, From Marshall to Mukherjea: Studies in
American and Indian Constitutional Law (1956), 164-220. Because of
its contentious nature, the expression 'due process' was shunned by the
framers of the Indian Constitution and the expression 'procedure
established by law' was used in article 21: see Seervai, Constitutional
Law of India (1993), 970. Now, by the judicial interpretative process,
the words 'procedure established by law' have been given virtually the
same meaning as 'due process of law'.
7l
Abdul Rehman Antulay v R.S. Naik AIR 1992 SC 1701 at 1717.
72
This nexus between articles 21, 19 and 14 had emerged even before
Maneka Gandhi. See John Martin v State of WB AIR 1975 SC 775. In
fact, the emergence of this nexus led to the Supreme Court decision in
Maneka Gandhi.
Humanization of Criminal Justice

An immediate beneficial impact of Maneka Gandhi has been felt
in the administration of criminal justice, which is in an extremely
unsatisfactory condition. Prison conditions are deplorable and
sub-human; prisoners are maltreated; criminal trials are in
ordinately delayed; police brutality is legendary. Using the newly
established mantra that one can be deprived of his personal liberty
only through procedure which is 'fair, just and reasonable', the
court has since 1978 begun laying down new liberal norms for
every aspect of criminal justice, thus endeavouring to humanize
and liberalize the administration of criminal justice.
In this context, the court has emphasized 'speedy trial' of
criminal cases. Though not a specific fundamental right, speedy
trial 'is implicit in the broad sweep and content of article 2Γ. A
fair trial implies a speedy trial. No procedure can be regarded as
'reasonable, fair and just' unless 'that procedure ensures a speedy
trial' for determination of the guilt of such person', and that
speedy trial is 'an integral and essential part of the fundamental
right to life and liberty enshrined in article 2Γ. 7 3
A very grievous aspect of the system of criminal justice is long
pre-trial incarceration of the accused persons. The poor prisoners
have to languish awaiting trial because there is no one to post
bail for them. Long pre-trial confinement in prison jeopardizes an
individual's liberty. On this basis, the court has ordered release of
hundreds of prisoners who had undergone imprisonment for a
period longer than the maximum prison sentence they would have
been awarded for the offences committed by them. The Supreme
Court has said in this connection: 'It is a crying shame upon our
adjudicatory system which keeps men in jail for years on end
without a trial.'74
Since any procedure which keeps large number of people behind
bars without trial for long cannot be regarded as 'reasonable,
just and fair',75 the court has laid down liberal rules for bail,
observing:
7i
Hussainara Khatoon v Bihar AIR 1979 SC 1360, also, ibid. 1369,
Kadra Pahadiya v Bihar AIR 1981 SC 935; AIR 1982 SC 1167; State of
Maharashtra v Champalal AIR 1981 SC 1675.
74
Ibid. Also see Kadra Pahadiya v State of Bihar AIR 1982 SC 1167.
75
Supra note 72.
THE SUPREME COURT AND FUNDAMENTAL RIGHTS - 27
... the issue is one of liberty, justice, public safety and burden on the
public treasury, all of which insist that a developed jurisprudence of
bail is integral to a socially sensitised judicial process.76
An innovative step in the scheme of administration of
justice taken by the court has been to insist on free legal aid to
poor prisoners facing a prison sentence. This is a giant step in
humanizing the administration of criminal justice. The court has
emphasized that the lawyer's services constitute an ingredient of
fair procedure to a prisoner who is seeking his liberation through
the court's procedure. Thus, the State should provide free legal
aid to a prisoner who is indigent or otherwise disabled from
securing legal assistance where the ends of justice call for such
service. The court has reiterated this theme of providing legal
aid to poor prisoners facing prison sentences time and again. For
example, in Hussainara/8 it observed: 'It is an essential ingredient
of reasonable, fair and just procedure to a prisoner who is to seek
his liberation through the court's process that he should have legal
services available to him.' Viewing free legal service to the poor
and the needy as an essential element of any 'reasonable, fair and
just procedure', 79 Bhagwati, J, observed:
Now, a procedure which does not make available legal services to an
accused person who is too poor to afford a lawyer and who would,
therefore, have to go through the trial without legal assistance, cannot
possibly be regarded as 'reasonable, fair and just'.80
The Supreme Court has in several instances passed strictures
against police torture and brutality on prisoners, undertrials and
accused persons. It observed in Raghubir Singh v State ofHaryana:
We are deeply disturbed by the diabolical recurrence of police torture
resulting in a terrible scare in the minds of common citizens that their
lives and liberty are under a new peril when the guardians of the law
gore human rights to death.81
76
Babu Singh v Uttar Pradesh AIR 1978 SC 527 at 529. Also see
Kashmira Singh v State of Punjab AIR 1977 SC 2147.
77
M.H. Hoskot v State of Maharashtra AIR 1978 SC 1548.
78
Supra note 73 at 1373.
79
Also see Khatri v Bihar AIR 1981 SC 928; Sheela Barse v State of
Maharashtra AIR 1983 SC 378; Ranjan Dmvedi v India AIR 1983 SC
624.
80
For further discussion on free legal aid, see infra.
81
AIR 1980 SC 1087 at 1088.
Describing police torture as 'disastrous to our human rights

awareness and humanist constitutional order', the court has held
the State responsible for remedying the situation. If police
brutality is not checked, 'the credibility of the rule of law in our
Republic vis-a-vis the people of the country will deteriorate.' In
D.K. Basu v State of West Bengal82 the court went into this problem
extensively. In the instant case the court observed: 'custodial
violence, including torture and death in the lock-ups, strikes a
blow at the rule of law, which demands that the powers of the
executive should not only be derived from law but also that the
same should be limited by law'. The court further observed:
However, in spite of the constitutional and statutory provisions aimed
at safeguarding the personal liberty and life of a citizen, growing
incidence of torture and deaths in police custody has been a disturbing
factor. Experience shows that worst violations of human rights take
place during the course of investigation ... Custodial death is perhaps
one of the worst crimes in a civilised society governed by the rule of
law'.83
The court issued several directions to be followed in all
cases of arrest or detention till legal provisions are made in that
behalf as preventive measures.8* Apart from the police, several
other- governmental authorities like the Directorate of Revenue
Intelligence have power to detain and interrogate a person in
investigating economic offences. There are instances of torture,
and even death, in the custody of these authorities as well. The
court has awarded compensation against police and such bodies as
well as to victims of torture by them. 8
In Jqginder Kumar v State of UP,96 the court issued directions
regarding arrest. It emphasized that a police officer may have the
power to arrest but justification for exercising the power is quite
82
AIR 1997 SC 610. Also see Kartar Singh v State of Punjab (1994) 3
SCC 56; Nilabati Behem v State of Orissa AIR 1993 SC 1960.
83
Ibid. at 617.
84
Also see infra under 'Compensation'.
85
J« Re Death of Sawinder Singh Graver 1995 Supp (4) SCC 450, the
Supreme Court took suo motu notice of the death of Sawinder during his
custody with the Directorate of Enforcement, Foreign Exchange. The
court awarded a sum of Rs 2 lakh to his widow as ex gratia payment.
86
AIR 1994 SC 1349.
another matter. Arrest can cause incalculable harm to a person's

reputation and self-esteem. Arrest should be made not merely on
suspicion but only after a reasonable satisfaction reached after
some investigation as to the genuineness and bona fides of a
complaint and a reasonable belief as to the person's complicity
and even so as to the need to effect arrest. The court has also said
that the arrested man has certain rights, namely, he has a right
that a relative/friend of his be informed about his arrest and
the plea of his detention; he has a right to consult his lawyer
privately.
The Supreme Court has also sought to humanize prison
administration. It has emphasized that articles 14, 19 and 21 'are
available to prisoners as well as free men. Prison walls do
not keep out fundamental rights.' 87 The guiding motto is:
imprisonment does not ipso facto mean that fundamental rights
desert the prisoner; prisoners also have fundamental rights. 88
The court has adversely commented upon the practice of
causing physical injury to prisoners in the name of prison
discipline. It has laid emphasis on the prisoner's right to the
integrity of his physical person and mental personality. The court
has stressed that the 'goal of imprisonment is not only punitive
but restorative, to make an offender a no offender.' It has given
several directives regarding treatment of prisoners and
improvement of several aspects of prison administration, as for
example, as regards handcuffing of prisoners, 89 putting bar
fetters, 90 solitary confinement,91 etc.
The court has ruled that a cruel punishment ought not to be
imposed. Execution of death sentence by hanging has been held
to be not a cruel punishment; 92 but the court has ruled that the
'death penalty' is an exception rather than the rule and has to be
awarded only in the 'gravest of cases of extreme culpability' or in
S7
T.V Vatheeswaran v State of Tamil Nadu AIR 1983 SC 361.
s&
Prem Shankar v Delhi Administration AIR 1980 SC 1535.
89
Ibid. Khatri v Bihar AIR 1981 SC 1068.
90
Sunil Batra v Delhi Administration AIR 1978 SC 1675; Charles
Sobhraj v Supdt. Central Jail (1978) 4 SCC 104.
91
Kishor Singh v State of Rajasthan AIR 1981 SC 625; Sunil Batra v
Delhi Administration (1978) 4 SCC 494.
92
Bachan Singh v State of Punjab AIR 1980 SC 898.
'rarest of rare cases. The court has also objected to the delayed
execution of a death sentence, holding that prolonged delay in the
execution of a death sentence would be an 'unjust, unfair and
unreasonable procedure' to execute the death sentence. 94 In
several cases, the court has commuted the death sentence to a
sentence of life imprisonment because of prolonged delay in the
execution of the death sentence.95
Quality of Life
Apart from improving the administration of criminal justice, the
Supreme Court has used article 21 creatively to improve the
quality of life in the country and to imply therefrom a bundle of
rights for the people. In arguing that 'Ufe' in article 21 does not
mean merely 'animal existence' but living with 'human dignity', the
court has given very expansive parameters to the article. In Francis
Coralie v Administrator, Union Territory of Delhi it observed:
... the question which arises is whether the right to life is limited only
to protection of limb or faculty or does it go further and embrace
something more. We think that the right to life includes right to live
with human dignity and all that goes along with it, viz., the bare
necessities of life such as adequate nutrition, clothing and shelter over
the head and facilities for reading, writing and expressing oneself in
diverse forms, freely moving about and mixing and commingling with
fellow human beings. Of course, the magnitude and content of the
components of this right would depend upon the extent of the
economic development of the country, but it must, in any view of the
matter, include the right to the basic necessities of life and also the
right to carry on such functions and activities as constitute the bare
minimum expression of the human self.'96
Another broad formulation of the theme of life with dignity is
found in Bandhua Mukti Morcha97- Characterizing article 21 as the
heart of fundamental rights, the court gave it an expanded
interpretation:
9l
Machhi Singh v State of Punjab AIR 1983 SC 957.
94
Supra, note 86; Sher Singh v State of Punjab AIR 1983 SC 465.
95
See for example, Javed Ahmed v State of Maharashtra 1984 Cri. L.J.
1909 (delay of 2 years and 9 months); Vatheesivaran supra note 86.
96
AIR 1981 SC 746 at 753.
97
See supra, note 54.
... to live with human dignity, free from exploitation. It includes

protection of health and strength of workers, men and women, and of
the tender age of children against abuse, opportunities and facilities
for children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane conditions
of work and maternity relief. These are the minimum conditions
which must exist in order to enable a person to live with human
dignity. No government can take any action to deprive a person of the
enjoyment of these basic rights.
Right to Livelihood
The court has also held the right to life to include right to
livelihood, because no person can live without the means of
living, i.e. means of livelihood. If right to livelihood is not treated
as part and parcel of the constitutional right to life, the easiest
way to deprive a person of his right to life would be to deprive
him of his means of livelihood to the point of abrogation. 98 The
court has observed on this point:
The State may not by affirmative action, be compellable to provide
adequate means of livelihood or work to the citizens. But, any person
who is deprived of his right to livelihood except according to just and
fair procedure established by law, can challenge the deprivation as
offending the right to life conferred by article 2 1 . "
Accordingly, the court has ruled in Olga, Tellis that before the
pavement dwellers can be evicted by the municipality, they should
be given notice and hearing. Removal of pavement dwellers will
deprive them of their livelihood, which amounts to deprivation of
life. Therefore, anyone who is deprived of his right to livelihood
without just and fair procedure established by law can challenge
the deprivation as being against article 21. The court has ruled
that when a government servant or one in a public undertaking
is suspended pending the holding of a departmental disciplinary
inquiry against him, subsistence allowance must be paid to
him, since a government servant does not surrender his right to
life under article 21 or the basic human rights. 'Non-payment
9
*Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180. Also
see D.K, Yadav v JMA. Industries (1993) 3 SCC 259; Or Hansraj
L. Chulani v Bar Council of Maharashtra and Goe.(1996) 3 SCC 345.
"Olga Tellis, ibid, at 194.
of subsistence allowance is an inhuman act which has an

unpropitious effect on the life of an employee.' 100
Rtghi to Education
The word 'life' has been held to include 'education', because
education promotes good and dignified life. Reading article 21
with article 4 1 , 1 0 1 the Supreme Court has ruled in Unni
Krishnan102 that the right to education till the age of 14 years is
embraced within article 21 and, thus, it has been held to be a
fundamental right. Beyond the age of 14 years, the right to
education gets circumscribed by the economic capacity and
development of the State. No fundamental right to education for
a professional degree flows from article 21.
In Unni Krishnan103 the court was called upon to consider
whether the State could permit private professional educational
institutions to charge capitation fee for admission of students. In
Mohini Jain v State ofKarnataka104 a two-judge bench of the court
had propounded an absolutist view on this question. The bench
had ruled that the 'right to education' being concomitant to the
fundamental rights 'the State is under a constitutional mandate to
provide educational institutions at all levels for the benefit of the
citizens'. Further, the bench characterized charging of capitation
fee as 'nothing but a price of selling education.' The bench
thus declared charging of capitation fee by State-recognized
educational institutions as 'wholly arbitrary and as such violative
of article 14 of the Constitution.'
The Mohini Jain ruling was hardly viable, feasible and tenable,
for no state currently has the financial wherewithal to meet the
public demand for professional colleges. Accordingly, the matter
was reconsidered by a larger bench in Unni Krishnan. The main
judgement was delivered by Jeevan Reddy, J. The court said that
the fundamental right to education flows from article 21, but the
100
M. Paul Anthony v Bihar Gold Mines Ltd AIR 1999 SC 1416 at
1423.
101
Article 41 is a directive principle. For discussion on directive
principles, see infra.
102
Unni Krishnan v State ofAndhra Pradesh AIR 1993 SC 2178.
103
Ibid.
104
AIR 1992 SC 1858.
parameters of this right, which is not absolute, have to be

determined in the light of directive principles contained in
articles 45 and 41. 1 0 5 The court has now limited State liability
only to providing education till the age of 14 years but not
beyond. After that stage, the State obligation to provide education
is subject to its economic capacity and development. Private
unaided educational institutions can charge higher tuition fees;
they 'have to and are entitled to charge a higher fee, but not
exceeding the ceiling fixed'. The court has laid down guidelines
for the purpose, holding that 'commercialization of education
cannot and should not be permitted', and has denounced the
levy of capitation fee by educational institutions. The admission
of students and charging of fee in these private educational
institutions shall be governed by the 'scheme' evolved in
the judgement, which is in the nature of guidelines which the
appropriate government and affiliating authorities shall impose
and implement in addition to such other conditions and stipu
lations as they may think appropriate 'for grant of permission,
recognition or affiliation, as the case may be'.
The court has also noted that article 14 applies to the
State educational institutions. Article 14 compels them to admit
students on merit, subject to any permissible reservation, wherein
again merit inter se has to be followed. The educational activity
being carried out by private institutions is supplemental to the
main effort being made by the State. Article 14, which applies
to the main activity, applies to the supplemental activity as well.
'The applicability of article 14 cannot be excluded from the
supplemental effort/activity.' Even private educational institutions
are therefore required to admit students on merit.
Similarly, shelter has been held to be a fundamental right
emerging out of article 2 1 , as dignified life is not possible without
shelter. Some of the other rights which have been held to flow
from article 21 are: right to pure drinking water,107 right to good
roads 108 etc. A few more rights emanating from this article are
105
Sec infra, section on 'Integration of Fundamental Rights and
Directive Principles'.
l06
Prabhakar Nair v State of Tamil Nadu AIR 1987 SC 2117; Shantistar
Builders v Narayan Khimalal Totume AIR 1990 SC 630, 633.
107
Subhash Kumar v State of Bihar AIR 1991 SC 420.
l0
*State ofHimachal Pradesh v Umed Ram Sharma AIR 1986 SC 847.
mentioned later.10 All these rights promote good and dignified

life and, thus, constitute facets of valuable constitutionally
guaranteed right to life. Such a right can be taken away only by
law which is just, fair and reasonable.
The Supreme Court has also brought occupational health
hazards to workers within the coverage of article 21. The right to
health and medical care to protect the health and vigour of a
worker while in service or post-retirement has been held to be a
fundamental right under article 21 read with the directive
principles contained in articles 39(e), 41, 43, 48A and all related
articles and fundamental human rights to make the life of the
workers meaningful and purposeful with dignity of person.110
Sexual Harassment
In Vishaka v State of Rajasthan111 the Supreme Court 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 articles 14, 15 and 21.
The court observed: 'The meaning and content of the funda
mental rights guaranteed in the Constitution of India are of
sufficient amplitude to encompass all the facets of gender equality
including prevention of sexual harassment or abuse.'112 In this
context, the fundamental rights provisions have been used by the
court not only against the government and its instrumentalities
but even against private parties and private employers. In the
absence of any domestic law relating to this matter, the court
itself has laid down under article 32113 some directions for the
prevention of such harassment.
Significantly, the court has accepted the proposition that the
international conventions and norms are to be read into the
fundamental rights when there is no inconsistency between the
two. According to the court: 'It is now an accepted rule of judicial
construction that regard must be had to international conventions
109
See infra, under Implied Rights.
u0
Consumer Education & Research Centre v Union of India AIR 1995
SC 922, at 940.
m
AIR 1997 SC 3011.
U2
Ibid. at 3015.
113
On article 32, see infra.
and norms for construing domestic law when mere is no inconsis

tency between diem and there is a void in the domestic law.'114
The Vuhaka ruling was reiterated by the court in Apparel Export
Promotion Council v A.K. Chopra,115 wherein the court observed:
There is no gainsaying that each incident of sexual harassment, at the
place of work, results in violation of the Fundamental Right to gender
equality and the Right to life and liberty—the two most precious
Fundamental Rights guaranteed by die Constitution of India... In our
opinion, the contents of the fundamental rights guaranteed in our
Constitution are of sufficient amplitude to encompass all facets of
gender equality, including prevention of sexual harassment and abuse
and die courts are under a constitutional obligation to protect and
preserve those fundamental rights. That sexual harassment of a female
at the place of work is incompatible with the dignity and honour of
a female and needs to be eliminated...116
Ecotyjy
Apart from several personal rights which it has spelt out of article
2 1 , as stated above, the Supreme Court has made a signal
contribution by using article 21 towards the improvement of the
environment. It is well known that in India in spite of a number
of statutes having been enacted, and an administrative mechanism
having been put into position for the purpose, nothing concrete
has been done towards reducing environmental pollution. In this
context, the Supreme Court has, in a number of cases,117 taken
1I4
Also see LIC of India v Consumer Education & Research Centre AIR
1995 SC 1811, at 1818.
11S
AIR 1999 SC 625.
U6
Ibid. at 634.
117
Seeili.C. Mehta v Union ofIndia AIR 1988 SC 1037, ordering tanneries
polluting water to be closed; M.C. Mehta v Union ofIndia AIR 1997 SC 734
for protection of the Taj Mahal from environmental degradation; in Vellón
Citizens' VMfare Forum v Union ofIndia 1996 AIR SCW 3399, the court has
laid down the 'precautionary principle', i.e. the state government and the
statuory authorities must anticipate, prevent and attack causes of environ
mental degradation; Indian CouncilfarEnviro-Legal Action v Union of India
1996 AIR SCW 1069, evolving die principle of 'Polluter pays', i.e. one who
carries on hazardous activity is liable to make good the loss caused to another
person by such activity; M.C. Mehta v Union of India, AIR 1998 SC 2340
concerning pollution in Delhi; Dahanu Taluka Environment Protection Group
v Bombay SESC Ltd (1991) 2 SCC 539; Vvrmdra Gaur v State cfHaryana
(1995) 2 SCC 577; M.C. Mehta v Union of India (1998) 6 SCC 63; M.C.
Mehta v Union of India (1998) 4 SCC 589.
cognizance of the various environmental problems and given

necessary directions to the administration and, thus, compelled an
inert administration to make some movement towards reducing
environmental pollution. This has been done in the social interest.
On the relationship between ecology and article 2 1 , the
thinking of the court is that the right to life being a fundamental
right under this article, it includes enjoyment of pollution-free
water and air for full enjoyment of life. If anything endangers or
impairs that quality of life in derogation of laws, a citizen has a
right to have recourse to article 32 for removing the pollution of
water or air which may be detrimental to the quality of life. A
petition for prevention of pollution is maintainable at the instance
of affected persons or even by a group of social workers or
journalists. 118 The word 'environment' has a broad spectrum and
within its ambit fall 'hygienic atmosphere and ecological balance'.
It is the duty of the State to maintain a hygienic environment and
ecological balance. Article 21 protects right to life as a funda
mental right and it encompasses enjoyment of life and right to life
with human dignity, the protection and preservation of
environment, ecological balance free from pollution of air and
water, without which life cannot be enjoyed. Environmental,
ecological, air, water pollution, etc. amount to violation of article
21. Hygienic environment is thus an integral facet of right to
healthy life as it would not be possible to live with human dignity
without a humane and healthy environment. There is, therefore,
a constitutional imperative on the government not only to ensure
and safeguard proper environment but also to take adequate
measures to promote, protect and improve both the man-made
and the natural environment. 119
In AP Pollution Control Board v M.V Nayudu,120 the court has
made useful suggestions for the improvement of the adjudicatory
machinery under the various environmental laws. The main
burden of the suggestions is that 'in all environmental courts'
tribunals and appellate authorities' there should always be 'a judge
of the rank of a High Court or a Supreme Court Judge—sitting
or retired—and scientist or group of scientists of high ranking and
u8
See supra, note 106.
n9
Supm, note 116
lM
AIR 1999 SC 812.
experienced so as to help a proper and fair adjudication of

disputes relating to environment and pollution'. Further,
provision ought to be made for an appeal to the Supreme Court.
The present-day system of adjudication is not satisfactory. The
scientific and technological issues arising in environmental matters
are extremely complex and, therefore, there is need for technical
persons well versed in environmental laws to handle these issues.
Right to Equality—Article 14
Article 14 ordains that the State shall not deny to any person
'equality before the law' or the 'equal protection of the laws'
within the territory of India. The article thus bars discrimination
and prohibits discriminatory laws. But the fact remains that
everyone is not equal, and, therefore, a mechanical equality before
the law may result in injustice. Accordingly, it is said that article
14 means that 'equals should be treated alike' and it does not
mean that 'unequals ought to be treated equally'. As all persons
are not equal by nature or circumstances, the varying needs of
different classes or sections of people require differential
treatment. Accordingly, to apply the principle of equality in a
practical manner, the court has evolved the rule that if law is
based on rational classification it is not discriminatory. A
classification is rational if it fulfils the following two tests, namely,
(1) that it is based on a rational basis; (2) the basis should have
a rational relation with the object of the law in question.
It is not proposed to discuss in this essay the vicissitudes which
the rule of rational classification has undergone as there is
immense case-law on this point. 121 What is proposed to be
discussed is an innovative development, namely, how the principle
of equality has come to be applied by the court (i) in the area of
administrative process; and (ii) in the area of conferment of
benefits and largess by the government. These two aspects
constitute very important projections of the rule of equality in
modern times.
121
For a full-fledged discussion on this aspect, reference may be made
to Jain, Indian Constitutional Law (1987), 471-97. Also see Deepak Sibal
v Punjab University AIR 1989 SC 903.
Administrative Process
A fascinating aspect of article 14 developed by the court is that
the article embodies 'a guarantee against arbitrariness' on the part
of the administration. An example of the application of this
principle is found in Central Inland Water Transport Corp. Ltd v
Brojo Natb.122 A service rule of a government corporation
authorizing it to terminate the service of a permanent employee
by giving a three months' notice was held to be ultra vires article
14 as being unconscionable. The rule constituted a part of the
contract of employment between the corporation and its
employees. The court laid down the following principle: The
courts will not enforce and will strike down an unfair and
unreasonable clause in a contract, entered into between parties
who were not equal in bargaining power. This is in conformity
with the mandate of the 'great equality clause in article 14'. The
judicial concept of article 14 has progressed 'from a prohibition
against discriminatory class legislation to an invalidating factor
for any discriminatory or arbitrary State action'. 'The principle of
natural justice has now come to be recognized as being a part of
the constitutional guarantee contained in article 14.' The rule
mentioned above was 'both arbitrary and unreasonable', and it
also wholly ignored and set aside the audi alterant portent rule
and, thus, violated article 14.
In order to give effect to the above-mentioned broad
proposition, the court has developed a principle that no law ought
to confer excessive discretionary power on any authority. The
court can veto any conferment of discretionary power on an
authority if it is too broad, sweeping or uncanalized.123 The
reason is that unbridled discretionary power may degenerate into
arbitrariness, or may result in discrimination and, thus,
contravene article 14 which bars discrimination. The court has
stated this principle as follows:
...article 14 ensures equality before law and strikes at arbitrary and
discriminatory state action....
122
AIR 1986 SC 1571.
l23
For a detailed discussion on this point, scc Jain, A Treatise on
Administrative Law I, ch. XVIII; Jain, Cases and Materials on
Administrative Law ch. XV Scc RE Royappa v State of Tamil Nadu AIR
1974 SC 555.
If power conferred by statute on any authority of the State is vagrant

and unconfined and no standards or principles are laid down by the
statute to guide and control the exercise of such power, the statute
would be violative of the equality clause, because it would permit
arbitrary and capricious exercise of power, which is the antithesis of
equality before laws.124
Bhagwati, J, enunciated the same principle in Maneka Gandhi in
the following words:
... when a statute vests unguided and unrestricted power in an
authority to affect the rights of a person without laying down any
policy or principle which is to guide the authority in exercise of this
power, it would be affected by the vice of discrimination since it
would leave it open to the Authority to discriminate between persons
and things similarly situated.125
The legislature cannot validly enact a provision conferring naked
or arbitrary power on the administration, to be exercised by it in
its absolute discretion. To be valid, discretionary power ought to
be hedged by policy, standards, guidelines or procedural
safeguards to regulate its exercise, otherwise the court may declare
a provision conferring sweeping powers on the administration
as void.
The principle is often invoked by the courts to assess the
validity of laws conferring discretionary power.126 In practice,
courts show a good deal of tolerance and deference towards
conferment of discretion, and it is only in an extreme situation
that a statutory provision may be declared invalid on the
ground of excessive delegation of administrative power. 127 Broad
discretionary powers are upheld by the courts on such grounds as:
die statutory provision conferring power has sufficient guidelines
n
*Naraindas v State of Madhya Pradesh AIR 1974 SC 1232.
125
(1978) 2 SCJ at 350.
U6
Chandrakant Saha v Union of India AIR 1979 SC 314; R.R. Verma
v Union of India AIR 1980 SC 1461; Sukhwinder Pal Bipan Kumar v
State of Punjab AIR 1982 SC 65; Órgano Chemical Industries v Union of
India AIR 1979 SC 1803; Ashok K Yadav v State ofHaryana AIR 1987
SC 454.
U7
State of Punjab v Khan Chand AIR 1974 SC 543; Air India v Nergesh
Meerza AIR 1981 SC 1829; DTC v DTC Mazdoor Union AIR 1991
SC 101.
or policies to regulate the exercise of power; the power has been

conferred on a high official who is not expected to misuse
power; 128 there are procedural safeguards subject to which the
power is to be exercised.129
The second notable principle developed by the Supreme Court
out of article 14 is that every action of the government, or any
of its instrumentalities, must be informed by reason. When there
is arbitrariness in government action, article 14 springs to life and
judicial review strikes down such an aaion. As has been observed
by the Supreme Court:
It is now too well-settled that every state action, in order to survive,
must not be susceptible to the vice of arbitrariness which is the crux
of article 14 of the Constitution and basic to the rule of law, the
system which governs us.130
The government and other public authorities must act
reasonably and fairly and each action of such authorities must pass
the test of reasonableness.131
The Supreme Court has also extracted from article 14 a third
principle that natural justice is an integral part of administrative
process. 132 Article 14 guarantees a right of hearing to the person
adversely affected by an administrative order. As the court has
observed in Delhi Transport Corporation v DTC Mazdoor Union,133
the iaudi alterant partem' rule, in essence, enforces the equality
ns
Chinta Ungam v Union of India AIR 1971 SC 474; State (Delhi
Admn) v VC. Shukla AIR 1980 SC 1382.
u9
Shiv Dun Rat Fateh Chand v Union of India AIR 1984 SC 1194, at
1212.
l30
Shrilekha Vtdyartbi v State of UP AIR 1991 SC 537.
ln
HansrajH. Jain v State ofMaharashtra (1993) 3 SCC 634, 647; New
Horizons Ltd v Union of India (1995) SCC 478; Mahesh Chandra v
Regional Manager UP Enancial Corpn AIR 1993 SC 935; UP State Road
Transport Corpn v Mohd Ismail AIR 1991 SC 1099; Cantonment Board
Dinapur v Taramati Devi (1992) Supp (2) SCC 501; Common Cause v
Union of India AIR 1997 SC 1886; Shiv Sugar Ihvari v Union of India
AIR 1997 SC 2725.
132
On principles of natural justice, see M.P. Jain, A Treatise on
Administrative Law, I, chs. X and XI, 304-447; Jain, Cases and MateriaL·
on Indian Administrative Law, I, chs. IX and X, 641-919.
133
AIR 1999 SC 564.
clause in article 14 and it is applicable not only to quasi-judicial

bodies but also to administrative orders adversely affecting the
party in question unless the rule has been excluded by the Act in
question'. 34
Conferment of Benefits and Award of Contracts

The principle of non-discrimination contained in article 14 has
been applied by the Supreme Court in an area of great
contemporary importance, namely, conferment of benefits and
award of contracts by the government. The government cannot
act in an arbitrary or discriminatory manner in conferring benefits
on individuals. The most outstanding judicial pronouncement in
this area is Romana Dayaram Shetty v The International Airport
Authority of India.115 The court has laid down the principle that
in awarding a benefit or contract, the government, or any of its
instrumentalities, ought not to exercise its discretion arbitrarily.
The government cannot therefore give or withhold largess 'in its
arbitrary discretion or at its sweet will', and 'Government action
[should] be based on standards that are not arbitrary or
unauthorised.' The court has further emphasized that the
government, when it lays down some norms or standards of
eligibility, cannot award die contract to someone not fulfilling the
prescribed conditions of eligibility. If the authority does so, its
action becomes discriminatory since it excludes 'other persons
similarly situated from tendering for the contracf and that would
be 'plainly arbitrary and without reason'. Bhagwati, J, speaking
for the court, has expounded the relevant principle as follows:
It is well settled rule of administrative law that an executive authority

must be rigorously held to the standards by which it professes its
actions to be judged and it must scrupulously observe those standards
on pain of invalidation of an act in violation of them.136
The principle is based on article 14 which strikes at arbitrariness
in State action and ensures fairness and equality of treatment.
Bhagwati, J, observed on this point:
134
Also, Union of India v Amrik Singh AIR 1991 SC 564; D.K. Tadav
vJMA Industries (1993) 3 SCC 259.
135
AIR 1979 SC 1625.
136
Ibid. at 1635.
It must therefore follow as a necessary corollary from the principle of

equality enshrined in article 14 that though the state is entitled to
refuse to enter into relationship with anyone, yet if it does so,
it cannot arbitrarily choose any person it likes for entering into
such relationship and discriminate between persons similarly circum
stanced, but it must act in conformity with some standard or principle
which meets the test of reasonableness and non-discrimination and
any departure from such standard or principle would be invalid unless
it can be supported or justified on some rational and non-
discriminatory ground.137
Ramana put a restriction on the discretion of the
administration to award a contract to whomsoever it likes,
binding it to act in this matter according to some reasonable and
non-discriminatory standard or principle. This principle has to be
'rational, relevant and non-discriminatory'. This means that in
inviting tenders for awarding a contract, the norms or standards
governing the tenders should be reasonable and non-
discriminatory and the authority concerned should not depart
from these norms arbitrarily and without justification.
Since Ramana, a large number of cases have come before the
courts challenging award of contracts by the government and its
agencies and in quite a few of these cases, the award of contract
has been quashed because of the failure of the authority concerned
to observe the principles mentioned above. 138 The Supreme Court
observed in Mahabir Auto Stores v Indian Oil Corporation:
It appears to us that rule of reason and rule against arbitrariness and
discrimination, rules of fair play and natural justice are part of the rule
of law applicable in situation or action by state instrumentality in
dealing with citizens in a situation like the present one. Even though
the rights of the citizens are in the nature of contractual rights,
the manner, the method and motive of a decision of entering or not
entering into a contract, are subject to judicial review on the
touchstone of relevance and reasonableness, fair play, natural justice,
equality and non-discrimination in the type of the transaction and
nature of the dealing as in the present case.139
137
Ibid. at 1643.
138
See Tadav Medical Store v State AIR 1981 All 139; Om Prakash v
State ofjammu & Kashmir AIR 1981 SC 1001; Parashram Thakur Dass
v Ram Chand AIR 1982 SC 872; Doongaji & Co. v State of Madbya
Pradesh AIR 1991 SC 1947.
139
AIR 1990 SC 1031 at 1037.
The great importance of disciplining government discretion in

awarding contracts cannot be lost sight of. In modern times, State
is the source of enormous wealth and more and more individuals
and businesses enjoy largess in the form of government contracts,
licences, leases, quotas, jobs, mineral rights, etc. There is thus
need to develop some norms to regulate, structure and discipline
government discretion to confer such benefits. The government
or any of its agencies should not be allowed to act arbitrarily and
confer benefits on whomsoever they want.
Implied Fundamental Rights

The Supreme Court does not follow the rule that unless a right
is expressly stated as a fundamental right, it cannot be treated as
one. Over time, it has been able to imply, by its creative
interpretative process, several fundamental rights out of the ones
expressly stated in the Constitution. A few examples may be cited
here.
Freedom of the Press

Article 19(l)(a) guarantees freedom of speech to the citizens of
India. The freedom of the press is not expressly mentioned
therein, but this concept has been inferred from, and read into,
the freedom of speech and expression guaranteed by the said
article. The Supreme Court said in Express Newspapers v Union of
India, 'The freedom of speech comprehends the freedom of press
and the freedom of speech and press are fundamental and
personal rights of the citizens.' 140 Thus, 'freedom of the press' is
protected subject to the rider that by law 'reasonable restrictions'
can be imposed thereon for certain specified purposes. In course
of time a good deal of case law has emerged on what restrictions
on the press are valid and what restrictions are invalid.141 On the
whole, the concept of freedom of the press is now well established
in India and the Supreme Court has given it a liberal connotation.
140
AIR 1958 SC 578, 616.
141
See Ibid, at 578; Bennett Coleman & Co. v Union of India AIR 1973
SC 106; Sakal Papers v Union of India AIR 1962 SC 305.
Imposition of pre-censorship on a newspaper, or prohibiting

it from publishing its own views, or those of its correspondents
on a burning contemporary topic, 143 have been held to constitute
an encroachment on the freedom of the press. This freedom also
includes freedom to propagate ideas, which is ensured by the
freedom of circulation of the newspaper, as a newspaper is of little
value without circulation. Therefore, imposition of a ban upon
entry and circulation of a newspaper within a state is restriction
of freedom of speech.144
The Newspaper (Price and Page) Act, 1956, and a government
order made thereunder, sought to regulate the number of pages
according to the price charged, the number of supplements
published, and the size and area of advertisements in relation to
other matter contained in the newspaper. Thus, the number of
pages published by a newspaper depended upon the price charged
to the readers. The Supreme Court held the whole scheme
invalid, the purpose of the scheme being to reduce the circulation
of some newspapers by making their price unattractively high for
their readers. Reduction of the area of advertisements would
reduce revenue to the newspapers, compelling them to raise their
prices, which was bound to reduce circulation. Article 19(l)(a)
guarantees not only what a person circulates but also the volume
of circulation. Being a restriction on article 19(l)(a), the scheme
was not related to any of the purposes mentioned in article 19(2),
and was invalid.145
Bennett Colemanii6 is a case of great significance in the area of
the freedom of the press. Newsprint, being short of supply, had
to be imported. The government introduced a scheme for
rationing newsprint. The dominant direction of the rationing
policy was to curtail the growth of big newspapers which could
not increase the number of pages, etc. By a majority, the Supreme
Court declared the policy unconstitutional. The court expressed
the view that while the government could evolve a policy of
allotting newsprint on a fair and equitable basis, keeping in view
l 2
* Brij Bbushtm v State of Delhi AIR 1950 SC 129.
l43
Virendra v State of Punjab AIR 1957 SC 896.
l
**Romesh Thapar v State of Madras AIR 1960 SC 124.
l 5
* Sakal Papers v Union of India AIR 1962 SC 305, 314.
146
Sec supra, note 140. For a comment on the case by the author, see
15 JILI (1973) 154.
the interests of small, medium and big newspapers, it could not,

in the garb of regulating distribution of newsprint, control
the growth and circulation of newspapers. In effect, here the
newsprint policy became 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 number of pages, circulation and new
editions within their fixed quota. The policy of limiting all
newspapers, whether small or large, in English or an Indian
language, to ten pages was held to be discriminatory as it treated
unequals as equals. The restrictions cut at the root of press
freedom.
Levy of high customs duty on newsprint was challenged by
several newspapers on the ground that it had the direct effect of
crippling the freedom of speech and expression as it increased the
price of newspapers resulting in their diminished circulation. The
Supreme Court, accepting the plea of the newspapers, directed
the government to consider the entire question of levy of import
duty on newsprint within six months. It rejected the plea of the
petitioners that no duty could be levied on the newspaper
industry. For such facilities as telephones, teleprinters., postal,
transport and other communication amenities provided by the
State at considerable cost to itself, the newspapers 'have to bear
the common fiscal burden like the others'. Nevertheless, such
a levy was 'subject to review by courts in the light of the
provisions of the Constitution'. 147 The court noted that with a
view to checking malpractices interfering with the free flow of
information, democratic constitutions the world over make
provisions guaranteeing freedom of speech and expression and
laying down the limits of interference therewith. It is, therefore,
the primary duty of all national courts to uphold this freedom and
invalidate all laws or administrative actions which interfere with
it, contrary to the constitutional mandate.
When Reliance Petrochemicals made a mega issue of deben
tures, the Indian Express published an article questioning the
validity of the consent given by the controller of capital issues to
the issue of the debentures. Reliance secured from the Supreme
w
Indian Express Newspapers (Bombay) Ltd v Union of India (1985) 1
SCC 641.
Court an injunction prohibiting the newspaper from publishing

anything questioning the legality or validity of the issue, a matter
which then was sub judice.148 After the issue was oversubscribed,
the newspaper sought vacation of the court's injunction with
Reliance opposing the move. Vacating the injunction, the court
pointed out that in the instant case it had to draw a balance
between two interests of great importance—freedom of speech
and administration of justice. Ά balance, in our opinion, has to
be struck between the requirements of free press and free trial ...'
The court however preferred the right of the people to know, and
observed:
It is necessary to reiterate that the continuance of this injunction

would amount to interference with the freedom of press in the form
of preventive injunction and it must, therefore, be based on reasonable
grounds for the sole purpose of keeping the administration of justice
unimpaired.... We must remember that the people at large have a right
to know in order to be able to take part in a participatory
development in the industrial life and democracy. Right to know is a
basic right to which citizens of a free country aspire in the broader
horizon of the right to live in this age on our land under article 21
of the Constitution....149
The court thus ordered that there was no longer any need to
continue the injunction.
In Printers (Mysore) Ltd v Assistant Commercial Tax
Officer150 the court reiterated that though freedom of the press is
not expressly guaranteed as a fundamental right, it is implicit in
the freedom of speech and expression. It pointed out that freedom
of the press has always been a cherished right in all democratic
countries, and it has rightly been described as the Fourth Estate.
The democratic credentials of a State are judged by the extent of
freedom the press enjoys in that State. But the press is not
immune from taxation or general labour laws or civil or criminal
laws. The prohibition is upon the imposition of any restriction
direcdy relatable to the right to publish, to the right to
disseminate information and to the circulation of newspapers.
us
Reliance Petrochemiads Ltd v Indian Express AIR 1989 SC 190.
149
Ibid. at 202-3.
150
(1994) 2 SCC 434.
Broadcasting
The question concerning the right of access to telecasting was
considered by the court in Secretary, Ministry of Information &
Broadcasting, Government of India v Cricket Association ofBengal.™
Can the government claim monopoly in telecasting? Can a private
telecasting station be set up by a person claiming freedom
of speech and expression under article 19(l)(a)? The said
article guarantees right to communicate through any media that
is available, whether print or electronic or audio-visual. The
freedom of the press includes freedom to communicate.
Broadcasting is a means of communication. Therefore, in a
democratic polity no one private individual, institution, or
organization, government or any government organization—can
claim exclusive right over it. However, the airwaves/frequencies
are a public property and are also limited, they have to be used
in the best interest of society. This can be done either by a central
authority establishing its own broadcasting network or regulating
the grant of licences to other agencies, including private agencies.
The court made a constructive suggestion in this respect. The
right to use the airwaves and the content of the programmes
needs regulation for balancing it, as well as to prevent monopoly
of information. Therefore, an independent and automonous
public authority, representative of all sections and interests in
society, free from control both of the government and the
dominant influential sections of society, be set up by the central
government to control and regulate the use pf the airwaves.
As the airwaves/frequencies are a public property, their
regulation ought not to be left to the sole discretion of the
government. The use of airwaves/frequencies ought to be
controlled and regulated by an autonomous public authority in
the interests of the public, and to prevent the invasion of their
rights. Since the electronic media involve the use of airwaves, this
factor creates an in-built restriction on its use as in the case of any
other public property. In affect, this ruling seeks to free the
electronic media from bureaucratic control, and is a major step
towards breaking State monopoly of the airwaves.
151
AIR 1995 SC 1236.
Right to Privacy
For the first time, in Kharak Singh v State of UP,152 a question was
raised whether the right to privacy could be implied from
the existing fundamental rights, such as articles 19(l)(d), 1 5 3
19(l)(e) 1 5 4 and 21. In Kharak Singh, the term 'personal liberty5
was given a comprehensive dimension. The Supreme Court ruled
that personal liberty is used as a compendious term to include the
varieties of rights which make up the 'personal liberties' of man
other than those dealt with in article 19(1). Said the court, '...
While article 19(1) deals with particular species or attributes of
that freedom, "personal liberty" in article 21 takes in and
comprises the residue.' 155 The majority in this case said of the
'right to privacy5 that Our Constitution does not in terms confer
any like constitutional guarantee 5 . 156 The minority opinion by
Subba Rao, J, differing from the majority view that article 21
excluded what was guaranteed by article 19, observed:
It is said that the freedom to move freely is carved out of personal
liberty and, therefore, the expression 'personal liberty5 in article
21 excludes that attribute. In our view, this is not a correct
approach. Both are independent fundamental rights, though there is
overlapping. There is no question of one being carved out of another.
The fundamental right of life and personal liberty have many
attributes and some of them are found in article 19. If a person5s
fundamental right under article 21 is infringed the State can rely upon
a law to sustain the action, but that cannot be a complete answer
unless the said law satisfies the test laid down in article 19(2) so far
as the attributes covered by article 19(1) are concerned. In other
words, the state must satisfy that both the fundamental rights are not
infringed by showing that there is a law and that it does amount to
a reasonable restriction within the meaning of article 19(2) of the
Constitution.157
152
AIR 1963 SC 1295.
153
Article 19(l)(d) guarantees to the citizens of India the right 'to
move freely throughout the territory of India'.
154
Article 19(l)(e) guarantees to the citizens of India the right 'to
reside and settle in any part of the territory of India5.
l5s
Khamk Singh, supra, note 152 at 1302.
156
Ibid.
157
AIR 1963 SC at 1305.
In course of time this minority view came to be accepted by

the Supreme Court. 158
The minority was also willing to infer the right of privacy from
the expression 'personal liberty in article 21. In the words of
Subba Rao, J:
Further, the right to personal liberty takes in not only a right to be
free from restrictions placed on his movements, but also free from
encroachment on his private life. It is true our Constitution does not
expressly declare a right to privacy as a fundamental right, but the said
right is an essential ingredient of personal liberty. Every democratic
country sanctifies domestic life....
In Govind v State of Madhya Pradesh,160 the Supreme Court
accepted a limited fundamental right to privacy 'as an emanation'
from articles 19(a), 19(d) and 21. The right to privacy is not,
however, absolute; reasonable restrictions can be placed thereon
in public interest under article 19(5). Thus, Mathew, J, observed:
The right to privacy in any event will necessarily have to go through
a process of case-by-case development. Therefore, even assuming that
the right to personal liberty, the right to move freely throughout the
territory of India and the freedom of speech create an independent
right of privacy as an emanation from them which one can
characterize as a fundamental right, we do not think that the right is
absolute.161
Mathew, J, observed further:
Assuming that the fundamental rights explicitly guaranteed to a
citizen have penumbral zones and that the right to privacy is itself a
fundamental right, that fundamental right must be subject to
restriction on the basis of compelling public interest.162
Again, in R. Rajagopal v State ofTamilnadu, the Supreme Court
asserted that the right to privacy has acquired consti-tutional
status; it 'is implicit in the right to life and liberty guaranteed to
158
See State of West Bengal v Ashok Dey AIR 1972 SC 1660; Haradhan
Saha v State of West Bengal AIR 1974 SC 2154; John Martin v State of
West Bengal AIR 1975 SC 775; Maneka Gandhi, supra, note 44.
l59
Kharak Singh, supra, note 152 at 1306.
160
AIR 1975 SC 1378.
161
Ibid. at 1385.
162
Ibid. at 1386.
the citizens' by article 21. It is a 'right to be let alone.' A citizen

has a right 'to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child bearing and education
among other matters'. 163
Emanating from an individual's right to privacy is the question
of telephone tapping. Telephone tapping constitutes a serious
invasion of this right. Is it constitutionally permissible in India?
If so, within what limits and subject to what safeguards? The
Supreme Court was called upon to consider diese questions in
People's Union firr Civil Liberties v Union of India}6* After referring
to the above mentioned cases, the court concluded:
We have, therefore, no hesitation in holding that the right to privacy
is a part of the right to 'life and personal liberty' enshrined under
article 21 of the Constitution. Once the facts in a given case constitute
a right to privacy, article 21 is attracted. The said right cannot be
curtailed except according to procedure established by law.165
The court ruled that 'Telephone conversation is an important
facet of a man's private life. Right to privacy would certainly
include telephone conversation in the privacy of one's home or
office.' This means that telephone tapping would infract article 21
unless it is permitted under the procedure established by law. The
procedure has to be 'just, fair and reasonable.' Further, talking on
a telephone amounts to exercise by the individual of his right to
freedom of speech and expression protected by article 19(2). This
means that telephone tapping, unless it comes within the grounds
of restrictions under article 19(2), would infract article 19(l)(a).
Telephone tapping is permissible in India under section 5(2) of
the Telegraph Act, 1885. The court has held that die section is
constitutionally valid. This section lays down the circumstances
and the grounds when an order for tapping of a telephone may
be passed. But no procedure for making the order therein is laid
down. 'In die absence of just and fair procedure for regulating the
exercise of power under section 5(2) of the Act, it is not possible
to safeguard the rights of the citizens guaranteed under articles
163
AIR 1995 SC 264. Also see State of Maharashtra v Madhukar
Narayan Mardikar AIR 1991 SC 207, where the court ruled that even
a woman of easy virtue is entided to her privacy.
164
AIR 1997 SC 568.
16S
Ibid. at 574.
19(l)(a) and 21 of the Constitution of India.' 166 Accordingly, the

court has itself filled in the gap by issuing procedural directions
for exercise of the power under section 5(2) of the Telegraph Act,
1885. Thus, the power of telephone tapping has now become
a regulated power both procedurally and substantively. The
directions issued by the court are designed to exclude arbitrariness
and to safeguard an individual's right to privacy. These directions
would remain in force till the central government itself lays down
'just, fair and reasonable' procedure by making rules under section
7(2)(b) of the Act.
The right to privacy has thus become established in India, but
as a part of article 21 and not as an independent right in itself.
The court has declined to define privacy saying, As a concept it
may be too broad and moralistic to define it judicially.'167 This
means that whether the right to privacy can be claimed or has
been infringed in a given situation would depend on the facts of
the case, and the view the court takes of the matter.
Rights Implied from Article 21

The Supreme Court has asserted that in order to treat a right as
a fundamental right it is not necessary that it should be expressly
stated as a fundamental right. Political, social and economic
changes in the country entail the recognition of new rights and
the law in its eternal youth grows to meet the demands of society.
Article 21 is the heart of fundamental rights. 168 It has enough
positive content and is not merely negative in its reach.169
After Maneka Gandhi, a whole bundle of human rights have
sprung out of article 21. This has been possible by reading the
article along with some directive principles.170 Some of the newly
recognized rights are: right to livelihood;171 right to shelter;172 right
166
Ibid. at 577.
167
Ibid. at 574.
l6S
Unni Krishnan, supra, note 102.
l69
E Rathinam v Union of India AIR 1994 SC 1844.
170
See infra, 'Integration of Fundamental Rights with Directive
Principles'.
Χ7λ
ΟΙβα Tellis, supra, note 98.
l72
Shantistar Builder v N.K. Totane AIR 1990 SC 630.
of an accused against custodial violence; 173 right to health; 174

right to doctor's assistance;175 right to legal aid and speedy
trial; 176 right to dignity and privacy;177 right to education;
right to compensation;1 right to pollution-free environment. 180
As regards the right of an accused against custodial violence, the
court has taken a very positive stand against police atrocities,
intimidation and harassment, use of third degree methods to
extort confession. The court has characterized all these as being
against human dignity. The expression 'life' in article 21 means
the right to live with human dignity and this includes a guarantee
against torture and assault by the State. The court has often
awarded compensation/exemplary compensation to victims of
police brutality.181
Some of these rights have already been discussed under article 21.
The Mandal Commision Case

The Mandal Commission was appointed by the Government
of India in terms of article 340 in 1979 to investigate the
173
Sheela Bane, supra, note 78; D.K. Basu v State of West Bengal, Supra,
note 82. Also see note 179, infra.
l7i
Vincent Panikulangara v India AIR 1987 SC 990; Parmanand
Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet
Mazdoor Samiti v State of West Bengal AIR 1996 SC 2426. The
movement of judicial view from Vincent to Paschim Banga clearly shows
that access to medical treatment has become a part of article 21. In
Paschim Banga the State has been placed, despite financial constraints,
under an obligation to provide better equipped hospitals with
modernized medical technological facilities.
i7S
Paratnanand Kataria, ibid.
176
Madhao H. Hoskot v State of Maharashtra AIR 1978 SC 1548;
Hussainara Khatoon, supra, note 73, at 1369; A.R. Antulay v R.S. Nayak
AIR 1992 SCW 1872; supra, section on article 21.
177
Supra, section on 'Implied Fundamental Rights', notes 151-66.
17S
Unni Krishnan, supra, note 102.
l79
Nilabati Behera v State of Orissa AIR 1993 SC 1910; Praful Kumar
Singha v State of Bihar (1994) Supp (3) SCC 100; Murti Devi v State of
Delhi (1998) 9 SCC 604; Kartar Singh v State of Pujab (1994) 3 SCC
569; Inder Singh v State of Punjab (1994) 6 SCC 275.
li0
Supra, section on article 21, notes 117-20.
181
See infra.
conditions of socially and educationally backward classes. A major

recommendation made by the commission was that, besides the
Scheduled Castes (SCs) and the Scheduled Tribes (STs),
other Backward Classes (OBCs) which constitute nearly 52 per
cent of the population be given a reservation of 27 per cent in
government jobs, so that the total reservation for all, SCs,
STs, and OBCs, would amount to 50 per cent. In 1990, the
Government of India issued an office memorandum accepting the
recommendation. Later, the memorandum was modified in two
ways: (1) the poorer sections among the backward classes would
get preference over the other sections; (2) 10 per cent vacancies
would be reserved for other 'economically backward sections' of
the people who were not covered by any existing reservation
scheme.
The constitutional validity of the memorandum was challenged
before the Supreme Court in Indira Sawhney v India™2 known as
the Mandal Commission case. The issue was considered by a bench
of nine judges. Six opinions were delivered. The leading opinion
was delivered by Jeevan Reddy, J, on behalf of himself and three
other judges. Two other judges in a separate opinion concurred
with Reddy, J. Three other judges in separate opinions dissented
from Reddy, J. The main features of the opinion of Reddy, J, may
be summarized as follows:
1. Article 16(4) permits reservation of posts in favour of any
'backward classes of citizens'. 183
2. Article 16(4) is exhaustive of the provisions which can be
made in favour of backward classes in the matter of
employment. N o reservation can be made for backward
classes outside this article.
3. What does the expression 'backward class of citizens' mean?
Reviewing the earlier cases in this area, the court concluded
that these judicial opinions emphasize the integral connection
between caste, occupation, poverty and social backwardness.
182
AIR 1993 SC 477.
183
Articlc 16(4) reads:
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 services
under the state.
Social, educational and economic backwardness are closely

intertwined in the Indian context. 'Caste' may be used to
identify backward classes because in India caste often is
a social class. But caste cannot be the sole criterion. Besides
castes (whether found among the Hindus or others) there
may be other communities, groups, classes and denomi
nations which may qualify as backward class. Reddy, J,
observed in this connection: '... the classification is not on the
basis of the caste but on the ground that that caste is found
to be a backward class not adequately represented in the
services of the State.' 184
4. 'Backwardness' under article 16(4) need not be 'social
as well as educational' as in article 15(4). Backwardness
contemplated by article 16(4) is mainly social backwardness.
5. The 'creamy layer' should be excluded from the benefit of
reservation so that the truly backward people may benefit.
The court instead of itself laying down the test to finally
identify the 'creamy layer', directed the government to specify
the basis of exclusion—whether on the basis of income, extent
of land holding or otherwise.
6. To merit reservation, a class is not only to be backward but
it should also be inadequately represented in the state
services.
7. The total reservation cannot exceed 50 per cent in a year.
Reserved posts remaining unfilled in one year may be carried
forward to the next year but subject to the overall limitation
that reservation in any one year ought not to exceed 50 per
cent. 185
8. The rule of reservation ought to be applied only at the initial
stage of entry into the State services, but not to the
subsequent promotional stage. 186 Reddy, J, observed on this
point:
...while it is certainly just to say that a handicap should be given to
backward class of citizens at the stage of initial appointment, it would
lM
185
See I. Devadasan v Union of India AIR 1964 SC 179.
186
It overrules General Manager, Southern Railway v Rangachari AIR
1962 SC 36, which upheld reservation in promotions as well. See Jain,
Indian Constitutional Law, (1987) 509, 512, 518.
be a serious and unacceptable inroad into the rule of equality of

opportunity to say that such a handicap should be provided at
every stage of promotion throughout their career. That would
mean creation of a permanent separate category apart from the
mainstream— a vertical division of the administrative apparatus.... All
this is bound to affect the efficiency of administration.... At the initial
stage of recruitment. reservation can be made in favour of backward
class of citizens but once they enter the service, efficiency of
administration demands that those members too compete with others
and earn promotion like all others.... They are expected to operate on
equal footing with others....187
9. For the reserved category in service, minimum standards can
be prescribed. In fact, article 335 demands that some such
standards be prescribed. 188
10. Certain services and posts must be kept out of reservation and
here only merit should prevail. Such posts are: defence
services including all technical posts but excluding civil
posts; all technical posts in research and development
including those connected with atomic energy and space;
teaching posts of professors and above; posts in super-
specialities in medicine, engineering and odier scientific and
technical subjects; posts of pilots in Air India and Indian
Airlines. This list is illustrative and not exhaustive. These
posts call for the 'highest level of intelligence, skill and
excellence'.
11. The court rejected the 10 per cent reservation in favour of
'other economically backward sections of the people'. Such a
category is not relatable to article 16(4). It means that
citizens above a certain income or property holding would
not be eligible for appointment. Any such bar is inconsistent
with article 16(1).
12. The court also directed that a permanent body be established
at the level of the centre as well as each state to entertain
complaints of wrong inclusion or non-inclusion of groups,
classes and sections in the list of OBCs.
lS7
188
Article 335 reads:
The claims of the members of the Scheduled Castes and the Scheduled Tribes
shall be taken into consideration, consistendy widi the maintenance of efficiency
of administration in making of appointments to services and posts in connection
with the affairs of the Union or of a State.
13. The lists of OBCs should be periodically revised in

consultation with the above-mentioned body.
In the instant case, the court deliberated upon a number of
momentous and complex issues having an intimate bearing on the
future of Indian society. The court's opinion is very thoughtful
and creative. Generally speaking, reservation in government
services is anti-meritocracy. When a candidate is appointed to a
reserved post, it inevitably excludes a more meritorious candidate.
But reservation has now become a fact of life in India. However,
the court in Indira Sawhney sought to check reservation running
riot as well as reduce some of its evils.
Several positive aspects of the Indira Sawhney judgement may be
highlighted. One, overall reservation in a year is to be limited to
a maximum of 50 per cent. Two, amongst the classes granted
reservation, those who have already improved their social status
(creamy layer) should be excluded. This means that the benefit of
reservation should not be misappropriated by the upper crust but
should filter down to the lowliest so that they may benefit from
reservation to improve their position. This raises the ticklish
question of finding suitable socio-economic tests to identify the
creamy layer among the backward classes. The court admitted that
identifying the elite classes may not be easy and, accordingly, left
the task of chalking out the criteria for the purpose to the
government. Nevertheless, the court gave one clear indication of
its thinking on this matter: it said that if a member of a backward
family became a member of the IAS, IPS or any other all-India
service, his social status would rise and he would no longer be
socially disadvantaged. This means, in effect, that a family can avail
of reservation only once. Three, the court introduced an element
of merit into the scheme of reservation in several ways, i.e.:
(a) Promotion has to be merit-based and free from any rule of
reservation.
(b) Certain posts are to be excluded from the rule of reservation
and recruitment to these posts is to be merit-based.
(c) Some minimum standards ought to be laid down for
recruitment even to the reserved posts.
Further, while not ignoring the importance of caste, the court
sought to keep the caste factor within limits. Caste can be one of
the factors, but not the sole factor, in assessing backwardness.
Reservation has become the bane of contemporary Indian life.

More and more sections of society are demanding reservation for
themselves in government services. Reservation is inequitable in
the sense that a meritorious candidate may have to be passed over
in favour of a much less meritorious candidate. Reservation
adversely affects efficiency in administration. While, for the
present, reservation up to a point has to be accepted as a way of
life in India and a politico-sociological necessity, it does not mean
that its defects ought not to be minimized as far as possible. The
court's opinion makes a signal contribution to this end. However,
it appears to this author that, at some stage, the court may have
to consider whether reservation for more than 50 per cent be not
declared as unconstitutional, affecting the basic feature of the
Constitution so that reservation may not be increased beyond 50
per cent even by a constitutional amendment. Such a declaration
is necessary to contain the growing demand of politicians for
more and more reservation in favour of the groups they represent.
What is needed for the nation's socio-economic development is
progressively lessening, not increasing, reservation, so that
meritocracy may have some chance to prevail over mediocrity.
Article 335 lays down the ideal of 'efficiency of administration'.
This article should be treated not only as a 'directive principle'
but as an 'operative' principle, which means that any move for
reservation in favour of any group should be assessed on the
touchstone laid down in article 335, viz., 'efficiency of
administration.'
The Concept of Other Authority3

An instance of judicial creativity is in the expanding connotation
being given to the term 'other authority1 in article 12. 189 This is
important from the point of view of bodies which fall within the
discipline of fundamental rights. The wider the concept of 'other
authority' the wider the coverage of fundamental rights.
According to article 12, 'State' includes government, legislature
and all local and 'other authorities' within the territory of India.
Fundamental rights can be claimed against the 'State'. If the term
'For text of article 12, see supra.

'other authority' is interpreted expansively, the category of bodies

brought within the discipline of fundamental rights also increases.
In course of time, the Supreme Court has developed the thesis
that any body, statutory, non-statutory, administrative, quasi-
judicial, which can be characterized as an 'instrumentality' of
the government, can be regarded as an 'authority' under article
12. Thus, not only a government department, but even an
instrumentality of the government is subject to fundamental
rights. In course of time, more and more bodies have been held
to be authorities within the meaning of article 12.
The new judicial trend of expanding the significance of
'authority' may be said to have started with Ajay Hasta v
Khalid Mujib,190 where a registered society managing the regional
engineering college in the state of Jammu and Kashmir, which
was sponsored by the Government of India, was held to be an
'authority5 under article 12. Bhagwati, J, delivering the opinion of
the court, explained the position as follows:
The constitutional philosophy of a democratic socialist republic
requires the Government to undertake a multitude of socio-economic
operations and the Government, having regard to the practical
advantages of functioning through the legal device of a corporation
embarks on myriad commercial and economic activities by resorting
to the instrumentality or agency of a corporation, but this contrivance
of carrying on such activities through a corporation cannot exonerate
the Government from implicit obedience to the Fundamental Rights.
To use the corporate methodology is not to liberate the government
from its basic obligation to respect Fundamental Rights and not to
override them. The mantle of a corporation may be adopted in order
to free the Government from the inevitable constraints of red-tapism
and slow motion but by doing so, the Government cannot be allowed
to play truant with the basic human rights. Otherwise it would be the
easiest thing for the Government to assign to a plurality of
corporations almost every state business, such as Post and Telegraph,
TV and Radio, Rail, Road and Telephones—in short every economic
activitiy—and thereby cheat the people of India out of the
Fundamental Rights guaranteed to them.191
In Ajay Hasta and several other cases, the court has
sought to lay down the tests to adjudge whether a body is an
instrumentality of the government. To be characterized as an
instrumentality, the body in question should fulfil two basic tests:
190
AIR 1981 SC 487.
191
Ibid. at 493.
(1) funding, and (2) control. The two questions to be asked are:
Does the government foot a substantial part of the bill for the
operations of the body in question? Does the government exercise
effective and pervasive control over it? The structure of the body
in question does not matter: it may be statutory or non-statutory;
it may be set up by or under an Act of the legislature, or even
administratively; it may be a registered society, a cooperative-
society or a government company. It does not matter whether
it has been set up initially by the government or private
enterprise; nor what functions it discharges, governmental, semi-
governmental, educational, commercial, banking, social service.
So long as it can be characterized as an 'instrumentality' of the
government, it falls within the purview of article 12 as an
authority. Several significant incidents invariably follow:
1. It becomes subject to the discipline of fundamental rights,
which means that its actions and decisions can be challenged
with reference to fundamental rights.
2. It becomes subject to the discipline of administrative law.
3. It becomes subject to the writ jurisdiction of the Supreme
Court under article 32 and that of the high courts under
article 226.
In course of time, the Supreme Court has been expanding the
horizon of the expression 'other authority' in article 12. This has
been done with a view to inject respect for human rights and
social conscience in the corporate structure. 192 In giving an
192
Some of the bodies characterized as 'authority' for the purposes
of article 12 are: The Children Aid Society—Sheela Barse v Secretary,
Children Aid Society AIR 1987 SC 656. Nationalized Banks—Hyderabad
Commercials v Indian Bank AIR 1991 SC 247. Rajasthan Electricity
Board—DCM Ltd v Assistant Engineer, Rajasthan State Electricity Board,
Kota AIR 1988 Raj 64. International Airport Authority—Ramana
Dayaram Shetty v Inter-national Airport Authority AIR 1979 SC 1628.
Indian Council of Agricultural Research—P.K. Ramachandra Iyer v Union
of India AIR 1984 SC 541. Oil and Natural Gas Commission—Oil and
Natural Gas Commission v Association of NGC Industries of Gujarat AlR
1990 SC 1851. Hyderabad Stock Exchange Ltd—Rakesh Gupta v
Hyderabad Stock Exchange AIR 1996 AP 413. The Council for the Indian
School Certificate Examinations, a society registered under the Societies
Registration Act—Vibhu Kapoor v Council of ISC Examination AIR 1985
Del 142. The list is illustrative and not exhaustive.
expansive interpretation to the term 'other authority' in article 12,

the court is discharging its protective role, 193 i.e. to protect the
fundamental rights from being nullified by the government
adopting the expedient of setting up various types of bodies to
carry on such functions which otherwise would have been carried
on by itself. As the Supreme Court emphasized in Som Prakash,194
the contrivance of carrying on business activities by the State
'through statutory corporations, government companies and other
bodies with legal personality, simplifies and facilitates transactions
and operations beyond the traditional and tardy processes of
governmental desks and cells noted for their red tape', but the use
of corporate methodology 'is not to liberate the State from its
basic obligation' to obey fundamental rights. Otherwise, a
plurality of corporations can take over all activities and eclipse
fundamental rights completely. Iyer, J, observed in Som Prakash:
It is dangerous to exonerate corporations from the need to have
constitutional conscience: and so, that interpretation, language permit
ting, which makes governmental agencies, whatever their mien,
amenable to constitutional limitations must be adopted by tine court
as against the alternative of permitting them to flourish as an
impenum in imperio.
Holding a body as an 'authority' under article 12 means that

its actions can be monitored vis-a-vis the fundamental rights. This
protects the people from arbitrary actions of these bodies. 196 The
actions of such a body have to be just, fair and reasonable.197
Award of Compensation-Articles 32 and 226

Under article 32, the Supreme Court can issue writs, directions
and orders for the enforcement of fundamental rights. 198 Under
article 226, the high courts can issue writs, orders and directions
for enforcement of fundamental rights or for any other purpose.
193
See supra, under 'Supreme Court as Guardian of Fundamental Rights'.
l94
Som Prakash v Union of India AIR 1981 SC 212.
195
Ibid. at 230.
196
See supra, under article 14.
l97
Mahesh Chandra v Regional Manager, UP Financial Corpn AIR 1993
SC 935. See also supra, under article 14.
198
For the text of article 32, see supra.
The Supreme Court has characterized the jurisdiction conferred

on it by article 32 as 'an important and integral part of the basic
structure of the Constitution' because it is meaningless to confer
fundamental rights without providing an effective remedy for
their enforcement, if and when they are violated. Ά right without
a remedy is a legal conundrum of a most grotesque kind.' Article
32 confers a highly cherished right. 199
In course of time, the Supreme Court has given a dynamic
interpretation to these constitutional provisions and has read
therein the right to award compensation for breach of a
fundamental right when no other remedy was suitable in the fact
situation to give redress and relief to the petitioner. It may be
noted that the word compensation, as such, does not occur in
articles 32 or 226. These articles merely speak of 'writs, orders or
directions' for the enforcement of fundamental rights. Before
1983, the court refused to award monetary compensation under
article 32 for violation of a fundamental right. A separate suit had
to be filed for the purpose. Over the years, the Supreme Court
has, by its dynamic interpretation, introduced the concept of
compensation in both these articles. This, indeed, is a major
contribution made by the court towards the protection of
fundamental rights against undue interference by administrative
authorities, as situations may arise when only compensation can
provide some relief to the affected person; no writ or order could
fill the bill, as the following discussion will show.
In Khatri v Bihar200 (popularly known as the Bhagalpur
blinding case), the Bhagalpur police had blinded certain accused
persons. In this case, the Supreme Court for the first time raised
the extremely significant constitutional question, namely, if the
State deprives a person of his life or personal liberty in violation
of the right guaranteed by article 21, can the Supreme Court
under article 32 give monetary compensation to the aggrieved.
Bhagwati, J, stated, 'Why should the court not be prepared to
forge new tools and devise new remedies for the purpose
of vindicating the most precious of the precious fundamental
right to life and personal liberty' 201 The question involved the
^"Fertilizer Corporation Kamgnr Union v Union of India AIR 1981 SC
344.
200
Supra, note 79, at 1068.
201
Ibid. at 930.
'exploration of a new dimension of the right to life and personal

liberty 3 . 202 An important question considered by the court in
Khatri was: would the State be liable to pay compensation for acts
of its servants outside the scope of their power and authority
affecting the life or personal liberty of a person and thus
infringing article 21? The court answered in the affirmative,
saying that othewise article 21 would be reduced to a nullity, 'a
mere rope of sand' for 'on this view, if the officer is acting
according to law there would be no breach of article 21 and if he
is acting without the authority of law, the State would be able to
contend that it is not responsible for his action and therefore there
is no violation of article 2Γ. 2 0 3
In Khatri> the court was thinking aloud without taking a
decisive stand on the question. But, since then, the court has
accepted the position that compensation could be awarded under
articles 32 and 226 for infringement of the fundamental right to
life and personal liberty. Thus, in Rudul Shah v State of Bihar,204
which was an extreme case of administrative laxity, the court in
a writ petition for habeas corpus, awarded damages of Rs 35,000
against the state for breach of the petitioner's right of personal
liberty because he was kept in jail for fourteen years after his
acquittal by a criminal court. The court commented that the facts
in the instant case revealed 'a sordid and disturbing state of affairs'
for which the responsibility was squarely on the administration.
The question before the court was whether it could grant some
compensation under article 32 for wrongful confinement. Under
the traditional approach,the court would have issued habeas corpus
releasing him from the prison, leaving him free to file a civil suit
for compensation against the State for wrongful confinement. But
considering that there were innumerable difficulties in the way of
a suitor filing such a suit, and that if it refused to pass an order
of compensation in favour of the petitioner, 'it will be doing
merely lip service to the fundamental right to liberty which the
State Government has so grossly violated', the court decided in
favour of awarding compensation. The court went on to observe:
''Sec supra, section on article 21.

s
Supm, note 200.
'AIR 1983 SC 1086.
... one of the telling ways in which the violation of that right can
reasonably be prevented and due compliance with the mandate of
article 21 secured, is to mulct the violators in the payment of
monetary compensation. Administrative sclerosis leading to flagrant
infringements of fundamental rights cannot be corrected by any other
method open to the judiciary to adopt. The right to compensation is
some palliative to the unlawful acts of instrumentalities which act in
the name of public interest and which present for their protection the
powers of the State as a shield.... It is necessary to educate ourselves
into accepting that respect for the rights of individuals is the true
bastion of democracy.205
Rudul Shah denotes a bold departure from the legal position
prevailing till then. But alarming situations call for new strategies
and methods to solve them. As protector of fundamental rights,
it is incumbent on the Supreme Court to provide an effective
remedy in case these rights are violated. In Rudul Shah, the
petitioner's right to personal liberty was grossly violated for as
long as fourteen years he was kept in jail after he had been
acquitted by the court. He was released only when a petition for
writ of habeas corpus was moved on his behalf. If the court had
allowed legal technicalities to prevail, it would have amounted
to surrender by the court to the State's lawlessness, showing
indifference to the personal liberty of the individual and his
immense sufferings, certainly not contemplated by the makers of
the Constitution. The court is thus obligated to mould the tools
at its disposal to deal with such dangerous situations, and not
retreat behind the shelter of self-imposed limitations evolved by it
for certain purposes. The Supreme Court bypassed the traditional
approach (namely, suit for recovery of damages) and awarded
compensation to the petitioner in a writ petition. Since Rudul
Shah, there have been several cases of awarding compensation for
infringement of article 21.
In Sebastian M. Hongray v Union of India206 the Supreme
Court by a writ of habeas corpus required the Government of India
to produce two persons before it who had been earlier taken away
to the military camp by army jawans. The government expressed
its inability to produce these persons before the court. The court
found the government explanation untenable and incorrect. The
205
Ibid. at 1089.
206
AIR 1984 SC 1026.
truth was that these persons had met an unnatural death. In the
circumstances, and keeping in view the torture, agony and mental
oppression that had been undergone by their wives, the court
directed the government to pay a sum of rupees one lakh to each
of the two widows, 'as a measure of exemplary costs as is
permissible in such cases'. In this case, the court camouflaged
compensation as 'exemplary costs'. But, in later cases, the
court has been more forthcoming and has openly awarded
compensation for breach of article 21. For example, in Oraon v
State of Bihar,207 the court awarded Rs 1,50,000 as compensation
to an undertrial who was detained in a lunatic asylum for six years
after he had been certified to be fit for discharge.
The Supreme Court has stated in CERC v Union of India,208
that in public law claim for compensation is a remedy available
under articles 32 or 226 for the enforcement and protection of
fundamental rights.
It is a practical and inexpensive mode of redress available for the
contravention made by the state, its servants, its instrumentalities, a
company or a person in the purported exercise of their powers and
enforcement of the rights claimed either under the statutes or licence
issued under the statute or for the enforcement of any right or duty
under the Constitution or the law.209
Thus, the right to compensation has been extended to any breach
of a person's right which may not be a fundamental right.
Compensation has been awarded in many cases to the victims, or
their kith and kin, for police brutality or atrocities or harassment.210
207
Supreme Court judgement dated 12 August 1983; Hindustan Times,
13 August 1983.
208
AIR 1995 SC 922, 941.
209
Also see Nilabati Behera, supra, note 179; D.K. Base v State of West
Bengal, supra, note 82.
2
See for example, People's Union for Democratic Rights v Police
Commissioner, Delhi (1989) 4 SCC 730; Malkiat Singh v State of UP
(1998) 6 SCC 351; Kartar Singh, supra, note 179; Neelabati Bahera,
supra, note 179; Inder Singh v State of Punjab (1994) 6 SCC 275; Pmtul
Kumar Singh v State of Bihar (1994) Supp (3) SGC 100; State ofMadhya
Pradesh v Shyamsunder Trivedi (1995) AIR SCW 2793; Murti Devi v
State of Delhi (1998) 9 SCC 604; D.K. Bose, supra, note 82; see supra,
notes 81, 82, and 85.
Integration of Fundamental Bights and

Directive Principles
The directive principles, contained in Part IV of the Constitution
(articles 36-51), were designed to usher in a social and economic
revolution in the country. Nevertheless, while the fundamental
rights have been made enforceable,211 directive principles have
been specifically made unenforceable by article 37, which states:
The provisions contained in this part shall not be enforceable by
any court, but the principles therein laid down are nevertheless funda
mental in the governance of the country and it shall be the duty of the
state to apply these principles in making laws.
To begin with, the Supreme Court, adopting the literal inter
pretative approach to article 37 ruled that fundamental rights take
precedence over directive principles. In Champakam212 the court
took the view that the fundamental rights are pre-eminent vis-a
vis directive principles. Das, CJ, speaking for the court observed:
...the Directive Principles of State Policy, which by article 37 are
expressly made unenforceable by a court cannot override the provisions
found in Part III which, notwithstanding other provisions, are
expressly made enforceable by appropriate writs, orders or directions
under article 32. The chapter on fundamental rights is sacrosanct and
not liable to be abridged by any Legislative or Executive act or order,
except to the extent provided in the appropriate article in Part III. The
Directive Principles of State Policy have to conform to and run as
subsidiary to the chapter on fundamental rights.213
But since then, and especially after 1973, there has been a
perceptible change in the judicial attitude on this question.
Glimpses of this change were discernible as early as 1958 when
in In re the Kerala Education Bill214 Das, CJ, while affirming the
primacy of fundamental rights, qualified the same by pleading for
a harmonious interpretation of the two. He observed:
Nevertheless, in determining the scope and ambit of the fundamental
rights relied on by or on behalf of any person or body, the Court may
not entirely ignore these Directive Principles of State Policy laid down
211
See article 13, supra.
n2
State of Madras v Champakam Dorairajan AIR 1951 SC 226.
213
Ibid. at 228.
214
AIR 1958 SC 956, at 966-7.
in Part IV of the Constitution but should adopt the principle of

harmonious construction and should attempt to give effect to both as
much as possible.215
In 1970, in Chandra Bhavan, the court made a more explicit
statement on the nature of relationship between the fundamental
rights and directive principles: 'we see no conflict on the whole
between the provisions contained in Part III and Part IV They
are complementary and supplementary to each other.' 216 Since
then, the judicial attitude has become more affirmative towards
directive principles. Now both fundamental rights and directive
principles have come to be regarded virtually as co-equal,
supplementary to each other. As was observed by Hegde and
Mukherjea, JJ, in Kesavananda Bharati: 'the fundamental rights
and directive principles constitute the "conscience of the
Constitution".... There is no antithesis between the fundamental
rights and directive principles ... and one supplements the
other.' 217 In State of Kerala v N.M. Thomas11* the court held
that the directive principles and fundamental rights should be
construed in harmony with each other and every attempt should
be made by the court to resolve any apparent inconsistency
between them.
In Pathumma v State ofKerala219 the court said that the purpose
of the directive principles is to fix certain socio-economic goals
for immediate attainment by bringing about a non-violent social
revolution. In Minerva Mills, Chandrachud, CJ, said: 'Those
rights [fundamental rights] are not an end in themselves but are
the means to an end. The end is specified in Part IV' 2 2 0 In Unni
Krishnan, Jeevan Reddy, J, said that 'the provisions of Part III and
IV are supplementary and complementary to each other,' ana not
exclusionary of each other and that the 'Fundamental Rights are
but a means to achieve the goal indicated in Part IV'. 2 2 1 In
Pramod Bhartiya, it was held that 'Fundamental Rights must be
215
Ibid.
11(3
Chandra Bhavan Boarding and Lodging, Bangalore v State of Mysore
AIR 1970 SC 2042 at 2050.
217
AIR 1973 SC 1461 at 1641.
218
AIR 1976 SC 490.
2I9
AIR 1978 SC 771.
110
Minerva Mills v Union of India AIR 1980 SC 1789 at 1806-7.
22l
Supm, note 102, at 2230.
construed in the light of the directive principles'.222 It has now

become a judicial strategy to read fundamental rights along with
directive principles with a view to define the scope and ambit of
the former. Mostly, the directive principles have been used to
broaden, and to give depth to or to create more rights for the
people over and above those expressly stated in Part III of the
Constitution.
Equal Pay for Equal Work

The approach of equal pay for equal work was taken by the
Supreme Court to expand the scope of such fundamental rights as
articles 14 and 21 and give them a great depth and dimension. 223
For example, in Randhir Singh, the court expounded the
principle of 'equal pay for equal work' by reading articles 14 and
16 with the directive principle contained in article 39(d). This
means that people working under the same employer ought to get
the same scales of pay for doing identical work. The court has
ruled that the principle of equal pay for equal work is not an
abstract doctrine but one of substance. Though the principle is
not expressly declared by the Constitution to be a fundamental
right it is certainly a constitutional goal set forth by article
39(d). 225 The principle is applicable properly to cases of unequal
scales of pay based on no classification or irrational classification
though persons with different scales of pay do identical work
under the same employer.226 In Randhir Singh, the petitioner was
a driver constable in the Delhi Police Force under the Delhi
Administration. His contention was that his scale of pay should
at least be the same as that of other drivers in the service of
the Delhi Administration. Accepting his plea, the court made
the following comment on the fact-situation in this case (per
Chinnappa Reddy, J):
222
State ofMadhya Pradesh v Pramod Bhartiya AIR 1993 SC 286.
223
See supra, section on 'Implied Fundamental Rights'.
224
Randhir Singh v Union of India AIR 1982 SC 879.
225
Article 39 says: 'The State shall, in particular, direct its policy
towards securing... (d) that there is equal pay for equal work for both
men and women.'
226
Also see P.K. Ramachandra Iyer v Union of India AIR 1984 SC 541;
Bhagwan v State ofHaryana AIR 1987 SC 2049, Jeet Singh v MCD AIR
1987 SC 1781.
Hitherto the equality clauses of the Constitution, as other articles of

the Constitution guaranteeing fundamental and other rights, were
most often invoked by the privileged classes for their protection and
advancement and for a 'fair and satisfactory' distribution of the
buttered amongst themselves. Now, thanks to the rising social and
political consciousness and the expectations roused as a consequence,
and the forward looking posture of this Court, the under privileged
also are clamouring for their rights and are seeking the intervention of
the Court with touching faith and confidence in the Court.227
The court went on to say:
To the vast majority of the people in India the equality clauses of the
Constitution would mean nothing if they are unconcerned with the
work they do and the pay they get. To them the equality clauses will
have some substance if equal work means equal pay.
Thus, where all things are equal, persons holding identical
posts may not be treated differently in the matter of their pay
merely because they belong to different departments. 228 It may be
noted that earlier in Kishori Mohanlal Bakshi v Union of India229
the court had ruled that the abstract doctrine of equal pay for
equal work had nothing to do with article 14. Obviously, this
view has undergone a change in course of time, as reflected in
what the court stated in Alvaro in 1999:
The principle of 'equal pay for equal work' has gained judicial
recognition. The principle incorporated in article 14 when understood
from the angle provided in article 39(d) of the Constitution is held to
be the recognition of the aforesaid doctrine.230
Bonded Labour
In Bandbua Mukti Morcha23i the Supreme Court read article 21
with such directive principles as articles 39(e) and 39(f) and
2Z7
Supra, note 224.
228
The principle of equal pay for equal work was reiterated in: P. Savita
v Union of India AIR 1985 SC 1124; Dhirendra Chamoli v State ofUttar
Pradesh (1988) 1 SCC 637; Surinder Singh v Enaineer-in-Chief CPWD
(1986) 1 SCC 639; Grih Knlyan Kendra Workers'' Union v Union of India
AIR 1991 SC 1173.
229
AIR 1962 SC 1139.
2io
Alvaro Noronha Ferreira v Union of India AIR 1999 SC 1356 at
1358.
2n
Supm, note 54.
articles 41 and 42 to secure the release of bonded labour and free

them from exploitation. The court observed: 'This right to live
with human dignity enshrined in article 21 derives its life breath
from the Directive Principles of State Policy and particularly
clauses (e) and (f) of article 39 and articles 41 and 42.' 2 3 2
Education
Basing itself on directive principles contained in articles 4 1 , 45
and 46, the Supreme Court has held that article 21 guarantees
right to education because of the fundamental significance of
education to the life of an individual and of the nation. As was
observed in Unni Krishnan: 'The right to education which is
implicit in the right to life and personal liberty guaranteed by
article 21 must be construed in the light of the Directive
Principles in Part IV of the Constitution.' 2 This meant that the
court restricted the content of the right to education to the extent
of fulfilling articles 4 1 , 45 and 46. Therefore, instead of obligating
the State to provide education up to any level (medicine,
engineering, etc.) as was sought to be done in Mohini Jain23i the
court in Unni Krishncm confined the State obligation to providing
free education till the age of 14, taking into consideration the
'content and parameters' of articles 45 and 41. 2 3 5
Ecology
By reading together articles 2 1 , 47 and 48A, 236 the Supreme
Court has been able to take cognizance of problems arising out
of environmental pollution. 237 Reading article 21 with articles 41
and 47, the court has imposed on the State an obligation to
secure health to its citizens as its primary duty.238 The court has
232
Ibid. at 811.
2ii
234
In Mohini Jain, supra, note 104, the court obligated the State 'to make
an endeavour to provide educational facilities at all levels to its citizens'.
235
Murlidhar Dayandeo Kesekar v Vishwanath Barde (1995) Supp (2)
SCC 549.
236
Article 48A says: 'The State shall endeavour to protect and improve
the environment and to safeguard the forests and wild life of the country.'
237
See supra, note 117.
23&
Supra, note 174.
emphasized that the core of the commitment of the Constitution

to social revolution through the rule of law lies in effectuation of
the fundamental rights and directive principles as supplementary
and complementary to each other. The preamble, fundamental
rights and directive principles—the trinity—are the conscience of
the Constitution. 239
Free Legal Aid

Article 39A, a directive principle, obligates the State to secure
that the operation of the legal system promotes justice, on a basis
of equal opportunity, and shall, in particular, provide free legal
aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities. Article
39A stresses legal justice. Put simply, the directive principle
requires the State to provide free legal aid to deserving persons so
that justice is not denied to anyone merely because of economic
disability.
The Supreme Court has emphasized, interpreting article 21 in
the light of article 39A, that legal assistance to a poor or indigent
accused who is arrested and put in jeopardy of his life or personal
liberty is a constitutional imperative mandate not only by article
39A but also by articles 14 and 21. In the absence of legal
assistance, injustice may result. Every act of injustice corrodes the
foundations of democracy.240 The court has ruled that it cannot
issue a mandamus to enforce article 39A. Article 39A makes it
clear that the social objective of equal justice and free legal aid has
to be implemented by suitable legislation or by formulating
schemes for free legal aid.241 Although the mandate in article 39A
is addressed to the legislature and the executive, as the courts
can indulge in some 'judicial law-making within the interstices of
the Constitution or any statute before them for construction', the
courts too are bound by this mandate.
239
State of Punjab v Ram Lubhaya Bagga AIR 1998 SC 1703. Also see
supra, note 109. Dalmia Cement (Bharat) Ltd v Union of India (1996) 10
SCC 104.
2
*°Sheela Barse, supra, note 79. On 'Free Legal Aid', also see supra, notes
90-4.
m
Ranjan Dwivedi v Union of India AIR 1983 SC 224.
The court has exhorted the central and state governments

to introduce a comprehensive legal service programme in the
country. In Khatri, the court emphasized that the state govern
ments cannot avoid their constitutional obligation to provide free
legal service to the poor accused by pleading financial or
administrative incapability. The court further emphasized in
Khatri that it is the legal obligation of the judge or the magistrate
before whom the accused is produced to inform him that if he is
unable to engage a lawyer because of poverty or indigence, he is
entided to obtain free legal services at the cost of the State. This
precaution is necessary; otherwise the right to free legal services
would be illusory, for most people, being illiterate would not
know that they are entitled to free legal aid. If it were left to the
poor and illiterate accused to ask for free legal services then
'legal aid would become a paper promise and it would fail in its
purpose. Legal aid would be an idle formality if it was to depend
upon a specific application by such poor or ignorant person for
such legal assistance.'243 In Suk Das v Union Territory of Arunacbal
Pradesh?** the conviction of the appellant was quashed by the
Supreme Court because the accused remained unrepresented by a
lawyer and so the trial became vitiated on account of a fatal-
constitutional infirmity.
The court has emphasized that the obligation to provide free
legal service to a poor accused arises not only when the trial
begins but also when he is for the first time produced before the
magistrate because it is at this stage that the accused gets his first
opportunity to apply for bail and obtain his release as also to
resist remand to police or jail custody and therefore, the accused
needs competent legal advice and representation at that stage. The
accused can also claim free legal aid after he has been sentenced
by a court, but is entitled to appeal against the verdict.245
In Ranjan Dwivedi,2*6 the court took a significant step to make
free legal aid effective and not merely formal. Under the rules of
242
Supm, note 79.
243
Also see Kishore Chand v State of Himachal Pradesh AIR 1990 SC
2140.
244
AIR 1986 SC 991.
24S
Khatri, supra, note 79.
246
Supra, note 241.
the Delhi High Court at the time a daily fee of Rs 24 a day was
payable to a lawyer appearing as amicus curiae. Ranjan argued that
for such a paltry fee, no lawyer of standing would appear. The
prosecution was being conducted by senior lawyers and áo Ranjan
argued that as a matter of processual fair play, the State should
provide him with a counsel on the basis of equal opportunity. The
Supreme Court, accordingly, quantified the fee payable at Rs 500
a day to the senior counsel and Rs 350 per day for junior counsel
for representing the petitioner. However, provision for free legal
aid is subject to the following rider:
The only qualification would be that the offence charged against the
accused is such that, on conviction, it would result in a sentence of
imprisonment and is of such a nature that the circumstances of the
case and the needs of social justice require that he should be given free
legal representation. There may be cases involving offences such as
economic offences or offences against law prohibiting prostitution or
child abuse and the like, where social justice may require that free
legal services need not be provided by the state.247
Adoption of Children
Reading articles 15(3), 24, 39(e) and 39(f) together, the Supreme
Court laid emphasis in Lakshmi Kant Pandey v Union of India on
the health and welfare of the children on which depends the
welfare of the entire community. Referring to these articles, the
court stated: 'The constitutional provisions reflect the great anxiety
of the Constitution makers to protect and safeguard the interests
and welfare of children in the country' The court also took the
opportunity of laying down guidelines for adopting Indian
children by foreign parents as there exists no law to regulate the
matter. The court emphasized that the primary purpose of giving
child in adoption is the welfare of the child himself.
Pension
In D.S. Nakara v Union of India,249 the Supreme Court gave
relief to government pensioners. The government announced a
2i7
Khatri, supra, note 79 at 931-2. Also see Sheela Burse, supra note 79.
248
AIR 1984 SC 469.
249
AIR 1983 SC 130.
liberalized pension scheme applicable to government servants

who had retired after 31 March 1979. The court ruled this to be
discrimination and applied the scheme even to those who had
retired before 31 March 1979. The court invoked articles 14,
38(i), 39(e), 39(d), 41 and 43(3) and evoked the word 'socialist5
in the preamble to the Constitution to reach this result. The court
emphasized that the State action must be directed towards
attaining the goal of the directive principles so as to set up a
welfare state in India. The main aim of a socialist state is to
eliminate inequality in income, status and standards of life. In old
age, socialism aims at providing economic security to those who
have rendered unto society what they were capable of doing when
they were fully equipped with their mental and physical prowess.
Article 41 enjoins the State to ensure a reasonably decent standard
of life, medical aid, freedom from want, freedom from fear and
enjoyable leisure, relieving the boredom and the humility of
dependence in old age. The court ruled apropos article 14 that all
pensioners form one class for the purpose of revision of pension
and the division of pensioners into two classes on the basis of the
date of retirement was not based on any discernible rational
principle because a difference of two days in retirement could
have a traumatic effect on the pensioner. Such a division was
arbitrary and unprincipled as there was no acceptable or
persuasive reason in its favour, and hence was invalid under article
14. The court, therefore, applied the liberal formula to all
pensioners irrespective of the date of their retirement.
The instant judgement is closely interlaced with considerations
of socio-economic justice and welfare. The court's basic approach
was that the pensioners in their old age should be able to live at
a standard equivalent to the pre-retirement level. As the court said
graphically, 'We owe it to them and ourselves that they live, not
merely exist.' The court was influenced by the fact that 'the old
men who retired when emoluments were comparatively low' were
now 'exposed to vagaries of continuously rising prices' and 'the
falling value of the rupee consequent upon inflationary inputs'.
In another case,250 the court stated that pension is a right, not
a bounty or gratuitous payment. The payment of pension does
not depend on the government's discretion but is governed by the
'Poonnmal v Union of India AIR 1985 SC 1196.

relevant rules, and anyone entitled to pension under the rules can
claim it as a matter of right.
Distributive Justice
Article 46 obligates the State to promote with special care the
educational and economic interests of the weaker sections of the
people, and, in particular, of the Scheduled Castes and the
Scheduled Tribes, and to protect them from social injustice and all
forms of exploitation. Article 46 supplements articles 15(2),
15(4), 16, 17 and 25(2).
The Maharashtra Legislature passed an Act prohibiting
alienation of agricultural lands by members of the Scheduled
Tribes to persons not belonging to the Scheduled Tribes, which
was held valid by the Supreme Court. 251 During the course of
its opinion in the instant case, the court expounded the doctrine
of distributive justice. The Act was held to be an example of
distributive justice which, according to the court, means, inter alia,
the removal of economic inequalities and rectifying the injustice
resulting from dealings or transactions between unequals in
society. The court has emphasized that law should be used as an
instrument of distributive justice to achieve a fair division of
wealth amongst members of society based upon the principle:
from each according to his capacity, to each according to his needs.
The court explained the concept of distributive justice as follows:
Distributive justice comprehends more than achieving lessening of
inequalities by differential taxation, giving debt relief or distribution
of property owned by one to many who have none by imposing
ceiling on holdings, both agricultural and urban, or by direct
regulation of contractual transactions, by forbidding certain trans
actions, and, perhaps, by requiring others. It also means that those
who have been deprived of their properties by unconscionable
bargaining should be restored their property.252
Judicial Empathy with the Poor

A remarkable feature of many judicial pronouncements of the
Supreme Court is its pronounced empathy with the cause of the
m
Lingappa Pochanna v State of Maharashtra AIR 1985 SC 389.
252
Ibid. at 398.
poor. This trend in judicial thinking reveals itself in such opinions

of the court as the Bandhua Mazdoor253 Asiad254 and forced
labour.255 The concern for the poor also emerges clearly from the
court's opinions in cases dealing with the administration of
criminal justice. 256 A few more instances of such judicial attitude
may be cited here.
In State ofHaryana v Darshana Devi257 the plaintiff's husband
was killed in an accident with the state transport bus. The high
court allowed the widow to sue for compensation in forma
pauperis, but the state objected to this and came in appeal before
the Supreme Court against the high court order. Rebuking the
State for appealing against the high court order, the Supreme
Court observed:
[T]he Haryana Government, instead of acting on social justice and
generously settling the claim, fights like a cantankerous litigant even
by avoiding adjudication through the device of asking for court fee
from the pathetic plaintiffs.258
The court emphasized that the government had forgotten its
obligation under article 41 to render assistance, without litigation
in case of disablement and undeserved want.
The court has taken occasion to comment adversely on the
obstructionist, dilatory, rigid and unhelpful attitude often adopted
by government agencies in matters of litigation with the people,
especially in the matter of paying compensation for their own
negligent actions. The court has often commented in trenchant
terms on the lack of display of social consciousness and sense of
responsibility by public undertakings towards the very people
whom they feign to serve. In Rajastban SRTC2S9 a state transport
bus was involved in an accident in which many passengers lost
their limbs. The undertaking put forward a flimsy plea to escape
its liability but the claims tribunal rejected it and awarded
2Si
Supra, note 54.
2Si
Supm, note 50.
255
Supra, note 51.
256
Supm, notes 73-87.
257
AIR 1979 SC 853.
258
Ibid. at 856.
259
Rajasthan State Road Transport Corporation, Jaipur v Narainshankar
AIR 1980 SC 695.
compensation to the injured. The undertaking appealed to the

Supreme Court against the tribunal's verdict. The court adversely
commented on the behaviour of the undertaking in the following
words:
... one should have thought that nationalisation of road transport
would have produced a better sense of social responsibility on the part
of the management and the drivers. In fact, one of the major purposes
of socialisation of transport is to inject a sense of safety, accountability
and operational responsibility which may be absent in the case of
private undertakings, whose motivation is profit making regardless
of risk to life; but common experience... discloses callousness
and blunted consciousness on the part of public corporations which
acquire a monopoly... in plying buses.260
The court reminded the State that under article 4 1 , it has a
paramount duty, apart from liability for tort, to make effective
provision for disablement in cases of undeserved want.
The undertaking also contested the quantum of compensation
awarded by the tribunal, but the court rejected the challenge with
the remark that the awards were modest and Indian life and limb
cannot be treated as cheap at least by the State and its
undertakings. Any number of such statements showing deep
empathy with the poor can be culled out from the case-law.
Public Interest Litigation

A right without a remedy does not have much substance.
Whatever rights may be conferred on the poor by the
Constitution or by law, these rights cannot help the poor much
as they are not able to enforce them through court action because
being poor and illiterate they lack the resources to undertake the
dilatory and costly court action. A signal achievement of the
judiciary is to correct this inherent flaw in judicial procedure by
developing the mechanism of public interest litigation. For this
purpose, the Supreme Court has given an extensive interpretation
to articles 32 and 226 of the Constitution. 261
As already noted, article 32(1) guarantees the right to move
the Supreme Court, by appropriate proceedings, for the
260
Ibid. at 695-6.
261
See supra, section on 'Award of Compensation'.
enforcement of the fundamental rights enumerated in the

Constitution. For this purpose, article 32(2) empowers the court
to issue appropriate directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo
warranto, and certiorari. Article 32 is a fundamental right in
itself. Article 32 provides a guaranteed, quick and summary
remedy for enforcing the fundamental rights because a person can
go straight to the Supreme Court without having to undergo the
dilatory process of proceeding from the lower to the higher court
as he has to do in other ordinary litigation. The Supreme Court
has thus been constituted into the protector and guarantor of the
fundamental rights. Under article 32, the court enjoys a broad
discretion in the matter of framing the writs to suit the exigencies
of the particular case and it would not throw out the application
of the petitioner simply on the ground that the proper writ or
direction has not been prayed for.262 The court's power is not
confined to issuing writs only; it can make any order, including
even a declaratory order, or give any direction, as may appear to
it to be necessary to give proper relief to the petitioner.263 The
court would not refuse to entertain a petition based on article 32
merely on the ground that it involves the determination of
disputed questions of fact.
Once the court is satisfied that the petitioner's fundamental
rights have been infringed, it is not only its right but also its duty
to afford relief to the petitioner. We need not establish either that
he has no other adequate remedy, or that he has exhausted all
remedies provided by law, but has not obtained proper redress.
When the petitioner establishes infringement of his fundamental
rights, the court has no discretion but to issue an appropriate writ
in his favour.264
N o action lies in the court under article 32 unless there is an
infringement of a fundamental right. 265 As the Supreme Court has
emphasized: 'The violation of a fundamental right is the sine qua
162
Chiranjit Lai v Union of India AIR 1951 SC 41.
263
Kochunni v State of Madras AIR 1959 SC 725, 733.
264
Daryao v State of Uttar Pradesh AIR 1961 SC 1457; Kochunni, ibid.
Kharak Singh, supra, note 152.
165
Andhra Industrial Worh v Chief Controller of Imports AIR 1974 SC
1539.
non of the exercise of the right conferred by Article 32. On the

other hand, article 226 is broader in scope than article 32. Under
article 226, a high court is empowered to issue a writ, order or
direction for the enforcement of any fundamental right or 'for any
other purpose'. The words 'For any other purpose' found in article
226 (but not in article 32) enable a high court to take cognizance
of any matter even if no fundamental right is involved.
Ordinarily the principle followed for filing petitions under
articles 32 and 226 is that a person whose legal right is unduly
affected can move the court for the enforcement of his right. This
rule of standing (locus standi) created at least two problems,
namely, (i) how to enforce 'diffused' public rights which vest not
in one person but in a multitude of persons; and (ii) how to
enforce the rights of the poor who did not have the knowledge
and the wherewithal to come to the courts to enforce their rights.
To minimize these problems, the Supreme Court has pioneered
the development of the procedure by way of public interest
litigation (PIL). 267
S.P. Gupta v Union of India,™ decided by the court in 1982,
is regarded as the precursor of PIL in India. Several petitions
were filed by advocates practising in various high courts under
article 226, raising some significant questions concerning the
independence of high court judges. The Supreme Court held
these petitions maintainable as the lawyers have a vital interest in
the independence of the judiciary. If by any illegal State action,
the independence of the judiciary is impaired, the lawyers would
certainly be interested in challenging the constitutionality or
legality of such action. Enunciating the broad aspect of PIL,
Bhagwati, J, observed that:
... whenever there is a public wrong or public injury caused by an act
or omission of the State or a public authority which is contrary to the
Constitution or the law, any member of the public acting bonafide and
having sufficient interest can maintain an action for redressal of such
public wrong or public injury.169
166
Fertiuzer Corporation Kamgar Union v India AIR 1981 SC 344.
267
P.N. Bhagwati, 'Judicial Activism and Public Interest Litigation'
(1985) 23 Col. Jl. of Transnational Law 561.
268
AIR 1982 SC 149.
269
Ibid. at 190.
He observed further:
...we would therefore, hold that any member of the public having
sufficient interest can maintain an action for judicial redress for public
injury arising from breach of public duty or from violation of some
provision of the Constitution or the law and seek enforcement of such
public duty and observance of such constitutional or legal
provision.2
Emphasizing the need for PIL, he observed:
If public duties are to be enforced and social collective 'diffused' rights
and interests are to be protected, we have to utilize the initiative and
zeal of public-minded persons and organizations by allowing them to
move the court and act for a general or group interest, even though
they may not be directly injured in their own rights.271
The second problem faced by the court, as mentioned above,
was that while there may be laws to protect and safeguard the
interests of the poor, they cannot take advantage of diese laws as
they are ignorant of their rights and lack resources to undertake
litigation to enforce their rights. PIL got a stimulus when the
Supreme Court enunciated the proposition, showing its empathy
for the poor, that where legal rights of the poor, ignorant,
socially and economically disadvantaged persons are sought to be
vindicated through a court action, the court will permit concerned
persons or voluntary organizations to agitate such matters
before it. A non-political, non-profit, and voluntary organization
consisting of public spirited citizens interested in espousing the
cause of ventilating legitimate public grievance can be permitted
to take the case of the poor who could not themselves seek redress
through the labyrinth of costly and protracted legal and judicial
process. The reason which has moved the Supreme Court of India
to relax the traditional strict locus standi in favour of the weak and
poor is the realization that if this is not permitted, the rights of
the poor will ever remain unredressed as such persons are least
equipped to themselves bring their grievances before the courts;
and such a situation is destructive of the rule of law.
The first most important case in which the question of making
justice accessible to the poor was debated and discussed at length
by the Supreme Court, and foundations for PIL for redressal of
270
Ibid. at 194.
271
Ibid. at 192
the grievances of the poor were laid, is the Asiad case. The
factual context of the case was as follows: To hold the Asian
games, contracts were awarded to contractors for the construction
of several buildings, roads and stadia by the central government,
Delhi government and the Delhi Development Authority. It
transpired that the contractors were not fully observing the labour
laws in respect of the labour employed by them on these works.
The People's Union for Democratic Rights, a voluntary non-
political organization, formed for the purpose of protecting
democratic rights, in a letter to Bhagwati, J, of the Supreme
Court complained of violation of several labour laws by the
contractors. A bench comprising Bhagwati and Bahrul Islam, JJ,
treating the letter as a writ petition under article 32, started
hearings into the complaint. The central government, Delhi
government and the Delhi Development Authority were made the
respondents.
The very first objection raised against the maintainability of
the writ petition was regarding the locus standi of the PUDR. The
complaint was regarding the violation of the labour laws designed
for the welfare of the workmen and, from the traditional point of
view, only the workers themselves whose rights were being
violated, could approach the court for redress. Therefore, the
question was whether PUDR had any locus standi to agitate the
matter on behalf of the workers. Bhagwati, J, speaking for the
court pointed out that the narrow view of standing, a legacy of
the Anglo-Saxon system of jurisprudence, was no longer valid. Ά
new dimension has been given to the doctrine of locus standi
which has revolutionized the whole concept of access to justice.'
To adhere to the traditional view of standing will result in closing
the doors of justice to the poor, deprived and illiterate sections of
the community. Bhagwati, J, said that in modern times, it was
necessary to evolve a 'new strategy' by relaxing the traditional rule
so that justice might become easily available to the lowly and the
lost, and the judicial system was transformed into an instrument
of socio-economic change. He observed:
This Court has taken the view that, having regard to the peculiar
socio-economic conditions prevailing in the country where there
is considerable poverty, illiteracy and ignorance obstructing and
Supra, note 50.

impeding accessibility to the judicial process, it would result in closing

the doors of justice to the poor and deprived sections of the
community if the traditional rule of standing evolved by Anglo-Saxon
jurisprudence that only a person wronged can sue for judicial redress
were to be blindly adhered to and followed and it is therefore
necessary to evolve a new strategy by relaxing this traditional rule of
standing in order that justice may become easily available to the lowly
and the lost.273
Accordingly, he enunciated the following principle:
... that where a person or class of persons to whom legal injury is
caused or legal wrong is done is by reason of poverty, disability or
socially or economically disadvantaged position not able to approach
the court for judicial redress, any member of the public acting bona
fide and not out of any extraneous motivation may move the Court
for judicial redress of the legal injury or wrong suffered by such
person or class of persons and the judicial process may be set in
motion by any public spirited individual or institution even by
addressing a letter to the court.274
In such a situation the court would cast aside all technical rules
of procedure and entertain the letter as a writ petition and take
action on it. Accordingly, PUDR was conceded locus standi to
maintain the writ petition on behalf of illiterate and poor
workers. PUDR is an organization dedicated to the protection of
the fundamental rights and making the directive principles
enforceable and justiciable. PUDR had brought the petition out
of a sense of public service; it was thus clearly maintainable.
Bhagwati, J, characterized the matter as 'public interest litigation'.
He explained the purpose and philosophy of the concept of public
interest litigation in the following words:
We wish to point out with all the emphasis at our command that
public interest litigation which is a strategic arm of the legal aid
movement and which is intended to bring justice within the reach of
the poor masses, who constitute the low visibility area of humanity, is
a totally different kind of litigation from the ordinary traditional
litigation which is essentially of an adversary character where there is
a dispute between two litigating parties.275
Bhagwati, J, emphasized that PIL is not meant to enforce the
rights of one against another, as usually happens in traditional
273
Ibid. at 1477-8.
274
Ibid. at 1478.
275
Ibid. at 1483.
litigation. PIL is intended 'to promote and vindicate public

interest which demands that violations of constitutional or legal
rights of large number of people who are poor, ignorant or in a
socially or economically disadvantaged position should not go
unnoticed and unredressed.' The rich have resources to approach
the court to protect their interests. But what about the poor who
are living a sub-human existence? To protect their human rights,
the social economic order needs to be restructured. Only through
multi-dimensional strategies, including PIL, social and economic
programmes can be effectuated. Underlining the great utility of
PIL, Bhagwati, J, observed:
Public interest litigation, as we conceive it is essentially a cooperative
or collaborative effort on the part of the petitioner, the State or public
authority and the court to secure observance of the constitutional or
legal rights, benefits and privileges conferred upon the vulnerable
sections of the community and to reach social justice to them. 276
Having disposed of the question of bcus standi in favour of

PUDR, there was another ticklish question to be considered in
connection with the maintenance of the writ petition in the
instant case. Under article 32 a writ petition could be moved in
the Supreme Court only for the enforcement of fundamental
rights. Most of these rights operate as limitations on the power
of the State as defined in article 12(1), 277 and impose negative
obligations thereon not to encroach on these rights. But, in the
instant case, the workers were engaged by private contractors and
not directly by the government or any of its agencies. The
question, therefore, was: Could a petition lie under article 32
against the government when workmen whose rights were in
question were employed by private contractors and not the
government itself and, thus, according to the traditional view, the
cause of action, if any, of the workers arose against the contractors
and not the government? Rejecting this objection, Bhagwati, J,
emphasized that the construction work had been entrusted to the
contractors by the government and its agencies, and, accordingly,
it was the obligation of these bodies to ensure observance of
labour laws by the contractors. The government 'cannot fold their
hands in despair and become silent spectators of the breach of a
276
Ibid. at 1477-8.
277
See supm, section on 'Other Authority'.
constitutional prohibition being committed by their own

contractors'. Article 24 embodies a fundamental right which is
plainly and indubitably enforceable against everyone and by
reason of its compulsive mandate, no one can employ a child
below the age of 14 years in a hazardous employment. 278 The
Equal Remuneration Act, 1976 (ERA), embodies the principle of
article 14 of the Constitution and, therefore, the government
'cannot avoid their obligation to ensure that these provisions are
complied with by the contractors'. Accordingly, the court ruled
that the government of India, Delhi government and the Delhi
Development Authority were obligated to ensure observance of
the labour laws by the contractors. In case the contractors failed
to observe these laws, the workers would have a cause of action
against these bodies.
Subsequent to the Asiad case, the question of PIL was again
discussed at length by the Supreme Court in Bandhua Mukti
Morcha.279 By the time this case arose, there had been a good deal
of criticism of the new trend advocated by the Supreme Court in
Asiad, and the court took an opportunity in Bandhua Mukti
Morcha to answer this criticism. In this case, the court entertained
a petition on behalf of an organization dedicated to the cause of
release of bonded labour.
The petition was opposed by the state government. Bhagwati, J,
speaking for the court, rebuked the state government for adopting
such a stance, which he characterized as 'incomprehensible', and
raising a preliminary objection.to stall an inquiry by the court in
the matter. The court opined that the state government, being
under the constitutional obligation of bringing in social and
economic justice for everyone, ought to have welcomed, rather
than oppose, an inquiry into the complaint that a large number of
workers were being exploited as bonded labourers.2
The court then went on to explain the nature of PIL, that
...public interest litigation is not in the nature of adversary litigation
but it is a challenge and an opportunity to the government and its
officers to make basic human rights meaningful to the deprived and
vulnerable sections of the community and to ensure them social and
economic justice which is the signature tune of our Constitution.281
278
See supra, notes 60-62.
279
Supm, note 54.
280
See supra, section on 'Directive Principles'.
2Sl
...where a person or class of persons to whom legal injury is caused by

reason of violation of a fundamental right is unable to approach the court
for judicial redress on account of poverty or disability or socially or
economically disadvantaged position, any member of the public acting
bonafide can move the court for relief under article 32 and afinriormi,
also under article 226, so that the fundamental rights may become
meaningful not only for the rich and the well to do who have the means
to approach the court but also for the large masses of people who are
living a life of want and destitution and who are by reason of lack of
awareness, assertiveness and resources unable to seek judicial redress.282
Bhagwati, J, pointed out, that the wording of article 32(1) puts
no limitation that the fundamental right sought to be enforced
must belong to the person moving the court. Nor does the article
say that the Supreme Court should be moved only by a particular
kind of proceeding. 'It is clear on the plain language of article 32(1)
that whenever there is a violation of a fundamental right, any one
can move the Supreme Court for enforcement of such fundamental
rights.' When there is violation of a fundamental right of a person
or class of persons who cannot have resort to the court because of
poverty or disability or socially or economically disadvantaged
position, the court must allow any member of the public acting
bonafide to espouse the cause of such person or persons and move
the court. Mere 'verbal and formalistic canons of construction'
ought not to be applied to interpreting article 32. Its interpretation
must receive illumination from the trinity of provisions 'which
permeate and energize the entire Constitution', namely, the
preamble, the fundamental rights and the directive principles.
Hence, even a member of the public could move the court by just
writing a letter, because it would not be right or fair to expect him
acting pro bono publico to incur expenses out of his own pocket to
approach a lawyer and prepare a regular writ petition for being
filed in the court for enforcement of the fundamental right of the
poor. In such a case, a letter addressed by him could legitimately
be regarded as an 'appropriate' proceeding.283
282
Ibid. at 813.
283
A number of cases have been brought before the Supreme Court
through letters complaining of infraction of fundamental rights. These
letters are treated by the court as writ petitions. See, for example,
Lakshmi Kant Pandey v India AIR 1984 SC 469; Ram Kumar Misra v
State of Assam AIR 1984 SC 537; Neetja Chaudhary v State ofMadhya
Pradesh AIR 1984 SC 1099; the Asiad case, supra, note 49; and Bandhua
Mukti Marcha case, supra, note 53.
Two main types of cases come before the courts (high courts
and the Supreme Court) under PIL: (1) cases espousing the
causes relating to the poor and the downtrodden; (2) cases
raising socio-economic and administrative problems affecting the
public generally, such as, environment protection, 285 misuse of
powers by the ministers, etc. 286
In a number of cases, the Supreme Court has laid down several
norms to regulate the institution and conduct of PIL cases,287 has
facilitated the pursuing of such cases by the petitioners, and has
even awarded costs to the petitioners in deserving cases. 288
Overall, the court has cautioned that PIL should not be used by
a petitioner to grind a personal axe; he should not be inspired by
malice or a design to malign others or be actuated by selfish or
personal motives or by political or other oblique considerations.
The petitioner ought to act bona fide and with the aim of
vindicating the cause of justice. 289
284
Reference has already been made to Asiad and Bandhua Mukti
Marcha. Some other cases in this category are: Hussainara, concerning the
administration of criminal justice, supra, note 72; Sanjit Roy v State of
Rajasthan, supra, note 51; Labourers Working on Salal Hydro-Project, supra,
note 52. In Upendra Baxi v State ofUttar Pradesh (1986) 4 SCC 106, the
court gave directions to the state government seeking improvement of the
living conditions in the government protective home at Agra.
1S5
Rural Litigation and Entitlement Kendra v State of UP AIR 1991 SC
2216; Consumer Education & Research Centre v Union of India, supra,
note 109; Satish Chander Shukla, (Dr.) v State of UP (1992) Supp (2)
SCC 94; M.C. Mehta v Union of India (1991) 2 SCC 353; Indian
Council for Enviro-Legal Action v Union of India AIR 1996 SC 1446.
***N. Parthasarathy v Controller of Capital Issues AIR 1991 SC 1420;
Centre for Public Interest Litigation v Union of India (1995) Supp (3)
SCC 382; Shiv Sugar Ttwari v Union of India (1996) 6 SCC 599. See for
example, Chaitanya Kumar v State of Karnataka AIR 1986 SC 825,
where the award of a contract by the state government was quashed by
the court with the observation:
...the court cannot close its eyes and persuade itself to uphold publicly
mischievous executive actions which have been so exposed. When arbitrariness
and perversion are writ large and brought out clearly, the court cannot shirk its
duty and refuse the writ.
287
Sce for example, S.P. Anand v H.D. Deve Gowda (1996) 6 SCC 734;
Balaji Raghavan v Union of India (1996) 1 SCC 361.
^Janata Dal v H.S. Chowdhary (1992) 4 SCC 305.
lvS
Subhash Kumar v State of Bihar AIR 1991 SC 420; Krishna Swami v
Union of India (1992) 4 SCC 605.
Public interest litigation is a result of judicial activism. It has

come to stay as a mechanism to agitate public issues before the
courts within the confines of legal and constitutional mould. PIL
has played a significant role in vindicating fundamental rights of
the people and in exposing latent as well as patent social problems
and finding solutions for them. 290
At the same time, PIL is a weapon which must be used with
great care and circumspection; the courts need to keep in view
that under the guise of redressing a public grievance PIL does not
encroach upon the sphere reserved by the Constitution to the
executive and the legislature. The main cause for the growth of
PIL in India is bureaucratic inertia and the indifference of the
legislature to solving the problems facing the people. Sadly, the
administration in India is not people-oriented but, by and large,
adopts an antagonistic, rather than a helpful, attitude towards the
public. N o mechanism for redress of people's grievances against
the administration has yet been established even while there has
been talk for many years of establishing Lokpal Ombudsman. 291
A person aggrieved against the administration has only the courts
for redressal. Similarly, the mechanism established by law for the
protection of the environment is ineffective and, therefore, resort
is had to PIL to raise various matters pertaining to environment
protection. The administration lacks a sense of accountability and
responsibility; legislatures waste time on frivolous and mundane
issues, unrelated to the welfare of the people. All these factors
have led to the phenomenal growth of PIL in India. Happily, the
Supreme Court and the high courts have played their role in a
very constructive manner with a view to promoting the welfare of
the people and restraining the waywardness of the administration
and politicians in power.
290
See for example, Lakshmi Kant Pandey, supra, note 283; also see cases
under note 285.
291
For discussion on the institution of Ombudsman in foreign countries,
see Jain & Jain, Principles of Administrative Law, 912-36. The Admini
strative Reforms Commission, set up by the Government of India,
recommended the setting up of an ombudsman type of institution. The
government accepted the recommendation. The Lokpal and Lokayakta
Bill was introduced in Parliament in 1968, but the Bill never became an
Act. See M.P Jain, Lokpal: Ombudsman in India (1970).
Demise of the Fundamental Right to Property

While the above discussion shows that, after 1977, the scope of
many fundamental rights has been expanded and liberalized by
the Supreme Court through its interpretative process, note may
be taken of a significant negative development also in the area of
fundamental rights during the last fifty years, namely, the demise
of the fundamental right to property. Although originally the
Constitution had adequate provisions to protect private property,
and the Supreme Court also was anxious to give greater protection
to property than to person, 292 the sad fact remains that, in course
of time, the fundamental right to property has ceased to exist
in India.
The process of dilution of the fundamental right to property
started almost immediately after the inauguration of the
Constitution in 1950. Reacting to some high court decisions on
the question of validity of zamindari abolition laws passed by
some states, 293 and without waiting for an authoritative decision
of the Supreme Court on the issues involved, Parliament hastened
to enact the First Constitutional Amendment in 1951. Thus, the
Constitution (First Amendment) Act was enacted almost within
a year of the commencement of the Constitution.
The First Amendment was not undertaken on any planned, but
on an ad hoc, basis. Its underlying purpose was to bypass or short-
circuit the judicial process; it was more a 'panic action' on the part
of Parliament as it was undertaken to forestall the Supreme Court
verdict on the validity of the zamindari abolition laws. At this
time, abolition of zamindari came foremost in the economic
programme of the Congress party, which was in power at
the centre and almost every state. The party was not in a mood
to brook any delay in this matter. Accordingly on its initiative,
Parliament enacted the first amendment of the Constitution.
The scope of the First Amendment was somewhat narrow,
namely, to protect the zamindari abolition Acts from being
292
Reference is to Gopalan, where the Supreme Court interpreted article
21 very narrowly, supra, note 63. At the same time, the court interpreted
article 31 quite liberally.
19i
Motilal v State of Uttar Pradesh AIR 1951 All 257; Kameshwar v
State of Bihar AIR 1951 Pat. 9 1 .
attacked under the fundamental rights. This indicates that at this

time Parliament had an extremely limited vision. The First
Amendment added two new provisions to the Constitution,
namely, article 31A and article 3 IB along with the IX schedule.
Article 31A laid down that no law or provision for the acquisition
made by any state of any estate, or of any rights therein, or for
extinguishing or modifying any such rights, would be void on the
ground of any inconsistency with the fundamental right in articles
14, 19 and 31. Article 31B was a drastic provision as it provided
that the Acts mentioned in the IX schedule would not be deemed
to be void on the ground of their taking away or abridging any
of the fundamental rights. In this schedule, thirteen state
enactments were listed. These Acts were to be valid in spite of the
fact that no court had earlier declared any of them to be invalid.
Thus, a new technique of constitutional amendment, by way
of incorporating legislative Acts in the Constitution itself, was
initiated to immunize them, and make them fully unchallengeable
in a court against any attack under any fundamental rights. It may
be noted that while the First Amendment smoothed the process
of zamindari abolition, it did not envisage the problem which
arose in subsequent years in the area of property relations.
The question of quantum of compensation payable by the
government for private property acquired became, in course of
time, a very controversial matter. As article 31(2) dealing with
this matter originally stood in the Constitution, the word
'compensation' present therein was not qualified by any adjective
like 'just' or 'adequate', unlike the US Constitution where the
Fifth Amendment requires the payment of 'just compensation'
when the Federal government takes private property for public
use. Nevertheless, the Supreme Court displaying a creative stance,
ruled that the omission of the word 'jusr1 or 'adequate' before
'compensation' was immaterial because the meaning of 'compen
sation' in itself was just equivalent for the property acquired. The
foremost case advocating this judicial point of view was State of
West Bengal v Bela Banerjee.294 It may be noted that while, in
294
AIR 1954 SC 170. The court applied this principle in several other
cases, e.g. West Ramnad Electric Distribution Co. Ltd v State of Madras
AIR 1962 SC 1753; State of Madras v D. Namastvaya Mudatiar AIR
1965 SC 190; State of Madhya Pradesh v Champalal AIR 1965 SC 24.
THE SUPREME COURT AND FUNDAMENTAL RIGHTS 89
1950, in Gopalan the Supreme Court had adopted a literal

interpretation of article 21, in the instant case it adopted a liberal
interpretation of article 31(2). This dichotomy of judicial
attitudes towards the two articles indicates that, at this time,
the court attached a greater importance to property rights than to
right of person and, therefore, it was prepared to give greater
protection to property than to person.
The government, however, became uneasy at the Bela Banerjee
ruling as in its view, the judicial insistence on payment of full
market value of the property acquired would put such a huge
burden on government's slender financial resources as to throw
out of gear the envisaged socio-economic programme involving
reconstruction of property relations. To get over the hurdle, the
Fourth Constitutional Amendment was undertaken in 1955. It
amended article 31(2) so as to make the question of 'adequacy
of compensation non-justiciable. The courts were now de
barred from going into the question whether the quantum of
compensation provided by a law for property being acquired by
the State was 'adequate' or not. A new clause, article 31(2)A, was
added and article 31 A, which had been added by the First
Amendment, was further expanded so as to lay down a few more
categories of 'deprivation' of property which were to be immune
from an attack under articles 14, 19 and 31. The categories of
laws exempted under article 31A from challenge now extended
from the area of land reform to that of industry and mining. The
Fourth Amendment also added a few more Acts to the IX
schedule. Thus, seven more state statutes were immunized from
attack on the ground of breach of any of the fundamental
rights.296 According to its sponsors, the purpose of the Fourth
Amendment was to bring the Constitution in accord with the
intentions of the framers of the Constitution that the quantum of
compensation was to be decided by the legislature. Prime Minister
Nehru said in the Lok Sabha, 'It was obvious that those who
framed the Constitution failed to give expression to their wishes
accurately and precisely and thereby the Supreme Court and some
other courts have interpreted it in a different way'
295
Supra, note 63.
296
For details of this amendment, see Jain, Indian Constitutional Law
(1998), 673-5.
It is true that Nehru and a few others in the Constituent

Assembly had thought that the original article 31(2) made the
legislature the final arbiter of the quantum of compensation
which could not be challenged in a court except when there was
fraud on the Constitution or a fraudulent exercise of the power so
given. To the extent the Fourth Amendment made compensation
no-justiciable, it could be said to accord with the intentions of
some of the Constitution-makers.
From 1955 to 1964 things went well for the government from
the point of regulation of private property. But things began to
change from 1964. In 1964, the Seventeenth Amendment was
undertaken. It expanded the definition of the word 'estate' in
article 31A so that a wide coverage of laws could be immunized
from challenge under articles 14, 19, and 31. The amendment
was undertaken with a view to include 'ryotwari' tenure within
the definition of 'estate' so that any legislation dealing with
'ryotwari' tenure became immune from attack under articles 14,
19 and 31. 2 9 7 The Seventeenth Amendment also added forty-four
new statutes passed by the various state legislatures to schedule
IX. Thus, the number of statutes immunized from attack from
courts reached sixty-four.
The government did not hesitate to effect a drastic rewriting
of constitutional provisions to remove any constitutional obstacle
in the way of the fulfilment and implementation of its land
reform programme. Thus, the right to claim' compensation was
drastically curtailed and several laws were specifically immunized
from challenge under fundamental rights; a new technique of
constitutional amendment, namely, schedule IX, was taken
resort to immunize many state laws from challenge under any
fundamental rights. 298
Even after the Fourth Amendment, which sought to render the
question of 'compensation' non-justiciable, it did not become
completely non-justiciable. From 1965, the Supreme Court again
started showing some activism on the question of compensation.
297
This amendment was enacted to undo the effect of the Supreme
Court decision in K.K. Kocbunni v State of Madras AIR 1960 SC 1080.
For details, see Jain, ibid., 682-4, 689-90.
298
An Act included in the IX schedule could not be challenged under
any fundamental right: see Ram Kissen v Divisional Forest Officer AIR
1965 SC 625; Jeejeebhoy v Asstt. Collector AIR 1965 SC 1096.
In its bid to break through the shackles imposed by article 31(2)

after the Fourth Amendment, and provide some protection to
private property, the court took the position in l&jravelu299 and
several other cases, 300 that while the question of adequacy or
inadequacy of compensation was not justiciable, and the court
would not go into that question, but if the law made no provision
for compensation, or if the compensation was illusory, or if the
principles laid down in the law for computing compensation were
more in the nature of a device to refuse compensation, the court
could intervene and declare the law to be invalid. If the principles
to determine compensation were relevant to the fixing of
'compensation', and were not 'arbitrary1, then the 'adequacy1 of
the resultant product could not be questioned in a court. The
government could not escape by providing shadowy compensation
merely to fulfil the letter of the law.
Then came the crucial Bank Nationalization case, 301 which
arose out of the nationalization of eleven commercial banks in
1969. The court declared the relevant law to be unconstitutional,
by a majority of 10 to 1. The court took the position that if the
principles specified by law were relevant to the determination of
compensation, they would be beyond challenge. But, in the
instant case, the law failed to provide to the expropriated banks
compensation determined according to relevant principles.302 N o
compensation was paid for certain items of property, e.g.
goodwill of the banks, unexpired leases of properties held by the
banks, etc. The methods specified to value lands and buildings
were not relevant to the determination of compensation. This
meant that for these items the expropriated banks were not given
'a true recompense' for the loss of their undertakings.
In the instant case, the difficulty created by the court's ruling
was got over by amending the invalidated law so as to withdraw
the principles laid down therein to determine compensation and,
instead, mentioning a specified amount for each bank nationalized
as compensation. This strategy could not possibly be challenged
299
Vajravelu v Special Deputy Collector AIR 1965 SC 1017.
300
Union of India v The Metal Corpn of India AIR 1967 SC 637. This
case was overruled by the Supreme Court in State of Gujarat v Shantilal
AIR 1969 SC 64.
m
R.C. Cooper v Union of India AIR 1969 SC 1126.
302
Jain, supra, note 296, at 677, 678.
because it would be extremely difficult to substantiate the

argument that the sum specified as compensation was illusory, or
was based on irrelevant considerations, or was not based on
relevant principles.303
Stung by the Bank Nationalization case, Parliament enacted the
Twenty-Fifth Constitutional Amendment in 1971. This amendment
effected several significant changes in the relevant constitutional
provisions and further diluted property rights. In the first place,
in article 31(2), the word 'amount' was substituted for
'compensation'. The word 'compensation' had developed certain
connotations because of its interpretation by the court as being
'just equivalent' for the property acquired. The word 'amount' had
no such connotation. The underlying idea was to exclude judicial
review of the quantum of money offered by the government in
lieu of the property acquired by it. The effect of this change came
to be considered by the Supreme Court in Kesavananda
Bharati.304 The broad effect of the multiple opinions delivered
therein was broadly as follows: 'Amount' was not the same
concept as 'compensation', and the courts would not go into its
adequacy. Nevertheless, 'amount5 could be 'illusory5 or 'arbitrary5
or 'grossly low5 which would shock not only the judicial
conscience but that of every reasonable human being. While
'amount 5 need not be the market value of the property acquired
or requisitioned, it should have some reasonable relationship with
the value of such property. On this view of the matter, a restricted
judicial review of the 'amount5 payable for the property acquired
was still a possibility.305
In the second place, the Twenty-Fifth Amendment added a new
provision, article 31C, to the Constitution. Article 31C was of a
drastic nature designed to usher into the country the era of
socialist pattern of a society. The section had two parts. The first
part protected the policy of the State through a law towards
securing the principles specified in articles 39(b) and 39(c) from
303
For comments on these cases, see Jain, 'Property Relations in
Independent India: Constitutional and Legal Implications; Trends and
Prospects5, 3 Bañaras LJ, (1967), 28; Palkhivala, Our Constitution
Defaced and Defiled (1974); R.C. Sarkar, 'The Case of Nationalisation of
Banks: Culmination of a Trend5, 4/CPS (1970), 55.
304
Supra, note 28.
S05
See Chaman Mal v State of Haryana AIR 1975 P&H 102, 111.
being challenged on the ground of infringement of the

fundamental rights under articles 14, 19 and 31. The second part
of article 31C sought to oust the jurisdiction of the courts to find
out whether the law in question gave effect to the principles
of articles 39(b) and (c). The amendment said that when the law
in question made a declaration that it was to effectuate the
policy underlying articles 39(b) and 39(c), 306 the courts would be
debarred from reviewing it even if the law might not, in reality,
concern articles 39(b) and 39(c). The constitutional validity of
the Twenty-Fifth Amendment was challenged and in Kesavananda,
the Supreme Court held by a majority that while the first limb
of article 31C was valid, the second limb was invalid. Thus,
while a law enacted to implement articles 39(b) and 39(c) is not
challengeable under articles 14 and 19, the courts do have the
power to assess whether the law in question does indeed achieve
these objectives. When a law is challenged, the courts would have
the power to consider whether it could reasonably be described as
a law giving effect to the policy of the State towards securing the
said aims. The law to be unquestionable under article 31(c) must
have some nexus with the objectives mentioned in articles 39(b)
and 39(c). As Mathew, J, observed in Kesavananda:
...if a law passed ostensibly to give effect to the policy of the state is,
in truth and substance, one for accomplishing an unauthorized object,
Court would be entitled to tear the veil created by the declaration and
decide according to the real nature of the law.30'
In 1976, the Forty-Second Amendment of the Constitution
amended article 31C to make it more drastic. Article 31C now
said that no law giving effect to any of the directive principles
would be deemed to be void on the ground of its inconsistency
with any of the rights conferred by articles 14 or 19. Thus, the
scope of article 31C was now made much wider than earlier,
306
These are Directive Principles of State Policy. Article 39(b) says that
the State shall direct its policy towards securing that the ownership and
control of the material resources of the community are so distributed as
best to subserve the common good. According to Article 39(c) the State
is to direct its policy towards securing that the operation of the economic
system does not result in the concentration of wealth and means of
production to the common detriment.
307
when it referred only to articles 39(b) and 39(c). Now, article

31C referred to all the directive principles. It will, thus, be noted
that while before 1971, fundamental rights had precedence over
the directive principles, after 1976, the whole scenario had
changed; the directive principles were now given precedence over
articles 14 and 19. This was justified on the ground that the
rights of the community must prevail over the rights of the
individual. 308
It may be noted, however, that the 'declaration' made in the
law as envisaged in anide 31C is conclusive. The court can go
behind the declaration and ascertain whether the law in question
gives effect to the policy underlying the directive principles. 309
In K.R. Laksbmanan v State of Tamil Nadu,310 the Tamil Nadu
Legislature enacted a law acquiring the Madras Race Club and the
law contained a declaration that it was being enacted to give
effect to the policy underlying articles 39(b) and 39(c). The
Supreme Court ignored the declaration as the Act did not
promote the policy underlying articles 39(b) and 39(c) and
assessed the validity of the Act on the touchstone of articles 14
and 19. The court quashed the Act as being violative of article 14.
Finally, in 1978, the Forty-Fourth Amendment of the Consti
tution removed the right to property from the category of
fundamental rights by repealing article 31, and converted it into
an ordinary right so that it might be regulated by an ordinary law.
Thus article 300A now says that 'no person shall be deprived of
308
It remains doubtful whether article 31C in its extended form as
giving precedence to all the directive principles over articles 14 and 19
may be regarded as constitutionally valid. In Minerva MiUs, supra, note
219, the court struck down article 31C in its extended form. The court
held that the extension of the shield of article 31C to all the directives
was beyond the amending power of Parliament under article 368,
because it gave primacy to the directives over the fundamental rights and
also because it destroyed the basic structure of the Constitution, viz.
judicial review. But in Sanjeev Coke Mfg Co. v Bharat Coking Coal Ltd
AIR 1983 SC 239, the court dissenting from Minerva held that 'the
question of the constitutional validity of article 31C appears to us to be
concluded by the decision in Kesavananda Bharati's case.' But this
observation appears to be an obiter dictum and not conclusive on the
question of validity of new article 31C. ,
305
'Assam SiUimanite Ltd v Union of India (1992) Supp (1) SCC 692.
310
(1996) 2 SCC 226.
THE SUPREME COURT AND FUNDAMENTAL RIGHTS 95
his property save by authority of law'. The underlying idea is to

free the legislature from the obligation to pay any compensation
for property acquired. But the question remains whether an
expropriatory law, which acquires private property for a public
purpose without paying any compensation, can be regarded as
valid. If the canons of interpretation which were applied by the
Supreme Court to article 21 in Maneka Gandhi are applied to
interpreting article 300A, it is possible for the court to argue that
'law' in article 300A does not mean just any statutory law but one
which is 'reasonable, fair and just'.311
During the whole course of constitutional development in
India, the fundamental right to property has been the most
controversial. It caused friction and a sort of rivalry between
the Supreme Court and Parliament. It led to a number of
constitutional amendments and certain landmark judicial pro
nouncements on the question of amendability of the Indian
Constitution.
A word of comment heeds to be made on the propriety of
article 3 IB along with schedule ΓΧ. No Act mentioned in this
schedule can be invalidated on the ground of its violation with
any fundamental right.313 Article 31B thus makes a drastic inroad
into the fundamental rights and the courts are not able to do
anything about this matter. Article 3 IB represents a drastic
technique of constitutional amendment. A blanket protection is
given to the statutes mentioned in schedule IX, howsoever
violative of fundamental rights the Act in question may be. Even
if an Act is declared unconstitutional, it is revived as soon as it is
included in schedule IX. Judicial review on the ground of
fundamental rights is completely excluded as soon as an Act is put
in schedule IX. The Acts immunized thus are not critically
examined by any independent body as regards the principles and
policies underlying them, and to what extent the fundamental
rights are infringed and whether such infringement is indeed
/·'
3U
The Bombay High Court has adopted some such stance in Basantibai
v State AIR 1984 Bom 366.
312
Sce supra, section on 'Supreme Court as Guardian of Fundamental
Rights'.
3
"Sec supra, note 297. Also Niyami v Union of India AIR 1990 SC
2128.
necessary. Schedule IX at present lists 284 enactments which have

been totally immunized from the effect of fundamental rights.
At this stage, a serious question needs to be considered.
Judicial review has been declared to be a 'basic' feature of the
Constitution. 314 Article 31B and schedule IX exclude judicial
review on a very wide scale, as is evident from immunization of
hundreds of statutes. Thus, the question is: can article 31B and
schedule IX be regarded as constitutional as prima facie they
infringe the 'basic' feature of the Constitution? Article 3 IB may
have been held to be valid in Kesavananda but the matter needs
to be reconsidered by the Supreme Court, especially in the light
of its latest pronouncement in L. Chandra Kumar.315 There is
another serious question to be considered: Can an Act which
infringes the basic feature of the Constitution be validated by
including it in schedule IX? In substance, it will amount to
validating an amendment of the Constitution which infringes the
basic features of the Constitution. 316
Concluding Remarks
The responsibility of a court in a country having a written
Constitution, such as India, is much more onerous than that of a
court in a country without a written Constitution, such as Britain.
Whereas a British court only interprets statutes, an Indian court
not only interprets statutes, but also has to give meaning to the
cold letter of the written Constitution. The task of such a court
becomes still more onerous if the Constitution guarantees
fundamental rights to the people, for, in such a case, the court
would be saddled with the added responsibility of protecting the
individuals from governmental excesses so far as possible within
the confines of the fundamental rights. In such a context, the
court cannot afford to adopt a mere mechanical and passive
stance. It has to play a creative and dynamic role if it has to
successfully discharge the crucial and sensitive function of
upholding and promoting democratic values in the country,
maintaining a balance between different interest groups, as well as
n
*Supra.
315
Sw/>ra, note 38.
316
Ibid. See Woman Rao v Union of India AIR 1981 SC 271.
between the government and the individual. The court has to

make a difficult choice between different alternatives so as to
strengthen the fabric of democracy, constitutionalism and rule of
law as well as to promote social and economic justice in the
country. This necessarily involves judicial creativity of a high
order. Judged on this touchstone, the apex court in India comes
through with flying colours as many of its decisions, noted in this
essay, will amply testify.
Since the inauguration of the Constitution in India, thousands
of cases have been spawned by the constitutional provisions
guaranteeing fundamental rights and directive principles. This is
the most litigated portion of the Constitution. Some of the
great constitutional controversies have arisen in this area, and
some landmark decisions have been rendered by the Supreme
Court in this area of fundamental rights. Reference to some
of these developments has been made in this essay. By its
pronouncements, the court has not only made the fundamental
rights and directive principles real and effective, but has also
expanded the scope of several fundamental rights. In doing so, the
court has added many new dimensions to some of these rights.
The year 1978 may be regarded as the watershed year in, and
Maneka Gandhi as the seminal case for, the development of
constitutional jurisprudence concerning fundamental rights since
the inauguration of the Constitution in 1950. Before 1978,
controversies arising around the fundamental right to property
dominated. The post-1978 period is characterized by the
expansion of 'right to life' and 'personal liberty5 guaranteed by
article 21. The right to life and personal liberty played a minor
role before 1978. Post-1978, the right to property has ceased to
play much of a role.
Before 1975, as is evidenced by Gopalan and other cases, the
Supreme Court used to adopt, by and large, a restrictive and
literal interpretation of the fundamental rights, except in the case
of property rights. 317 But after the cataclysmic event of internal
Emergency of 1975-7, there came about a great transformation
in the judicial attitude. From 1978, beginning with Maneka
Gandhi, the Supreme Court started adopting a creative, dynamic
n7
See supra, sections on Supreme Court as Intrepreter of Fundamental
Rights and 'Demise of the Fundamental Right to Property'.
and expansive interpretation of these provisions. The attitude of

the court since 1978 has been, by and large, people oriented.
Its endeavour has been to help in the evolution of a liberal
democracy run according to the rule of law.
It may be surmised that the Emergency of 1975 was a rude
shock to the judges, as it was to the people of India. During this
period, the Congress government at the centre sought to ride
roughshod over the people's rights. 318 The judges, perhaps,
realized what havoc can be caused in the country by a totalitarian
regime. Accordingly, the judges seem to have become determined
to ensure that never again the same calamity should befall the
people. The best judicial strategy to avoid any such situation in
future would be to strengthen people's fundamental rights as
much as possible. Accordingly, the Supreme Court has rendered
yeoman service to the promotion of fundamental rights, displaying
creativity of a very high order. Before the Emergency, the
Supreme Court, by and large, used to be quiescent; but after the
Emergency it adopted an activist stance. This phase is still in
evidence, even more than two decades after the Emergency. It
may be surmised that the court will continue to play such a role
in the future as well.
The outstanding development in the sphere of fundamental
rights during the last fifty years is the dramatic, exciting and
impressive regeneration of article 21. This provision had been
denuded of much of its substance by Gopalan in 1950. Article 21,
thus, occupied a very minor place in the scheme of fundamental
rights for nearly twenty-five years, until new life was breathed
into it by Maneka Gandhi in 1978. Since then, article 21 has
grown into a colossus, a wide-spreading banyan tree, covering
much ground under its shade. The Supreme Court was able to
derive such a result by reading article 21 along with several
directive principles and expansively interpreting the word 'life' in
article 21 in the light of these directive principles. Thus, the
constitutional provisions containing directive principles are also
being interpreted in a creative manner and are being integrated
with the fundamental rights. This integration has created a
strong impulse towards the emergence of a welfare State. This is
318
For discussion on the happenings during the period of Emergency,
see Jain, Indian Constitutional Law, (1987) 721-36.
illustrated by the emphasis placed by the court, inter alia, on the

right to livelihood, right to health, right to education, right to
pollution-free environment, etc. 319
Further, the judges of the Supreme Court are conscious of the
court's law-creative role and they do not hide the court's
contribution by way of law-making by sailing under the old, now
discredited, theory that judges do not make law but only declare
law.320 The court has avowedly accepted that it discharges a law-
making role. For example, Mathew, J, in Kesavananda adopted
the following observation of Justice Homes of the US Supreme
Court. Ί recognize without hesitation that judges do and must
legislate, but they can do so only interstitially, they are confined
from molar to molecular motions.' But, the Supreme Court has
played a much more active role than what this observation seems
to visualize. Some Supreme Court judges have openly advocated
such a role. For example, Bhagwati, J, observed in S.P. Gupta v
Union of India322 that the static view of judicial function 'may be
allright for a stable and static society but not for a society
pulsating with urges of gender justice.' He went on to emphasize:
'The judiciary has therefore a socio-economic destination and a
creative function.' 323
On a comparative basis, it may be true to say that no apex
court in any democratic country has shown as much dynamism,
319
See supra section on 'Integration of Directive Principles with
Fundamental Rights'.
320
The orthodox theory said that the judge never creates new law; his
role is not to 'pronounce a new law but to maintain and expound the old
one'. See Blackstone, Commentaries 69 (1808). The British judges for
long abided by this theory. In modern times, however, many judges have
debunked this theory. For example, Lord Reid has denounced the
declaratory theory as a 'fairy tale'. See, Lord Reid, 'The Judge as Law
Maker' (1972), 2 Jl of SPTL, 22-3. Lord Denning, Lord Edmund-
Davies, Professor Griffith have all emphasized that the judges do make
law. See Lord Edmund-Davies, 'Judicial Activism', (1975) Current Legal
Problems, 1, 2; Lord Hailsham, 'The Independence of the Judiciary in a
Democratic Society' (1978), 2 ML] cxv.
i2l
Supra, note 28.
322
AIR 1982 SC 149, at 196.
323
For advocating a more activist law-making role for judges, see the
observations of Iyer, J, in Gujarat Steel Tubes v Its Mitzdoor Union AIR
1980 SC 1896, 1919.
humanism, creativity, and empathy with the cause of the poor and
the downtrodden as the Supreme Court of India has done. In
this connection, the following observation of Krishna Iyer, J, may
be taken note of:
Social justice is the conscience of our Constitution, the State is the
promoter of economic justice, the founding faith which sustains the
Constitution and the country is Indian humanity.... Law and justice
must be on talking terms and what matters under our constitutional
scheme is not merciless law but humane legality. The true strength and
stability of our polity is society's credibility in social justice, not
perfect legalese; and this case does disclose indifference to this
fundamental value.325
The judge wondered whether 'the highest principle of our
constitutional culture is not empathy with every little individual'.
'See supra, under section 'Empathy with the Poor'.

'Som Prakasb v Union of India AIR 1981 SC 212 at 234.

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1

THE SUPREME COURT AND

The Declaration of the French Revolution, 1789, which may be

^ e e Lloyd's Introduction to Jurisprudence (1985), 117-23. The

all times. The idea of guaranteeing certain freedoms is to ensure

limitations on governmental action. The government cannot take

Supreme Court as Guardian of

The fundamental rights are intended not only to protect individual's

Fundamental rights are claimed mostly against the State, and

touches the article only incidentally or indirectly, it cannot be

Waiver of Fundamental Rights

infringed to waive his fundamental right. 12 In case of such a

1. Article 14 cannot be waived, it being an admonition to the

obligation imposed on it. A large majority of the people in

Fundamental Rights and Constitutional Amendment

or taken away by a constitutional amendment. This question

(Seventeenth Amendment) Act, 1964, again adversely affecting

fundamental rights, embodied in Part III of the Constitution, had

rigid in so far as it rendered all fundamental rights non-

tutional amendment. The Constitution is based o n the national

As long as some fundamental rights exist and are a part of the

In Minerva Mills, Chandrachud, CJ, speaking for the majority,

In his minority judgement, Bhagwati, J, observed:

Ahmadi, CJ, speaking o n behalf of a bench of seven judges in

Thus, the position now is that in respect of the power of

Supreme Court as Interpreter of

guaranteed to the citizens of the country must try to strike a just

"AIR 1978 SC 597.

implied certain fundamental rights in addition to what are

Forced, Bonded and Child Labour

form it may manifest itself, because it is violative of human dig­

Therefore, emphasized Bhagwati, J, there is no reason why the

force'. The word 'force' ought to be interpreted to include not

at the least, minimum wage to such person on pain of violation of

Neetja Chowdhaty, the court directed the state government to provide

An interesting question was considered by the Supreme Court

cannot be employed in construction work by contractors. The

permissible to read in the article any such concept as natural

^For a fuller discussion on Gopalan, see M.P. Jain, Indian Consti­

rights had to be reasonable; (ii) that the procedure established by

process of law Since Maneka, article 21 has emerged as the

Article 21 got unshackled from the restrictive meaning placed upon it

Humanization of Criminal Justice

Describing police torture as 'disastrous to our human rights

another matter. Arrest can cause incalculable harm to a person's

... to live with human dignity, free from exploitation. It includes

of subsistence allowance is an inhuman act which has an

parameters of this right, which is not absolute, have to be

mentioned later.10 All these rights promote good and dignified

and norms for construing domestic law when mere is no inconsis­

cognizance of the various environmental problems and given

experienced so as to help a proper and fair adjudication of

If power conferred by statute on any authority of the State is vagrant

or policies to regulate the exercise of power; the power has been

clause in article 14 and it is applicable not only to quasi-judicial

Conferment of Benefits and Award of Contracts

It is well settled rule of administrative law that an executive authority

It must therefore follow as a necessary corollary from the principle of

The great importance of disciplining government discretion in

Implied Fundamental Rights

Freedom of the Press

Imposition of pre-censorship on a newspaper, or prohibiting

the interests of small, medium and big newspapers, it could not,

form it may manifest itself, because it is violative of human dig

^For a fuller discussion on Gopalan, see M.P. Jain, Indian Consti

and norms for construing domestic law when mere is no inconsis