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(Part-II)
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CONTENTS
(»i)
Constitutional Law o f India- II
‘State’: Art. 12
X
S-2 Constitutional Law- II: Supplement 2010
Punjab & Haryana, dismissing the Civil Writ Petition No. 1431 of2008, filed by the
appellants herein, for quashing of the prospectus for the MD/MS/PG Diploma and
MDS Courses issued by Maharshi Dayanand University, Rohtak, Haryana for
Academic Session 2007-2008 to the extent that it does not provide any reservation of
seats for Scheduled Caste/ Schedules Tribe candidates.
According to the appellants, on 17.09.2005, all the inotitutions including All-
India Institute of Medical Sciences provided reservation in the Post-Graduate
Courses for the members of Scheduled Castes and Scheduled Tribes. The
Government Medical College, Patiala, Amritsar and Faridkot also provided
reservation in the Post-Graduate courses for the members of the SCs/STs for the
Academic session 2007. The University of Delhi is also providing reservation to the
members of the SCs/STs.'
On the other hand, counsel for the respondents submitted that Art. 15(4) *s
only an enabling provision and the State of Haryana, taking noie of various aspects,
decided not to provide reservation for the SCs and STs and OBCs in the Post-
Graduate Courses. They also pointed out that there cannot be any Mandamus
compelling the State to provide reservation for a particular class of Persons.
The court observed: The consistent view of this Court is thai Art. 15(4) is only
an enabling provision and it is for the respective States either to enact a legislation or
issue an executive instruction providing reservation in Post- Graduate Courses. In
tncb aSawhney case [(1992) Supp (3) SCC 217], the majority held:
“The aspect next to be considered is whether clause (4) is exhaustive of the
very concept of reservations? In other words, the question is whether any
reservations can be provided outside clause (4) i.e. under clause (!) of Art. 16. There
are two views on this aspect. On a fuller consideration of the matter, we are of the
opinion that clause (4) is not, and cannot be held to be, exhaustive of the concept of
reservations; it is exhaustive of reservations in favour of backward classes alone.
Merely because, one form of classification is stated as a specific clause, it does not
follow that the very concept and power of classification implicit in clause (1) is
exhausted thereby. To say so would not oe correct in principle. But, at the same time,
one thing is clear. It is in very exceptional cases that any further reservations of
whatever kind, should be provided under clause
(1) . In such cases, the State has to satisfy that making such a provision was
necessary (in public interest) to redress a specific situation. The very presence of
clause (4) should act as a damper upon the propensity to create further classes
deserving special treatment. The reason for saying so is very simple. If reservations
are made both under clause (4) as well as under clause (1), the vacancies avatiable
for free competition as well as reserved categories would be correspondingly
whittled down and that is not a reasonable thing to do.
In K. Duraisamy v State ofT.N. [(2001) 2 SCC 538), the court, while dealing
with the reservation at the Post-Graduate level and super-specialty level, observed as
follows: “That the Government possesses the right and authority to decide from what
Constitutional Law- II. Supplement 2010 S-5
sources the admissions in educational institutions or to particular disciplines and
courses therein have to be made and that too in what proportion, is well established
and by now a proposition well settled, too. It has been the consistent and
authoritatively-settled view of this Court that at the super-specialty level, in
particular, and even at the postgraduate level reservations of the kind known as
“protective discrimination” in favour of those considered to be backward should be
avoided as being not permissible. Reservation, even if it be claimed to be so in this
case, for and in favour of the in- service candidates, cannot be equated or treated on
par with communal reservations envisaged under Arts. 15(4) or 16(4) and extended
the special mechanics for their implementation to ensure such reservations to be the
minimum by not counting those selected in open competition on the basis of their
own merit as against the quota reserved on communal considerations.”
In AflMSStudent’s Union v AlIMS [(2002) 1 SCC 428], while considering the
similar issue, it was held: “When protective discrimination for promotion of
equalization is pleaded, the burden is on the party who seeks to justify the ex
facie deviation from equality. The basic rule is equality of opportunity for even'
person in the country, which is a constitutional guarantee. A candidate who gets
more marks than anotlier is entitled to preference for admission. Merit must be the
test when choosing the best, according to this rule of equal chance for equal
marks. This proposition has greater importance when we reach the higher levels
and education like postgraduate courses. Reservation, as an exception, may be
justified subject to discharging the burden of proving justification in favour of the
class which must be educationally handicapped - the reservation geared up to
getting over the handicap. The rationale of reservation in the case of medical
students must be removal of regional or class inadequacy or like disadvantage.
Even there the quantum of reservation should not be excessive or societally
injurious. The higher the level of ihe specialty the lesser the role of reservation.”
Again it was held that; “... Permissible reservation at the lowest or primary
rung is a step in the direction of assimilating the lesser fortunates in the
mainstream of society by bringing them to the level of others which they cannot
achieve unless protectively pushed. Once that is done the protection needs to be
withdrawn in the own interest of protectees so that they develop strength and feel
confident of stepping on higher rungs on their own legs shedding the crutches.
Any reservation, apart from being sustainable or, the constitutional anvil, must
also be reasonable to be permissible. In assessing the reasonability, one of the
factors to be taken into consideration would be whether the character and quantum
of reservation would stall or accelerate achieving the ultimate goal of excellence
enabling the nation constantly rising to higher levels. In the era of globalization,
where the nation as a whole has to compete with other nations of the world so as
to survive, excellence cannot be given an unreasonable go-by and certainly not
compromised in its entirety ..."
In the present case, the court observed: The principle behind Art. 15(4) is
S-6 Constitutional Law- II: Supplement 2010
that a preferential treatment can be given validly when the socially and
educationally backward classes need it. This article enables the State Government
to make provisions for upliftment of SCs and STs including reservation of seats
for admission to educational institutions. It was also held that Art. 15(4) is not an
exception but only makes a special application of the principle of reasonable
classification. Art. 15(4) does not make any mandatory provision for reservation
and the power to make reservation under Art. 15(4) is discretionary and no writ
can be issued to effect reservation. Such special provision may be made not only
by the Legislature but also by the Executive.
Learned counsel for the appellants relying on the Constitution Bench
decision of this Court in Dr. Preeti Srivasta\’a v State ofM. P. [(1999)7SCC 120],
submitted that when it is permissible to prescribe a lower minimum percentage °f
qualifying marks for the reserved category candidates, as compared to the general
category’ candidates, it is incumbent on the pari of the State Government
to prescribe certain percentage for SC/ST candidates even for the Post-Graduate
Courses. On going through the decision, we are unable to accept the said contention.
After discussing relevant aspects and earlier decisions this Court concluded:-
1. We have not examined the question whether reservations are permissible at
the postgraduate level of medical education.
2 A common entrance examination envisaged under the regulations framed by
the Medical Council of India for postgraduate medical education requires
fixing of minimum qualifying marks for passing the examination since it is
not a mere screening test.
3. Whether lower minimum qualifying marks for the resei ved category
candidates can be prescribed at the postgraduate level of medical education
is a question which must be decided by the Medical Council of India since
it affects the standards of postgraduate medical education. Even if
minimum qualifying marks can be lowered for the reserved category
candidates, there cannot be a wide disparity between the minimum
qualifying marks for the reserved category candidates and those for the
general category candidates at this level. Then percentage of 20% for the
reserved category and 45% for the general category is not permissible
under Art. 15(4), the same being unreasonable at the postgraduate level and
contrary to the public interest.
4. At the level of admission to the super specialty courses, no special
provisions are permissible, they being contrary to the national interest.
Merit alone can be the basis of selection.
Learned Counsel for the appellants next contended that, inasmuch as even in All-
India Entrance Examination for Post-Graduate Courses, the Government of India
itself has made a provision for reservation for SC/ST candidates, the State of Hary
ana is bound to follow the same and issue appropr iate orders/directions providing
reservations in the Post-Graduate Courses,
Constitutional Law- II. Supplement 2010 S-7
The court observed that this contention is also liable to be rejected. It is true
that Government of India itself has made a provision for reservation of SC/ ST
categories. This was a decision by the Government oflndia and it is applicable in
respect ofAll-lndia Enuancc Examination for MD/MS/PG Diploma and MDS
Courses, and reservation for SC/ST candidates in All-India quota for PG seats.
However, the same cannot automatically be applied in other selections where State
Governments have power to regulate. In fact, the Government of Haryana explained
their position that according to them, the matter regarding reservation of seats in the
PG courses has been considered by the State Government from time to time and it
has been decided that keeping in view the recommendations of the Medical Council
of India ( MCI) and precedents in the other States, reservation of SC/ST in PG
courses in neither feasible nor warranted, as there «s already a reservation of 50% in
the total seats in MD/MS/PG Diploma and MDS Course in the institutions of
Haryana on All-India basis entrance examination, being conducted by AIIMS, New
Delhi, and that the appellants had already availed the benefit of reservation of seats
in their qualifying examination of MBBS/BDS. They further clarified that only the
State Government is the competent authority to decide the reservation in the State.
The State Government is in a better position to determine the situation and
requirement of that particular State, as mandated by the Constitution
The directions of this Court are applicable to admission on All-India basis
whereas the same have no bearing on the admissions meant for State quota. The
clarificatory order of this Court in Abhay Nath v University of Delhi [Writ Petition
(C) No. 138 of2006] is applicable for the Institutes managed/run by the Central
Government. As the State Government is competent to make the reservation to a
particular class or category, until it is decided by the State, as being a policy matter,
there cannot be any direction to provide reservation at the PG level. After ail,
medical education is an important issue which should not have any mandatory
condition of this nature which may give rise to a situation against public interest.
The court concluded: Art. 15(4) is an enabling provision and the State
government is the best judge to grant reservation for SC/ST/Backward Class
categories at Post-Graduate level in admission and the decision of the State of
Haryana not to make any provision for reservation at that level suffers no infirmity.
Every State can take its own decision with regard to reservation depending on
various factors. In such circumstances. Courts cannot issue mandamus against the
decision of a State ]
In Nair Service Society v Dr. T. Beermasthan (2009) 5 SCC 545, it was held:
Reservation provisions are enabling provisions. The State is not bound to make a
reservation but it is empowered to do so in its own discretion. Different State
Governments in the country may have different methods for providing reservations,
and these will be valid as long as the method employed by a particular State
Government does not violate any constitutional provision or statute. It is not for the
Court to decide on the wisdom or otherwise of the method of reservation. Courts
S-8 Constitutional Law- II: Supplement 2010
should exercise judicial restraint and not interfere "ith the same unless there is some
ciear illegality.
*n Avinash Singh Bagr\ v /IT, Delhi (2009) 8 SCC 220, there was expulsion
rhe ° * ‘ ' certain SC/ST candidates for poor performance, for Cant^ates’
CanCellati n 0t ac m ss on
Fundamental rights are rights having a noble pedigree. They are natural rights
which are in the nature of external conditions necessary for the greatest possible
unfolding of the capacities of a human being. These secured and guaranteed
conditions are called fundamental rights, it is generally agreed that these natural
I
rights are inherent in man and cannot be taken away by the State. Natural rights
command higher sanctity than other rights e.g. rights based on contract because
they exist independent of any Act. 1
Part III of the Constitution, which contains fundamental rights, has been
described as the Magna Carla of India. These fundamental rights substantially
cover all the traditional civil and political rights enumerated in the Universal
Declaration of Human Rights. Dr Ambedkar described them as “the most
criticized part” of the Constitution. Gajendragadkar, J. described them as the
"veiy foundation and cornerstone of the democratic way of life ushered in this
country by the Constitution”.
Fundamental rights were deemed essential to protect the rights and
liberties of the people against the encroachment of the power delegated by them
to their government. They are limitations upon all the powers of the government.
In Maneka Gandhi case, Bhagwati, J. observed: “These fundamental right
represent the basic values cherished by the people of this country since the
Vedic times and they are calculated to protect the dignity of the individual and
create conditions in which every human being can develop his personality to the
fullest exlent. They weave a ‘Pattern of guarantee’ on the basic structure of
human rights, and impose negative obligations on the State not to encroach on
individual liberty in its various dimensions.”
These rights are regarded as fundamental because they are most essential
for the attainment by the individual of his ful! intellectual, moral and spiritual
status. The object behind the inclusion of them in the Constitution is to establish
'a government °f law and not of man’. The object is to establish rile of law.
Rights to the Armed Forces or forces charged with maintenance of public order,
etc. in the interest of discharge of duties and maintenance of discipline. Under Art.
34, Parliament may by law indemnify any person for anything done in
contravention of fundamenteKrights for maintenance of order during the operation
of martial law.
/
policy (such distinction has been attempted in USA) 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
Fundamental Rights: General 7
against the State, and therefore, it is the duty of the judiciary to protect their Rights
against themselves
(3) An individual could waive a Fundamental Right which was for his benefit,
but he could not waive a Right which was for the benefit of the general
public.
In view of the majority decision in Basheshar, it is now an established proposition
that an individual cannot waive any of his Fundamental Rights This proposition
has been applied in a number of cases. "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” [Yousuf AH v M.S.
Kasbekar AIR 1982 Bom 135]. Similarly, the Gauhati High Court has explained
that the Fundamental Rights have been embodied 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 (Omega Advertising Agency v State Electricity Board MR 1982
Gau 37).
In Olga Tellis case (AIR 1986 SC 180), the Apex Court asserted that the
high purpose which ‘the Constitution seeks to achieve by conferment of
fundamental rights is not only to benefit the individual but to secure the larger
interests of the community.' Therefore, even if a person says either under mistake
of law or otherwise, that he would not enforce any particular Fundamental Right, it
cannot create an estoppel against him. Such a concession, if enforced, would
defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-
powerful State could easily tempt an individual to forgo his precious personal
freedoms on promise of transitory, immediate benefits In this case, the pavement
dwellers gave an undertaking that they would not claim any Fundamental Right to
put up huts on pavements or public roads and that they would not obstruct the
demolition of the huts after a certain date. Later, when the huts were sought to be
demolished after the specified date, the pavement dwellers put up the plea that
they were protected by Art. 21. It was argued in the Supreme Court that they could
not raise any such plea in view of their previous undertaking. The court overruled
the objection saying that Fundamental Rights could not be waived. There can be
no estoppel against the Constitution which is the paramount law of the land. The
Court observed: “No individual can barter away the freedoms conferred on him by
the Constitution.”
Recently, in Nar Singh Pal v Union of India (AIR 2000 SC 1401), the
Supreme Court has asserted: "Fundamental Rights under the Constitution cannot
be bartered away. They cannot be compromised nor there do any estoppel against
the exercise of Fundamental right available under the Constitution.” The doctrine
of non-waiver developed by the Supreme Court of India denotes manifestation of
its role of protector of the Fundamental Rights. 3
ARTICLE 12 [DEFINITION OF STATE]
Unless the context otherwise requires, the term State' include the following -
executive and legislature of Union and States, all local or other authorities within
territory of india or under the control of government of India."
The definition is not exhaustive but inclusive which means that apart from
those organs or bodies which have been enumerated others may also be covered
(b) Authorities
According to Webster’s dictionary, 'authority' means a person or body exercising
power or command. In the context of Art. 12, 'authority' means the power to make
laws, orders, regulations, bye-laws, etc., which have the force of law and power to
enforce those laws. For instance, the bye-laws made by a Municipal Committee.
4 Write a short note on: Meaning of the term ‘Other Authorities’ under Art. 12
of the Constitution. [I.A.S.-2007\
Fundamental Rights: General 9
etc. are held to be 'other authorities'. These bodies have power to make bye-laws,
regulations, etc. for regulating conditions of services of their employees. The
employees are entitled to claim protection of Arts. 14 and 16 against these bodies.
The ONGC’ is a statutory body owned and managed by the Central
Government The structure of the ‘Life Insurance Corporation’ indicates that the
Corporation is an agency of the government carrying on the exclusive business of
life insurance. Each and every provision shows in no uncertain terms that the
voice is that of the Central Government and the hands are also of the Central
Government The provisions of the ‘Industrial Finance Corporation’ Act show that
the Corporation is in effect managed and controlled by the Central Government.
The circumstance that the ‘Rajasthan Electricity Board’ under the Electricity
Supply Act, is required to carry on some activities of the nature of trade or
commerce does not give any indication that the Board must be excluded from the
scope of the word “State."
In subsequent decisions, the Supreme Court has given a broad and liberal
interpretation to the expression ‘other authorities,’
Leading Case: som prakash rekhi v union of india (AIR 1981 SC 212)
In this case, the petitioner (Som FYakash) was a clerk in the Burmah
Shell Oil Storage Ltd. and retired after qualifying for a pension in 1973.
The undertaking of the Burmah Shell was taken over under the Burmah
Shell (Acquisition of Undertakings in India), 1976 and was vested in the
Bharat Petroleum Corporation Ltd., which became the statutory
successor of the petitioner’s employer. The petitioner challenged by a
petition under Art. 32, the deductions from his pension, as illegal and
inhuman and in the violation of his right to property, then, contained in
Art. 19( 1 )(f) of the Constitution,
Applying the test laid down in Airport Authority's case, the Supreme
Court held that the Bharat Petroleum Corporation, though a Government Company
registered under the Companies Act, by virtue of the various provisions of the
1976 Act, was transformed into an instrumentality of the Central Government with
a strong statutory flavour super added and clear indicia of power to make it an
"authority’' falling under the expression 'State' in Art. 12. The expression ‘other
authorities” in Art. 12 would include not only a statutory body but also a non-
statutory body like a Government Company if it was found that the body or
authority was an agency or instrumentality of the Government.
The Supreme Court gave a broad and liberal interpretation to the
expression ‘other authorities’ in view of the fact that in a Welfare State, a
government has to perform manifold functions for which it has to employ various
agencies or instrumentalities. Thus, such “agency or instrumentality though not
created by the statute must be subject to the same restrictions as the State.” ‘‘The
State” in Art 12 comprehends bodies created for the purpose of promoting the
educational and economic interests of the people,
in R.D. Shetty v International Airport Authority of India (AIR 1979 SC 1628)
the court laid down the following tests for determining whether a body is an agency
or instrumentality of government:
(i) financial resources of the State are the chief funding source i.e. if
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Constitutional Law o f India- II
the entire share capital of corporation is held by Government.
(ii) existence of deep and pervasive State control (e g. appointment
and removal of members of a society, ruies made by society require
prior approval of government).
(iii) functional character being governmental in essence i.e. if the
functions of corporation are of public importance.
(iv) if a department of government is transferred to a corporation.
(v) whether the corporation enjoys monopoly status which is State
conferred or State protected.
However, the court said that these tests are not conclusive but illustrative only,
and will have to be used with care and caution and should not be stretched so far
as to bring in every autonomous body, which has some nexus with the
Government, within the sweep of the expression “other authorities.” In this case,
the international Airport Authority held to be ‘the State.’ The Central Government
had power to appoint chairman and other members of Board, and capital needed
by the Authority provided only by the government.
In the present case, the court observed: The expression ‘other authorities’ is
not confined only to statutory corporations alone but may include a government
company, a registered society, or bodies which have some nexus with government
If the functions of the corporation are of
public importance and closely related to government functions it would
be relevant factor in classifying the corporation as an instrumentality
'Authority' in law belongs to the province of power: Authority (in
Administrative Law) is a body having jurisdiction in certain matters of a
public nature.
A corporation constituted to carry on a commercial or other activity
is for many purposes a distinct juristic entity not drowned in the sea of
State, although, in substance, its existence may be but a projection of
the State. A juristic veil worn for certain legal purposes cannot obliterate
the true character of the entity for the purposes of constitutional law. The
corporations acting as instrumentality or agency of government would
obviously be subject to the same limitations in the field of constitutional
and administrative law as government itseif, though in the eyes of the
law, they would be distinct ana independent legal entities If government
acting through its officers is subject to certain constitutional and public
law limitations, it must follow a fortiori that government acting through the
instrumentality or agency of corporations should equally be subject to the
same limitations. 5
The crux of the matter is that public corporation is a new type of
institution which has sprung from the new socio-economic functions of
government and that it therefore does not neatly fit into old legal
categories.
The emphasis is on functionality plus State control rather than on the
5 With the introduction of new economic policy State is divesting its stake in
most of the Public Sector Unit. In some of them shares of State has been
reduced to minority or it has totally divested its interest Regarding the phrase
other authorities under the control of the government' in Art 12, the Supreme
Court has always been in favour of liberal interpretation Discuss in the light
of landmark judgments whether Art. 12 is so worded that it can take care of
new economic realities. [L C. 11-
2007]
Fundamental Rights: General 11
Ii
(iii) Such control must be particular to the body in question and must be
pervasive.
(iv) Mere regulatory control whether under statute or otherwise would
not serve to make a body a part of the State.
In the present case, the BCCI (Board of Control for Cricket in India) was not found
by the court (majority opinion) to be 'State’ in view of the below- mentioned facts;
(i) The Board is not created by a statute.
(ii) No part of the share capital of the Board is held by the Government.
(iii) Practically no financial assistance is given by the Government to the
Board
(iv) The Board does enjoy a monopoly status in the field of cricket out
such status is not State-conferred or State- protected.
(v) There is no existence of a deep and pervasive State control. The
control if any is only regulatory in nature as applicable to other
similar bodies. All functions of the Board are not public functions nor
are they closely related to government functions.
(vi) The Board is not created by transfer of a government- owned
corporation. It is an autonomous body.
Thus, the facts established do not cumulatively show that the Board is financially,
functionally or administratively dominated by or is under the control of the
Government. The Government control over the activities of the Board in regard to
organizing cricket matches and travel of the Indian team abroad as aiso granting
of permission to allow the foreign teams to come to India cannot be construed as
an administrative control. At best this is purely regulatory in nature and the same
according to this Court in Pradeep Kumar Biswas case (2002) 5 SCC 1, is not a
factor indicating a pervasive State control of the Board.
The court observed' The Government has not chosen the Board to perform
duties like the selection of an Indian cricket team, controlling the activities of the
players and other involved in the game of cricket nor has it legally authorized the
Board to carry out these functions under any law or agreement. In the absence of
any authorization if a private body chooses to discharge any functions or duties
which amount to public duties or State functions which is not prohibited by any law
then it would be incorrect to hold that such action of the body would make it an
instrumentality of the State.
The court further observed: In Art 12 the term “other authorities” was introduced at
the time of framing of the Constitution with a limited objective of anting judicial
review of actions of such authorities which are created under
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Constitutional Law o f India- II
by the majority view in the aforesaid case is to ascertain the nature of financial,
functional and administrative control of the State over it and whether it is
dominated by the State Government and the control can be said to be so deep
and pervasive as described in the minority view so as to satisfy the court 'ot
brooding presence of the Government” on the activities of the Corporation
In the minority view in Pradeep Kumar Biswas, different tests are required
to be applied in each particular case. The claim of a body as included within the
definition of “State" based on it being a statutory body falling in the expression
“other authorities” is to be considered differently from the claim of a body based on
the principles propounded in Ajay Hasia case (1981) 1 SCC 722, that it is an
“instrumentality or agency” of the State. In the opinion of the minority, the tests laid
down in the case of Ajay Hasia are relevant only for the purpose of determining
whether an entity is “an instrumentality/ agency of the State”.
In the present case, the corporation (U.P. Rajya Karmchari Kalyan Nigam)
has not been created by any statute; it is merely a society registered under the
Societies Registration Act. The enquiry will be confined to the decision as to
whether the corporation is an “instrumentality or agency” of the State On a
detailed examination of the administrative financial and functional control of the
corporation there is no doubt that it is nothing but an “instrumentality or agency” of
the State and the control of the State is not only “regulatory” but it is “deep and
pervasive’' in the sense that it is formed with the object of catering to the needs of
the government employees as a supplement to their salaries and other perks.
The court also held: Even if a body is held to be State the relief to be
granted to the aggrieved person will be determined in each case by the Court on
the basis of the structure of the Society and its financial capability
(ii) No p3rt of the share capital of the Board is held by the Government.
(iii) Practically no financial assistance is given by the Government to the
Board
(iv) The Beard does enjoy a monopoly status in the field of cricket but
such status is not State-conferred or State- protected.
(v) There is no existence of a deep and pervasive State control. The
control if any is only regulatory in nature as applicable to other
similar bodies. All functions of the Board are not public functions nor
are they closely related to government functions.
(vi) The Board is not created by transfer of a government- owned
corporation. It is an autonomous body.
Thus, the facts established do not cumulatively show that the Board is financially,
functionally or administratively dominated by or is under the control of the
Government. The Government control over the activities of the Board in regard to
organizing cricket matches and travel of the Indian team abroad as aiso granting
of permission to allow the foreign teams to come to India cannot be construed as
an administrative control. At best this is purely regulatory in nature and the same
according to this Court in Pradeep Kumar Biswas case (2002) 5 SCC 1, is not a
factor indicating a pervasive State control of the Board.
The court observed' The Government has not chosen the Board to perform
duties like the selection of an Indian cricket team, controlling the activities of the
players and other involved in the game of cricket nor has it legally authorized the
Board to carry out these functions under any law or agreement. In the absence of
any authorization if a private body chooses to discharge any functions or duties
which amount to public duties or State functions which is not prohibited by any law
then it would be incorrect to hold that such action of the body would make it an
instrumentality of the State.
The court further observed: In Art. 12 the term “other authorities” was
introduced at the time of framing of the Constitution with a limited objective of & 1
anting judicial review of actions of such authorities which are created under
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Constitutional Law o f India- II
statute and which discharge State functions However, because of the need of
the day the Supreme Court in Rajasthan SEB (1967) 3 SCR 377 and
Sukhdev Singh (1975) 1 SCC 421, noticing the socio-economic policy of the
country thought it fit to expand the definition of the term “other authorities' to
include bodies other than statutory authorities. This development of law by -,
judicial interpretation culminated in the judgment of the seven-Judge Bench in
Pradeep Kumar Biswas case. It is to be noted that in the meantime the socio-
economic policy of the country has changed and the State is today distancing
itself from commercial activities and concentrating on governance rather than
on business. Hence, there seems to be no need to further expand the scope
of “other authorities” iri Art. 12 by judicial interpretation at least for the time
being
The minority opinion in the present case was that what must be noticed
are the functions of the body concerned. The word “State” has different
meanings in different contexts. The tests under Pradeep Kumar Biswas are
not applicable to a private body like BCCI. In view of the fact that public
interest is involved in the activities of the Board, it is a State actor.]
Clause (1) - All pre-Constitution or existing laws i.e. laws which were in force
immediately before the commencement of the Constitution shall be void to the
extent to which they are inconsistent with fundamental rights from the date of the
commencement of Constitution
Clause (2) - The State shall not make any law which takes away or abridges the
fundamental rights, and any law in contravention of fundamental rights shall to
the extent of contravention, be void
[Thus, Art. 13(2) applies to posf-Constitution laws ]
Clause (3) - The term ‘law’ includes any ordinance, order, bye law, rule,
regulation, I notification, custom or usage having in the territory of India the force
of law.
Article 13, in fact, provides for the 'judicial review’ of all legislations in India,
past as well as future. All laws whether made by a legislature or by a delegated
authority and all executive acts must respect and conform to the fundamental
rights. The ordinances promulgated by the President under Art. 123 or by the
Governor under Art. 213 must also not be inconsistent with the fundamental
rights Art. 13 imposes an obligation on the State to respect and implement the
fundamental rights and at the same time confers a power on the courts (Supreme
and High Courts via Art. 32 and Art. 228) to declare a law/ Act void if it infringes a
fundamental right. Art. 13, thus, provides teeth to the fundamental rights and
makes them justiciable i.e. enforceable in the courts.
The US Constitution contains no such provision but in Marbury v Madison
I (1803) 1 Cranch 137, the U.S. Supreme Court (Chief Justice Marshall) held that
it follows as a corollary of a written Constitution. A written Constitution has
superiority over ordinary laws. It may be remarked that Art. 13 has been inserted by
way abundant caution. Even in the absence of Art. 13 the result would have been
the same. 6
and elucidate in the light of judicial precedents the meaning of the term ‘void’ as used in Art.
Explain
13(1) and 13(2) of the Constitution. [C.LC.-2006]
/
20 Constitutional Law o f India- II
to its language, and not according to any supposed spirit of the Constitution Every statute is
prima facie prospective unless it is expressly or by necessary implications made to have
retrospective operation There is no reason why this rule of interpretation should not be
applied for the purpose of interpreting the Constitution. If it is against the spirit of the
Constitution to continue the pending prosecutions under such a void law, surely it would be
equally repugnant to that spirit that men who have already been convicted under such
repressive law before the Constitution of India came into force should continue to rot in jail
The impugned Act was an existing law at the time when the Constitution came into
force. That existing law imposed on the exercise of the right guaranteed to the citizens of
India by Art. 19( 1 )(a) restrictions which could not be justified as reasonable under Art
19(6) as it then stood and consequently under Art. 13(1) that existing law became void “to
the extent of such inconsistency.”
The law became void not in toto or for all purposes or for all times or for all persons
but only “to the extent of such inconsistency” i.e. to the extent it became inconsistent with
the provisions of Part III which conferred the fundamental rights on citizens It did not
become void independently of the existence of the rights guaranteed by Part III In other
words, on and after the commencement of the Constitution, the existing law as a result of
its becoming inconsistent with the provisions of Art. 19(1 )(a) read with clause (6) as it then
stood could not be permitted to stand in the way of the exercise of that fundamental right.
Art. 13(1) by reason of its language cannot be read as having obliterated the entire
operation of the inconsistent law or having wiped out it altogether from the statute book.
Such law existed for all past transactions and for the enforcement of rights and liabilities
accrued before the date of the Constitution. Art. 13(1) is entirely prospective in operation
arid as it was not intended to have any retrospective effect there was no necessity at all for
inserting in that article any such saving clause. The effect of Ait. 13(1) is quite different from
the effect of the expiry of a temporary statute or the repeal of a statute by a subsequent
statute ]
(2) Doctrine of Severability or Separability7 - It means that if an offending provision can be
separated from that which is constitutional then only that part which is offending is to be
declared as void and not the entire statute (State of Bombay v F.N Balsara AIR 1951 SC
318. the case arose under the Bombay Prohibition Act, 1949) The words “to the extent of
such inconsistency be void” in Art. 13 means that only the repugnant provisions of the law
in question shall be treated by courts as void and not the entire statute.
[LC H 2006/20071
The primary test is whether what remains is so inextricably mixed with the part
declared invalid that what remains cannot survive independently. Doctrine of
severability is applicable to legislation which is partly ultra vires that is beyond the
legislative competence of the legislature This is contemplated by Art. 254, which is
app!'cable t0 an Act wflich IS generally within the legislative competence of a legislature but
certain parts are outside the scope of legislative entry.
Act must be held to be wholly invalid and void (Chintaman Rao v State of M. P
AIR 1951 SC 118).
In A.K. Gopalan v State of Madras (AIR 1950 SC 27), the court struck
down Sec 14 of the Preventive Detention Act, 1950, as violative of the
fundamental right under Art. 22. The rest of the Act was held to be valid The
doctrine of severability has been applied by the Supreme Court in cases of
challenge to the validity of a constitutional amendment. In Minerva Mills Ltd. v
UOI (AIR 1980 SC 1789), the court struck down certain sections of the
Constitution (42nd Amendment) Act, 1976, as beyond the amending power of the
Parliament. The rest of the Act was held to be constitutionally valid.
In Kihota Hollohan v Zachithu (AIR 1993 SC 412), it was held that a
composite amendment (containing amendments in provisions requiring ratification
by States as well as provisions not requiring such ratification) is covered by the
rule of severability. Held, that Sec. 10 of the Tenth Schedule minus para 7
remains valid and constitutional. Para 7 which has been declared unconstitutional
is severable from the main provision of Tenth Schedule. The remaining provisions
of the Schedule stands independent of Para 7 and are complete in themselves
and workable Para
7 provided that the speaker’s decision regarding the disqualification shall be final
and no court could examine its validity.
(3) Doctrine of Eclipse8 - It provides for validation of void laws. It is based
on the principle that a law which violates fundamental rights is not
nullity or void ab initio but becomes only unenforceable i.e. remains in a
moribund condition, it is over-shadowed or eclipsed by the fundamental
rights and remains dormant, but it is not dead."
[LC11-2007]
8 What do you mean by Doctrine of Eclipse?
inconsistent with the Constitution. The Act is eclipsed. When the
shadow is removed (the fundamental right was amended to remove the
conflict
between the law and the right) the pre-Constitution law becomes fully
applicable and is free from infirmity. However, between the 26-1-1950
(when the Constitution came into force) and the 18-6-1951 (when the
First Amendment was made), the impugned Act could not stand in the
way of the exercise of the fundamental right of a citizen under Art. 19(1
)(g)
All laws, existing or future, which are inconsistent with the
provisions of f>art III of Constitution, are, by the expr ess provisions of
Art.
13, rendered void “to the extent of such inconsistency." Such laws exist
for all past transactions, for rights and liabilities incurred before the
Constitution came into force, and for the determination of rights of
persons who haven’t been given fundamental rights by the Constitution
e.g. noncitizens. It is only as against the citizens that they remained in a
dormant or moribund condition. After 18-6-1951, the impugned Act
ceased to be unconstitutional and became revivified and enforceable
against citizens as well as against non-citizens.
Thus, the petitioner's contention that the law having become void
for unconstitutionality was dead and could not be vitalized by a
subsequent amendment of the Constitution removing the constitutional
objection, unless it was re-enacted, could not be sustained in view of the
aforesaid position of the iaw]
Art. 13 and the Terms ‘Law’ and ‘Laws in Force’ [Art. 13(3)]
Article 13(3) (a) gives the term ‘laW a very bread connotation which includes any
ordinance, order, bye-law. rule, regulation, notification, custom or usage having
the force °t law. This is necessary to protect the violation or infringement of
fundamental nghts
\
The term “law”, thus, includes enacted law or legislation; ordinances issued
by
2 6 the President/Governor;
C o n s t i tadministrative
u t i o n a l L a /executive
w o f I n orders
d i a - I including
I delegated
legislation; statutory rules, government notifications, bye-laws or regulations made
by a municipal or statutory body, custom or usage having the force of law etc
It may be noted that administrative directions or instructions issueo for the
guidance of its officers which are not intended to be legal obligations, are outside
the purview of the term ‘law under Art. 13. Similarly, the provisions of a Manual
(compilation of executive orders or circulars) issued by the Government are not
‘law1. Circulars issued by the Central Board of Direct Taxes or by the Central
Board of Excise and Customs are not law. The Flag Code which contains
guidelines regarding flying of our national flag is not law. 14
Personal laws - Hindu or Muslim law - are not covered by the term 'law”
under Art. 13. An amendment of the Constitution enacted under Art 368 is outside
the purview of Art. 13 (See under the chapter on ‘Amendment of the
Constitution’).
Article 13(3) (b) lays down that the expression “laws in force” includes "laws
passed or made by a Legislature or other competent authority in the territory of
India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation
either at all or in particular areas.” It, therefore, include laws which were on the
Statute Book, though not in use or operation e.g the Fugitive Offenders Act, 1881,
passed by the British Parliament and applicable to India.
Art. 13 is not applicable to law declared by the Supreme Court u/Arts. 141-142
Art. 13(2) of the Constitution envisages a situation where the State action, be it
legislative or executive, violates the fundamental rights; such law is declared as
void but when the previous overruled decision and the new rule laid down by the
Court as a stare decisis operates prospectively from a given date (namely, either
the date of judgment or extended date), such order/judgment is not a legislative
Act which is void under Art 13(2) but a judicial tool by which the effect of the
judgment was given.
Therefore, the judgment of the Supreme Court in Mandal case declaring
that Rangachari ratio did not correctly interpret Arts. 16(1) and 16(4) is a
declaratory law under Art. 141 of the Constitution. Art. 13(1) and (2) deal with the
statute law and not the law declared by the Supreme Court under Art. 141 and
directions/orders under Art. 142. The question is whether such a declaration is
inconsistent with the Constitution or in derogation of the fundamental rights.
The Court in Mandal case (holding reservation in promotion to be
unconstitutional) haa obviously recognised the need to adjust the competing rights
of both the disadvantaged and advantaged sections of citizens and, therefore, it
postponed the operation of that judgment for 5 years from that date giving an
option
The 'Right to Property' has proved to be the most complicated and controversial.
The Constitution (44th Amendment) Act, 1978 omitted Art. 19( 1 )(f) (Right to
acquire, hold and dispose of property), the sub-heading Right to Property (above
Art. 31) and Art. 31 (Compulsory acquisition of private property for a public
purpose - concept of 'eminent domain'). The effect of this change is that the Right
to Property is no more a fundamental right.
A new chapter IV has been inserted in Part XII of the Constitution and the
provision in Art 31 has been transferred there as Art. 300A (‘no person shall be
deprived of his property save Dy authority of law’). Thus the Right to Property
though a constitutional /legal right is not a fundamental right. If this right is
infringed the aggrieved person cannot access the Supreme Court directly under
Art. 32. Art. 300-A gives protection against executive action but not against
legislative action.
Notwithstanding the repeal of Art 31, Art. 31-A (added by the 1st
Amendment, 1951 and amended by the 4th, 17th, and 44th Amendment), Art. 31-
B (added by the 1st Amendment 1951), and.. Art 31-C (added by the 25th
Amendment, 1971 and amended by 42nd and 44th Amendments) remains part of
the Fundamental Rights. Art. 31-A saves certain laws providing for acquisition of
estates etc. from being questioned on grounds of inconsistency with Arts. 14 and
19. Art. 31-B saves certain Acts and Regulations listed in the 9th Schedule from
being challenged on the ground of inconsistency with any of the Fundamental
Rights. Art. 31-C saves certain laws giving effect to Directive Principles from being
questioned and invalidated °n grounds of inconsistency with Arts. 14 and 19.
\
B.K Sharma, pp. 112-113.
11 Explain the provisions of Art. 31-C of the Constitution of India. [D.U.-2008]
1
Art. 31-C and Keshavanand - Art. 31C contains the words that no law containing
30 a Constitutional Law o f India- II declaration that it
is for giving effect to such policy shall be called in question in any court on
the ground that it does not give effect to such policy. By the 25*h Amendment, Art
31-C containing this declaration ousting the jurisdiction of the courts was made a
part of the Constitution. The effect of the declaration clause was that if an Act
contained a declaration that is was to give effect to the policy of the State towards
securing the directive principles mentioned therein then the courts would be
debarred from examining the constitutionality of the Act or even that the
declaration is not founded on facts and is colourable.
The Supreme Court in Keshavanand struck down the ouster clause on the
ground that it destroys judicial review which is a basic feature of the Constitution.
It held the earlier part to be valid The part which said that if it is to implement the
policy contained in Art. 39 (b) and (c) then it shall not be declared to be void on
the -ground of violation of Arts. 14, 19 or 31. So after Keshavanand the court
continued to have the power of judicial review in relation to an Act covered by Art.
31-C.
Art. 31-C and Minerva Mills - The 42nd Amendment Act, 1976 (Sec. 4) sought to
extend the protection of Art. 31C to all those Acts which were meant to implement
any of the Directive Principles of State Policy. The effect of this extension was far
reaching and practically accorded primacy to the Directive Principles over the
Fundamental Rights.
In Minerva Mills the Supreme Court held Sec. 4 as unconstitutional and
consequently void. The Act destroyed the basic feature of the Constitution by
excluding from challenge all such laws which give effect to a Directive Principle.
Harmony and balance between Fundamental Rights and Directive Principles is a
basic feature of the Constitution. To give primacy to one over the other is to
disturb the harmony. The Court however declared that Art. 31-C as originally
introduced by the 25th Amendment was valid [Protecting Acts to implement Art
39(b) and (c) only].
The declaration made by legislature is not conclusive. It is justiciable. The
court may tear the veil to examine whether the declaration is colourable or is an
abuse of power, or whether it has direct and reasonable nexus with directive
principles (Bhimsingji v UOI AIR 1981 SC 234). But the economic considerations
for nationalization, the quantum of compensation, and necessity for nationalization
will not be judged by a court.
Art. 31-C and Sanjeev Coke - In Sanjeev Coke doubts were expressed on the
ratio of Minerva Mills and the main decision holding the extended declaration
clause as void was regarded as obiter. More areas of darkness and shadows
clamouring for light from the Supreme Court have emerged. 18
ARTICLE 34
[RESTRICTIONS ON FUNDAMENTAL RIGHTS DURING OPERATION OF
MARTIAL LAW]
Art. 35 lays down that the power to make laws to give effect to certain specified
fundamental rights shall vest only in the Parliament and not in State Legislatures.
The object is that fundamental rights, both as to their nature and as to the
punishment involved in their violation, shall be uniform throughout India.
Parliament may exercise this power even thought that matter might, fall in the
exclusive field of the State Legislatures.
Article 35(a)(i) empowers Parliament to make laws with respect to any of i ic
Matters which under Cl. (3) of Art. 16, Cl (3) of Art. 32, Art 33 and Art. 34 may
provided for by law made by Parliament. Art 35(a)(ii) further confers on
Parliament, power to make laws for prescribing punishments for those acts which
ar
5 declared offences under P3rt lit relating to fundamental rights For -^xampie. Art
,
/
17
3 4declares that practice
C o n s of'
t i tUntouchability”
utional Law in any
o f of
I nits
d iform
a - I shall
I be an offence
punishable by law. Likewise, Art. 23(1) prohibits ' traffic in human beings” “begar"
and “forced labour” and declares the contravention of this prohibition as an
offence punishable by law.
Art. 35(b) lays down that any law existing on the date of the commencement
of the Constitution and dealing with the matters mentioned in sub-clauses (i) and
(ii) Art. 35(a), shall remain in force until repealed, altered or abrogated by
Parliament For example, the Mulki Rules prescribing the condition of residence
within the whole of Hyderabad for appointment to offices in that area are saved
and continued in force by Art. 35(b) (State of UP v. Banwari AIR 1951 SC 615)
QUESTIONS AND A N S W E R S
Q.1 Regarding the expression "other authorities under the control of the
Government' in Art. 12, the Supreme Court in recent times has
been adopting a liberal interpretation. Thus, in Som Prakash \i
Union of India, it observed that the emphasis is on functionality plus
State control, rather than on the statutory character of the
corporation There is no reason to make exclusion on sophisticated
grounds such as that the legal person must be a statutory
corporation, must have power to make law, must be created by and
not under a statute and so on ... Discuss with the help of important
decisions. [C.L C.-94/95]
Write a short note on meaning of the term 'State under Art 12.
(L C l/L C 11-20062007]
A.1 Article 12 reads: “Unless the context otherwise requires, the term 'State’
include the following - executive and legislature of Union and States; all
local or other authorities within territory of India or under the control of
government’'
In the context of Art. 12, 'authority' means the power to make laws, bye-laws, etc.,
which have the force of law and power to enforce those laws
In Electricity Board, Rajasthan and Sukhdev Singh v Bhagatram cases, the
Supreme Court held that only the authorities created by the Constitution or Statute
are the ‘other authorities', though it is not necessary that statutory authority should
be engaged in performing governmental or sovereign functions Thus, Rajasthan
Electricity Board, ONGC, LIC, etc are held to be ‘other authorities' These bodies
have power to make bye-laws, regulations, etc. for regulating service conditions.
But in subsequent decisions, the Supreme Court has given a broad and
liberal interpretation to the expression 'other authorities’ in view of the fact that in a
welfare State, a government has to perform manifold functions for which it has to
employ various agencies or instrumentalities (which are not created by statute).
Tests to determine whether a body is an agency or instrumentality of government
(International Airport Authority case) -
(i) State mainly or chiefly contributed to the financial resources.
(jj) Deep and pervasive State control e g appointment and removal of
members
of a society, etc.
(ijj) Functions of corporation are of public importance i.e. governmental in
essence,
(iv) If a government department is transferred to a corporation,
(V) Corporation enjoys monopoly status which is State-conferred
Applying this test in Som Prakash v Union of India, the court held that a
government company (Bharat Petroleum Corporation) is ‘State’. The expression
‘other authorities' is not confined only to statutory corporation alone, but may
include a government company, a registered society, or bodies which have some
Fundamental Rights: General 35
nexus with the government. The emphasis is on ‘functionality plus State control’ rather
than the statutory character of the corporation.
In Ajay Hasia case, held that a registered society is-an agency or
instrumentality of the State. The enquiry has to be not as to how the juristic
person is created but why it has been brought into existence. It is immaterial
whether the corporation is created by or under a statute e.g. FCI created by Food
Corporation Act. 1964 and a company registered under the Indian Companies
Act. In this case held that the Regional Engineering College established and
administered by a registered society is a 'State'. The composition of the society
was dominated by the representatives of the Central and State Governments, the
rules to be made by the society had to be approved by the Central Government
and the accounts of the society were required to be submitted for government
approval and scrutiny.
In J.S. Ameja v National Co-op. Consumers Federation of India Ltd. (AIR
1995 Del 44) held that the National Co-op. Consumers Federation is not a ‘State’
under Art. 12. The entire share capital of Co-operative is not held by the
Government nor does it receive any financial assistance or subsidy from
Government but runs its own business on commercial principles by raising its own
funds, resources and obtaining loans from banks. It does not enjoy monopoly
status, it is an independent body functioning according to its bye-laws, according
to which the Board of Directors is the authority responsible for the management,
administration, business and functioning of Federation.
In Tekraj \/asandi v Union of India, held that the 'Institute of Constitutional
and Parliamentary Studies' is not a ‘State’ as the object of society is not related to
governmental business and in the functioning of it, government's control is not
deep and pervasive though government has a say in the matter of making grant.
Similarly in Chandra Mohan Khanna v NCERT, held that N.C.E.R.T. is not a State
as the governmental control is confined only to proper utilization of the grant. It is
an autonomous body. Art. 12 should n°t be stretched so as to bring in every
autonomous body which has some nexus with the government within the sweep
of the expression 'State'.
In the final analysis, it could be said that the Supreme Court has widened
the net of the expression “other authorities" to cover bodies and institutions
irrespective of the fact that they are created by or under a statute, with a view to
bringing under the discipline of Fundamental Rights (It is important to note that the
fundamental r'9hts are available only against the 'State' and not private individuals
or institutions).
Q.2 (a) Critically examine the concept of "State” as defined in Art. 12 of the
Constitution. What is the test to determine whether an institution or
corporation is an agency or instrumentality of the State?
[I. A S -92/95]
(b) Can a non-governmental company be called a “State" within the
meaning of Art. 12 of the Constitution?
Discuss and state whether Art. 12 also includes private persons
[I A.S -97]
A.2 (a) Please refer to answer to Q.1.
(b) In MC. Mehta v Union of India (1987) 1SCC 395, the question was
whether a private corporation (Shriram Food and Fertilizers Ltd.) is
a “State” under Art. 12 It was contended that Shriram Company is
State’ because it is carrying on an industry vital to the public interest
with a potential to affect the life and health of the people under the
active control of the government. Furthermore it is carrying on an
industry which according to the declared policy of the government
was ultimately intended to be carried out by the government itself It
XVI was also pointed
C o n s tout
i t uthat
tiona asizable
l L a wfinancial
o f Ind aid
i acomes
- II from the
government. Taking aid of the American State Action doctrine, it
was also argued that a private activity if supported, controlled or
regulated by State may get so intertwined with governmental activity
as to be termed State action and it would then be subject to the
same constitutional restraints as the State. The court observed that
a non-governmental company can be placed within the meaning of
Art 12, if for reasons of State control and regulations and kind of
public function they are performing, they satisfy the tests of
instrumentality or agency of government The Corporate device will
not be allowed to be used as a barrier for ousting the Constitutional
control of fundamental rights
A non-governmental company like the United India Insurance Co. which is
given monopoly rights on general insurance business under the General
Insurance Business (Nationalization) Act, 1972 has been held ‘State”, as it has
the trappings of the State.
In Unni Krishnan v State of A P. (1993) 1 SCC 645. the court observed that
the term ‘authority’ used in Art. 226 must receive a liberal meaning unlike the term
in Art. 12 because Art. 226 confers powers on High Court not only for the
enforcement of fundamental rights but for the other rights aiso Therefore, the term
'authority' as used in Art. 226 must not be confined only to statutory authorities or
instrumentalities of the State. It may cover any other person or body performing
public duty’. Thus, a private medical/engineering college comes within the writ
jurisdiction of the court irrespective of the question of aid and affiliation However,
it would not be ‘State’ within the meaning of Art. 12.
'Right to Equality is the first fundamental right assured to the people of India.
Article 14 embodies the idea of equality expressed in the Preamble. The
succeeding Arts. 15, 16 and 17 lay down specific applications of the general rules
laid down in Art. 14. Art. 14 is the equality clause because of its wide ambit and
applicability. It applies to all persons while Art. 15 and others cover only citizens.
In the second India Sawhney case it has been held that the principle of equality
enshrined in Art.
14 is a basic feature of the Constitution.
“The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.’’
Equality is a cherished ideal of humanity. The famous author A. V. Dicey, an
authority on the British Constitution, had propounded his principles of Rule of
Law. ‘Equality before the law’ is part of that enduring concept The words ‘Equal
protection of the law’ is part of the U.S. Constitution 14thAmendment. The same
Right to Equality 37
phrase occurs in Art. 7 of the Universal Declaration of Human Rights, 1948. Even
the Preamble to the U.N, Charter has reference to equality.
While “equality before law" is a somewhat negative concept implying the
absence of any special privilege in favour of individuals and the equal subject of all
classes to the ordinary law. It means no man is above the law and that every
Person, high or low, is subject to the ordinary law of the land and amenable to the
Jurisdiction of the ordinary courts.
“Equal protection of iaw" is a more positive concept (as it expects a positive
a
ction from the State) implying equality of treatment in equal circumstances. In
other Words, all persons who are in the same circumstances will be governed by
the
same set of rules. It is a guarantee of equal treatment Equal law should be applies j
with an equal hand to all persons who are equals. The rule is that like should be
treated alike and not that unlike should be treated alike.
In State of W.B. v Anwar Ali Sarkar (discussed below), the Court rightly
observed that the second expression is the corollary of the first and it is difficult to
imagine a situation in which violation of equal protection of laws will not be the
violation of the equality before law. Thus, in substance the two expressions mean
one and the same thing
In Re Special Courts Bill, 1978 (AIR 1979 SC 478), Chandrachud, J.
observed: ] "The underlying principle of the guarantee of Art. 14 was that all
persons similarly circumstanced should be treated alike both in privileges conferred
and liabilities j imposed.”
Availability of right to equality - The words “any person” in Art. 14 denotes that
equal protection of law is available to any person which includes any Company or
association, etc. Art. 14 extends to both citizens and non-citizens and to natural
persons as well as legal persons. The equality before law is guaranteed to all
without regard to race, colour or nationality. However, an alien (foreign national)
cannot claim equal rights (under Art. 14) with that of an Indian national, in relation
:
to the grant of Indian citizenship.
Exceptions to rule of equality- Under Art. 359, when the proclamation of emergency
1 is in operation the enforcement of Art. 14 may be suspended during that period. -
Art. 361 provides that President and Governors shall not be answerable to any ;
court for the exercise and performance of the powers and duties of office. They 1
also enjoy immunity from criminal and civil proceedings until certain conditions are
fulfilled.
Members of Parliament and of State legislatures are not liable in respect of
anything done or said within the House (Arts. 105 and 194). Foreign Diplomats are
/
XVI
Constitutional Law o f India- II
immune from the jurisdiction of courts. Art. 31C forms an exception by excluding 1
some laws [for implementing any of the directive principles specified in Art. 39(b) or
(c)] from the purview of Art. 14.
distinct things. What is necessary is that there must be a nexus between the basis
of classification and the object of the Act which makes the classification. There
should be a reasonable basis for a classification
To illustrate by an example: Under Sec. 11 of Indian Contract Act, persons
who haven’t attained majority can’t enter into a contract. The two categories are
adults and minors. The basis of classification is the age, which obviously has a
relation to the capacity to enter into contract. The section, therefore, satisfies both
requirements of a valid classification. But suppose that the basis of classification is
coiour of hair e.g. all persons having black hair may contract. This classification
would fail because the differentiation has no relation to the object of legislation - the
capacity to contract.
/
Where a Special
C o n sAct
t i t uprovides
t i o n a la Lsummary/
a w o f Ispeedier
n d i a - Iprocedure
I (but harsher
and more onerous than the ordinary civil procedure) for eviction of a person from
unauthorized occupation of government premises, in N.l Caterer's case (AIR 1967
SC 1581), held that the Act is discriminatory. But, in M Chagganlal v Greater
Bombay Municipality (AIR 1974 SC 2009), it held that “government premises” is a
sufficient guidance for authorities to take action under special procedure It was laid
down:
(i) Where a statute providing for a more drastic procedure different from the
ordinary procedure covers the whole field covered by the ordinary
procedure, without any guidelines, as to the class of cases in which either
procedure is to be resorted to, the statute will be hit by Art. 14 (Anwar Ali
case, below).
(ii) However, if from the preamble and surrounding circumstances, as well as
the provisions of statute themselves explained and amplified by affidavits,
necessary guidelines could be inferred, the statute will not be hit by Art.
14 (Kathi Raning v State of Saurashtra AIR 1952 SC 123).
Various decisions have established important guidelines or principles which further
clarify the “scope of permissible classification” [Ramkrishna Dalmia v Justice
Tendolkar AIR 1958 SC 538; Re Special Courts Bill. 1978 AIR 1979 SC 478; R.K.
Garg v UOI AIR 1981 SC 2138; D.S. Nakara v UOI AIR 1983 SC 130]:
(1) A law may be constitutional even though it relates to a single individual if
on account of some special circumstances that single individual may be
treated as a class by itself.
(2) There is always a presumption in favour of the constitutionality of a
statute (the courts does not favour a construction which reduces the
statute to a futility). However, the presumption may be rebutted in certain
cases by showing that there is no classification at all and no difference
peculiar to any individual or class and not applicable to any other
individual or class, and yet the law hits only a p?rticular individual or
class.
(3) In order to sustain the presumption of constitutionality, the court may take
into consideration matters of common knowledge, the history of the times
and may assume every state of facts which can be conceived existing at
the time of the legislation. However, the presumption cannot be earned to
the extent of holding that there must be some undisclosed or unknown
reasons for subjecting certain individuals to the discriminating legislation.
(4) It must be presumed that, while making classification, the legislature
understands and correctly appreciates the needs of its own people, that
its laws are directed towards problems made manifest by experience and
that its discriminations are based on adequate ground
(5) The legislature is free to recognize degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the clearest.
(6) Mere inequality in no manner would determine the matter of
constitutionality, for the very idea of classification implied inequality.
(7) The classification made by a legislature need not be scientifically perfect or
logically complete. Mathematical nicety and perfect equality are not
required. Similarity, and not identity of treatment, is enough. Equal
treatment does not mean identical treatment. Mere differentiation or
inequality of treatment, does not perse amount to discrimination. It does
not matter that there are some categories distributed across the dividing
line, as long as, there is a broad discernible classification based on
intelligible differentia. The over- or under-inclusiveness of the
classification, if marginal, is permissible.
(8) The question whether a classification is reasonable and proper or not,
must, however, be judged more on common-sense than on legal
subtleties.
(9) If the legislative policy was clear and as an effective method of carrying
out that policy, a discretion was vested by the statute upon a body of
administrators or officers to selectively apply the law to certain classes or
groups of persons, the statute itself could not be condemned as a piece of
discriminatory legislation.
(10) A legislation may not be amenable to challenge on ground of violation of
Art. 14, when it is intended to give effect to principles specified under Arts.
15 or 16 or when the differentiation is not unreasonable. But, when a
classification is made, which is perse violative of constitutional provisions,
the same cannot be upheld.
(11) Substantive law and procedure law are both subject to the mandate of Art.
14. Thus, classification should be reasonable both from substantive and
procedural stand points.
Basis of Classification
The basis of classification may be different e g. geographical, vocational, difference
in time, difference in nature of persons, trade or occupation, etc.
Examples. A tenancy law may be necessary only for a part of the State because the
conditions of tenants vary from locality to locality. Similarly, a rule is not violative of
Art. 14 if it imposes a capitation fee on the non-resident students of a State and
exempts the resident students, because the State has to contribute for the upkeep
and running of its educational institutions.
[L.C.1-2006]
14 Write a short note on: Single person laws under Art. 14.
XVI
Constitutional Law o f India- II
Sholapur was taken over by the Government by passing the Sholapur Spinning
and Weaving Co. (Emergency Provision) Act The Act was challenged by a
shareholder of the company on the ground that a single company and its
shareholder was being denied equality before the law, because the Act treated
him differently vis-a-vis other companies and their shareholders. In other
words, law had selected one particular company and its shareholders and had
taken away from them their r ight to manage their own affairs but the same
treatment had not been meted out to all other companies or shareholders in an
identical manner.
Holding the Act to be valid, the Apex Court said that a law may be
constitutional even though it applies to a single individual if, on account of
some special circumstances or reasons applicable to him and not applicable to
others, that single individual may be treated as a class itself, unless it is shown
that there are others who are similarly circumstanced. The Legislature is free to
recognize the degree of harm and it may confine its restriction to those cases
where the need is deemed to be the clearest.
In the present case the Sholapur Company formed a class by itself
because the mismanagement of the company's affairs prejuaiaally affected the
production of an essential commodity and had caused a serious
unemployment amongst labourers. A corporation which is engaged in
production of a commodity vitally essential to the community, has a social
character of its own and it must not be regarded as the concern primarily or
only of those who invest their money in it. It is in the interest of the community
at large that the Legislature has treated it as a class by itself and made special
legislation applicable to it alone.]
Leading Case: state of w.b. V anwar ali sarkar (AIR 1952 SC 75)
Facts and Issue - IP this case, the validity of the respondents, Anwar Ali and
others, by the special courts established under Sec 5(1) of West Bengal
Special Courts Act, 1850, was at issue. The Act was passed ' to provide for the
speedier trial of certain offences" as stated in Preamble It prescribed a special
procedure which courts had to follow in the trial of cases referred to it.
Observations - The Supreme Court observed that such a law will not be
violative of Art. 14 if it lays down proper guidelines for classifying “offences",
“classes of offences", or “cases” or "classes of cases" to be tried by special
courts. But the special procedure prescribed by such a law should not be
substantially different from the procedure under ordinary law.
Right to Equality 43
The differentia which is the basis of the classification and the object of the
Act are two different things. Thus, the object by itself cannot be the basis of
classification of offences or cases, for in the absence of any special circumstances
which may distinguish one offence or case from another offence or case, the
speedier trial would be desirable in disposal of all offences or cases. On the other
hand, there are certain offences e g frequent incidents of theft, dacoity, kidnapping,
etc. in an area or arson, loot, rape, etc. during communal riots in particular localities
which legitimately call for a speedier trial in the interest of the community. Similarly
political murders or crimes against the State may require speedier trial. These
special circumstances add a peculiar quality to these offences, or classes of
offences, or classes of cases which distinguish them from stray or isolated cases of
similar crimes.
The court said that the Act did not lays down any basis for classification nor
did it mention clearly what kind of cases were to be directed for trial by special
courts. The object as stated in the Preamble, "speedier trial of certain offences” was
too vague, uncertain and illusive to afford a basis for reasonable classification Sec.
5(1) which authorises Government to direct "cases” to be tried by the special court,
contravened the Art. 14 as it conferred arbitrary powers on the Government to
classify offences or cases at its pleasure.
Decision - The majority held that the procedure laid down by the Act varied
substantially from the procedure laid down for trial by Criminal Procedure Code Art.
14 applies to both, the substantive as well as procedural law, as discrimination can
occur in both.]
In this case, the object as mentioned in the Ordinance wss to provide for “public
safety, public order and preservation of peace and tranquility” ir the State of
Saurashtra. Thus, four distinct categories of “offences” (viz offences or classes of
offences or cases or classes of cases) could be directed by the Government to be
tried by the Special Courts established under the Ordinance The procedure under
the Ordinance was harsher than that provided under the Criminal Procedure Code
Notwithstanding this Ordinance, the crimes went on increasing and there
occurred numerous cases of dacoity, murder, nose-cutting, ear- cutting, etc for
some of which certain notorious gangs were responsible, and hence the Ordinance
was amended to constitute Special Courts for the speedy trial of cases arising out
of the activities of the dacoits and other criminals guilty of violent crimes in certain
areas. The amended Ordinance thus had the same object as the original
Ordinance.
It was heldCthat
o n sint comparison
i t u t i o n a l toLthe
a wWest
o f Bengal
I n d i a Ordinance
- II (State of W.B. v
Anwar Ali Sarkar case), the Saurashtra Ordinance clearly laid down the guiding
principle i.e. to provide for public safety, public order and preservation of peace and
tranquility in the State. The mere mention of the speedier trial in the West Bengal
Act did not cure the defect because the expression afforded no help in determining
what cases or class of cases or offences or class of offences required speedier trial
The court observed: A distinction should be drawn between 'discrimination
without reason’ and ‘discrimination with reason' The whole doctrine of classification
is based on this distinction and on the well- known facts that the circumstances
which govern one set of persons or objects may not necessarily be the same as
those governing another set of persons or objects, so that the question of unequal
treatment does not really arise as between persons governed by different conditions
and different set of circumstances. The main objection to the West Bengal Act was
that it permitted 'discrimination without reason' or without any rational basis. In the
present case, one could discover a nexus (which was missing in the W.B. Act)
between offences of a particular category and the object with which the Ordinance
was promulgated, as should suffice to repel the charge of discrimination and furnish
some justification for the special treatment of those offences.
In the present case, the Notification also specifies certain areas in the State
over which only the Special Courts is to exercise jurisdiction. There can be no
dispute that if the State Legislature finds that lawlessness and crime are rampant
and there is a direct threat to peace and tranquility in certain areas within the State,
it is competent to deal with offences which affect the maintenance of public order
and preservation of peace and tranquility in certain areas as a class by themselves
and to provide that such offences shall be tried as expeditiously as possible in
accordance with a special procedure devised for the purpose
The court observed: If from the preamble and surrounding circumstances, as
well as the provisions of statute themselves explained and amplified by affidavits,
necessary guidelines could be inferred, the statute will not be hit by Art. 14. The
legislature is given the utmost latitude in making the classification and it is only
when there is a palpable abuse of power and the differences made have no rational
relation to the objectives of the legislation, that necessity of judicial interference
arises.
The court further observed: If the impugned legislation indicated the policy
which inspired it and the object which it seeks to attain, the mere fact that the
legislation does not itself make a complete and precise classification, but have the
selective application of the law to be made by the executive authority in accordance
with the policy/object, is not a sufficient ground for condemning it as arbitrary
It was argued that the list of classification of offences mentions
offences of a particular character but excludes other offences of a cognate
character. For example, while Sec. 183, IPC is mentioned in the list, Secs.
184, 186 and 188 which deal with similar offences were excluded. Similarly,
the list does not mention Sec. 308, IPC (attempt to commit culpable
homicide), though it mentions Sec. 307 (attempt to commit murder). The
court observed: A meticulous examination of the various offences specified
in the list with regard to jeir nature and punishment is not necessary for
Right to Equality
purposes of this case. Simply because certain offences which could have
been mentioned along with similar other in a particular group have been
omitted therefrom, it cannot be said that the ■sole list is bad. The appellant
is accused of murder and dacoity and no offences of a similar nature are
excluded from the list.
Facts and Issue - In this case, the question was to the validity under Art. 14
of the Acts, which conferred on the authorities the power to initiate eviction
proceedings against unauthorised occupants of Corporation and
Government premises The two Acts in question were: The Bombay
Municipal Corporation Act, 1888, and, The Bombay Government Premises
(Eviction) Act, 1S55. The procedure under these Acts were alleged to be
harsher and more onerous than that available by way of a suit under the
ordinary law i.e. Civil Procedure Code (C.P.C.). The Supreme Court upheld
the validity of the impugned Acts.
The N.I. Caterers Lt Governor of Delhi (AIR 1967 SC 1581) was
examined afresh in this case. In that case, Sec. 5 of Punjab Public
Premises and Land (Eviction & Rent Recovery Act) Act of 1959 which
provided for a speedy remedy to the Government for evicting unauthorised
tenants, was questioned under Art. 14, as two processes were available to
Government for evicting a tenant, one under the CPC., and another which is
more drastic, under Sec 5 of said Act, and the Government could choose to
proceed under either of them The Supreme Court held that section to be
discriminatory and so void, as two tenants of the Government could be
exposed i differential treatment and there were no intelligible guidelines for
exei sc of Government's discretion.
6 . B K . Sharma, p. 74
Right to Equality
arbitrary and not informed by any reason whatsoever), the policy decision
cannot be struck down. It should be borne in mind that except for the limited
purpose of testing a public policy in the context of illegality and unconstitutionality,
the courts should avoid “embarking on uncharted ocean of public policy”
A legislation which confers on the executive or administrative authority an
unguided or uncontrolled discretionary power in the matter of application of law or
allows it to select cases violates Art. 14. Exercise of discretion must be
transparent, just, fair and non-arbitrary [Common Cause v UOI (1996) 6 SCC
530],
7 . B K Sharma, pp 75-76.
Right to Equality 53
^constitutional.
In Randhir Singh v Union of India (AIR 1982 SC 879), it has been held that
'equal pay for equal work’, although not expressly to be a fundamental right is
clearly a constitutional goal under Arts 14, 16 and 39(c) of Constitution and can be
enforced by the courts in cases of unequal scales of pay based on irrational
XVI
Constitutional Law o f India- II
classification. This principle has been followed in a number of cases and has
virtually become a fundamental right.
It may be noted that, under Art. 16(2), where there is discrimination only on
any of the grounds mentioned therein, this clause will get attracted. Where
discrimination is based partly on the grounds contained in Art. 16(2) and partly on
other grounds, or, where discrimination is based on grounds other then those
mentioned in Art 16(2). this clause would not be attracted But, the case will have
to be judged in the light of general principles laid down in Art 16(1). Thus, if
discrimination is based on the ground of backwardness, clause (2) will not be
attracted (State of Kerala v N.M. Thomas, discussed below)
17 Does reservation under Art. 15(4) and Art. 16(4) lead to any infraction of
right to equality guaranteed under Art 14? Illustrate vvitn reference to
decided cases.
[L.C.II-2006\
"Equality is the basic feature of the Constitution of India arid any treatment
XVI
Constitutional Law o f India- II
not promotions, and, the total reservation shall not exceed 50% (There
is already a 221/2% reseivation for SC arid STs in gcvernment jobs)
However, the court struck down the government notification reserving
10% government jobs for economically backward classes among higher
castes
The Mandal Commission was appointed to investigate the
condition of socially and educationally backward classes. Cne of the
major recommendations of the Commission was that, excluding the
SCs/STs, Other Backward Classes (OBCs) constitute nearly 52% of the
population and therefore 27% government jobs could be reserved for
them so that total reseivation for all (SCs/STs/OBCs) amounts to 50% In
1990, *he Centra1 Government Memorandum announced 27%
reservation for socially and educationally backward classes in the
government posts/services In 1991, the Memorandum was modified:
first, the poorer sections among the backward classes to get preference;
secondly, 10% vacancies to be reserved for the other economically
backward sections of the people uncovered by any existing reservation
scheme The constitutional validity of the Memorandum was considered
by the Bench of S Judges.
The majority held that the Mandal Report is valid however, no
opinion is expressed by it Also, held that a provision under Art 16(4) can
be made by the legislature by enacting a law or by an ‘executive’ order 19
The court, however, observed: Reservation by an executive order may
not be invalid, but since it was being made for the first time in services
under the Union, propriety demands that it should have been laid before
the
Parliament not only to lay down a healthy convention but also to consider the
change in social, economic and political conditions of the country.
A permanent statutory body be appointed to examine complaints of over-
inclusion and under-inclusion. All disputes regarding new criteria evolved by the
Central or State Governments can be raised only in the Supreme Court and not
before any High Court or tribunal.
The majority opinion may be summarised as follows (Readers must note
carefully the comparison of this case with Balaji, Thomas and other cases):
(I) Backward class of citizens in Article 16(4) can be identified on the basis of
caste and not only on economic basis -
The word 'class' in Art. 16(4) is used in the sense of social class. It is not
“antithetical to caste". The term ‘class’ was used in Art. 16(4) with a view to
secure the protection of Art. 16(4) to all communities, groups, classes, sections
found to be backward.
A caste can be quite often is a social class in India an;) if it is backward
socially, it would be a backward class for the purpose of Art. 16(4). Though caste
alone can’t be taken into consideration for purposes of identification of backward
classes (occupation groups, classes and sections of people are other important
criteria). There are classes among non-Hindus, Muslims, Christians, etc. and if
they are backward socially, they are entitled to reservation.
In Balaji case, court observed that the term ‘backward class' is not defined
in Constitution, and government’s decision in this regard is justiciable. A class
implies a division of society according to status, rank or caste; in India, caste
plays an important role in determining status However, caste is not the sole
criterion ... Muslims, Christians, Jains do not recognise castes, how one decide
social backwardness in them.
(II) Article 16(4) is not an exception to Article 16(1), but an independent clause.
Reservation can be made under Article 16(1) on the basis of reasonable
classification -
The court thus overruled Balaji case and approved Thomas case Further, court
said that Art. 16(4) is exhaustive of the subject of reservation in favour of
backward classes, though it may not be exhaustive of the very concept of
reservation. Reservation for other classes can be made under Art. 16(1). Art.
16(4) is an instance of classification implicit in and permitted by Art. 16(1). In
other words, Art. 16(4) did not cover the entire field covered by Art. 16(1) and (2).
Art. 16(1) permitted the making of reservation of appointment/posts which
should be made only in exceptional situations and wherein the State is called
upon to do so in public interest. For instance, reservations for the wards of military
personnel or political sufferers or any other class except for backward classes.
The court also explained that Art 16(4) permitted not only reservation of
appointment/posts which was the highest form’ of special provision, but also
preferences concessions and exemptions which are ‘lesser forms’ of special
provision.
(III) Backward classes in Article 16(4) are not similar to as socially and
educaticnaliy backward in Article 15(4) -
It is much wider and takes in SC/STs and OBCs including socially and
educationally backward classes. It followed that certain classes might not qualify
for the protection of Art. 15(4) but might qualify for the protection of Art. 16(4}
Thus, court overruled Balaji case on this point.
Also, backwardness contemplated by Art 16(4) is mainly social. It need not
be both social and educational as required by Art 15(4).
(IV) Creamy layer (socially advanced persons) can be and must be excluded
from Backward Classes -
The 'means test' signifies imposition of an income limit Persons whose income
exceeds that limit are excluded from backward class. Such persons are called the
creamy layer. Exclusion of the creamy layer makes a backward class truly
backward. For excluding creamy layer, economic criteria can be adopted as an
indicium or measure of social advancement. There are certain positions e.g. IAS,
etc. which can be treated as advanced without further inquiry.
Right to Equality 63
would revitalize casteism, cleave the nation into two - forward and backward - and
open up new vistas for conflicts and fissiparous forces, and make backwardness a
vested interest. This is against the call of the Preamble - unity and integrity and
XVI
Constitutional Law o f India- II
Bihar. Held, that such criterion for identification of ‘creamy layer’ is violative of Art.
14 and Art. 16(1) and against the Mandal judgment.
If these absurdities were allowed to continue, Mandal would have been
stood on its h^ad: the elite, purely on the basis of caste, and using the power
already at their command, would have simply continued hogging the reservations
that should have gone to the genuinely deserving. If the rich and the poor treated
alike in the matter of job^servation, they are bound to benefit at the cost of the
poor. The Supreme Court by stnking down the creamy layer test by the two
Governments has contributed considerably for social justice
vacancies of the year in which they are being filled up, even if the 50% limit
imposed in the Mandal case is crossed. 22
Comments
The aforesaid four amendments (77th, 81st, 82nd and 85th Amendments) were
intended to nullify the Mandal Case. In M. Nagaraj (below-discussed), the Supreme
Court upheld the validity of these amendments on the ground that the amendments
are enabling in nature. Parliament has not provided content to the right If a State
enacts a law in regard to reservation which goes beyond the parameters set by Art.
16(4) and Art. 335 then the Court will set aside the legislation. Also, the State will
have to introduce ‘time-cap’ in the carry over rule.
In this case, the petitioner invoked Art. 32 for a writ in the nature of
certiorari to quash the Constitution (85th Amendment) Act, 2001 inserting
Art. 16(4A) retrospectively from 17-6-1995 providing ‘reservation in
promotion with consequential seniority’ for SCs and STs as being
unconstitutional and violative of basic sfructure. The main issue
concerned the “extent of reservation” (reservation within reservation). A
five-judge Bench unanimously held that Clause (4A) of Art 16 is an
enabling provision. It applies only to SCs and STs. The said clause is
carved out of Art. 16(4). Therefore, clause (4A) will be governed by the
two compelling reasons “backwardness” and ‘inadequacy of
representation” as mentioned in Art. 16(4) If the said two reasons do not
exist then the enabling provision cannot come into force The State can
make provision for reservation only if the above two circumstances exist.
The court further held that clause (4B) of Art. 16 [inserted in Art.
16 by the Constitution 81st Amendment Act, 2000], treating unfilled
reserved vacancies as separate class (could go beyond the 50% limit), is
also an enabling provision. The court also upheld the constitutional
validity of the Constitution 82nd Amendment Act, 2000, which inserted a
proviso in Art. 335 relaxing qualifying marks of promotion to SCI ST
candidates.
The Apex Court held that they are enabling provisions and do not
obliterate constitutional requirements namely, ceiling limit of 50%
(quantitative limitation), the concept of creamy layer (qualitative
limitation), the concept of sub-classification between OBCs and SCs and
STs, and, do not change the equality code indicated in Arts. 14,15 and
16. They retain the controlling
whom the power is conferred, it would be corrected by the courts. This is the
basic principle behind the enabling provisions which are incorporated in Arts.
16(4-A) and 16(4- B). Enabling provisions are permissive in nature. They are
enacted to balance equality with positive discrimination.
(iv) The constitutional law is the law of evolving concepts Some of them are
generic, others have to be identified and valued. The enabling provisions deal
with the concept, which has to be identified and valued as in the case of
access vis-ci-vis efficiency which depends on the fact Situation only and not
abstract principle of equality in Art 14 as spelt out in detail in Arts. 15 and 16.
Equality before the law, guaranteed by the first part of Art. 14, is a negative
concept while the second part is a positive concept which is enough to
validate equalizing measures depending upon the fact situation.
(v) It is important to bear in mind the nature of constitutional amendments They
are curative by nature. Art 16(4) provides for reservation for Backward
Classes in cases of inadequate representation in public employment. Art.
16(4) is enacted as a remedy for the past historical discriminations against a
social class. Art. 16(4) did not confer any fundamental right to reservation; it is
only an enabling provision. The object in enacting the enabling provisions like
Arts. 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and
recognize the compelling interests. If the State has quantifiable data to show
backwardness and inadequacy then the State can make reservations in
promotions keeping in mind maintenance of efficiency which is held to be a
constitutional limitation on the discretion of the State in making reservation as
indicated by Art. 335. The concepts of efficiency, backwardness, inadequacy
of representation are required to be identified and measured. That exercise
depends on availability of data and on numerous factors. It is for this reason
that enabling provisions are required to be made because each competing
claim seeks to achieve certain goals.
(vi) How best one should optimize these conflicting claims can only be done by
the administration in the context of local prevailing conditions in public
employment. Therefore, there is a basic difference between “equality in law"
and “equality in fact". If Arts 16(4-A) and 16(4-B) flow from Art. 16(4). and, if
Art 16(4) is an enabling provision then Arts. 16(4-A) and 16(4-B) are also
enabling provisions. As long as the boundaries mentioned in Art. 16(4),
namely, backwardness, inadequacy and efficiency of administration are
retained in Arts. 16(4-A) and 16(4-B) as controlling factors, we cannot
attrioute constitutional invalidity to these enabling provisions. However, when
the State fails to identify and implement the controlling factors then
excessiveness comes in, which is to be decided on the facts of each case. In
a given case, where excessiveness results in reverse discrimination, this court
has to examine individual cases and decide the matter in accordance with
law. This is the theory of “guided power”.
(vii) In Indra Sawhney case, the equality which was protected by the rule of 50%,
was by baiancing the rights of the general category vis-&-vis the rights of BCs
Right to Equality 73
en bloc consisting of OBCs, SCs and STs On the other hand, in the present
case, the question which we are required to answer is: whether within the
egalitarian equality, indicated by Art. 16(4), the sub classification in favour of
SCs and STs is in principle constitutionally valid. Art. 16(4-A) is inspired by
the observation in Indra Sawhney in which this court has unequivocally
observed that in order to avoid lumping of OBCs, SCs and STs which would
make OBCs take away all the vacancies leaving SCs and STs high and dry.
the State concerned was entitled to categorize and sub-classify the SCs and
STs on one hand vis-^-vis OBCs on the other hand.
(viii) The test for judging the width of the power and the test for adjudicating the
exercise of power by the State concerned are two different tests which
warrant two different judicial approaches. In the present case, as stated
above, we are required to test the width of the power under the impugned
amendments. Therefore, we have to apply “the width test”. In applying “the
width test’ we have to see whether the impugned amendments obliterate the
constitutional limitations mentioned in Art. 16(4), namely, backwardness and
inadequacy of representation. As stated above, these limitations are not
obliterated by the impugned amendments. Applying the test of "identity ’, we
do not find any alteration in the existing structure of the equality code (Arts.
14, 15 and 16) by the impugned amendments.
The boundaries of the ‘width of power are: (1) The ceiling limit of 50%
(quantitative limitation); (2) The principle of
creamy layer (qualitative exclusion); (3) The compelling
reasons viz. backwardness, inadequacy of
representation, etc. (4) The overall administrative
efficiency.
(ix) The so-called "catch up'' rule is that a reserved category
candidate promoted on the basis of reservation earlier
than his senior general category candidates in the feeder
grade, shall necessarily be junior in the promoted
category to such general category candidates This rule is
not implicit in Arts. 16(1) to
(4) . The concept of the “catch up” rule and
“consequential seniority" are not constitutional
requirements or limitations. They are judicially evolved
concepts to control the extent of reservation, derived
from service jurisprudence They are not constitutional
principles so as to be beyond the amending power of
Parliament It cannot be said that by insertion of the
concept of "consequential seniority" the structure of Art.
16(1) stands destroyed or abrogated. Obliteration of
these concepts or insertion of these concepts does not
change the equality code indicated by Arts. 14, 15 and
16.]
Constitutional Law o f India- II
effect. Consequentially the Act of 2007 shall have the effect and wide ramifications
and ultimately it shall have the result in dividing the country on caste basis.
Besides affecting the peaceful atmosphere in the educational and other institutions,
it would seriously affect social and communal harmony. The constitutional
guarantee of equality and equal opportunity shall be seriously prejudiced.
Observations and Decision - The court observed: Reservation is one of the many
tools that are used to preserve and promote the essence of equality, so that
disadvantaged groups can be brought to the forefront of civil life. It is the duty of
State to promote positive measures to remove barriers of inequality. To cope with
the modern world and its complexities and turbulent problems, education is a must
and it cannot remain cloistered for the benefit of a privileged few. Reservations
provide that extra advantage to persons who, without such support, can forever
dream of university education, without ever being able to realise it This advantage
is necessary. However, the fact remains that any reservation or preference shall
not lead to 'reverse discrimination.'
The various questions and the court’s answer to them could be summarized
as below:
(I) Whether 93rd Amendment Act of the Constitution is against the basic structure
of the Constitution?
The Apex Court held: The Constitution (Ninety-Third Amendment) Act, 2005, does
not violate the basic structure of the Constitution so far as it relates to State-
maintained institutions and aided educational institutions (question as to validity of
the said amendment with respect to private unaided institutions left open).
Equality is a multi-ccloured concept incapable of a single definition. The
pnnciple of equality is a delicate, vulnerable and supremely precious concept for
our society and has embraced a critical and essential component of constitutional
identity. The larger principles of equality as stated in Arts 14,
15 and 16 may be understood as an element of the basic structure of the
Constitution and rnay not be subject to amendment, although, these provisions,
intended to configure these rights in a particular way, may be changed within the
constraints of the broader principles. The variability of changing conditions may
necessitate the modifications in the structure and design of these rights, but the
transient characters of formal arrangements must reflect the larger purpose and
principles that are the continuous and unalterable thread of constitutional identity. It
is not the introduction of significant and far-reaching change that is objectionable
rather it is the content of this change insofar as it implicates the question of
constitutional identity.
The principles of equality cannot be completely taken away so as to leave
citizens in a state of lawlessness. But the facets of the principles of equality can
always be altered, especially to carry out the directive
Constitutional Law o f India- II
significance A blind eye cannot be turned to the poor, those covered by the all-
encompassing expression "economically backward classes.” The poor have no
caste A person belonging to a higher caste should not be made to suffer for what
his forefathers had done several generations back If the creamy layer has to be
excluded the economically backward classes have to be included. That would be
social balancing and would be giving true meaning to the objectives of the
Constitution Data shows that income is a better determinant of educational
achievement than caste. Therefore, economic criteria should be the sole means by
which beneficiaries of special provisions under Art. 15(5) are to be identified.
Economic criteria however must include occupation and landholdings, because
income alone is insufficient. Using purely economic criteria would lighten the
identification load, as ascertaining caste would no longer be required. The problem
of too many people becoming eligible on the basis of economic criteria would only
arise if reservation was made based on the group's proportion of the total
population. If economic reservation were limited to a reasonable number, it could
be upheld Hence, the Government is urged that for a period of 10 years, caste and
other factors such as occupation/income/property holdings or similar measures of
economic power may be taken into consideration and thereafter only economic
criteria should prevail.
(V) Whether “Creamy Layer" is to be excluded from SEBCsl
The court observed: Act 5 of 2007 is constitutionally valid subject to the definition
of “Other Backward Classes” in Sec 2(g) of Act of 2007 being clarified as follows; If
the determination of “Other Backward Classes” by the Central Government is with
reference to a caste, it shail exclude the “creamy layer' among such caste Hence,
“creamy layer” is to be excluded from SEBCs. The identification of SEBCs will not
be complete and without the exclusion of “creamy layer” such identification may not
be valid under Art. 15(1) The “Other Backward Classes” defined in Sec 2(g) of Act
5 of 2007 is to be read as "Socially and Educationally Backward Classes” other
than Scheduled Castes and Scheduled Tribes, determined as ‘Other Backward
Classes” by the Central Government Hence, for implementation of the impugned
statute, creamy layer must be excluded.
Had Parliament insisted on creamy layer inclusion, it could have said as
much in the text of Art. 15(5). Instead, Parliament left the text of Art. 15(5) silent on
the issue, delegating the issue of OBCs identification to the executive in Sec 2(g).
It seems unlikely that it would have been an all or nothing proposition for
Parliament, when the very goal of the impugned legislation of promoting OBC
educational advancement does not depend on creamy layer inclusion Not even
Parliament, by constitutional amendment, could dismantle the basic structure by
including the creamy layer in reservation. For these
Right to Equality
The court, however, made it clear that same principle of determining the
creamy layer for providing 27% reservation for backward classes for appointment
need not be strictly followed in case of reservation envisaged under Art. 15(5). For
example, if a strict income restriction is made for identifying the “creamy layer”,
those who are left in the particular caste may not be able to have a sufficient
number of candidates for getting admission in the Central Institutions as per Act of
2007. The Government can make a relaxation to some extent so that sufficient
number of candidates may be available for the purpose of filling up the 27%
reservation. It is for the Union and State Governments to issue appropriate
guidelines to identify the "creamy layer” so that SEBCs are properly determined in
accordance with the guidelines given by this court.
(VH) Whether the “creamy layer” principle is applicable to SCs and STs?
It was held in Indra Sawhney case that “creamy layer” principle is not applicable to
SCs/STs. In the instant case, the entire discussion was confined only to OBCs.
Therefore, no opinion is expressed with regard to applicability of exclusion of
creamy layer to SCs and STs. However, according to M Nagaraj case, reservation
in promotion for SCs and STs is contingent on exclusion of the creamy layer It was
held therein that if the State fails to exclude SC/ST creamy layer, the reservation
must fail.
Nevertheless, the court, in the present case held: Right from the beginning,
the SCs and STs were treated as a separate category and nobody ever disputed
identification of such classes. So long as “creamy layer" is not applied as one of
the principles of equality, it cannot be applied to SCs and STs. So far, it is applied
only to identify the 'socially and educationally backward classes ”
(VIII) Whether the principles laid down by the United States Supreme Court for
affirmative action such as “suspect legislation”, “strict scrutiny” and"compelling
State necessity” are applicable to principles of reservation or other affirmative
action contemplated under Art. 15(5)7
It was contended that the classification of OBCs was not properly done and it is not
clear as to whose benefit the legislation itself is made therefore, it is a “suspect
legislation.” Thus, such legislation should be subjected to “strict scrutiny" test as
laid down by the U S Supreme Court. According to this test, the University, whose
affirmative action programme is in question is required to prove that its programme
has been designed in the narrowest possible manner, in order to benefit only those
specific people who are to be benefited, thus serving the “compelling purposes” of
the affirmative action programme. Otherwise, it may be possible that the rights of
other people may be infringed upon, which would make the affirmative action
programme unconstitutional
The court noted that the decisions of the U.S. Supreme Court were not
applied in the Indian context as it was felt that the structure of the provisions under
the two Constitutions and the social conditions as well aS other factors are widely
different in both the countries. The gamut of affirmative action in India is fully
supported by constitutional provisions and the principles of "suspect legislation”
have not been applied. The country has been following the doctrine that every
legislation passed by the Parliament is presumed to be constitutionally valid unless
otherwise proved.
(IX) Whether delegation of power to the Union Government to determine as to who
Right to Equality 81
provided even to the isolated posts on the basis of the rule of rotation. Extension
of reservation in such cases is not unconstitutional. Similarly, held in UOI v Brij l.al
Thakur (AIR 1997 SC 2101).
In State of Punjab v G.S. Gill (AIR 1997 SC 2324), it was held that ceiling of
50% reservation in a recruitment year does not apply where there is only one post.
With a view to give adequate representation in public service to reserved category
candidates, the opportunity given to them is not violative of Arts. 14 and 16(1).
!n Post Graduate Institute of Med. Ed. & Res. v K.L. Narasimhan (1997) 6
SCC 283, there was one post each in various disciplines of medicines in the
institute. All posts carried same pay scale but were not interchangeable. The
institute clubbed all the posts together for the purpose of applying roster (backlog
vacancies for SC/STs). Held that reservation to a single cadre post and the
applicability of the roster to it, is constitutionally valid. Aggrieved by that decision,
the Faculty Association of the P.Gl., Chandigarh moved a review petition. Allowing
it, the Supreme Court held that any attempt at reservation, by whatever means, in
a single-post cadre (even through the device of rotation of a roster) was “bound to
create 100% reservation in such cadre” [Posf Graduate Institute of Med. Ed. &
Res. v Faculty Association [JT 1998(3) SC 223],
The Constitution Bench heid: “In a single post-cadre, reservation at any
point °f time on account of rotation of roster is bound to bring a situation where
such single post in the cadre will be kept reserved exclusively for the members of
backward classes and in total exclusion of general members of the public, and
cent Percent reservation for backward classes is not permissible within the
constitutional framework. Until there is “plurality of posts” in a cadre, the question
of reservation W 'H not arise”. The Court further held that Arts. 14, 15 and 16
including Art. 16(4) and 16(4A) should be applied in such a manner so that a
balance is struck in the Matter of appointments by creating reasonable
opportunities for reserved classes ar>d also for other members (non-reserved) of
the community.
8 4 Constitutional Law o f India- li
than the general category candidates, he should not be denied to take advantage
of ftis merit and compete for the seats meant for the general candidates. The policy
of the Government according to which only such number of candidates for the
reserved category would be allowed admission as were equal to the number of
reserved seats, even though large number from that class might have secured more
marks than the general candidates, the Court held, would be arbitrary and violative
of Art. 14.
In Mandal case also, the Supreme Court said that “reserved category
candidates getting selected in open competition on the basis of their merit should
net be counted against the quota reserved for them”. Further, in P.GI. of Med. Ed.
& Res. case (19S7) 6 SCC 283, it was heid that if a reserved category candidate
gets selected for admission to a course, or appointment to a post, on the basis of
merit as a general candidate, he should not be treated as reserved candidate.
Only one who does get admission/appointment by virtue of relaxation of eligibility
criteria should be treated as a 'reserved" candidate.
Delhi. Madras, Bombay and Calcutta exclusively for women. The Madras High
Court held that Railway Administration’s decision is violative of Arts 14 and 16(1)
and (2) and is not protected by Art. 15(3). The Supreme Court, however, upheld
the validity of Railway Administration’s decision
The Court held: Art. 15 deals with every kind of State action in relation to the
citizens of India and every sphere of activity of the State is controlled by Art. 15(1)
and therefore, there is no reason to exclude from the ambit of Art 15(1)
employment under the State. Since Arts. 15(1) and (3) go together, the protection
of Art. 15(3) would be applicable to employment under the State falling under Arts
16(1) and
(2) .Therefore, the impugned judgment of the High Court holding that
Art. 15(3) has no application in matters relating to employment under the State
falling under Arts. 16(1) and (2), cannot be upheld. ‘
Article 17 “abolishes untouchability and forbids its practice in any form. The
enforcement of any disability arising out of untouchability shall be an offence
punishable in accordance with law.” The ‘law’ includes a law passed before the
coming into force of the Constitution.
Untouchability is neither defined in the Constitution nor in the Act. It refers to
a social practice which looks down upon certain depressed classes solely on
account of their birth and makes any discrimination against them on this ground.
Their physical touch was considered to pollute others. Such castes which were
called untouchables were not to draw water from the same wells, or use the pond/
tank which is being used by the higher castes. They were not allowed to enter
some temples and suffered many otner disabilities.
Inclusion of this provision in the Constitution shows the importance attached
by the Constituent Assembly towards eradication of this evil. Art. 15(2) of the
Constitution also help in the eradication of untouchability by prohibiting access to
shops, etc. on grounds only of caste. Art. 17 is also a significant provision from the
point of view of equality before law (Art. 14). It guarantees social justice and dignity
of man, the twin privileges which were denied to a vast section of the Indian society
for centuries together.
This right is directed against private persons. The nature of untouchability is
such that it is not possible to conceive where the State may practice untouchability.
In People's Union for Democratic Rights v UOI (Asiad Project Workers’ case AIR
1982 SC 1473), the Supreme Court held that whenever a fundamental right
contained in Arts. 17, 23 or 24 was being violated by a private individual, it would
be the constitutional obligation of the State to take necessary steps to interdict
such violation and ensure that such person should respect the right. Merely
because the aggrieved person could himself protect or enforce his invaded
fundamental rights, did not absolve the State from its constitutional obligations.
Article 35 read with Art. 17 confer on the Parliament power to make laws
prescribing punishment for practicing untouchability. The Parliament enacted the
Untouchability (Offences) Act, 1955. In 1976, it was made more stringent and was
renamed' The Protection of Civil Rights Act, 1955. It defines ‘Civil Right’ as ‘any
right accruing to a person by reason of the abolition of untouchability by Art. 17 of
the Constitution.’All offences under the Act have been made non-compoundable.
The Act prescribes punishment (1-2 years imprisonment) for preventing any person
from entering any place of public worship or from worshipping or denying access to
any shop, public restaurants, hotels or places of public entertainment or refusing to
admit persons to hospitals and refusing to sell goods or render services to any
person. Also, insulting a member of Scheduled Caste on the ground of
untouchability or preaching untouchability or justifying it on historical, philosophical,
religious or other grounds is a crime.
Under the Act, it has been declared a duty of the public servants to
investigate offences relating to untouchability. If a public servant wilfully neglects
the investigation of any offence punishable under this Act, he shall be deemed to
XVI
Constitutional Law o f India- II
A democracy should not create titles and titular glories. This will go against the
realisation of social equality. England is a monarchy where one finds Marquis,
Barons, Lords and Knights, etc. Prior to Independence, India also had His
Hignness, Raja, Dewan Bahadur and similar titles some of which were hereditary
Art 18(1) abolishes all titles. It prohibits the State to confer titles on any
body whether a citizen or a non-citizen. Military and academic distinctions are,
however,' exempted from the prohibition. Thus, a university can give title or
honour on a man of merit. Clause (2) prohibits a citizen of India from accepting
any title from any foreign State Clause (3) prohibits a person not being a citizen of
India, but holding any office of profit or trust under the State, from accepting any
title from any foreign State without the consent of the President. Clause (4) further
prohibits such a person from accepting present, emolument or office of any kind
from or under any foreign State without the consent of the President Clauses (3)
and (4) have been
added to ensure that a non-citizen should remain loyal to the State i.e. do not
commit the breach of trust reposed in him.
It may be noted that Art. 18 do not secure any fundamental right but imposes
a restriction on executive and legislative power. Further, conferring of titles
offended against the fundamental principle of equality of all citizens guaranteed by
Art. 14
Right to Equality 89
Q. 1 The Preamble to the W.B. Special Criminal Courts Act states that with
a view “to provide for the speedier trial of certain offences, the State
Government may set up special criminal courts for the ‘speedier
trial’ of offences.” Sec. 5(1) of the Act provides: “A special criminal
court shall try such cases as the State Government may direct.”
How will you decide? Will your answer be different if the Preamble
to the Act reads - "...with a view to maintaining peace, public order
and tranquility in the State, the State Government may set up...”
And, if the Sec 5 of the Act reads - “...shall try such offences or
classes of offences or cases or classes of cases ...?”
[C.L.C.-94; L.C.I.-94J
Will your answer be different if the Special Act makes prevision for
one appeal to the High Court against the decision of the Government
under the said Act? [C.L.C.-92/95; L.C.I.-93/94;L.C. 11-95]
A. 3 Case-Law - in N.I. Caterers case, the Supreme Court held (on the similar
facts as in the present case) that the Act is discriminatory as two tenants
of the Government could be exposed to a differential treatment and there
were nc intelligible guidelines for exercise of Government’s discretion.
But, in M. Chagganlal v Greater Bombay Municipality, the Supreme Court
took a different approach. It laid down the following guidelines -
(i) Where a statute providing for a more drastic procedure different from
the ordinary procedure covers the whole field covered by the
ordinary procedure, without any guidelines as to the class of cases in
which either procedure is to be resorted to, the statute will be hit by
Art. 14 (Anwar AH case).
(ii) However, if from the preamble and surrounding circumstances, as
well as the provisions of statute themselves explained and amplified
by affidavits, necessary guidelines could be inferred, the statute will
not be hit by Art 14 (Saurashtra case).
(iii) If the impugned legislation indicates the policy which inspired it and
)
Right to Equality 93
the object which it seeks to attain, the mere fact that the legislation
does not itself make a complete and precise classification but left it
to the discretion of executive authority... is not a sufficient ground for
labelling it as arbitrary (Saurashtra case).
In the present case, the statute lays down the purpose behind it i.e."government
premises' should be subjected to speedy procedure in evicting unauthorised
occupants. This is a sufficient guidance for authorities to take action under special
procedure and not resort to the ordinary procedure which is time-consuming. Thus,
X cannot succeed
Second part of the question - The provision for one appeal to the High Court in the
Special Act wou!d cure the defect in the Act when it lacks any guidelines to be
followed by the authorities.
However, in the present case, as the Act already lays down sufficient
guidance for the authorities, the provision for appeal would not make any
difference in the answer.
Comment on the above statement. Do you agree with the view that
Art. 16(4) is not an exception to Art. 16(1). Can the members of tha
SC, STs and other backward classes be given concessions, test
exemptions and other employment preferences (not involving
reservations), under Art. 16(1). Give reasoned arguments.
(L C. 11-94/95]
made available to the backward classes. The guarantee of equality before law is
something more than is required by formal equality, and Art. 16(1) means effective
material or real equality Thus, Art. 16(4) is not to be read by way of any exception
to Art. 16(1).
Equality of opportunity for unequals can only mean aggravation of inequality.
Equality of opportunity admits discrimination with reason, which means rational
classification for differential treatment having nexus to the constitutionally
permissible object. Preferential treatment for the backward classes in service with
due regard to administrative efficiency is a permissible object. The quality and
concept of equality is that if persons are dissimilarly placed, they cannot be made
equal by having the same treatment.
(b) The Rule is constitutionally valid. The classification of employees belonging
to SC and STs was a just and reasonable classification 'having rational
nexus to the object of providing equal opportunities for all citizens in
matters relating to employment and appointment’. The temporary
relaxation of rules in favour of them was warranted in the services in view
of their overall backwardness. The above Rule does not impair the test of
efficiency in administration in as much as they have to pass the test
ultimately (the exemption granted to them only for a limited period) (See
N.M. Thomas Case).
Art. 16(4) must be interpreted in the light of Art. 335 which says that claims
of SC and ST shall be taken into consideration constituency with the maintenance
of efficiency of administration. However, the 82nd Amendment Act, 2000 restored
the relaxation in qualifying marks and standards of evaluation in both, job
reservation and promotions to SC/STs by adding a proviso to this effect in Art. 335.
This Amendment makes provision for no interference to be made in making of any
provision in favour of the numbers of SCs and STs for relaxation in qualifying
marks in any examination for lowering the standards of evaluation for reservation in
matters of promotion to any class or classes or services of posts in connection with
the affairs of the Union or of a State.
Q. 5 'The reservation policy adopted in India in the last tour decades has
failed to promote social justice. On the contrary it has led to social
friction, conflict and disharmony. It has been called a case of right
goal, wrong strategy.’ Critically examine this statement and suggest
measures to protect the interests of socially, educationally and
economically backward classes of people. [I.A S.-92]
Right to Equality
^ 5 As rightly held in PGI v Faculty Asscn. (AIR 1998 SC 1767) by a five judge
bench of the Supreme Court: “In making reservation for backward
classes, the State cannot ignore the fundamental rights of the rest of the
citizens”. "The doctrine of equality of opportunity under Art. 16(1) is to be
reconciled with concessions in favour of backward classes under Art.
16(4) in such a manner that the latter while serving the cause of
backward classes, shall not unreasonably encroach upon the field of
equality."
Causes
(i) Politicisation of reservation issue - reservations was made more for
political benefits (‘vote bank’) than for upliftment of backward classes.
(ii) Casteism - determination of backwardness on the basis of caste has
divided the society and increased the conflicts between forward and
backward classes. Lack of opportunities in the country and stiff
competition has greatly aggravated the problem.
(iii) Backwardness has become a vested interest - once a caste is considered
backward class then it continues to fcf backward for all the time. The elite
classes (creamy layer) among the, ' ,kward classes continue to grab the
benefits of reservation, leaving ii te '-est among backward classes
struggling.
Measures
(i) Adoption of economic criteria for determining backwardness.
(ii) Government should review its reservation policy from time to time to check
that reservation of seats does not become a vested interest.
(iii) A limit on the percentage of reservation.
(iv) Head-start programme - The government must provide basic facilities
(food, health, education etc.) to backward classes so as to improve their
position right from the childhood, and thus to make them compete of their
own in the society rather than relying on the clutches of reservation.
Q. 6 (a) ‘Arbitrariness is the very antithesis of equality'. Discuss.
[I.A.S.-92]
(b) Examine the Constitutional validity of the following under Art. 14:
(i) A rule framed by Bar Council of India debarring persons aged above
45 years of age from enrolment as an advocate.
(ii) Allocation of one-third of total marks for interview in admission to a
regional engineering college.
A- 6 (a) Art. 14 have an activist magnitude and it embodies a guarantee against
arbitrariness. Please refer to the text (New Concept of Equality).
(b) (i) The rule is discriminatory, arbitrary and unreasonable. In Indian
Council of Legal Aid and Advice v Bar Council of India (Al R 1995 SC
691), it was contended by Bar Council that rationale for the rule is to
maintain the dignity and purity of profession by keeping out those who
retire from various government, quasi-government and other institutions
Constitutional Law o f India- II
Personal liberty is the most important of all fundamental rights Arts. 19-22 deal
with different aspects of this basic right.
Article 19(1) - Article 19 guarantees to the citizens of India the following six
fundamental freedoms:
(a) Freedom of Speech and Expression
(b) Freedom of Assembly
98 Constitutional Law o f India- II
Article 19(1)(a) says that all citizens shall have the right to freedom of speech and
expression. But, this right is subject to limitations imposed under Art. 19(2) which
empowers the State to put 'reasonable' restrictions on the following grounds -
security of the State, friendly relations with foreign States, public order; decency
and morality, contempt of court, defamation, incitement to offence, and integrity
and sovereignty of India.24
The freedom of speech and expression means the right to express one's
convictions, and opinions freely by word of mouth, writing, printing, pictures,
electronic media or any other mode (addressed to the eyes or the ears). It also
includes the right to propagate or publish the views of other people, otherwise this
freedom would not include the freedom of press.
A democratic government attaches great importance to this freedom
because without freedom of speech the appeal to reason which is the basis of
democracy
Leading Case: BENNETT COLEMAN & CO. v UNION OF INDIA (AIR 1973
SC 106)
Facts and Issue - In this case, the validity of the Import policy for
Newsprint for 1972-73, along with the Newsprint Control Order, 1962, was
questioned, which imposed various restrictions, viz.
(i) bar on starting newspapers or editions by common
ownership units,
(ii) rigid limitation to 10 pages,
(iii) bar on interchangeability within common ownership unit, and
(iv) allowance of 20% page increase only to newspaper below 10 pages.
The Government defended the measure on the ground that it would help small
newspapers to grow and to prevent a monopolistic combination of big newspapers.
Decision - The Court held that the newsprint policy was not reasonable restriction
within the ambit of Art. 19(2). The newspapers operating above
10 pages level (and newspapers operating below 10 pages) have been treated
equally for assessing the needs and requirements of newspapers which are not
[b] Freedom of Speech and Expression and Electronic Media (Ads, Films,
etc.)
Advertisement is undoubtedly a form of speech. But every form of ad is not a form
of speech or expression of ideas e g social, political, literary, etc. An ad of a
'commercial' nature is not protected under Art. 19(1 )(a). Such ad has an element of
trade and commerce. Professionals like doctors, lawyers and C.A. are legally
forbidden to advertise their services.
[M.S.-90
Right to Freedom 107
£ 0fJ imercial Advertisements 29
Tata Press v M.T.N.L. (1995) 5 SCC 139, the Supreme Court declared that the
^flht to “Commercial Speech” or advertisement is part of the fundamental right to
freedom of speech and expression guaranteed by Art. 19(1 )(a). A private agency l^e
Tata Press is, therefore, entitled to bring out yellow pages comprising advertisements,
the annual buyer’s guide for Bombay. The larger implication of the eight to
advertisement being elevated to the status of a fundamental right is that from now
on it can be restricted only on the grounds specified in Art. 19(2). Mahanagar
Telephone Nigam Limited (MTNL) cannot come in the way of Tata Press Yellow
pages in "public interest’’ as no such ground is mentioned in Art. 19(2). Commercial
speech now enjoys as much protection as any other speech.
Kuldip Singh, J. however, made it cioar that the commercial advertisements
which are deceptive, unfair, misleading and untruthful could be regulated by the
government. The Court referred to the judgment in Hamdard Dawakhana v Union of
India (AIR 1960 SC 554) in which it was held that an obnoxious advertisement
(advertisements of prohibited drugs having magic qualities for curing diseases)
wouldn’t come within the scope of Art, 19(1 )(a).
The Court said advertisement as a “Commercial Speech” has two facts.
Advertising which is no more than a commercial transaction is nonetheless
dissemination of information regarding the product - advertised. Public at large is
benefited by the information made available through the advertisement. In a
democratic economy, free flow of commercial information is indispensable. There
can’t be honest and economical marketing by the public at large without being
educated by the information disseminated through ads. Examined from another
angle, the court said that the public at large has a ‘rignt to receive’ the “Commercial
Speech”. Art. 19(1 )(a) not only guaranteed freedom of speech and expression but
also protects the rights of an individual to iisten, read and receive the said speech.
Right to Reply
In LIC v Manubhai D. Shah (1992) 3 SCC 637, the respondent, an executive
trustee of the Consumer and Research Centre, published a study paper entitled
“Fraud on the Policy Holders' - A shocking story, which depicted the discriminatory
practice adopted by the LIC (Life Insurance Corporation) which adversely affected
the interest of a large number of policy holders. A member of the LIC published a
counter in the magazine called ‘ Yogakshma' published by the LIC. The respondent
requested the LIC to publish his rejoinder to the said article in the said magazine,
but his request was not accepted. The LIC contended that the magazine is a house
magazine (meant only for informing its members, staff, etc.) and not put in the
market for sale to the general public. The respondent contended that refusal to
publish his rejoinder, violated his fundamental rights under Art. 14 and Art. 19(1 )(a).
The High Court directed LIC to publish the article in next issue, as the
magazine is available to any one on payment of subscnption and articles are
invited for magazine from public. The Supreme Court also held that the
respondents' fundamental right of speech and expression entitled him to insist that
his views on the subject should reach those who read the magazine. The Court
explaining the scope of the freedom said “the words freedom of speech and
expression must be broadly construed to include the freedom to circulate one’s
views by words of mouth, or in 'writing, or through audio visual media. These
communication channels are great purveyors of news and views and make
considerable impact on the minds of the readers and viewers and are known mould
public opinion on vital issues of national importance."
The freedom of speech and expression includes freedom of circulation and
Propagation of ideas and ‘therefore’ the right extends to the citizen to use the
XVI
Constitutional Law o f India- II
media
to answer the criticism levelled against his views propagated by him. A “right to
reply” (by a dissonant note) is implied in the system of Freedom of Expression
Every free citizen has undoubted right to lay what sentiments he pleases subject
to reasonable restrictions.
Right to Information
Leading Case: people’s union for CIVIL liberties V UOI (AIR 2003 3C
2363)
In this case, the Apex Court struck down Sec. 33-B of the Representation
of People (3rd Amendment) Act, 2002 which had the effect of rendering
certain directions issued by the court in UOI v Asscn. for Democratic
Reforms (AIR 2002 SC 2112) as not binding and therefore void.
Reiterating the law laid down in Asscn. for Democratic Reforms case,
the Supreme Court ruled that the right of a voter to know the biodata and
antecedents of a candidate is the foundation of democracy, a facet of the
right to freedom of speech and expression guaranteed under Art. 19(1)(a).
it would be the basis for free and fair election' which was a basic structure
of the Constitution. The "freedom of speech and expression’ includes right
to impart and receive information [Secretary,
Ministry of I & B, Govt, of India v Cricket Association, State of W B
(1995) 2 SCC 161]. Restriction to the said right could be only as
provided in Art. 19(2).
In Asscn. for Democratic Reforms case, this court observed The
people of the country have a right to know every public act, everything
that is done in a public way by the public functionaries. MPs or MLAs
are undoubtedly public functionaries. People have a right to know about
their educational qualifications, assets held by them, and. antecedents
XVI
Constitutional Law o f India- II
of their life including a past criminal record.
In this case, it was contended that as there is no specific
fundamental right conferred on a voter by any statutory provision to
know the antecedents of a candidate, the directions given by this Court
are against the statutory provisions. The court rejecting it, observed
that in an election petition challenging the validity of an election of a
particular candidate, the statutory provisions would govern respective
rights of the parties. However, voters’ fundamental right to know the
antecedents of a candidate is independent of statutory rights under the
election law. Members of a democratic society should be sufficiently
informed so that they may cast their votes intelligently in favour of
persons who are to govern them Right to vote would be meaningless
unless the citizens are well informed about the antecedents of a
candidate.
The court further observed: It is established that fundamental
rights themselves have no fixed content, most of them are empty
vessels into which each generation must pour its content in the light of
its experience.
The attempt of the court should be to expand the reach and ambit of
the fundamental rights by process of judicial interpretation. During the
last more than half a decade, it has been so done by this court
consistently. There cannot be any distinction between the fundamental
rights mentioned in Chapter III of the Constitution and the declaration of
such rights on the basis of the judgments rendered by this court ]
rs^
provided under Art. 129 that the Supreme Court shall be a court of record and shall have all the powers of
such a court including the power to punish for contempt of itself. Under the Constitution, there is no separate
guarantee of the freedom of the press and it is the same freedom of expression, which is conferred on all
citizens under Art 19(1). Any expression of opinion would, therefore, be not immune from the liability for
exceeding the limits, either under the law of defamation or contempt of court or the other constitutional
limitations under Art. 19(2). If a citizen, therefore, in the grab of exercising right of free expression under Art.
19(1), tries to scandalize the Court or undermines the dignity of the Court, then the Court would be entitled to
Right to Freedom 115
Fundamental freedoms enumerated under Art. 19 are not necessarily and in all circumstances mutually
supportive, although taken together they weave a fabric of a free and equai democratic society. Thus,
freedom of speech of one affects the freedom of movement of another. Exercising the right to form an
association may curtail the freedom to express views against its activities. Some restriction on one’s rights
may be necessary to protect another's right in a given situation. The rights must be harmoniously construed
so that they are properly promoted with the minimum of such implied and necessary restrictions [M.H.
Devendrappa v Karnataka State Small Industries Dev. Corpn. AIR 1998 SC 1064],
Art. 19 (l)(c): Freedom of Association It has been held that this Article does not guarantee a 'right to strike’. Even a
Art. 19(1 )(c) guarantee to all citizens the right “to form associations and unions for liberal interpretation of Art. 19(1)(c) dees not lead to the conclusion that the trade
pursuing lawful purposes’. It includes the right to start an association and to unions have a right to strike (Dharam Dutt v UOI AIR 2004 SC 1295).
continue it. Under Art. 19(4), however, reasonable restrictions can be imposed by In T.K. Rangarajan v State of T.N. (AIR 2003 SC 3032), a two-Judge bench
the State “in the interests of the sovereignty and integrity of India or public order or of the Supreme Court held that Government servants have no legal or statutory
morality.” right to go on strike. In the year 2002, the Government of Tamil Nadu terminated
An “association” means a collection of persons who have joined together for the services of 2 lakh employees under the T.N Essential Services Maintenance
a certain object, which may be for the benefit of the members or the welfare or Act, 2002; the government employees had gone on strike for their demands.
advantage of the public. The associations so formed would include political The court said that “Government employees cannot hold society to ransom
parties, societies, clubs, companies, organizations, partnership firms, trade unions b
y going on strike”. If the employees felt aggrieved by any Government action,
and indeed any body of persons. Thus, like, the ‘freedom of assembly', the they should seek redressal from the statutory machinery provided under different
freedom of association' is essential for the proper functioning of parliamentary statutory Provisions. The court said strike as a weapon is mostly misused which
democracy or for the protection of other rights guaranteed by the Constitution. results in chaos and total mal-administration. Though the trade unions have a
An association that claims the benefit of the right of association must be guaranteed “right for collective bargaining’’ on behalf of employees, they have no
such whose object is lawful. Under the Criminal Law Amendment Act, 1908 (as fundamental right to strike under Art. 19(1)(c).
amended in Madras) it was left to the Government to determine in a subjective Recently, a Constitution Bench of the Supreme Court in Harish Uppal v UOI
manner whether an association constituted danger to public peace. The grounds (AIR 2003 SC 739), categorically proncunced that the lawyers had no right to go
of forming the opinion could not be tested in a judicial inquiry. The court held that °n strike or give a call for boycott, not even a token strike. It has been suggested
this provision imposed a restriction on the exercise of the right and declared it void h
at the Advocates can get redressal of their grievances by passing resolutions,
(State of Madras v V.G. Row MR 1952 SC 196). However, declaring an taking representations and taking out silent processions, holding dharnas or to
organization as a terrorist organization under the Prevention of Terrorism Act, re
sort to relay fast, having discussion by giving TV. interviews and press
2002, would be permissible (People’s Union for Civil Liberties v UOI AIR 2004 SC statements.
456).
A cooperative society may restrict its membership to a particular religion,
community, belief or trade etc. A citizen has no fundamental right to become its
member [Zoroastrian Cooperative Housing Society v District Registrar (2005) 5
SCC 632], An Act which alters the composition of a society introducing new
members was declared unconstitutional as violative of Art. 19(1)(c). The government
cannot compel a citizen to withdraw from the membership of a union.
The right to form an association cannot be construed to mean that it
extends to obtaining recognition of the association or continuation of recognition.
Recognition of association is not a fundamental right. A rule framed by the
government required Its servants not to join an association which was not
31 Describe the right to call ‘hartal’ (strike).
[L. C.l1-
116 Constitutional Law o f India- II 2007]
Right to Freedom 118
119 Constitutional Law o f India- II
Comments - "Right to strike’’ also affects other’s rights. In recent times, strikes by
teachers/lecturers are on the increase, thus affecting the students’ interest to a
large extent. When the 'right to education’ has been recognised as a fundamental
right, such strikes by teachers seem to be quite unjustified even if the teachers
have a fundamental 'right to strike’. A conflict between two fundamental rights
has to be resolved by seeing the exercise of which fundamental right is in
societal interest. Though the right to strike/right to protest cannot and should not
be eliminated altogether, it could be controlled or regulated, viz restrictions on the
number of days in a strike, or strikes in a phased manner, etc.
( 1
XVI
Constitutional Law o f India- II
Article 19(1 )(e) guarantees theTight to reside and settle' in any part of India. To some extent
this right and the freedom of movement are overlapping The object of both is to remove barriers
within India This freedom can be subjected to the same restrictions as the 'freedom of movement’
because the grounds of restrictions are contained in Art. 19(5) for both the freedoms.
An Act which empowers the State Government to issue an order requiring a person to reside
and remain in the specified place or an order directing a person to leave a place and go to another
place imposes unreasonable restrictions (State of M.P. v Bharat Singh MR 1967 SC 1170).
In U.P. Avas Evam Vikas Parishad case (AIR 1996 SC 114), it was held that the right to
residence assured in Art. 19(i)(e) includes the 'right to shelter’. In Ahmedabad Municipal Corpn. v
Nawab Khan Gulab Khan (AIR 1997 SC 152), the Court observed [in the context of Art. 19(1 )(e)]:
The policy or principle should be such that everyone should have the opportunity to migrate and
settle down in any part of India where opportunity for employment or better living conditions are
available and, therefore, it would be unconstitutional and impermissible to prevent the persons from
migrating arid settling at places where they find their livelihood and means of avocation. The
fundamental rights and the directive principles and the Preamble being “trinity” of the Constitution,
the right to residence and to settle in any part of the country is assured to every citizen.
[L.C.11-
14. Write a note on Right to call and enforce bandh’. 2006]
Right to Freedom 121
to participate in bandh are given the opportunity to exercise their right to work, their right to trade or
their right to study.
In James Martin v State of Kerala (2004) 2 SCC 203, it was held that no person has any right
to destroy another’s property in the guise of bandh or hartal or strike, irrespective of the proclaimed
reasonableness of the cause oi the question whether there is or was any legal sanction for the same.
There is need to control such acts with an iron hand.
Comments - ‘Bandhs’, though are a legitimate weapon in the hands of the financially weaker
segments, have over the years become a nuisance to the majority of the common man. ’Bandhs’ are
now a political weapon used by various political parties to highlight their personal grievances and
bringing life of common man to a grinding halt. It leaves a daily worker with no bread and butter.
Could a developing country like ours think of wasting its precious manpower and resources on such
events which usually takes place to the whims and fancies of few individuals who are more
concerned in highlighting their individual names rather than the real needs of the group to which they
claims to be representative of.
Exercise of a “right to protest’’ should not affect the fundamental right of another citizen who is
equally entitled to exercise his rights. One has to lay down a border mark at which the right to
express one's voice encroaches or starts to inroad into other's right. A conflict between two
fundamental rights has to be resolved by seeing the exercise of which fundamental right is in societal
interest.
32 Describe the nature of restrictions which can be imposed on the freedom, of trade and
profession. [D.U-20081
Right to Freedom 122
training or skill. The word ‘occupation’ has a wide meaning such as any regular work,
profession, job, principal activity, employment, business, or a calling in which an individual is
engaged. ‘Trade’ includes any bargain or sale, any occupation or j, usiness carried on for subsistence
or profit, etc. ‘Business’ is a very wide term and would include anything which occupies the time,
attention and labour of a man f0r the purpose of profit. Thus, trade, profession, industrial and
commercial occupations, sale and purchase of goods, etc. are included in it [Sodan Singh v H.D.M-
C. (1992) 5 SCC 52],
The right to carry on a business includes the right not to enter a business and the right to close
the business. The first negative right is absolute but second may be subjected to restrictions in the
interest of public e.g. requirement to pay compensation to workers. The Industrial Disputes Act
requires the employer to obtain permission of the State government before closure; it is not
unreasonable. But, refusal to give permission even when; the employer is not able to pay minimum
wages is not a reasonable restriction (Excel Wearv UOI AIR 1979 SC 25).
In Narendra Kumar v UOI (AIR 1960 SC 430), it was held that restrictions may also amount to
'prohibition' under certain circumstances. Thus, a law depriving a citizen of his fundamental right may
be regarded as reasonable restriction, if it prohibits him to carry out dangerous trade such as that of
trade in liquor or cultivation of narcotic plants or trafficking in women. The right of every citizen to
pursue any iawful trade or business is obviously subject to such reasonable conditions as may be
deemed proper by the government essential to the safety, health, peace, decency or morals of the
community. But where a restriction reaches the stage of prohibition, special care has to be taken by
the court to see that the test of reasonableness is satisfied. In this case, the Non-Ferrous Metal
Order, 1958, which completely excluded the dealers in a trade of imported copper, was held valid as
imposing reasonable restriction in the interest of general public. The court said that prohibition was
only a kind of restriction provided it satisfied the test of reasonableness.
The court ruled that the reasonableness of a restriction has to be considered In the
background of the facts and circumstances under which the order was made, taking into account the
nature of the evil that was sought to be remedied by such •aw, the ratio of the harm caused to
individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to
the general public, and, whether the restraint caused by the law was more than what was necessary
in the interests of the general public
In Chintaman Rao v State of M P. (AIR 1951 SC 118), the prohibition was, however, held to be
unreasonable because it was in excess of the object in view and was drastic in nature. In this case, a
State law prohibited the manufacture of bidis in the villages during the agricultural season. The object
was to ensure adequate supply of labour for agricultural purposes. Even villagers incapable of
6r|
gaging in agriculture, like old people, women and children, etc. who supplemented their income by
making bidis in their spare time, were prohibited from engaging ’hemselves in bidi manufacture
without any reason.
The court laid down the test for a "reasonable restriction” as follows The phrase 'reasonable
restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be
arbitrary or of an excessive nature beyond what is required in the interest of the public. The courts
are thus entitled to consider the “proportionality” of these restrictions. The word 'reasonable’ implies
intelligent care and deliberation i.e the choice of a course which reason dictat»s.‘Legis!ation which
arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness
and unless it strikes a proper balance between the freedom guaranteed in Art. 19(1 )(g) and the
social control permitted by Art. 19(6), it must be held to be wanting in that quality.”
In B.R. Enterprises v State of U.P (AIR 1999 SC 1667), it was held that the right of sale of
lottery tickets is not a right under Art. 301 or Art. 19(1)(g). Lottery has been held to be gambling. In it,
there is no skill but only an element of chance, it falls outside the realm of res commercium (things in
Right to Freedom 123
which there is commerce). Even State lotteries cannot be said to constitute “trade” as contemplated
by Art 301.
A person has no fundamental right to carry on trade to the detriment of others (viz. causing of
pollution, noise, etc.) (Abhiiash Textiles Ltd. v Rajkot Municipal Corporation AIR 1988 Guj 57). In
State of Gujarat v Mirzapur Moti Qureshi Kassab Jamet (AIR 2006 SC 212), it was held that the
prohibition of slaughter of cows and her progeny does not amount to total ban on activity of butchers.
It is not a prohibition but only a restriction They can slaughter animals other than cow progeny and
carry on their activity. Cow and her progeny are the backbone of Indian agriculture and economy.
Thus, the ban on slaughter of cow progeny, as imposed by the ‘Bombay Animal Preservation Gujarat
Amendment Act 1994' (as applicable to the Gujarat State) is in the interest of general public and is
reasonable restriction within the meaning of Art. 19(6) of the Constitution. It is not violative of the
fundamental right to carry on trade and business under Art. 19(1 )(g) of the Constitution.
Complete prohibition of sale of eggs within the limits of Rishikesh (a holy city on the banks of
Ganga river) is not an unreasonable restriction [Omprakash v State of U.P. (2004) 3 SCC 402]. A
government rule whish prohibits private practice by doctors engaged in teaching in a government run
medical college does not violate the freedom. Those who take up government service consent to
abide by the rules of service [Sukumar Mukherjee v State of W.B. (1993) 3 SCC 724], The hawkers
have a right to carry on trade on the pavements but the State may regulate the places where and the
time when they may be permitted to do so [Soda/i Singh v N.D.M.C. (1992) 5 SCC 52]. A temporary
law controlling the supply and distribution of an essential commodity is constitutionally valid.
In Vinay Baiachandra Joshi v Registrar General, Supreme Court (1998) 7 SCC 461, the
allotment of chambers within the compound of the Supreme Court Bar Association was in issue The
Advocates-on-Record claimed that not giving a chamber to an advocate is violative of Art. 19(1)(g) of
the Constitution. The Supreme Court held that the members do not have any fundamental right to such
allotment even proceeding on the basis that to practice as an advocate is a fundamental right under
Art. 19(1 )(g). The Court observed: A legal practltioner/an advocate can carry 0n his legal profession
without a chamber. It is not necessary that he should have a chamber within the Court premises. That
which merely facilitates the exercise of the fundamental right cannot be regarded as an integral part
of that fundamental right. Far from being a fundamental right it does not even have the status of a
right. No law confers such a right on a member of a legal profession nor has such a facility been
accepted as a right even otherwise.
In T.M.A. Pai Foundation v State of Karnataka (2002) 8 SCC 481, the Supreme Court for the
first time brought into existence the concept of education as an “occupation"’, a term used in Art.
19(1)(g) of the Constitution. The fundamental right to establish and run educational institutions is
thus subject to reasonable restrictions under Art 19(6).
Q. 1 In order to secure an equitable distribution of the imported newsprint and to curb the
monopolistic tendency in newspaper industry, the Central Government issues the
Newsprint Control Order under the Essential Commodities Act. The Order provides as
follows -
(a) No person other than the Central Government shall import Newsprint.
(b) No person shall use newsprint except, under a licence given by the government.
A. 1 Freedom of speech and expression and Press - Article 19(1 )(a) says that all citizens shali
have the right to freedom of speech and expression. This right includes the liberty of the
Press. The right under Art. 19(1)(a) empowers the State to put ‘reasonable' restrictions on
various grounds, viz. security of the State, friendly relations with foreign States, public
order, decency and morality, contempt of court, defamation, incitement to offence, and
integrity and sovereignty of India.
it is now a well-settled law that freedom of press is both quantitative and qualitative. Freedom
lies both in circuiation and its content (news and views). The freedom of speech could not be
restricted for the purpose of regulating the commercial aspects of activities of the newspapers. It
cannot, like the freedom to carry on business, be curtailed in the interest of general public. It can be
restricted only on the grounds mentioned in Art. 19(2).
In Bennett Coleman & Co. v Union of India, the Supreme Court observed that once the quota
is fixed and directions to use it in accordance with the newsprint policy made applicable, the
newspapers are prevented from determining their pages, circulation, and new editions by the
Government Order. The individual requirements of the different dailies render it eminently desirable
in some cases to increase the number of pages than circulation. Such adjustment is necessary to
maintain the quality and the range of readers in question. The denial of this flexibility hampers the
quality, range and standard of the dailies and affects the freedom of press.
in Sakai Paper’s case, the Newspaper Order which fixed a minimum price and number of
pages which a newspaper was entitled to publish, was held unconstitutional, as it infringed the liberty
of press. An increase in price without any increase in the number of pages would reduce circulation.
On the other hand, any decrease in the number of pages would reduce the column, space for news.
In Bennett Coleman case, held that if as a result of page reduction, newspaper will have to
depend on advertisements as their main source of income, they will be denied dissemination of
news. On the other hand, if they have to sacrifice advertisements and thus weaken the link of
financial strength, the organisation will crumble.
Decision - In the present case, except measures (a) and (b) which are necessary in the public
interest, measures (c), (d), (e), (f) and (g) are violative of Art. 19(1 )(a) as they restrict the liberty of
the press. The ordinance which restricts the number of advertisements by television per episode is
also restrictive and thus invalid.
Q. 2 The freedom of press is not expressly mentioned in Art. 19(1 )(a), but the Supreme Court
XVI
Constitutional Law o f India- II
has ensured it in its various decisions. Discuss. What you think is the scope of freedom
of press in India? Is it permissible to impose pre-censorship on the newspapers in
India?
[L.C.II-95\
“Liberty of Press consists in laying no prior restraints upon publications and not in
freedom from censure for matters when published.” Explain and indicate how far this
liberty of Press is protected under the Indian Constitution. [I.A. S. -2004]
Write a short note on: Rights of the Press and the problem of Precensorship.
[I.A.S.-2008]
A. 2 Freedom of Press - Unlike the American Constitution, Art. 19(1 )(a) does not expressly
mention the liberty of press i.e. the freedom to print and to publish what one pleases without
previous permission. But it is settled law that the right to freedom of speech and expression
under Art. 19(1 )(a) includes the liberty of the press. The following cases illustrate the point.
In Bennett Coleman’s case, the Supreme Court held that the freedom of newspapers to
publish any number of pages or to circulate it to any number of Persons is each an integral part of the
freedom of speech and expression. Freedom of press is both quantitative and qualitative Freedom
lies both in circulation and its content (news and views). In Sakai Paper’s case, held that the freedom
of speech could not be restricted for the purpose of regulating the commercial aspects of activities of
the newspapers. ‘'
In Indian Express Newspaper’s case, held that the press industry is not free from taxation, but
tax should be within reasonable limits and does not impede freedom of expression i.e. circulation.
The imposition of tax like the custom duty on newsprint is an imposition on knowledge and would
amount to a burden imposed on a man for being literate and for being conscious of his duty as a
citizen to inform himself about the world around him.
In Printers (Mysore) Ltd v Asst. Commr. Tax Officer (1995) AIR SCW 204 on press freedom,
the Supreme Court held that no sales Tax can be imposed ori sale of newspapers in the country.
However, the press is not immune frorn taxation... the prohibition is upon the imposition of any
restriction to disseminate information and to the circulation of newspapers. Freedom of press has
always been a cherished right of all democratic countries. The newspapers not only purvey news but
also ideas, opinions and ideologies. They are supposed to guard public interest by bringing to fore
the misdeeds, failings and lapses of the government and other bodies exercising governing power.
Rightly, therefore, it has been described as the Fourth Estate, The court held that the freedom of
press stands at a higher footing than other enterprise. In view of this, the test for determining the
vires of a statute taxing newsprint have, therefore, to be different from the test usually adopted for
testing the vires of other taxing statute.
In Rajagopal v State of T.N. (1994) 6 SCC 632, held that the press have the right to publish an
unauthorised account of a citizen's life in so far as it is based upon public records. Freedom of the
press, the court said, means absence of interference by the State except insofar as it is authorised
by the Constitution and by laws.
Scope of freedom - It is clear from the above discussion, that press in India enjoys sufficient
freedom. However, it must be pointed out that the press is not immune from laws of general
application or ordinary forms of taxation, or laws of industrial relations (Express Newspaper v Union
of India).
Pre-Censorship on Newspapers - It is not permissible. In Brij Bhushan v State of Delhi (AIR 1950 SC
129), the Chief Commissioner of Delhi issued an order against the printer, publisher, etc. of a
English Weekly, directing them to submit for scrutiny before publication till further orders, all
communal matter and news and views about Pakistan other than those derived from official sources
Right to Freedom 127
or supplied by the news agencies. The court struck down the order, and observed that the imposition
of precensorship of a journal is a restriction on the liberty of the press which is an essential pa/t of
the freedom of speech and expression declared by Art. 19(1 )(a).
In Express Newspaper v Union of India, held that a law which imposes precensorship
(censorship prior to publication) or prevents newspapers from being started or require them to seek
government aid in order to survive was violative of Art. 19(1 )(a). In Rajagopai v State of T.N. held
that the State or its officials have no authority in law to impose prior restraint on publication of
defamatory matter. The public officials can take action only after the publication if it is found to be
false. In LIC v Manubhai D. Shah, held that prior restraints are threats to freedom of expression,
because of their potential for imposing arbitrary and irrational decisions.
Q. 3(a) Discuss citizen's right to show films on T.V. and Doordarshan, making reference to
decided cases. [I.A S. -90j
to women.” In the course of the interview X referred to a bill on women's rights pending
in Parliament and criticized that some of its provisions are unjustified arid
unconstitutional. This portion of the interview was arbitrarily deleted when the interview
was telecast. X wants to challenge with deletion. Discuss the questions involved.
[I. A. S. -95]
A. 3(a) Right of citizens to exhibit films on Doordarshan subject to the terms and conditions to be
imposed by the Doordarshan is a part of the fundamental right of freedom of expression
guaranteed under Art. 19(1 )(a). The right is similar to the right of citizen to publish his
views through any other media such as newspapers, magazines, advertisement hoardings
etc. subject to the terms and conditions of the owner of the media. The freedom of
expression is a preferred right which is always very zealously guarded by the Supreme
Court (Odyssey Communications Pvt. Ltd. v Lokvidayan Sangathan AIR 1988 SC 1642).
In the aforesaid case, telecasting of a serial 'Honi Anhoni’ was resisted by a social
organization on the ground that it was likely to spread false and blind beliefs and
superstitions amongst the members of the public. However, the respondent organization
failed to show that the exhibition of the serial was prima facie prejudicial to the community.
In LIC v Manubhai D. Shah (1992) 3 SCC 637, the managing trustee of the respondent trust has
produced documentary film on the Bhopal Gas disaster titled “Beyond Genocide”, which was
awarded (best non-feature film of 1987). I & B Ministry, at the time of presentation of awards, had
made a declaration that award- winning short films will be telecast on doordarshan. But,
respondent’s film refused to be telecast by doordarshan on ground that content being outdated, and
also that fiim is long. Held that a film maker has a fundamental right under Art. 19(1 )(a) to exhibit his
film, and the party which claims the right to refuse the telecast under Art. 19(2) on the ground that
the film did not conform to the requirements of law made under Art. 19(2) has the onus to prove that
he is entitled to refuse this right. Doordarshan being a State controlled agency founded by public
was not justified to refuse the film’s telecast merely because the film was critical of State
Government.
(b) The issues in the present case relates to the violation of a citizen’s rights under Arts. 14
and 19 of the Constitution. Doordarshan's action is unreasonable and unjust thus violative
of Art. 14. It also violates right to freedom of speech and expression guaranteed under Art.
19(1)(a). The freedom of speech and expression means the right to express one’s
convictions, and opinions freely by word of mouth, writing, printing, pictures or any other
mode. Freedom of speech lay at the foundation of all democratic organisations, for without
free political discussion, no pubiic education, so essential for the proper functioning of the
process of popular government, is possible.
!h LIC v Manubhai D. Shah, the court held that merely the film was critical of the State government
was no reason to deny telecasting of film. These communication channels are great purveyors of
news and views and make considerable impact on the minds of viewers and are known to mould
public opinion on vital national issues. Prior restraints are threats to freedom of speech and
expression, because of their potential for imposing arbitrary and irrational decisions. In R. Rajagopal
v State of T.N., the court observed that in a free democratic society public officials must always be
open to criticism. In Secy., Min. of l&B v Cricket Asscn., Bengal the court observed that a citizen has
a fundamental right to use the best means of imparting and receiving information and as such have
access to telecasting fQr the purpose. The government has no exclusive right to use broadcast media
or deny the use by others.
Protection in Respect of
Conviction for Offences
(Article 20)
4
ARTICLE 20
[PROTECTION IN RESPECT OF
CONVICTION FOR OFFENCES]
Under Art. 20, the Constitution of India has taken care to safeguard the rights of
persons accused of crimes (citizens or non-citizens, including a corporation). This
Article cannot be suspended even during an emergency by an order under Art.
359. Art. 20 constitutes a limitation on the legislative powers of the Union and
State Legislatures.
Art. 20 has three clauses. Each of these clauses gives protection in respect
of conviction for offences:
(a) Ex-post facto laws [Art. 20(1)].
(b) Double jeopardy [Art. 20(2)].
(c) Self-incrimination [Art. 20(3)].
[1 2 9 ]
130 C oan date
effect from s t i tanterior
u t i o n atol itsL making.
a w o fAnI nAct
d iwhich
a - I Ioperates to cover pa§{
transactions is called retroactive or retrospective. Thus, an ex-post facto law is a
law which is enacted subsequent to some occurrence i.e. the commission of some
act or omission. In other words, it declares some act or omission as an offence for
the first time after the completion of the offence. Such a law may also enhance the
punishment/penalty for an offence subsequent to the commission of that offence.
Further, it may prescribe a new and different procedure for the prosecution of an
offence subsequent to the commission of that offence. Art. 20(1) does not cover
the last category of ex-post facto laws.
Since Art. 20(1) is concerned with the liberty of a person, a liberal
interpretation had to be given to its language (Transmission Corpn., A.P. v Ch
PrabhakarAIR 2004 SC 3365). Art. 20(1) lays down certain iimitations on the
legislature/courts:
(a) Prohibition against enacting ex post facto penal law. In other words, if an act
or omission was innocent when done the legislature cannot make a law which
declares such act or omission a crime. The legislature cannot make law which
provides for punishment of acts or omissions which were committed prior to the
date when the Act came into force. If bringing gold into India was never an offence
and a law is made in 1970 making import of gold into India an offence and
applying the law from 1960 onwards then such law is a retrospective criminal law
not permitted by the Constitution.
' In short, a new law cannot punish an old act. An act which is not an
offence on the date of its commission (as per the actual factual law existing on
that date) cannot be made an offence on a subsequent date. Thus, a penal law
which creates new offences is always prospective (Dayal Singh v State of
Rajasthan AIR 2004 SC 2608).
Thus, something would be an offence only if that thing is made punishable
by a ‘law in force’. That also means that it is the knowledge of only those laws,
which are in force, at the time at which a person does some act, which is made
punishable by the law. The ‘knowledge of the future laws’ cannot be imputed to
any person. The principle that ‘ignorance of law is no excuse’ is not applicable tn
such situations.
Section 304-B inserted in the Indian Penal Code on November 19, 1986,
creating a distinct offence of 'dowry death’ and providing a minimum sentence of
seven years’ imprisonment could not be applied to such death caused before the
insertion of the section (Soni Devrajbhai Babubhai v State of Gujarat AIR 1991 SC
2173). Similar would be the case of the offence of‘bribery’ inserted in I.PC. in
1952.
(b) A taw cannot aggravate the crime. A law cannot change the punishment and
make it greater and apply it to previous offences. The new punishment (if greater)
may be applied only from a future date. ‘A’ commits an offence in 1970. The
offence is punishable with imprisonment for 3 years, in 1972, the legislature
amends the law and increases the punishment to 7 years. The revised
punishment cannot be inflicted on ‘A because the offence was committed before
the date of the passing of the Act. Art. 20(1) does not permit retrospective
application of increased penalty-
However, where a person undergoing life-imprisonment for an offence f°r
which death was one of the punishments or where the death sentence wa s
commuted to life-imprisonment, and the law was amended to provide that such
^4
P r ot e cJV « "3K!
t i o n iV
n R e s pe c t of C o n vi c t i o n f or O f f e n c e s 1 3 1
person would not be released from prison without serving at least 14 years
imprisonment, it was held that the amended law did not enlarge punishment
retroactively, it merely prescribed a minimum sentence of 14 years for a murderer
(,Maru Ram v UOI AIR 1980 SC 2147).
The prescription of a minimum sentence of fine where the law in force does
not prescribe any such limitation is valid; however, an additional fine may amount
to enhanced punishment. Thus, where a person accused under the Prevention of
Corruption Act was convicted, and later the Act was amended to provide for an
additional fine to be equivalent to the amount of money found to have been
procured by the offender, Art. 20(1) applied (Kedar Nath v State of W.B. AIR 1953
SC 404). But, where the ex-post facto law did not impose a penalty but provided a
speedier remedy for the recovery of the embezzled money, it did not amount to
enhanced punishment. Thus, where the amended law provided for the
confiscation of the property of a person convicted for embezzlement of
government money, to set off the embezzled money was held valid (State of W.B.
v S.K. Ghosh AIR 1962 SC 255).
In Transmission Corpn., A.P. v Ch. Prabhakar, a Division Bench of the
Supreme Court referred the following question for the decision of the larger
Bench: Whether constitutional guarantee enshrined in Art. 20(1)... also prohibits
legislation which aggravates the degree of crime or makes it possible for the
accused to receive greater punishment even though it is also possible for him to
receive the same punishment under the new law as could have been imposed
under the prior law or deprives the accused of any substantial right or immunity
possessed at the time of the commission of the offence charged ...
(c) Prohibition against conviction - Art. 20(1) not only prohibits the legislature from
enacting ex post facto laws depriving a person of the protection given by this
article but it also lays down that no person shall be convicted of an offence. This
indicates that the courts too are forbidden to pronounce conviction on the basis of
a law violating the two protections set out in Art. 20(1).
However, it may be noted that the interpretation of a provision of law by the
courts do not create any hew offence. For instance, the decision in the Sarla
Mudgal v UOI (AIR 1995 SC 1531), laying down that the second marriage of a
Hindu husband after conversion to Islam without having his first marriage
dissolved, would be an offence under Sec. 494, IPC; this judicial pronouncement
did not lay down any new law or offence, thus, Art. 20(1) has no application (Lily
Thomas v UCI AIR 2000 SC 1650).
(ii) Benefit of reduction in punishment - Art. 20(1) does not bar the accused from
taking benefit of the reduction in punishment (i.e. modifications of the rigour of a
criminal law). The rule of beneficial construction required that an ex-post facto
law could be applied to reduce the punishment. If any subsequent legislation
tones down punishment for an offence, legislative benevolence can be extended
to the accused who awaits judicial verdict regarding sentence [Supdit, Narcotic
Control Bureau v Parash Singh (2008) 13 SCC 499],
X VWhere a boy of C
16oyears
I
n s t i tofuage
tionwas
a l undergoing
L a w o f rigorous
I n d i a - imprisonment
II for
six months for house trespass and outraging the modesty of a girl, and
meanwhile the Probation of Offenders Act, 1958 was passed which provided that
a person below the age of 21 years should not ordinarily be sentenced to
imprisonment, it was held' that the ex-post facto law, which was beneficial to the
accused did not fall within the prohibition of Art. 20(1) (Rattan Lalv State of
Punjab AIR 1965 SC 444) It may be noted that the Probation of Offenders Act
was not a penal statute; it was a social welfare legislation aiming to reform the
offenders. It is the penal laws which have a prospective operation. In that case,
the accused boy could not have the benefit of the legislation.
(iii) No application to civil laws - There is no limitation on retrospective operation
of civil laws including tax laws or disciplinary proceedings. The Government could
lay down, under an ex-post facto law, any manner, for the recovery of its dues.
Art 20(1), also, does not apply to a law punishing continuing offence or a case of
preventive detention.
Non-fulfilment of civil liability may entail penal damages or imprisonment.
But, that does not make out a case under Art. 20(1). Thus, where the non-
payment of compensation by the employers closing their undertaking was made
punishable (via imprisonment) retrospectively by the Act, the Apex Court
upholding the constitutionality of the impugned Act heid that the liability imposed
was civil liability and since the failure to discharge a civil liability was not an
offence, Art. 20(1) would have no application (Hathisingh Mfg. Co. v UOi AIR
1960 SC 923). Similarly, imposition of penal damages for unauthorized
possession of village common land had been held to be a civil liability.
[D.U.-2008\
2. Explain the doctrine of self incrimination.’
MINI
A person against whom a formal accusation relating to the commission of an
P r ot e c t i o n i n R e s pe c t of C o n vi c t i o n f or O f f e n c e s 1 3 5
0ff<=nce (viz. FIR, Complaint, Criminal prosecution before the court) has been
levelled is covered by Art. 20(3). However, it is not necessary that to avail the
privilege contained in Art. 20(3), the actual trial or inquiry should have commenced.
Where a person was arrested on suspicion of having committed an offence, eliciting
^formation from him would not be protected by Art. 20(3), when neither the case is
registered nor an FIR is recorded.
In Nandini Sathpathy v PL Dani (AIR 1978 SC 1025), during the course of
the investigation, the accused was interrogated with reference to a long list of
questions given to her in writing. She refused to answer those questions claiming
the protection of Art. 20(3). It was held that the protection contained in A>1 20(3)
extends back to the stage of police investigation not commencing in court only,
since such inquiry was of an accusatory nature Further, the ban on self-accusation
and the 'right to silence’ extends beyond that case and protects the accused in
regard to other offences, pending or imminent, which might deter him or her from
voluntary disclosure of incnminatory nature.
Article 20(3) provides that no person accused of any offence shall be
compelled to be a witness against himself. The 'right to remain silent’ is an
extension of the rule of civil liberty enjoined by our Constitution. Considering the
guarantee under Art. 20(3) and also humanizing standards under Art 21, court is
required to tread cautiously while construing retracted confession. To withdraw
from what has been said previously needs to be interpreted in vein of right to
remain silent as an extension of this civil liberty [Aloke Nath Dutta v State of W B.
(2007) 12 SCC 230 ]
Protection against criminal proceedings only - The protection is confined to
criminal proceedings before a court of law or a judicial tribunal. It does not extend
to civil proceedings or such proceeding which are not of a criminal nature e g.
under the Customs Act or the Foreign Exchange Regulation Act. In these
proceedings, a person cannot refuse to answer on the ground that it might
incriminate him.
Notice or pendency of contemot proceedings does not attract Art 20(3)
[Delhi Judicial Service Asscn. v State of Gujarat (1991) 4 SCC 406J. The
contemners are not accused of an offence. Contempt proceedings are not in the
nature of criminal proceedings for an offence. Art. 2C(3) also do not apply to
departmental •nquiries into allegations against a government servant, as there is
no accusation of any offence within the meaning of Art. 20(3).
Protection against compulsion to be a witness - The protection is against
compulsion ,0 he a wrtness. The expression covers oral evidence and written
statements (documentary anc< testimonial evidence) conveying the accused
person s personal knowledge relating *° the charge against him. The protection
contained in Art. 20(3) covered testimonial ^Pulsion in the court as well as
compeiied testimony previously obtained (viz. production of evidentiary documents)
(M.P Sharrna v Satish Chandra AIR 1954 SC 300)
In State of Bombay v Kathi Kalu Oghad (AIR 1961 SC 1808), the Apex Court,
°Wever, held that the immunity granted to the accused does not extend to
compulsory I Auction of material objects or compulsion to give specimen writing/
signature, finger 'Pression or giving of blood specimens. In these cases, the
accused is not giving y Personal testimony. They are merely materials for
comparison, in order to lend
assurance to the court that its inference based on other pieces of evidence is
reliable. The court distinguished 'to be a witness' from 'furnishing evidence’.
Compulsion for production of documents is prohibited only if the documents
convey the personal knowledge of the accused relating to the charge (‘to be a
witness’) Where an accused is compelled to produce a document in his
possession, which is not based on his personal knowledge (‘furnishing evidence’),
thereX is
V I no violation of Art. 20(3), because he does not become a witness by the
Constitutional Law o f India- II
mere fact that he has produced it it does not amount to testimonial compulsion
offending Art. 20(3).
Search of the premises of a person accused of an offence under a search
warrant and seizure of the documents are not violative of Art. 20(3). In such
cases, it is not the act of the accused but that of a police officer to which the
accused is obliged to submit and is therefore, not his testimonial act in any sense
It cannot be treated as a compelled production of a thing/document. However, if
the accused is compelled to be a party to a search, it would be violative of Art.
20(3) (V. S. Kuttan Pillai v Ramakrishnan AIR 1980 SC 185).
> Likewise, tape-recording of statements made by the accused, without his
knowledge, but without force or oppression, is not violative of Art. 20(3), as there
is no compulsion involved.
Compelled testimony - The provisions of Sec. 27 of the Evidence Act, 1872 (under
which a statement made by the accused leading to the discovery of some facts is
admissible in evidence) are not within the prohibition of Art 20(3), unless the
compulsion had been used in obtaining the information from the accused person.
Compulsion in this context would mean “duress” (State of Bombay v Kathi
Kolu Oghad). The Supreme Court in Nandini Sathpathy case held that “relevant
replies which furnish a real and clear link in the chain of evidence indeed to bind
down the accused with the crime become incriminatory and offend Art. 20(3) if
elicited by pressure from the mouth of the accused”. It widened the scope of
compulsion and heid that “compelled testimony" is evidently procured not merely
by physical threats or violence but also by psychic torture, atmospheric pressure,
environmental coercion, tiring interrogative proximity, overbearing and htimidating
methods and the like.
In Sampath Kumar v £.0. Enforcement Directorate, Madras (AIR 1998 SC
16), held that administration of “caution” to person summoned that not making
truthful statement was an offence, did not amount to use of pressure within the
meaning of Art. 20(3). Protection against self-incrimination secured by Art. 20(3) is
available only if the accused is compelled to give evidence against himself.
Administration of such a caution, the court said, was, in fact, in the interest of the
person who was making the statement.
Waiver of privilege - The privilege given by Art. 20(3) to the accused person may
be waived by him. Thus, this Article is not violated when he volunteers evidence
against himself. Art. 20(3) would not apply to a case where the confession was
made by the accused without any inducement, threat or promise (Kalawati v State
of H.P AIR 1983 SC 131).
But, in Kharak Singh v State of Punjab (AIR 1963 SC 1295), the term
‘personal liberty' was interpreted to be a compendious term including within itself
all the varieties of rights which go to make up the personal liberty of man other
than those dealt with in Art. 19(1) While Art. 19(1) deals with particular species or
attributes of that freedom, ‘personal liberty' in Art. 21 takes in and comprises the
residue. It is true that in Art. 21, the word ‘liberty' is qualified by a word ‘personal’,
but this qualification is employed in order to avoid overlapping between those
incidents of liberty which are mentioned in Art. 19(1).
In that case. Police regulations authorising domiciliary visits (i.e. visits in the
night to a private house to make sure whether the suspect is staying at home or
not) against bad characters, were held to be violative of Art 21. By the term ‘life’
as used here, something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limits and faculties by which
life is enjoyed.
However, in Govind v State of M.P. (AIR 1975 SC 1379), held that
depending upon the character and antecedents of the persons subjected to
surveillance, and the object and limitations under which surveillance is made, it
cannot be said that
Vvh0se conduct showed that he was determined to lead a criminal life. The
regUlations by police, upheld by court, as they had the force of law.
In Malak Singh v State of Punjab (AIR 1981 SC 760), held that under Sec 23
of the Punjab Police Act it was the duty of the police officers to keep surveillance
over bad characters, and habitual offenders for the purposes of preventing crimes.
So long as the surveillance is for the purpose of prevention of crimes and confined
to the limits prescribed by Rule 23(7) of the Punjab Police Rules, a person cannot
complain against the inclusion of his name in the surveillance register. But, if it is
excessive and goes beyond the limits prescribed by Rule, i.e. surveillance of a
person who does not belong to above categories, its validity may be challenged
as infringing the right of privacy of a citizen as his fundamental right to personal
liberty under Art. 21, and freedom of movement in Art. 19(1 )(d).
P r ot e c t i o n o f L i f e a n d P e r s o n al L i be r t y 139
Maneka Gandhi’s case is said to have put life into the “Life and Liberty
clause” of the Constitution of India. Comment. lC.LC.-2007\[L.C.I-2007l[!,A.S,-
2OQO]
interest of general public, it may decline to furnish a copy, and which was
done so in the present case.
The petitioner challenged the validity of the said order on the
following grounds:
(i) Sec. 10(3)(c) was violative of Art. 14 as conferring an
arbitrary power, since it did not provide for a hearing of
passport holder before impounding passport.
(ii) Sec. 10(3)(c) was violative of Art. 19(1)(a) and (g) since it
permitted imposition of restrictions not provided in clause
(2) or (6) of Art. 19.
(iii) Sec. 1 G(3)(c) was violative of Art. 21, since it did not
prescribe ’procedure’within the meaning of the Art. 21. The
reason for the order were, however, disclosed in the
affidavit filed on behalf of the Government which stated that
XVI
Constitutional Law o f India- II
34 “Procedure established by Saw under Art. 21 should be just, fair and reasonable’-
Discuss referring to interrelationship between Arts. 14, 19 and 21 of
Constitution. [C. L. C./L. C.1-
2006/2007]
Critically examine: Arts. 14, 19 and 21 are mutually exclusive.
“A law establishing procedure for curtailing personal liberty of a citizen must be in
consonance with the rule of justice, ;airness and reasonableness.” Critically
examine. What would be your answer if such a law also violates equality clause"?
[D.U.-2008]
“Right to equality and protection to personal liberty are no longer mutually
exclusive.” Discuss. [M.S.-95]
P r ot e c t i o n o f L i f e a n d P e r s o n al L i be r t y 141
was argued that the word law did not mean enacted law, but it
meant principles of natural justice; and the expression
“procedure established by law” meant the same thing as the
phrase “due process of law” in the American Constitution.
(Note: “due process of law” is a wider term, which covers both
substantive and procedural law). The omission of the word
‘due’ made no difference to the interpretation of Art. 21. But,
Supreme Court rejected these contentions.
Pointing out the difference in the use of words the Supreme Court held in
Gopalan that the difference is deliberate and material. In effect, Art. 21 only
requires that there must be a valid enacted (State) law and not the law in the
abstract or general sense embodying the principles of natural justice as
interpreted by the U.S. Supreme Court. The court will not examine the
content of the law and will not judge its fairness or reasonability. This view is
supported by the history of the Article. In the draft Constitution the clause was
as under: 'No person shall be deprived of his life or liberty without due
process of law.’ After discussion, the expression ‘without due process of iaw’
was substituted by the expression ‘except according to procedure established
by law.’
In the present case (Maneka Gandhi), Bhagwati J. did not apply the
concept of “due process” as such in the context of Art. 21, when he stated
that the protection secured by Art. 21 is a limited one in as much as Art. 21
safeguards the right to 'personal liberty’ against executive interference which
is not supported by law, and law here means ‘enacted law’ or ‘State law’.
However, he departed from the Gopalan approach and read ‘procedure in Art.
21 not as prescribing any specific procedure, but
only that procedure which conforms to the principles of natural justice i.e
procedure has to be 'right, just and fair’. It was explained that the principle
of reasonableness, which is an essential element of equality or non-
arbitrariness pervading Art. 14, must also apply with equal force to the
'procedure' contemplated by Art. 21, so procedure must not be arbitrary,
fanciful or oppressive. Thus ‘due process' has been imported and
established as a part of the Constitution.
However, Krishna Iyer J., in his separate but concurring opinion,
extended the guarantee in Art. 21 not only to 'procedure' as being fair and
just, but also to ‘law’ as being ‘reasonable’; it meant in a way reading
‘procedure established by law” as almost amounting to ‘due process of
law1 in the American sense.
Decision - Held that any procedure which permits impairment of the
Constitutional right to go abroad (vide Satwant Singh’s case AIR 1967 SC
1836) without giving a reasonable opportunity to show cause cannot but
be condemned as unfair and unjust.
In the present case, it was held, however, that Sec. 10(3)(c) of
Passport Act is not violative of Art. 21 as it is implied in the provisions that
Critically examine Procedure established by law under Art. 21 need not comply
with the principles of natural justice.
XVI
Constitutional Law o f India- II
the rules of natural justice would be applicable in the exercise of the power
of impounding a passport. The power conferred on the Passport Authority
is not unguided. The grounds denoted by the words in the interest of
general public' are clearly defined. In view of the statement of the
Attorney-General that the Government was agreeable to consider the
representation of the petitioner, it was held by majority that the defect of
the order was removed and order was passed in accordance with the
procedure established by law
In the present case, the court also considered the question that
what is the test or yardstick to be applied for determining whether a statute
infringes a particular fundamental right? Decisions in R.C. Cooper's case
and Bennett Coleman's case shows that the tests of pith and substance of
the subject-matter and of the direct object and of incidental effect of
legislation are relevant to the questions of legislative competence but they
are irrelevant to question of infringement of fundamental rights. The true
test is whether the effect (direct) of the impugned action is to take away or
abridge fundamental rights. If the effect of State action on fundamental
rights is direct and inevitable, than a fortiori it must be presumed to have
been intended by the authority taking the action and hence this doctrine of
direct and inevitable effect has been described by some jurists as the
doctrine of intended and real effect.36
Comments - The interaction of Arts 14, 19 and 21 analysed by the Court
in the present case, demonstrates that the requirement of
reasonableness’ runs like a golden thread through the entire fabric of
fundamental rights.
Arts 14, 19 and 21 are not mutually exclusive and there is overlapping in
the contents of rights given under these articles
The Court created a protective shield against any type of arbitrary,
unreasonable and unjust actions which seeks to violate the individual
freedom and liberties of people, by inter-mixing and co-relating the
provisions of Arts. 14, 19 and 21.
In later cases, the Maneka Gandhi’s decision has been followed.
In Mohd. Sabir v State ofJ&K (AIR 1989 SC 1899), the court similarly held.
In Sunil Batra v Delhi Administration (AIR 1978 SC 1675), Krishna Iyer,
J. said: “True cur Constitution has no due process clause, but after
Cooper and Maneka Gandni, the consequence is the same. Art. 21 is
the counterpart of the procedural due process in the United States.’’]
In Francis Coralie v Delhi Administration (AIR 1981 SC 746), the validity of the
A new judicial trend has emerged from the cases of Maneka Gandhi, Sunil Batra,
Hoskot and Hussainara Khatoon, in which the Supreme Court has taken the view
that the provisions of Part III of the Constitution of India should be given widest
possible interpretation. In Maneka Gandhi’s case, Bhagwati J., said, the correct
way of interpreting the provisions of Part III is that attempt of the court should be
to expand the reach and ambit of the fundamental rights rather than to attenuate
their meaning and content.
By an activist interpretation most of the fundamental rights, especially the
right to equality (Art. 14) freedom of speech and expression [Art. 19( 1 )(a)] and
right to life and personal liberty (Art. 21) have been converted into a regime of
positive human rights unknown in previous constitutional diction. By an affirmative
action the courts are trying to force the government to create favourable
conditions for effective realisation of the new individual, collective, diffuse rights.
The Supreme Court held that to be a fundamental right it is not necessary
that a right must be specifically mentioned in a particular Article. Even if it is not
mentioned in any of the Articles specifically, it may be a fundamental right if it is
an integral part of a named fundamental right or partakes of the same basic
nature and character as that fundamental right. Every activity which facilitates the
exercise of the named fundamental right may be considered integral part of that
right and hence be a fundamental right.
The expression 'personal liberty’ covers a wide variety of rights which go to
constitute the personal liberties of a man other than those which are already
included in Art. 19. The courts are inclined to give the widest amplitude to the
expression. On account of the liberal interpretation, Art. 21 has now come to be
invoked almost as a residuary right, even to the extent which the founding fathers
never dreamt of [Narinderjit Singh Sahni v UOI (2002) 2 SCC 210],
The discoveries of egalitarian goals in the fundamental rights have resulted in
the explosion of rights Thus, Art. 21 of the Constitution has sprung up a whole lot
of human rights jurisprudence. For example, it has been held that these are
fundamental rights under Art. 21, though not specifically mentioned.
(i) Right to speedy trial (M.H. Hoskot v State of Maharashtra, AIR 1978 SC
1548, Hussainara Khatoon v State of Bihar, AIR 1980 SC 1819; Raj
Deo Sharma v State of Bihar (1998) 7 SCC 507)),
P r ot e c t i o n o f L i f e a n d P e r s o n al L i be r t y 145
has been deprived of his/her right e.g. victims of torture, rape, custodial
death, fake encounter, etc.
(iv) Capital punishment is not violative of Arts. 14, 19 and 21.
(v) Hanging as a mode of execution is fair and just and does not offend
against Art. 21.
Right to Dignity
In Maneka Gandhi case, the court held that the right to iive is not merely confined
to physical existence but it includes within its ambit the right to live with human
dignity. In Francis Coralie case, held that the right to live includes the right to live
with human dignity and all that goes along with it, namely, the bare necessities of
life, such as adequate nutrition, clothing and shelter, and facilities for reading and
writing, freely moving about and mixing with fellow human being.
In Jolly Varghese v Bank of Cochin (AIR 1980 SC 470), the court held that
imprisonment of a poor person for non-payment of debts amounted to deprivation
of his personal liberty without fair procedure and was, therefore, violative of Art.
21. To be poor is no crime, said Krishna Iyer, J. In Vikram Deo Singh Tomar\/
State of Bihar (AIR 1988 SC 1782), it was brought to the notice of court that the
female inmates of the Care Home Patna were compelled to live in inhuman
conditions. Held that the right to live with human dignity is a fundamental right and
the State is under duty to provide at least the minimum conditions ensuring
dignity. Similar observations were made in Upendra Baxi v State of U P. (1986) 4
SCC 106.
In P.U.D.R. v UOI (AIR 1982 SC 1473), held that non-payment of minimum
wages to workers employed in various Asiad Projects in Delhi was a denial to
them of their right to live with basic human dignity and violative of Art. 21. Rights
and benefits conferred on the workmen under various labour laws are “clearly
intended to ensure basic human dignity to workmen and if they are deprived of
these rights and benefits that would clearly be a violation of Art. 21." Thus, non-
implementation by the private contractors and non-enforcement by the State
authorities of the provisions of various labour laws violate the fundamental right of
workers to “live with human dignity”.
In Vishaka v State of Rajasthan (AIR 1997 SC 3011), the Apex Court’s
attention was focussed towards prevention of sexual harassment of working
women in all work-places. Held that it resulted in violation of the fundamental
rights of “Gender Equality” and the “Right to Life and Liberty" enshrined in Arts.
14, 15 and 21. It was also held to be violation of the victim's fundamental right
under Art. 19(1 )(g) to practise any profession or to carry on any occupation, etc.
as a “safe” working environment is needed for that. The court observed: “Gender
equality includes protection from sexual harassment and right to work with dignity,
which is a universally accepted basic human right. In the absence of suitable
domestic legislation in this sphere, international conventions/norms, so far as they
are consistent with the constitutional spirit, can be relied on, viz. Convention on
the Elimination of All Forms of Discrimination against Women.” The court laid
P r ot e c t i o n o f L i f e a n d P e r s o n al L i be r t y 147
in order to survive, and where the holders of public and private power find it
possible to use torture as a rational means of achieving certain policy objectives.
The expression 'human rights' presupposes a level at which biological
entities are bestowed with the dignity of being called human. The bearer of human
rights must have an implicit right to be and remain human, allowing them some
autonomy of choice in their survival. Further, there should be immunity against the
loss of dignity through the wilful infliction of physical and mental torture (U. Baxi).
The Supreme Court in the above mentioned cases has emphasised similar
points. However, it remains to be seen how far the right to live with human dignity
would be made available to the masses by those (i.e. the holders of public and
private power) for whom the term dignity has a rather sophisticated connotation
(for them, the term implies not the bare necessities but the luxuries of life) and
whose enjoyment of dignity consists in treating others with indignity and making
them indigent.
Right to Privacy
In Kharak Singh v State of U.P (AIR 1963 SC 1295) the court held that the term
life as used in Art. 21 meant something more than mere animal existence. The
inhibition against its deprivation extends to all those limits and faculties by which
life is enjoyed. An unauthorised intrusion into a person's home (by way of
domiciliary visits of policemen) and the disturbance caused to him is the violation
of personal liberty of the individual. But, in Govind v State ofM.P. (AIR 1975 SC
1379), the court held that Police Regulations authorising domiciliary visits were
constitutional. As regards the right of privacy, the court said that right to privacy
would necessarily have to go through a process of case by case development.
In Malak Singh v State of Punjab (AIR 1981 SC 760), the right of privacy of
a citizen as a fundamental right was emphasised by the court. In State of
Maharashtra v Madhulkar Narain (AIR 1991 SC 207), held that the right to privacy
is available even to a woman of easy virtue and no one can invade her privacy.
_ Ina landmark judgment (The Hindustan Times, 3.12.93), the Madras High Court
held that a minor girl had the right to bear a child. In this case, a 16-year old minor
girl became pregnant and wanted to have the child against the opposition from
her father. The public prosecutor, on behalf of the girl, argued that she had the
right to bear the child under the broader right to privacy. Even a minor had a right
to privacy under Art. 21. The Constitution does not make any distinction between
minor and major in so far as fundamental rights are concerned. The court held
that in the case of a mature and understanding minor, the opinion of
parent/guardian was not relevant
In R. Rajagopal v State of T.N. (1994) 6 SCC 632, held that the right to
privacy or the right to be let alone is included in Art. 21 and a “citizen has a right to
safeguard the privacy of his own, his family, marriage, procreation, motherhood,
child bearing and education among other matters”. None can publish anything
concerning the above matters without the person’s consent, whether truthful or
otherwise and whether laudatory or critical. If he does so he would be violating the
right of privacy of the person concerned and would be liable for action for
P r ot e c t i o n o f L i f e a n d P e r s o n al L i be r t y 149
damages However, this principle would not apply if the citizen were a busy body
vvith a penchant for throwing himself into controversies. Moreover, whatever is on
public records can be published. And the right to privacy or the remedy of action
for damage is simply not available to public official as long as the criticism
concerns the discharge of their public duties.
In People’s Union for Civil Liberties (PUCL) v UOI (AIR 1997 SC 568), the
petitioners challenged the constitutional validity of Sec. 5 of the Indian Telegraph
Act, 1885 which authorises the Central or State government to resort to phone
tapping in the circumstances mentioned therein. The writ petition was filed in the
wake of the report on “Tapping of phones of Politicians” by the CBI. The Supreme
Court held that in the absence of ‘just and fair procedure’ for regulating the
exercise of power under Sec. 5(2) of the Act, it is not possible to safeguard the
rights of citizens guaranteed under Arts. 19(1)(a) and 21 of the Constitution. The
Court observed: “The right to privacy - by itself - has not been identified under the
Constitution. As a concept it may be too broad and moralistic to define it judicially.
Whether right to privacy can be claimed or has been infringed in a given case
would depend on the facts of said case. But the right to hold a telephone
conversation in the privacy of one’s home/office without interference can certainly
be claimed as "right to privacy". Telephone conversation is a part of modern
man’s life and an important facet of his private life. Telephone tapping would, thus,
infract Art. 21 unless it is permitted under the procedure established by law.”
In Mr. 'X' v Hospital ‘Z’ (Dr. Tokugha Yepthomi v Apollo Hospital) (AIR 1999
SC 495), the appellant (Mr. ‘X’, a doctor) was to marry a girl, but the marriage was
called off on the ground of blood test conducted at the respondent's hospital (‘Z’)
in which the appellant was found to be HIV positive. The appellant moved the
Supreme Court for violation of his ‘right of privacy’. The court rejected the
appellant’s contentions by holding that right to privacy is not absolute. It may be
lawfully restricted for the prevention of crime, disorder or protection of health or
morals or protection of rights and freedom of others In the instant case, another
person (appellant’s would-be-bride) was saved in time by the disclosure (‘right to
be informed’). Moreover, where there is a clash of two fundamental rights, namely,
the appellant’s right to privacy as part of right to life and his fiancee’s right to lead
a healthy life which is her fundamental right under Art. 21, the right which would
advance the public morality or public interest, would alone be enforced through
the Process of court, for the reason that moral considerations cannot be kept at
bay and the Judges are not expected to sit as mute structures of clay in the hall
known as courtroom, but have to be sensitive, “in the sense that they must keep
their fingers firmly upon the pulse of the accepted morality of the day.”
In Surjit Singh Thind v Kanwaljit Kaur (AIR 2003 P & H 353), the Punjab
and Haryana High Court held that allowing medical examination of a woman for
her virginity amounts to violation of her right to privacy and personal liberty
enshrined under Art. 21 [See also, Sharda v Dharmpal, 2003 SCW 1950],
Comments - Privacy has been defined as the claim of individuals, groups or
institutions to determine for themselves when, how and to what extent information
about them is communicated to others. In other words, privacy can be defined as
control over knowledge about oneself.
XVI
Constitutional Law o f India- II
Right to Food
In PUCL v Union of India [2000 (5) SCALE], the Supreme Court recognizing the
right to food’ has held that the people who are starving because of their inability to
purchase food grains have right to get food under Art. 21 and therefore they ought
to be provided the same free of cost by the States out of surplus stock lying with
the States The people entitled in such situation are those who are aged, infirm,
disabled, destitute women/men, pregnant and lactating women and destitute
children.
Right to Marriage
The 'right to marry’ is an essential element of right to privacy but is not absolute.
Marriage is the sacred union, legally permissible, of two healthy bodies of
P r ot e c t i o n o f L i f e a n d P e r s o n al L i be r t y 151
and development.
In D.K. Yadav v J.M.A. Industries (1993) 3 SCC 258, held that the right to
life includes right to livelihood and therefore before terminating the service of an
employee or workmen fair play requires that a reasonable opportunity should be
given to him to explain his case. The procedure prescribed for depriving a person
of livelihood must meet the requirement of Art. 14 i.e. it must be right, just and fair.
Art. 21 clubs life with liberty, dignity of person with means of livelihood without
which the glorious content of dignity of person would be reduced to animal
existence.
In LIC of India v Consumer Ed. & Res. Centre (1995) 5 SCC 482, held that
the ‘right to life and livelihood’ under Art. 21 includes the ‘right to life insurance
policy of LIC’ and, such policies, therefore, must be within the paying capacity and
means of the insured. The Preamble, Chapters on Fundamental Rights and
Directive Principles accord right to livelihood as essential for meaningful life.
Social security and disablement benefits are integral schemes of socio-economic
justice to the people, in particular to the middle class and lower middle class. The
LIC must evolve their policies subject to such reasonable, just and fair
terms/conditions accessible to all segments of the society.
In Mr. X of Bombay, Indian Inhabitant v M/s ZY (AIR 1997 Bom 406), it was
held by the Bombay High Court that a HIV-positive person could not be rendered
“medically unfit” solely on that ground so as to deny him the employment. The
petitioner, in this case, was found fit for his normal duty of loading of drums in
trucks and he did not pose any threat or risk to any person at workplace and not
likely to develop symptoms of AIDS for 8 to 10 years. Deleting his name from the
panel of casual labourers to be regularised, was held arbitrary, unjust, unlawful
and violative of Arts. 14 and 21. The Supreme Court agreed with the High Court
and held that right to Government service cannot be denied to person suffering
from AIDS (1998) 8 SCC 296.
Comments - The right to livelihood or right to work has various economic
implications. First, all fundamental rights are justiciable and as such, any citizen
would be free to move a court to claim compensation in the event of work not
being available to him. Second, many voluntary organisations and/or political
activists can organise their legal cells to secure relief for the unemployed. Third,
the quantum of relief to be provided can become a subject of dispute before the
courts. The moot question is: Is it desirable for the government to provide
unemployment relief and thus develop a dependency psychology among the
people or encourage a pattern of investment which promotes more employment?
The right to work at the present stage of development of our economy with
its accumulated distortions cannot straightaway lead to waged employment.
Neither the pattern of allocation of public resources, nor the decision making
motives and roCesses nor the command of the State over the resources nor the
pattern of ^ernand ana availability of technologies are such that organized sector
wage employment be 9iven t0 everyone. This requires not only massive additional
resource mobilisation, but also a massive restructuring of the economy in order to
clear it of distortions and biases.
P r ot e c t i o n o f L i f e a n d P e r s o n al L i be r t y 153
Right to Shelter
in Chameli Singh v State of U.P. (1996) 2 SCC 549, it was held that the right to
shelter is a fundamental right under Art. 21. Right to live guaranteed in any
civilized society implies the right to food, water, decent environment, education,
medical care and shelter. These are basic human rights known to any civilized
society.
In Ahmedabad Municipal Corpn. v Nawab Khan Gulab Khan (AIR 1997 SC
15
2), the problem of unauthorised encroachment of pavements by slum-dwellers
was in issue. The Court, following the Olga Tellis case (1985) 3 SCC 545, held that
while n° one has a right to encroach upon public footpaths, pavements or roads,
the State/ Municipal Corporation has constitutional as well as statutory duty to
provide residential accommod3tion to the poor and indigent weaker sections of the
society by utilising “te excess urban vacant land available under the Urban Ceiling
Act. But in all cases of ejectment of the encroachers, it is not obligatory on the part
of the State/Corporation *° Provide alternative accommodation. No absolute
principle can be laid down in this re9ard arid it would depend upon the facts of
each case. The Court observed: Right
to life under Art. 21 would include right to live with human dignity. Due to want of
facilities and opportunities, the right to residence and settlement is an illusion to
the rural and urban poor. The directive principles positively charges the State to
distribute its largess to ihe weaker sections of society (envisaged in Art 46) to
make socioeconomic justice a reality, meaningful and fruitful so as to make life
worth living with dignity of person and equality of status
XVI
CIn
o nShiv
s t i tSagar
ution a l L va w
Tiwari o f ofI nIndia
Union d i a (AIR
- I I 1997 SC 2725), the Supreme
Court while recognizing the ‘right to shelter’ emphasised the need to prevent or
regulate “illegal shelter". The Court discussed the issues like, should there be
any out-ofturn allotment of Govt, residential quarters and if so how should it be
regulated and what should be its limits; should private citizens (viz. journalists,
freedom fighters, artists, etc.) be accommodated in government quarters; should
political parties and other organisations be given allotment of Govt.-quarters;
should President, Prime Minister be accommodated in Govt, quarters after
demitting of office by them; etc.
7
Right to Speedy Trial
In Raj Deo Sharma v State of Bihar (1998) 7 SCC 507, the Supreme Court held
that the legal position adumbrated by it (5-Judge Bench) in Abdul Rehman
Antuiay v R.S. Nayak (1992) 1 SCC 225, that the "right to speedy trial” flows
from Art 21 and encompasses the stages right from the date of registration of the
FIR and onwards, remains unaltered. The court fixed a time-limit in this regard,
to dispose of cases in that time, so that the accused persons do not languish in
jails, in “Common Cause" A Registered Society v Union of India (1996) 6 SCC
775, the Apex Court also laid down some guidelines.
In Raj Deo Sharma (II) v State of Bihar (1999) 7 SCC 604, a 3-Judge
Bench laid down the exact period after which an accused must be discharged or
acquitted. The matter was reconsidered by a 7-Judge Bench in P. Ramchandra
Rao v State of Karnataka (2002) 4 SCC 578 and it was decided that:
(a) The dictum in Antuiay is correct and still holds good.
(b) Fixing the period of limitation cannot be done by judicial directive.
(c) The guidelines laid down in Antuiay are not exhaustive but only
illustrative. Their applicability would depend on the facts of each case
The delay has to be decided by the courts having regard to the totality
of circumstances.
(d) The decision of smaller benches fixing a time-limit were overruled.
Comments - In the last two decades or so the judiciary has acted as the
watchdog of under trials (especially poor). However, the judiciary has avoided,
and very rightly, laying down any straight-jacket formula to be applied in all
cases of delayed
7. X was sentenced to death but his death sentence was not executed for
ten years. X contends that to take away his life after keeping him in jail for
ten years entitles him to demand the quashing of his death sentence
under Art. 21 of the Constitution. Examine X’s contention [/.AS.-97]
trials. Because while determining whether undue delay has occurred, one must have
regard to all the attendant circumstances, including nature of offence, number of
accused and witnesses, the workload of the court concerned, prevailing local conditions
and so on-what is called, the systemic delays. It is neither advisable nor practical to fix
any time-limit for trial of offences.
It is true that it is the obligation of the State to ensure a speedy trial and State
includes judiciary as well, but a realistic and practical approach should be adopted in
such matters instead of a pedantic
P r ot e cone.
t i o nEach
o f Land
i f e every
and Pdelay
e r s odoes
n al Lnot
i benecessarily
rty 155
prejudice the accused. Some delays may indeed work to his advantage. The benefit of
delayed trials should be given only to those accused persons who are not party to it.
as delay is a known defence tactic (since the burden of proving the guilt of the
accused lies upon the prosecution, delay ordinarily prejudices the prosecution).
V
Right to Clean Environment
38
In recent times, the judiciary in India has extended to new dimensions, the
concepts 'right to life’ and 'procedure established by law’ in Art. 21. The Supreme
Court, in several cases, interpreted the right to life and personal liberty to include
the right to a wholesome environment. The High Courts of the States like
Rajasthan, Himachal Pradesh and Kerala too, have observed that environmental
degradation violates the fundamental right to life
In Dehradun Quarrying Case (AIR 1988 SC 2187), the Supreme Court
evolved a new right to environment without specifically mentioning it. The case
38 Does the right to life and personal liberty in Art. 21 embraces a right to
clean, healthy and livable environment, using environment in its broadest
sense as interpreted in contemporary constitutional jurisprudence? Discuss
with reference to decided cases. [I.A.S.-96/2000\[L.C.II-
200S\ i
X Vwas filed under C Art.
I
o n32
s tof
i t the
u t i Constitution
o n a l L a wand
o forders
I n d i were
a - I Igiven with emphasis
on the need to protect the environment. According to a committee of experts
appointed by the court, mining of limestone in certain areas was found
dangerous and damaging ecological balance.
Similarly, while interpreting Art. 21, in Ganga Pollution (Tanneries) Case
(AIR 1988 SC 1037), Justice Singh justifying the closure of polluting tanneries
observed:' “We are conscious that closure of tanneries may bring unemployment,
loss of revenue, but life, health and ecology have greater importance to the
people"
Also in Shriram Gas Leak Case (AIR 1987 SC 1086), the court evolved the
principle of absolute liability of compensation through interpretation of the
constitutional, provisions relating to right to live and to the remedy under Art. 32
for violation of fundamental rights. The premises on which the decision is
rendered is clear and unambiguous - the fundamental right to a clean and
healthy environment The court said that the State had power to restrict
hazardous industrial activities for the purpose of protecting the right of the people
to live in a healthy environment. Further, the right to live contains the right to
claim compensation for the victims of pollution hazards.
While the apex court was reluctant for a short period to confer specifically
a right to a clean and humane environment under Art. 21 of the Constitution,
various High Courts in the country went ahead and enthusiastically declared that
the right to environment was included in the right to life concept in Art 21. In
comprehending the right to environment, the High Courts were more specific and
direct. In T. Damodhar Rao v Municipal Corpn. of Hyderabad (AIR 1987 A P.
171), the court held that the enjoyment of life and its attainment and fulfillment
guaranteed by Art. 21 embraces the protection and preservation of nature’s gifts
without which life cannot be enjoyed. There can be no reason why practice of
violent extinguishment of life alone should be regarded as violative of Art 21. The
slow poisoning by the polluted atmosphere caused by environmental pollution
should also be regarded as amounting to violation of Art. 21.
In Kinkri Devi v State of H P. (AIR 1988 HP 4), the court held that if a just
balance is not struck between development through tapping of natural resources and
the protection of ecology and environment, there will be a violation' of fundamental
rights conferred by Arts. 14 and 21 of the Constitution. In Attakoya Thangai v Union
of India (1990 KLT 580), the Kerala High Court held that right to life in Art 21 contains
the right to have dean water. The right to sweet water, and the right to free air, are
attributes of the right to life, for these are the basic elements which sustain life itself.
The first time when the Supreme Court came close to almost declaring the right
to environment in Art 21 were in 1990, in Chhetriya Pradushan Mukti Sangarsh Samiti
v State of U P. (AIR 1990 SC 2060). Chief Justice Sabyasachi Mukherji observed:
"Every citizen has a fundamental right to have the enjoyment of quality of life and
living as contemplated in Art. 21 of the Constitution." In Subhash Kumar v State of
Bihar (AIR 1991 SC 420), the court held the right to live includes the right of
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 right to
have recourse to Art. 32.
In Bangalore Medical Trust v B S. Muddappa (1991) 4 SCC 54, an open space
which was reserved for pubiic park was allotted to a private person for the purpose of
constructing a hospital The residents of the locality challenged the allotment under
Art. 32. The court held that a nursing home could neither be considered an amenity
nor it could be considered improvement over necessity like a public park. A park is a
necessity not a mere amenity. For maintaining ecology in urban areas and for clean
environment, open space and park is necessary.
In Vellore Citizen's Welfare
P r ot eForum
c t i o n vo fUOI
L i f(AIR
e a n1996
d P e rSC
s o n2715),
al L i the
be rSupreme
ty 157
Court held that the remediation of the damaged environment is part of the process of
“sustainable development” and as such polluter is liable to pay the cost to the
individual sufferers as well as the cost of reversing the damaged ecology (‘Polluter
pays principle’). A similar view was taken by the Supreme Court in A.P. Pollution
Control Board v Prof. M.V. Nayudu (1999) 2 SCC 718.
In Murli S. Deora v UOI (2001) 8 SCC 765, realizing the gravity of the situation
and considering the adverse effect of smoking on smokers and passive smokers, the
court directed and prohibited smoking in public places and issued direction to •he
Union of India, State Governments and UTs to take effective steps to ensure
Prohibiting smoking in public places.
In Intellectuals Forum, Tirupathi v State of Andhra Pradesh (AIR 2006 SC
1
350), the Supreme Court has held that under Art. 21 and Art. 51-A, it is the
constitutional obligation of the Government to protect and preserve the environment.
In
the name of urban development, the environment (fresh water resources in the
Present case) cannot be destroyed Emphasising the need of sustainable
development, *he court held that the right of shelter is not so pressing need so as to
outweigh al1 environmental considerations.
In Milk Men Colony Vikas Samiti v State of Rajasthan (2007) 2 SCC 413, 'he
Supreme Court held that the ‘right to life’ means clean surroundings which lead to
healthy body and mind. It includes right to freedom from stray cattle and animals in
urban areas.
Comments - The Indian judiciary has shown unprecedented dynamism by expanding
the scope of Art. 21 by including in it ‘right to clean and wholesome environment'’
This feat is remarkable insofar as even some of the developed countries have yet to
achieve such distinction.
Generalist judges have a broader vision of national policies and interests than
the parochial stand of specialist government agencies charged with establishing
large, environmentally disruptive, industrial and developmental projects. Further,
judicial process frequently compels the defendant project authority to increase
environment-related spending. For example, if the location of a project is challenged
in court by an environmental group, the promoters frequently spend more funds on
environmental impact appraisal and pollution abatement, than they otherwise might.
However, it should be remembered that the courts can only respond to the
cases that come before them. They can rarely effect systemic or society-wide
changes in environmental conditions. Judicial action must be seen as only one of
many tools to bring about environmental improvement. In many situations, lobbying,
public education and political action by mobilising people, are far more effective
mechanisms than the bringing of a lawsuit. Nevertheless, there is a great need of the
people like M.C. Mehta who used environmental laws provision to get the court to
take stern action against wilful polluters.
39 Explain how fundamental right to education was evolved. What limitations are
now placed on this right by the Supreme Court? Discuss with reference W
decides cases. [M.S.-S*
X VParliament):
I
Constitutional Law o f India- II
“Art. 21-A: The State shall provide free and compulsory education to all
children between the age of 6 and 14 years in such manner as the State
may, bylaw, determine” (Fundamental Right).40
It casts a duty on the State to provide free and compulsory education to all children
between the age of 6 to 14 years. To implement this right the State will enact
appropriate laws. Education being a concurrent subject laws may be enacted either
by the Union or the States.
In Mohini Jain v State of Karnataka (AIR 1992 SC 1858), the two-judge bench
of the Supreme Court held that every citizen has a ‘right to education’ under the
constitution. The framers of the Constitution made it obligatory for State to provide
education for its citizens. The right to education is concomitant to the fundamental
rights. Thus, right to freedom of speech and expression cannot be fully enjoyed uniess a
citizen is educated and conscious of individualistic dignity. Without education, dignity
of the individual can’t be assured. Art. 21 includes the right to live with human dignity
and all that goes along with it. The 'right to education’ flows directly from the right to
life because of its inherent fundamental importance (in the life of an individual).
The court further observed: The State is under a constitutional mandate to
provide education at all levels and thus establish educational institutions at all levels
(including professional education like medicine, engineering) for citizens (either State
owned or State-recognised). The ‘Capitation fee' (charging amount beyond what is
permitted by law i.e. in excess of prescribed fee) brings to the fore a clear class
basis, and makes the availability of education beyond the reach of poor. Admission of
non-meritorious students by charging capitation fee strikes at the very root of the
Constitutional scheme and our educational system. Education in India has never been
a commodity for sale.
In Unni Krishnan v State of A.P. (“Capitation Fee Case”) (AIR 1993 SC 2178),
the five-judge bench, by 3-2 majority held that admission to all recognised private
educational institutions particularly medical and engineering, shall be based on merit,
but 50% of seats in all professional colleges be filled by candidates prepared to pay a
higher fee. The system devised by us, the court said, would mean correspondingly
more financial burden on affluent students; whereas in the system prevalent in
Andhra Pradesh, the financial burden is equally distributed among all the students, as
a result of which a poor meritorious student often unable to pay the enhanced fee
prescribed by the government for such colleges. This is unjust and violative of Art.
14.
The judgment of the court differs from that in Mohini's case on following
points:
(a) Conferring unconditional and unqualified right to education at all levels to
every citizen involving a constitutional obligation on State to establish
institutions either directly or through State agencies is not warranted by the
Constitution besides being unrealistic and impractical.
The citizens of this country have a fundamental right to education which
flows from Art. 21. This right is, however, not absolute-arid its content and
parameters have to be determined in the light of Arts. 45 and 41. In other
words, every child/citizen has right to free education until he completes the
age of 14 years. Thereafter his right to education is “subject to the limits of
economic capacity and development of the State."
m
Right to Medical Aid and Health
In Parmananda Katara v UOI P r ot(AIR
e c t i o1989
n o f SC
L i f e2039),
a n d Pit ewas
r s o nheld
al L ithat
be r tity is the 161
professional obligation of all doctors (government or private) to extend medical aid to
the injured immediately to preserve life without legal formalities to be complied with
by the police. Art. 21 casts the obligation on the State to preserve life. It is the
obligation of those who are in charge of the health of the community to preserve life
so that the innocent may be protected and the guilty may be punished. No law or
State action can intervene to delay the discharge of this paramount obligation of the
members of the medical profession.
In Paschim Bang Khet Mazdoor Samiti v State of W.B. (1996) 4 SCC 37, the
court followed the Parmananad Katara’s ruling and held that denial of medical aid by
government hospitals to an injured person on the ground of non-availability of beds
amounted to violation of right to life under Art. 21.
In Consumer Education & Research Centre v Union of India (AIR 1995 SC
922), the Supreme Court has held that the right to health and medical care is a
fundamental right under Art. 21 as it is essential for making the life of the workmen
meaningful and purposeful with dignity of person. ‘Right to life' in Art. 21 includes
protection of the health and strength of the worker. The expression life’ includes right
to livelihood, better standard of life, hygienic conditions workplace and leisure and
traditional and cultural heritage of a person. The court laid down some guidelines to
be followed by all asbestos industries - to make health insurance of worners, worker
suffering from occupational health hazard entitled for compensation of Rs.1 lakh,
maintenance of health record of every worker, etc.
Right to Die41
Is individual capable of taking decis'on to end his life? This question was before the
Bombay High Court in case of State of Maharashtra v Maruti Sripati Dubai (1987,
Cr.L.J. 549). The court held that the right to live guaranteed by Art. 21 includes also a
right to die. The judges felt that the desire to die is not unnatural but merely abnormal
and uncommon. They listed several circumstances in which people may wish to end
their lives, including disease, cruel or unbearable condition of life, a sense of shame
or disenchantment with life They held that everyone should have the freedom to
dispose of his > ? and when he desires.
In Rathinam v Union of India (1994 VOL II No. 7674, the Supreme
Court held that a person has a right to die and declared unconstitutional Sec. 309,
1
PC., which makes attempt to commit suicide a penal offence. The right to live in Art.
21 includes the right not to live i.e. right to die or to terminate one’s life. A person
can’t be forced to enjoy right to life to his detriment, disadvantage or disliking. The
court made it clear that an act of suicide couldn’t be said to be against religion,
Morality or public policy and an act of attempted suicide has no baneful effect on
[/.AS.-95]
Right to Know
42
In Stale of U.P v Raj Narain (AIR 1975 SC 865), the court held that the people have a
right to know every public act, everything that is done in a public way, by their public
functionaries. They are entitled to know the particulars of every public transaction in
all its bearing. In S.P. Gupta v Union of India (AIR 1982. SC 149), trie court
recognised the right to know to be implicit in the right to free speech and expression
i.e Art. 19(1)(a).
In Reliance Petrochemical Ltd. v Proprietors of Indian Express Newspapers
Bombay Pvt. Ltd. (AIR 1989 SC 190) the court recognised the right to know as
emanating from the right to life i.e. Art. 21. 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. The right puts greater responsibility upon those who take upon the
responsibility to inform.
In Dinesh Trivedi v UOI (1997) 4 SCC 306, the Government of India appointed
a committee to examine the nexus between criminals and politicians, bureaucrats,
42 Assess how far the 'right to know’ is a fundamentaj right under the Constitution
of India. [I.A.S.-89]
media persons and some members of the judiciary. Thus, the Vohra Committee
Report tabled in Parliament.P rAotwrit
e c t ipetition
o n o f Lwas
i f e filed
a n d praying
P e r s o nfor
al direction
L i be r t y to the 163
Government to make public the Report along with its annexure, memorials and
written evidence that were placed before the Committee, to reveal names of all those
against whom there was tangible evidence, etc. Held that Report tabled in Parliament
was genuine, authentic and unabridged and also a 'public document’. The full-scale
disclosure of “supporting material” would be against the public interest, and thus
need not be directed. The Court observed: In modern constitutional democracies, it is
axiomatic that citizens have a right to know about the affairs of the government
which, having been elected by them, seeks to formulate sound policies of
governance aimed at their welfare. However, as no right is absolute, in transactions
which have serious repercussions on public security, secrecy can be claimed
because it would then be in the public interest that such matters are not publicly
disclosed or disseminated.
Comments - The Supreme Court judges have derived the right to know from two
distinct constitutional sources: Art. 19(1 )(a) and Art. 21. There is no specific
enactment in India imposing a duty on the government to supply information to an
individual seeking it. Non-disclosure of information is the norm in India; openness is
the exception. Democracy expects openness and openness is a concomitant of a
free society.
Public access to government information enables citizens to exercise their
political choice meaningfully. Secrecy erodes the legitimacy of elected governments.
The right to be informed of public acts helps check the abuse of executive power.
The right to know also strengthens participatory democracy. Armed with information
on government programmes, citizens may influence decision-making through
representations, lobbying and public debate. The right to know is especially critical in
environmental matters. For example, government decisions to site dams may
displace thousands of people and deprive them of their lifestyles and livelihood.
“True our Constitution has no 'due process clause but after Maneka
Gandhi's case the consequence is the same." Discuss. [/.AS.-97]
Critically examine the statement that though Maneka Gandhi case has
made a great advancement towards understanding and application of
the Fundamental Rights in our Constitution, it has not been able to
make much difference either to the preventive detentions or towards
ensuring the due process of law. [I.A S.-2001]
A. 1 Article 21 says that: "No person shall be deprived of his life or personal liberty
except according to the procedure established by law.”
Scope of ‘procedure established by law ’ - The term procedure established by law' is
a narrower term in comparison to the term ’due process of law’, because the former
X Vincludes only procedural
I
C o n s t i tlaw (C.P.C.,
utio n a l L aCr.
w P.C.
o f Ietc.)
n d i while
a - I I the latter includes both
substantive law (I.PC., Hindu Marriage Act, etc.) and procedural law The phrase ’due
process of law’ is used in the American Constitution.
The U.S courts have gradually adopted a liberal view and held that if a law is
not just, fair or reasonable then the requirement of due process is not satisfied. Due
process is not limited to procedural safeguards. So in the U.S. it protects the
individual from the legislature as well as the executive
Pointing out the difference in the use of words our Supreme Court held in
Gopalan that the difference is deliberate and material In effect, Art. 21 only requires
that there must be a valid law. The court will not examine the content of the law and
will not judge its fairness or reasonability. This view is supported by the history of the
Article. In the draft Constitution the clause «vas as under. 'No person shall be
deprived of his life or liberty without due process of law' After discussion the
expression ‘without due process of law’ was substituted by the expression 'except
according to procedure established by law.’
In Maneka Gandhi case, Bhagwati J. did not applied the concept of ‘due
process” as such in the context of Art 21. when he stated that the protection secured
by Art. 21 is a limited one in as much as Art. 21 safeguards the right to 'personal
liberty’ against executive interference which is not supported by law, and law here
means ‘enscted law’ or ‘State law’. However, he read ‘procedure’ in Art. 21 not as
prescribing any specific procedure, but only that procedure which conforms to the
principles of natural justice i.e. procedure has to be ‘fair, right and just'. It was
explained that the principle of reasonableness which is an essential element of
equality pervading Art. 14, must also apply with equal force to the procedure’
contemplated by Art. 21, so procedure must not be arbitrary, or oppressive. Thus
‘due process' has been imported and established as a part of the Constitution.
Further, Krishna Iyer J., in his separate but concurring judgment, extended the
guarantee in Art. 21 not only to ‘procedure’ as being fair and just, but also to 'law' as
being ‘reasonable’, it meant in a way reading 'procedure established by law’ as
almost amounting to ‘due process of lav/ in the American sense. The change in the
judicial attitude may be attributed to the experience gained during the emergency
imposed in 1975.
In Sunil Batra v Delhi Administration (AIR 1978 SC 1675), Krishna Iyer, J said:
"True our Constitution has no due process clause, but after Cooper and Maneka
Gandhi, the consequence is the same. Art. 21 is the counterpart of the procedural
due process in the United States."
Art. 22 which provides for preventive detention is not a complete code, and a
law relating to preventive detention must satisfy requirements of Arts. 14, 19 and 21,
thus procedure prescribed under the preventive detention law must be reasonable,
just and fair The principles of natural justice in so far as they are compatible with
detention laws find place in Art. 22 itself.
“The frontiers of Art. 21 are still expanding and its new dimensions are still
being explored by the courts in view of the concept of ‘dignified life’
guaranteed by Art. 21 seem to be inexhaustible in range and scope." Do
you agree with this? [L.C.1-2006]
A. 3 Implied fundamental rights - ‘Right to life' under Art 21, as interpreted by the
Supreme Court, includes: Right to dignity, Right to privacy, Right to travel
abroad, Right to clean environment, Right to livelihood, Right to shelter,
Right to education, Right to marriage, Right against torture, Right to legal
aid, right to speedy trial, right to know, Right to health and medical care,
Right to food, etc. Some of these are discussed below:
(i) Right to dignity - In Maneka Gandhi v Union of India, the court held that
the right to live is not merely confined to physical existence but it
includes within its ambit the right to live with human dignity. In Francis
Coralie v Union Territory of Delhi, the court held that the right to live
includes the right to live with human dignity and all that goes along
with it, namely, the bare necessities of life, such as adequate nutrition,
clothing and shelter, and facilities for reading and writing, freely
moving about and mixing with fellow human being.
(ii) Right to privacy - In R. Rajagopal v State of T.N., held that the “right to
privacy” is included in Art. 21 and a “citizen has a right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood,
child bearing and education among other matters". In State of
Maharashtra v Madhulkar Narain, it was held that this right is available
even to a woman of easy virtue, and no one can invade her privacy.
Right against “sexual harassment in work places” has been recognized in Vishaka v
State of Rajasthan, and, in Apparel Export Promotion Council v A.K. Chopra.
(iii) Right to livelihood - In Olga Tellis v Bombay Municipal Corpn., the
court held that the world life in Art. 21 includes the right to livelihood
also, because no person can live without the means of livelihood.
(iv) Right to clean environment - The Supreme Court (M. C Mehta cases)
XVI andC oHigh
n s t Courts
i t u t i oinn India
a l L have
a w ointerpreted
f I n d i a the
- I Iright to life and personal
liberty to include the “right to a wholesome environment." In Subhash
Kumar v State of Bihar, the court held the right to live includes the right
of enjoyment of pollution-free water and air for full enjoyment of life.
(v) Right to education - In Mohini Jain v State of Karnataka, held that
every citizen has a ‘right to education' under the Constitution. The right
to education is concomitant to the fundamental rights. Right to
education is implicit in right to life because of its inherent fundamenta1
importance (in the life of an individual). The State is under a constitutional
mandate to provide
P r ot education
e c t i o n o fatLall
i f eleveis
a n dfor
P ecitizens.
r s o n al L i be r t y 167
In Unni Krishnan v State of A.P., held that admission to all recognized private
educational institutions particularly medical and engineering, shall be based on merit
(“free seats”), but 50% of seats in all professional colleges be filled by candidates
prepared to pay a higher fee ("payment seats”). In T.M.A. Pai Foundation v State of
Karnataka, the Constitution Bench of the Supreme Court overruled the Unni Krishnan
case partly. It was held that the scheme relating to admission and the fixing of fee
were not correct and to that extent, they are overruled.
(vi) Right to health and medical cam - In Consumer Education & Research
Centre v Union of India, the Supreme Court has held that the "right to
health and medical care” is a fundamental right under Art. 21 as it is
essential for making the life of the workmen meaningful and purposeful
with dignity of person. ‘Right to life’ in Art. 21 includes protection of the
health and strength of the wor ker.
(vii) Right to die - In Rathinam v Union of India, the Supreme Court held
that a person has a right to die and declared unconstitutional Sec.
309,1.P.C., which makes attempt to commit suicide a penal offence.
The right to live in Art. 21 includes the right not to live i.e. right to die. A
person can't be forced to enjoy right to life to his detriment,
. disadvantage or disliking.
In Gian Kaur v State of Punjab, a five judge Constitution Bench of the Supreme Court
overruled the P. Rathinam's case and held that ‘right to life’ under Art. 21 does not
include ‘right to die' or ‘right to be killed’. The ‘right to die’ is inherently inconsistent
with the ‘right to life’ as is ‘death with life’. The Court accordingly held that Sec. 309 of
IPC is not violative of Art. 21.
(viii) Right to food - In PUCL v UOI, recognizing the ‘right to food’ the
Supreme Court held that the people who are starving because of their
inability to purchase food grains (viz. aged, infirm, disabled, destitute
men/women, pregnant and lactating women and destitute children)
ought to be provided the same free of cost by the States out of surplus
stock lying with the States.
(ix) Right to marriage - In Lata Singh v State of U.P., it was held that the
right to life includes ‘right to marriage’ A major boy or girl undergoing
inter-caste or inter-religious marriage are to be protected from
harassment, threats or acts of violence. Stem action should be taken
against person who give threats or harass or commit violence.
Second part of question - This is a welcome trend, it would certainly be able to
ir,
culcate a sense of accountability in public authorities discharging public duties
towards the people and particularly towards the weaker sections of society. The new
dispensation has produced astonishing results unthinkable a decade ago. degraded
bonded labourers, tortured prisoners, humiliated inmates of protective Hornes have
been liberated through court orders.
However, it must be realised that in the judicial crusade for enlarging justice the
justices inevitably engage themselves in the delicate task of mediating between social
actualities and social change. And ignorance in this regard may result in mass production
of rights and entitlements arousing very high expectations many of which (e.g. right to
work, education, etc.) cannot easily be fulfilled given the level of political and economic
development in the country. The overload of judicial commitments has resulted in massive
inflow of justice seekers demanding relief from ali kinds of miseries and distresses.
Nevertheless, the social effects of the symbolic presence of liberative judicial
messages are far more important than the direct effect of the pronouncements on affected
parties. The educational effects produced by the decisions might regulate the relations
between
XV I the jail C
authorities
o n s t i t uand
t i o prisoners,
n a l L a wcreditor-master
o f I n d i a - and
I I the bonded labour, the
principal and inmates of protective homes, municipal commissioner and pavement
dwellers, and so on.
We should, therefore, look to the courts as symbolic transmitters of the normative
images of a legitimate society dramatizing the significance, dignity and seriousness of
human dignity and liberty. This new trend of interpreting the provisions of the Part III of the
Constitution would go a long way in protecting fundamental right of citizens and securing a
social order where individual shall be free from inhuman and barbarous treatment.
’ Write a short note on: Constitutional protection against arrest and detention.
lL.C.II-2006/2007]
Constitutional Law o f India- II
(a) The police personnel carrying out the arrest and handling the
interrogation should bear an accurate and clear identification and
name tags with their designations. The particulars of such police
personnel must be recorded in a register
(b) The police officer carrying out the arrest shall prepare a “memo of
arrest” at the time of arrest and such memo must be attested by at
least one witness (a member of arrestee's family or a respectable
person of the locality from where arrest is made). It shall also be
countersigned by the arrestee and shall contain the time and date
of arrest.
(c) A person who has been arrested or detained shall be entitled to
have one friend/relative/other person known to him or having
interest in his welfare being informed as early as possible.
(d) The time, place of arrest and venue of custody of an arrestee must
be notified by the police where the next friend/relative of arrestee
lives outside the district/town through the Legal Aid Organisation in
the District and the police station of area concerned telegraphically
within a period of 8 -12 hour s after the arrest
(e) The arrestee must be aware of his right to have someone informed
of his arresVdetention as soon as he is put under arrest/detained.
(f) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose the
name of the next friend of the arrestee who has been informed of
the arrest and the name and particulars of the police officials in
whose custody the arrestee is.
(g) The arrestee should, where he so requests, be also examined at
the time of his arrest and major and minor injuries, if any present
on his/her body, must be recorded at that time. The "Inspection
Memo” must be signed by the arrestee and the police officer and
its copy provided to arrestee
(h) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody.
(i) Copies of all the documents including the memo of arrest should
be sent to the area Magistrate for his record
(j) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation
The requirements, referred to above, flow from Arts. 21 and 22(1) and need to
be strictly followed. These requirements are in addition to the constitutional and
statutory safeguards.]
44
clauses (4) to (7) of Art 22 provide the procedure which is to be followed if a p erson
is arrested under the law of Preventive Detention.
Preventive Detention means detention of a person without trial. There is no
3uthoritative definition of the term “preventive detention” in Indian law. The word
Government, and not criminal conviction which can only be warranted by legal
evidence.
Thus, 'Preventive detention’ is the detention of a person where the evidence
against him is not sufficient for his conviction by a court but is sufficient to justify his
detention for reasons of defence, foreign affairs, security of State, maintenance of
public order, and, maintenance of supplies and services essential to the
community. Thus, the Preventive Detention Act, 1950 was passed with the
aforesaid objects in view.
Preventive detention laws are repugnant to democratic Constitutions.
Preventive detention laws are not found in any of the democratic countries of the
world. It was resorted to in England during the war time. The Indian Constitution,
however, recognises preventive detention in normal times also [A.K. Gopalan v
State of Madias (1950) S.C.R. 88],
India is a peculiar country having a multiethnic, multi-religious and
multilingual society. Caste and communal violence is still a common feature in
Indian society. In recent times, terrorist and anti-national activities are on the
increase. Thus, various preventive detention laws have been enacted e.g.
Preventive Detention Act, 1950 (Repealed); MISA (Maintenance of Internal
Security Act, 1971) (Repealed); Prevention of Black-marketing and Maintenance
of Supplies of Essential Commodities Act, NSA (National Security Act, 1980);
COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974); TADA, POTA (Prevention of Terrorism Act, 2002); LiAPA
(Unlawful Activities (Prevention) Act; etc.
Anti-terror laws like TADA and POTA were rolled back after complaints of
a
buse Amendments to provisions of the UAPA have been suggested to strengthen
Government.
In this case, popularly known as the "NSA (National Security Act) case,”
the Supreme Court by 4-1 majority upheld the constitutional validity of
the NSA and the Ordinance which preceded the Act.
Various arguments advanced on behalf of the petitioners can be
broadly classified under the following heads:
(a) Whether an ordinance is a ‘law’ within the meaning of Art. 21 - The
Court observed that the fact that any particular law has a temporary
character (e.g. ordinance) is immaterial for the purpose of Art. 21,
so long as the procedure prescribed by it is definite and reasonably
ascertainable. In fact, the Preventive Detention laws were in their
inception of a temporary character, since they had a limited
duration.
(b) Vagueness of the provisions of National Security Act - The Court
XVI
Constitutional Law o f India- II
held that Act was neither vague nor arbitrary in its provisions
providing for detention of persons on certain grounds, as acting in a
manner prejudicial to the 'defence of India’, ‘security of India’, and to
‘relations with foreign powers’. As these expressions are not
capable of a precise definition, courts must strive to give these
concepts a narrower construction than what the literal words
suggest. While construing laws of preventive detention like the
NSA, care must be taken to restrict their application to as few
situations as possible.
(c) Fairness and reasonableness of the procedure before Advisory
Board - It was argued that such procedure is unfair and unjust, and
the Act thereby violates Art.s 14, 19 and 21. The question that
whether a preventive detention law violates Arts. 14, 19 and 21, has
been decided in Hardhan Saha v State of W.B. (AIR 1974 SC
2154). In that case, a detenu, under the MISAAct, questioned the
validity of said Act on the grounds that law is unreasonable and
violates Art. 19; the law violates Art 21 because guarantee of a right
to be heard is infringed; and the law does not lay down the just
procedure for giving effect to Art. 22(5). The Court proceeded on
the assumption that preventive detention law may as well be tested
with regard to its reasonableness with reference to Art. 19. But if a
statutory provision excludes the application of any or all the
principles of natural justice (which are applicable under Art. 19),
then the courts do not completely ignore the mandate of the
legislature. The principles of natural justice in so far as they are
compatible with detention laws find place in Art. 22 itself and also in
the Act (i.e. MISA). Even if Art. 19 be examined in regard to
preventive detention, it does not increase the content of
reasonableness to be observed in respect of orders of preventive
detention.
It was argued further, in the present case, that the detenu is entitled to exercise
the trinity of rights before the Advisory Board: (i) the right of legal representation,
(ii) the right of cross-examination, and (iii) the right to
present his evidence in rebuttal. Court observed that the procedure of
Advisory Boards in which the detenu is denied the right of legal
representation before the Board is not unjust or unreasonable. Since the
Constitution itself contemplates that such a right should not be made
available to a detenu [exceptions to clauses (1) and (2) of Art. 22], it can’t
be said that denial of said right is unfair. Moreover, the detaining
authority or Government also do not have the facility of appearing before
the Board with the aid of a lawyer. Court, further, held that detenu has no
right to cross-examine, but has right to present his own evidence in
rebuttal of the allegations made against him.
The Court also made it clear that the question as to whether there
are any circumstances on the basis of which the detenu should be kept
in detention after the Board submits its report and how long, is for the
detaining authority to decide and not for the Board. The Board’s enquiry
is limited to find out as to whether or not there is sufficient cause for the
S af e g u ar d s ag a i ns t A r bi t r a r y A r r e s t a n d D e t e n t i o n 1 7 9
and Foreign Exchange Manipulators Act), as they were passed to meet the threat
to the security of India and has to be implemented effectively. The court upheld
Sec. 12-A of COFEPOSA which had done away with the requirements of supply
of grounds of detention and the consultation with Advisory Board during the
emergency. By upholding the validity of the above Acts the court has struck a
heavy blow on economic offenders by depriving them of their ill-gotten gams.
(b) The grounds of detention under the Act are vague; no detention can
be ordered on the said ground unless the law or the government
has notified the “supplies and services" which are considered
essential for the application of the ground.
(g) He was given the grounds of detention after 7 days of detention and
the detaining authority did not give any reasons for the delay. Will
he succeed? Decide. [C.L.C.-
92/94/95J
A. 1 Clauses (4) to (7) of Art. 22 provide the procedure which is to be followed
if a person is arrested under the law of preventive detention. These
S a f e g u a r d s a g a i n s t A r b i t r a r y A r r e s t a n d D e t e n t i o n ] 0]
Articles 23 and 24 constitute a group under the head ‘Right against Exploitation.'
Exploitation is opposed to the dignity of the individual proclaimed in the Preamble
and to the provisions of Art. 39(e) and (f).
The two rights guaranteed under this head seem to supplement the 'right to
freedom', as the real object of these two rights is nothing more than to protect the
personal freedom of the citizens. One may partially agree with the view of Prof.
K.V. Rao' “Indeed, the Makers had displayed considerable ingenuity in coining a
name for them (Rights against Exploitation), for they confer no right on any one,
nor an enforceable punishment. They ought to have been in Part IV, for the
Parliament has to make a law prescribing a punishment which it could have done
under Arts. 15 and 19(6).”45
[183]
XVI
Constitutional Law o f India- II
Art. 23 protects the individual not only against the State but also private citizens.
Under Art. 35, the Pariiament is authorized to make laws for punishing acts
prohibited by this article.
'Traffic in human beings' - It means to deal in men and women like goods such as
to sell or let out or otherwise dispose them off. It includes immoral traffic in women
or girls or subjecting children to immoral or such like practices. For this sake, the
Suppression of Immoral Traffic in Women and Girls Act, 1956 had been put in
operation. The validity of this Act has been upheld by laying down that it is not
inconsistent with the fundamental right to carry on a business, trade or profession
(Shama v State of UP. AIR 1959 All. 57).
Devadasis are also covered under the term “traffic in human beings”.
Though 'slavery' is not expressly mentioned, there is no doubt that the expression
‘traffic in human beings’ would cover it (Dubarv Union of India MR 1952 Cal. 496).
It may be noted that under Sec. 370, IPC, whoever imports, exports, removes,
buys, sells or disposes off any person as a slave shall be punished with
imprisonment.
Children of the prostitutes have a right to equality of opportunity, dignity,
care, protection and rehabilitation so as to be part of the mainstream of social life
(Gaurav Jain v UOI AIR 1997 SC 3021). The case highlights the practice of
prostitution prevalent in the States of A.P., Karnataka and Maharashtra under the
veil of customary practice of Devdasis, Jogins and Venkatasins and its evil effects
Taking note of the relevant provisions of the Constitution, viz. Arts.
23,21,13,14,15,16,38,39(f),46,32,etc., and the provisions of Immoral Traffic
(Prevention) Act, 1956 and Juvenile Justice Act, 1986, the Supreme Court came
to the conclusion that prostitutes have a right to enter the social mainstream and
their children have right to equality of opportunity, dignity, care, protection and
rehabilitation so as to be part of the mainstream of social life without any pre-
stigma attached on them.
The Apex Court, in the above case, made suggestions like: Children of
prostitutes, including ‘child prostitutes’, should be treated as ‘neglected juveniles’
as defined in Juvenile Justice Act and no stigma should be attached to them;
They should be rescued from the “red-light areas” and shifted to “juvenile homes”
for a short stay to relieve them from the trauma they may have suffered, and
thereafter they should be rehabilitated in an appropriate manner; It is State’s
mandatory obligation to establish juvenile homes; and, Union of India and State
Governments were to evolve, in a Ministerial-level conference, procedure and
principles regarding rescue and rehabilitation of the prostitutes for efficacious
enforcing of their fundamental rights and human rights.
‘Begar and other forced labour' - ‘Begar1 means forcing a person to do some work
against his will and that on the basis of non-payment or grossly inadequate
payment. However, this condition shall not apply to a case where forced labour is
a part of punishment as in a prison house or some such work forms part of the
service conditions or agreement.
Under the old zamindari system, the tenants v/ere sometimes forced to
render free service to their landlords. This was called begar. The sagri or hali
system in
7
[185]
186 Constitutional Law o f India- II
choice.
Wadhwa, J. (partly dissenting) held that putting a convicted prisoner to harg
labour cannot be equated with ‘begar’ or ‘other similar forms of forced labour’ ar^
there is no violation of Art. 23(1); nor ,can it be said to be in the nature of
compulsory service imposed by the State for public purpose within cl.(2). Hence
even no^ payment of any wages for the hard iabour done by the prisoner as part
of sentence of rigorous imprisonment would not be violative of Art. 23. Wages are
payable only under the provisions of the Prisons Act. Though prison reforms are a
must and prisoners doing hard labour are now being paid wages, but the
message must be loud and clear that 'crime does not pay’.
Secularism in India
46
The Preamble to the Constitution from its inception proclaimed that its purpose is
to secure to all its citizens 'Liberty of thought, expression, belief, faith and
worship.’ This read with Articles 25 to 28 guaranteed equality in the matters of
faith and religion. The 42nd amendment, 1976, tried to make it more explicit by
adding the word ‘secular" in the Preamble. It has not altered the constitutional
position and was perhaps the result of political expediency. This step made the
Constitution look like a party manifesto.
’Secular” has many shades of meanings, in the Constitution it is used in
two different senses. In the Preamble it denotes that the State does not accept
any religion as the basis of State action. The State treats all religions with strict
neutrality. The second meaning of the word secular is worldly or mundane. Art
25(2){a) uses the word in this sense. There it means those activities which are
not essential religious functions but are of a worldly character e.g. investments or
use of the offerings, wages to be paid to the employees of religious institutions.
In India the ethos is Hindu. The Hindus constitute the majority. Respect of
all manners of thought, belief and worship is ingrained. Even without the
constitutional guarantees the minority religions would have enjoyed full freedom.
This is in contrast to our neighbours Pakistan, Bangladesh, Afghanistan and the
middle east Iran, Iraq, Jordan, Saudi Arabia, etc. which being a Muslim majority
country have declared
themselves as Islamic Republic or Kingdom and have by law and practice denied
religious freedom to Hindus.47
‘Secularism’ means that the State shall observe an attitude of neutrality and
impartiality towards all religions. Articles 25 and 26 embody the principles of religious
tolerance that has been the characteristic feature of Indian civilisation from the start
of history. Besides they serve to emphasize the secular nature of Indian democracy
i.e. equal respect to all religions.
A secular State does not mean an irreligious State, it only means that in
matters of religion it is neutral, the State can have no religion of its own, and the State
protects all religions but interferes with none. In a secular State, the State is only
concerned with the relation between man and man; it is not concerned with the
relation of man with God. It is left to the individual’s conscience. If a parson is a
devout Hindu he does not cease to be secular. The word 'secularism', however, is
vague as it might be used as an instrument of unrestrained communalism or bigotry
or even anti-religionism.
In Santosh Kumar v Secy., Ministry of Human Resources Development AIR
1995 SC 293, held that the introduction of Sanskrit language as a subject in the
Central Board of Secondary Education (CBSE) is not against secularism as it is the
‘mother of all Aryan languages." The court said that without learning Sanskrit
language it is not possible to “decipher’ Indian philosophy, culture and heritage. All
the classes of Hindu religion such as Vedas, Puranas, and Upanishads are written
in Sanskrit. The court directed the CBSE within 3 months to make necessary
amendments in the syllabus to make Sanskrit an elective subject for nurturing our
cultural heritage; not conceding this status to Arabic and/or Persian, would not in
any way militate against the basic tenets of secularism.
The court said that “State tolerance of religion, does not make it either a
religious or a theocratic State.” Secularism represents faith borne out of the rational
faculties and it enables to see the imperative requirements for human progress in all
aspects. Secularism is neither ante-God nor pro-God, as it treats alike the devout,
antagonistic and the atheist. In this sense, the Indian Constitution embodies the
concept of positive secularism and has not accepted the American doctrine of
secularism i.e. the concept of erecting a wall of separation between Religion and
State. The concept of positive secularism separates spiritualism with individual faith
(Ramaswami, J. in Bommai case, below).
In S.R Bommai v Union of India J.T. 1994(2) SC 215, held that the
dismissal of the BJP Government in M.P., Rajasthan and H P. in the wake of
theAyodhya incident of Dec. 6, 1992 was valid and imposition of the President’s
rule in these States was not unconstitutional. The court held that 'secularism' is a
basic feature of the Constitution and any State Government which acts against
that ideal can be dismissed by the President. It was held, that in matters of State,
47
B.K Sharma, pp 101-102.
Secularism owes its birth to State sponsored programs against those
denominations which were not acceptable to the State. After prolonged
bloodshed France invented secularism It aimed at keeping the State and
Church apart. Among Hindus there is no Church hence the State was always
secular. In Islam the State and religion are united. Hence barring a few, all
Muslim majority States are proclaimed Islamic States. See Dr. Babasaheb
Ambedkar, Writings snd Speeches, Education Department, Government of
Maharashtra, Vol. 8, pp. 233-234 (1990). In B.K. Sharma, p. 46.
Right to Freedom of Religion 191
3. The Supreme Court has stated that while Arts. 25 and 26 granted religi° liS
freedom to minority religions like Islam, Christianity, etc., they do not intend
to deny the same guarantee to the Hindus.
Even before the 42nd Amendment the Supreme Court had observed, on the
b
sis of the provisions contained in the Constitution, that secularism is a basic . ature of
192 ^Constitutional Law o f India- II
the Constitution (Indira Gandhi v Raj Narain AIR 1975 SC 2299). It is ^ell-known
rule of interpretation that what is contrary to the Constitution cannot z justified
with reference to the Preamble. In Santosh Kumar case (above), the Supreme
Court observed: The Preamble does not control the meaning of the or0visions of the
Constitution. The word secular used in the Preamble cannot override the clear
provisions of Arts. 25-30, or, Art. 351.
In 1977, a Committee (formed by the Union Government) considered the
proposal to omit the words 'secular’ and ‘socialist’. It concluded that there is an
ernotional content attached to these expressions so they should be left untouched.
Ip Bommai case, B.P. Jeewan Reddy, J. observed that the expressions ‘socialist’
and ‘secular’ are not capable of precise definition.
48
Religion has not been defined in the Constitution, and, it is not susceptible to a
ec
ise definition. It is a matter of personal faith and belief and comprises of
various and observances which are considered as an integral part of that
religion by those 0 follows it. Religion undoubtedly has its basis in a system of
5 . B.K. Sharma,jsp. 103-104. beliefs which are
Right to Freedom of Religion 193
edification of others. In other words, it means the right to communicate a person's
beliefs to another person or to expose the tenets of that faith. The right to
propagate one’s religion does not give a right to convert another person to one’s
own religion, as that would impinge on the “freedom of conscience” guaranteed to
all persons.
In Commr., HRE v Sri L. T. Swamiar of Sri Shirur Mutt (AIR 1954 SC 282)
it was observed that Art. 25 secures to every person a freedom not only to
entertain such religious belief, as may be approved of by his judgment and
conscience but also to exhibit his belief in such outward acts as he thinks proper
and to propagate or disseminate his ideas for the edification of others. It was aiso
observed that what is protected is the propagation of belief, no matter whether
ihe propagation takes place in a church or monastery or in a temple or parlour
meeting.
o
Write
5 . B.K. a short note
Sharma,jsp. on: Essential and non-essential religious practices
103-104.
Constitutional Law o f India- II
In Fazru v State of Haryana (AIR 1998 P & H 134), it was held that Muslims are
not immune from the law which disqualifies a person from being Sarpanch if having
more than two children and such a law is not violative of Art, 25. A person has a right
to profess and propagate his religion but it is subject to public order, morality and
health. The health can be of either spouse. Further, it is settled law that personal law
is not a fundamental right The fundamental right only is to practice and propagate
religion. Thus, Rule 21 of the Central Civil Services Conduct Rules, 1964 provide that
no government servant can enter into a contract of marriage with a person having a
spouse living, it is applicable to all persons professing any religion. Likewise, Haryana
Panchayati Raj Act is a special law and shall apply to all persons irrespective of their
caste and religion. Further, it does not interfere in professing their religion, practice or
propagating the same. The Supreme Court similarly held in Javed v State of Haryana
(AIR 2003 SC 3057). 50
In Surjeet Singh Chhabra v UOI (AIR 1997 SC 2560), the petitioner, a Sikh,
was alleged to be illegally importing the gold in the form of kara, a symbol of
religious wear by Sikh community. It was held that the gold cannot be exempted
from confiscation under the Foreign Exchange Regulation Act and the Customs Act.
The protection of Art.
25 cannot be availed of by the petitioner, as Art, 25 is subject to regulations by the
State.
In M. Ismail Faruqui v UOI (AIR 1995 SC 605), the question was whether the
provision in Sec. 7 of Acquisition of Certain Area atAyodhya Act containing the
mandate to maintain the status quo existing at the disputed site Ram Janms Bhoomi
Babri Masjid as on 7th Jan., 1993 is a slant in favour of the Hindu community
intended to perpetuate an injustice done to the Muslim community by demolition of
mosque on 6th Dec., 1992 and, therefore, it amounts to an anti-secular or
discriminatory act. Held that the right to practice, profess and propagate religion
under Art. 25 does not necessarily include the right to acquire or own or possess
property. Places of religious worship like mosques, churches, temples, etc. can be
acquired by the State. Such acquisition does not violate Art. 25 or Art. 26. Similarly,
this right does not extend to the right of worship at any and every place of worship.
The protection under these Articles is to religious practices which forms an essential
and integral part of religion. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered would not be an
essential or integral part of such religious practices unless the place has a particular
significance for that religion so as to form an essential or integral part thereof51
50 In the light of Arts. 25 and 26 of the Constitution, discuss the legal position of
the following: Restriction on number of children and marriage for contesting a n
election is challenged on the ground that Muslim personal law permits
polygamy for the purpose of procreation. [C.L.C.-2007]
51 In this case, the Minority view was: Secularism is absolute; the State may no*
treat religions differently on the ground that public order requires it. When the
religious majority makes a claim upon and attacks the place of worship of
another religion and creates conditions that are conducive to public disorder, it
is the constitutional obligation of State to protect that place of worship. It is
impermissible for the State to acquire that place of worship to preserve public
order.
Right to Freedom of Religion
In Acharya Jagdishwaranand v Commissioner of Police, Calcutta ('Anand
Marga’ Case) (1984) 4 SCC 522, the Supreme Court held that the ‘Tandava dance’
in procession or at public places by Ananda Margis carrying lethal weapons and
human skulls was not an ‘essential’ religious rite and hence the order prohibiting
(under Sec. 144, Cr. P.C.) such procession in the interest of ‘public order’ and
‘morality’ was not violative of the right of petitioners under Arts. 25 and 26. Even
accepting that Tandava dance is prescribed as a religious rite for every follower of
Anand Marga it does not necessarily imply that they have right to perform it in public
places.
In this case, the Apex Court (majority opinion) held that the performance of
Tandava dance in public procession by Ananda Margis is not an essential
or integral part of their religion and, thus, not a matter of religion within the
meaning of Arts. 25 and 26.
The court observed: The protection guaranteed under Arts. 25 and
26 is not confined to matters of doctrine or belief but extends to acts done
in pursuance of religion, and therefore, contains a guarantee for rituals,
observances, ceremonies and modes of worship which are essential or
integral part of religion. What constitutes an essential or integral part of
religion has to be determined with reference to its doctrines, practices,
tenets, historical background, etc. of the given religion. Essential part of a
religion means the core beliefs upon which a religion is founded. Essential
practice means those practices that are fundamental to follow a religious
belief. It is upon the cornerstone of essential parts or practices that the
superstructure of a religion is built, without which a religion will be no
religion. The test to determine whether a part or practice is essential to a
religion is to find out whether nature of the religion will be changed without
that part or practice.
The court further observed: There cannot be additions or
subtractions to essential or integral parts or practices of a religion as they
are the very essence of that religion and alterations will change the
fundamental character of the religion concerned. It is such permanent
essential parts which are protected by the Constitution. Nobody can say
that an essential part or practice of one’s religion has changed from a
particular date or event. On facts, Ananda Marga was in existence from its
founding in 1955 to 1966 without the practice of Tandava dance. Tandava
dance was introduced as practice only in 1966. Hence, it was not the “core"
upon which the Ananda Marga was founded. Had it been so, then without
Tandava dance Ananda Marga could not have existed ]
Article 25, Clause (2)(b) - Under this clause State can eradicate social practices and
dogmas which stand in the path of the country’s onward progress. Such laws do not
affect the essence of any religion. Moreover, social evils cannot be tolerated
in 196
the name of religion.
C For
o n sexample,
t i t u t i o nbigamy
a l L a and
w o polygamy
f I n d i a are
- I Inot an essential part
of the Hindu religion, therefore, cannot be tolerated and can be regulated by a law
(State of Bombay v Narasu AIR 1953 Bom. 84). Prohibition of civil practices such as
sati or the system of devadasis has been held to be justified under this clause This
sub-clause ensures an individual's legal right to enter into a temple unobstructed
irrespective of his caste, untouchability, social inequality, etc.
Subject to public order, morality and health, every religious denomination or any
section thereof shall have the right:
(a) to establish and maintain institutions for religious and charitable purposes,
(b) to manage its own affairs in matters of religion,
(c) to own and acquire movable and immovable property, and,
(d) to administer such property in accordance with law.
Religious Denominations9
While, right guaranteed by Art. 25 is an individual right, the right guaranteed by Art.
26 is the right of an ‘organised body'. The words ‘religious denomination' in Art 26
must take their colour from the word ‘religion’ and so it must satisfy three conditions:
(1) It must be a collection of individual who have a system of beliefs which
they regard as conducive to their spiritual well-being i.e. a common faith
(2) It must have a common organisation.
(3) It must be designated by a distinctive name.
Thus, in a large sense, 'Hinduism', 'Muslims', ‘Christians’ are such
denominations. In limited sense, the various philosophers governing the Hindu
society such as Advaitas, Saivites, etc. are also denominations. Among
Mohammedans, Hanafi, Shia or Chisti sects are separate denominations. Also,
maths or the spiritual fraternity (a section of denomination) represented by it comes
within this article (LT Swamiar’s case).
In S. P. Mittal v Union of India (AIR 1983 SC 1), the Aurobindo Society, formed
in 1961, which preached and propagate the ideas and teachings of Sri Aurobindo,.
set up an international cultural township, Auroville in Pondicherry, by receiving large
funds as grants from Government and different organisations. The Government
received complaints about the mismanagement of the affairs of the society and so
enacted the said Act, providing for taking over the management of Auroville for a
limited period. Held that the Society and Auroville were not religious institutions or
denomination, so government’s taking over of the Ashram did not infringe the
society’s rights under Arts. 25 and 26.
The court observed: The teachings of Sri Aurobindo only represented his
philosophy and not a religion. The opinions of theologians, professors, reference
books and news agencies, treating the teaching of Sri Aurobindo as religious are not
conclusive. Nor it is sufficient that followers have a common organisation, a distinct
9. Write a short note on: Religious denominations. [C. L.C.-2006]
Right to Freedom of Religion 197
name after the founder, have specially prepared mantras, a special symbol for
identification and a sanctified place of pilgrimage or that there is uniqueness or
innovations in the philosophy and teachings. The lack of exclusivity and
distinctiveness that the membership of the society was open universally to any one
subscribing to its aim and objects without losing his own religion, militates against,
the plea that it is a religion. The words “religious denomination'’ in Art. 26 must
satisfy the condition that it must be a collection of individuals who have a system of
beliefs which they regard as conducive to their spiritual well being i.e. a common
faith.
Further, it was held that even assuming that the society and Auroville were a
religious denomination (in limited sense, the various philosophies governing the
Hindu society, such as Advaitas, Saivities, can also be termed as denomination,
likewise Ananda Marga held to be a denomination), the impugned Act did not
infringe its right under Art. 25 or 26. The Act has not taken away the right of
management in “matters of religion” of a religious denomination under Art. 26(b). It
has only taken away the right of management of property of Auroville e.g. in respect
of its secular matters which can be regulated in accordance with law, under Art.
26(d).
In Bramchari Sidheswar Shai v State of W.B. (1995) 4 SCC 646
("Ramakrishna Mission case”), held that the followers of Ramakrishna, who are
collection of individuals, and who adhere to a system of beliefs as conducive to their
spiritual well being, who have organised themselves collectively and who’ve an
organisation of definite name 'Ramakrishna Math or Mission’ can be regarded as a
religious denomination within Hindu religion as they satisfy the tests regarding a
denomination as “religious denomination,” and would therefore be entitled to claim
rights under Art. 26.
Art, 26 does not create rights, it merely safeguards and guarantees the
continuance of a right which a denomination/section had. If the denomination never
had the right to manage property in favour of a denominational institution as per
reasonable terms on which the endowment was created, it cannot be said to have it.
Further, the right to establish and maintain institutions for religious/charitable
purposes or to administer property of such institutions in accordance with law was
protected only in respect of such religious denomination or section thereof which
appears to extend help equally to all and religious practice peculiar to such small or
specified groups or section thereof as part of the main religion from which they got
separated. The denominational sect is also bound by the Constitutional goals and
law [Sri Adi Visheshwara of Kashi Vishwanath Temple v State of U.R (1997) 4 SCC
606].
XVI
Constitutional Law o f India- II
In this case, a writ petition was filed by the hereditary Archakas and
Mathadhipatis of some ancient Hindu temples in Tamil Nadu challenging
the validity of the Tamil Nadu Hindu Religious and Charitable Endowments
(Amendment) Act, 1970 on the ground that it violates their freedom of
religion secured to them under Arts. 25 and 26 of the Constitution. The
Amendment Act does away with the hereditary right of succession to the
office of Archaka even if the Archaka was qualified under Rule 12 of the
Madras Hindu Religious Institutions (Officers and Servants) Service Rules,
1964. it is claimed on behalf of the petitioners that the effect of the
amendment is as follows:
(a) The freedom of hereditary succession to the office of
Archaka is abolished although succession to it is an
essential and integral part of the faith of the Saivite and
Vaisnnavite worshippers.
52 in the light of Arts. 25 and 26 of the Constitution, discuss the legal position of
the following- Appointment of a non-brahmin as ‘archaka’ or pujari of a temple
where Brahmins traditionally carried out functions of priest. [C.L.C.-2007]
The State of Tamil Nadu enacted “T.N. Hindu Religious and Charitable
Endowments Act, 1970” (relating to administration and governance of Hindu
Religious and Charitable Endowments). The Act was enacted to check
malpractices associated with Jiereditary priesthood in religious institutions arid
as a step towards social reform. The Act while abolishing the system of
hereditary rule prohibits discrimination on the ground of caste, race or
denomination in the matter of appointment of Archakas and Pujaris. Z
challenges the validity of the above law on the ground of violation of rights
under Arts. 25 and 26. Decide. [C.LC.-95]
[Hint, in the present case, the purposes of the Act are essentially secular, and
not intended to effect a change in the rituals and ceremonies followed in
temples Thus, Z cannot succeed.]
XVI
Constitutional Law o f India- II
respect of the sources of recruitment, instead of casting his net wide for selecting a
proper candidate, he appoints the next heir of the last holder of the office. That after
his appointment the Archaka performs worship is no ground for holding that the
appointment is either a religious practice or a matter of religion.
The court further observed: Rituals and observances, ceremonies and modes
of worship considered by a religion to be its integral and essential part are secured
by Art. 25. What constitutes an integral and essential part of a religion or a religious
practice has to be decided by the courts with reference to the doctrine of a particular
religion and include practices regarded by the community as part of its religion. The
Act nowhere gives the indication that one of the purposes of the Act is to effect a
change in the rituals and ceremonies followed in the temples. On the other hand,
Sec. 107 of the Principle Act emphasizes that nothing contained in the Act would be
deemed to confer any power or impose any duty in contravention of the rights
conferred on any religious denomination by Art. 26.]
DEVASWOM BOARD
In this case, the issue was whether the appointment of a person, who is not a
Malayala Brahmin, as “Santhikaran” or poojari (priest) of the temple in question is
violative of the constitutional and statutory rights of the appellant. It was held that
there is no right that a Brahmin alone can perform the rites and rituals in a temple.
Properly trained and qualified persons may be appointed as poojari regardless of
caste.
The appellant claims himself to be a Malayala Brahmin by community and a
worshipper of the Siva Temple in question. The administration of the temple vests
with Travancore Devaswom Board, a statutory body created under the Travancore-
Cochin Hindu Religious Institutions Act, 1950. The Board had opened a Vedantha
School for the purpose of training Santhikarans; the School was open to all students,
irrespective of their caste/community. From 1969 onwards, persons who were non-
Brahmins but successfully passed out from the School were being appointed and the
worshippers - the public - had no grievance or grouse whatsoever.
The appellant contended that the appointment of a non-Brahmin Santhikaran
for the temple offends and violates the alleged long-followed mandatory custom and
usage of having only Malayaia Brahmins for performing poojas in the temple and this
denies the right of the worshippers to practise and profess their religion in
accordance with its tenets and and manage their religious affairs as secured under
Arts. 25 and 26 of the Constitution. It was contended that merely because such a
religious practice, which was observed from time immemorial, involves the
appointment of a Santhikaran or priest, it would not become a secular aspect to be
dealt with by the Devaswom Board dehors the wishes of the worshippers.
The appellant placed reliance, among other cases, on the decision in Commr.,
HRE v Sri L.T. Swamiar of Sri Shirur Mutt (AIR 1954 SC 282). In that case, whiie
elaborating the meaning of the words “its own affairs in matters of religion" in Art.
26(b), it has been observed that in contrast to secular matters relating to
XVI
Constitutional Law o f India- II
beliefs sans reason or rational basis has found expression in the form of Art. 17.
If traditionally or conventionally, in any temple, all along a Brahmin alone was
conducting poojas or performing the job of Santhikaran, it may not be because a
person other than the Brahmin is prohibited from doing because he is not a Brahmin,
but those others were not in a position and, as a matter of fact, were prohibited from
learning, reciting or mastering Vedic rites, etc. and thereby acquire the right to
perform the ritualistic forms of worship in temples.
In the present case also there has been no proper plea or sufficient
proof of any specific custom or usage; the temple also does not belong to
any denominational category with any specialized form of worship peculiar
to such denomination or to its credit. Further, any custom or usage
irrespective of any proof cannot be countenanced as a source of law to
claim any rights when it is found to violate human rights, dignity, social
equality and the specific mandate of the Constitution and law made by
Parliament.)
|n shri Jagannath Temple Puri Mangt. Committee v Chintamani Khuntia (1997) 8
SCC 422, it was held that installation of Hundis in the temple for putting therein the
offerings (tiade by the pilgrims/devotees to the deity and disentitling the Sevaks of
the temple to any portion of the money placed in Hundis was not violative of Sevak’s
rights under /\rts. 25/ 26. Rijht of the Sevaks to get a share of the offerings as
recognised in the record of rights for or connected with seva puja of the temple is not
a religious right. Sevaks are servants of temple and duties they perform including
sweeping and collection of offerings after seva puja are ‘secular’ activities even if
associated with religious practice. The court allowed the payment of a small
percentage of the money, given in the offerings, to the Sevaks by way of their
remuneration.
A disposition towards making gift for charitable or religious purposes may be a
pious act but the same cannot be said to be an integral part of any religion. Only
because charity and compassion are preached in every religion, the same by itself
would not be part of the ‘religious practice' within the meaning of Art. 25 [John
Valumattom v UOI (2003) 6 SCC 611]
In this case, the validity of the M.P. and Orissa Act (related to freedom of
religion) was challenged, on the grounds that -
(i) they violate the right to propagate one’s religion under Art.
25(1), and,
(ii) the State legislature lacked the legislative competence to
engct, as the matter of religion fell within List I (Union List).
These Acts were passed to prohibit forcible conversion of any person to
one’s own religion. These Acts were passed after a commission headed
by Justice K.C. Niyogi found that Christian Missionaries were indulging in
conversions by force and fraud. Stanislaus, a missionary, challenged the
validity of these Acts and submitted that the Acts infringed his rights under
Arts. 25 and 26. The Supreme Court rejected his pleas.
The Court held that Art. 25(1) by giving right to propagate one's
religion does not grant the right to convert another person to one’s own
religion, but to transmit or spread one’s religion by an expr ession of its
tenets. If a person purposely, undertakes the conversion of another person
to his religion, that would impinge on the “freedom .of conscience”,
guaranteed to all the citizens alike.
It may however be argued that the freedom of conscience is not
confined to the right to adhere to one’s own religion but also to abandon
one’s religion and adopt another according to his conscience. The latter may
be done either on his own volition or at the persuasion of another so long as
objectionable methods are not employed in doing so.
The court held that impugned Acts fell within the purview of List II or
State List (Entry 1 - public order) as they were meant to avoid disturbances
to the public order. If an attempt is made to raise communal passions e.g.
on the ground that someone has been “forcibly" converted to another
religion, it would in all probability, give rise to an apprehension of a breach
of public order, affecting the community at large.]
Right to Excommunicate
In Saifuddin Saheb v State of Bombay (AIR 1962 SC 853), the petitioner, the head of
the Dawoodi Bohra Community, challenged the constitutionality of the Bombay
Prevention of Ex-Communication Act, 1949, on the ground that it infringed his rights
guaranteed in Arts. 25/26. The Act purported to prevent excommunication. The
petitioner claimed that as the head of the said community he had the right to ex-
communicate a member and this power was an integral part of the religious faith and
belief of the said community.
The Supreme Court (by a 4:1 majority) struck down the impugned provisions of
the Act as violative of Arts. 25/26, as the ex-communication was itself based on
religious grounds such as lapse from religious creeds or breach of some essential
religious practices. The exercise of power of ex-communication will form part of the
management of the community through its religious head ‘of its own affairs in matters
of religion’ [Art. 26(b)]. The said Act is not a law providing f°r social welfare and
reform within Art. 25(2)(b). However, C.J. in his dissenM judgment said that the right of
ex-communication was not a purely religious matt ef and that it makes the ex-
communicated person a sort of “untouchable" in h|S community which is contrary to
Art. 17 of Constitution (which abolishes untouchabilW'’
According to majority judgment, excommunication on religious grounds
permitted but not on non-religious grounds. The judgment has been criticize^
jurists. In fact the right has been often used to curb criticism and reform and to oe
freedom of speech to the Bohra community. The case has been referred to the
Constitution Bench which may refer it to a 7-Judge Bench for reconsideration [Central
Board of Dawoodi Bohra Community v State of Maharashtra (2005) 2 SCC
673)].
Right to Freedom of Religion 207
In P.M.A. Metropolitan v Moran Mar Marthma (AIR 1995 SC 2005), held that
the ex-communication of Cathlico by Patriarch was not in accordance with law/
religious cannons. One of the effects of ex-communication is that the person
concerned is deprived of the right of worship. Under our Constitution, it is a
fundamental right. Any interference with it or its deprivation can be challenged in a
court of law.
ARTICLE 27 [FREEDOM
NOT TO PAY TAXES FOR
RELIGIOUS PROMOTION]
Art. 27 says that no person shall be compelled to pay any taxes for expenses on
promotion or maintenance of any particular religion or religious denomination i.e.
there could be no objection if the taxes were used for the promotion of all religions.
Thus, the object is to protect the secular characteristics of the Constitution
which prohibits the promotion or maintenance of any particular religion by the State
or at State’s expenses. Therefore, if such a tax is imposed, no person can be
compelled to pay it.
Where the payment was demanded under the Government Act for the purpose
of meeting the expenses of the Commissioner and his office which was the
machinery set up for the due administration of the affairs of the religious institution
concerned, it was held that the annual contribution so imposed was in the nature of a
'fee’ and not a ‘tax’ and thus Art. 27 were not attracted (Sri Jagannath v State of
Orissa AIR 1954 SC 400). Similarly, where the Bengal Wakfs Act required a
contribution towards the education of poor Muslim boys and girls by the Wakf
management it was held to be a fee realized for a secular purpose for the proper
management of the Wakf property; there was no religious affair involved, thus.. Art.
27 were not attracted (Nasima Khatun v State of W.B. AIR 1981 SC 302).
Art. 27 not only prohibit the imposition of a tax but it also prohibits the
utilization of public funds for the promotion of a particular religion or denomination.
However, reconstruction of the religious places damaged during communal riots at
the cost of the Government had been held to be valid. Similarly, the acquisition of
la
nd for construction of public temple had been upheld as not violative of Art. 27.
In Sri Divi Kodandarama Saran v State of A.P. (1S97) 6 SCC 189, it was held
^at on abolition of hereditary rights the status of Archaka is on a par with other
Se
cular staff of the temple. Hence, a scheme containing a provision for their
re,
renchment in the case of fali of income of temple was not improper. Further,
provision in welfare scheme for delinking the pay scales of Archakas from that of
government servants was not improper (separate service rules and packages of
emoluments framed for them to suit the Endowment Institutions).
The Court held that the payment of salary to the government servants
depends upon diverse factors like cost of index, etc Art. 27 of the Constitution
prohibits spending of any expenses for promotion/maintenance of any particular
religion/religious denomination from out of the funds flowing from the public
XVI
Constitutional Law o f India- II
ARTICLE 28 [FREEDOM
NOT TO ATTEND RELIGIOUS
INSTRUCTIONS]
religion which stand in the path of the country’s onward progress - Art.
25(2)(b).
(iv) The freedom to establish and maintain religious institutions and to manage
its own affairs in matters of religion is subject to public order, morality and
health - Art. 26(a) and (b).
(v) The right of a religious denomination to manage its property [Art. 26(c) and
(d) ] can be regulated by laws which the legislature can validly impose
e.g. general property law.
Minorities54
The word "minority” is not defined in the Constitution. Whether a section of
citizens constitutes a “minority” for the purpose of Arts. 29 and 30 in a State must
be determined by reference to the entire population of the State. It refers to any
community which is numerically less than 50% of the entire population of State. A
minority could not be determined in relation to entire population of the country.
The State is to be regarded as the unit for determining both “linguistic
minority" as well as “religious minority.” The question whether a sect or
denomination of a religion can claim minority status even though followers of that
religion are in majority was left unanswered [T.M.A. Pai Foundation v State of
Karnataka (2002) 8 SCC 481], Again, in PA. Insmdarv State of Maharashtra (AIR
2005 SC 3226), the court held: ’Minority,' whether linguistic or religious, is to be
determined by the demography of a State.
in Bal Patil v Union of India (AIR 2005 SC 3172). the Apex Court examined
the scope and definition of the term “Minorities”. It observed that though not
specifically defined, “minority” as understood from the constitutional scheme
signifies an identifiable group of people or community who were seen as
deserving protection from a likely deprivation of their religious, cultural and
educational rights by other communities who happened to be in a majority and
likely to gain power in a democratic form of government based on eiection. The
constitutional ideal, which can be gathered from the group of articles in the
Constitution under the chapters of fundamental rights and fundamental duties, is
to create social conditions where there remains no necessity to shield or protect
rights of a minority or majority.
In Frank Anthony Public School Employees Association v UOI (AIR 1987
SC 311) the Supreme Court observed: ‘The idea of giving special rights to
minorities
Articles 29 and 30
Articles 29 and 30 both confer certain rights on the minorities Art. 30 specifically
mentions the right of all minorities to establish and administer educational
institutions.
(1) Any section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of his own shall
have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on grounds
only of religion, race, caste, language or any of them.
Art. 29(1) is aimed to safeguard the cultural rights of the minorities. If a section of
the citizens possess a distinct language, script or culture then such citizens shall
have the right to conserve it. The language, script and culture can be effectively
conserved through educational institutions. Thus, it flows from this that there is a right to
establish and maintain educational institutions. This right is expressly conferred by
Art. 30(1). But this right is subject to the limitations contained in Art. 29(2).
Right to conserve the language of citizens includes the right to agitate for the
protection of language (Jagdev Singh v Pratap Singh AIR 1965 SC 183). Unlike Art.
19(1), Art. 29(1) is not subject to any reasonable restrictions.
Art. 15 also, like Art. 29(2), prohibits discrimination on grounds of religion, etc.
But the scope of two Articles is different:55
(i) Art. 15 protects all citizens against the State whereas the protection of Art.
29(2) extends to the State or anybody else who denies the right conferred
by it.
(ii) Art. 15 protects all citizens against discrimination generally, while Art. 29(2)
is a protection against a particular species of wrong, namely, denial of
admission into educational institutions of specific kind.
(iii) The specific grounds on which discrimination is prohibited is not the same in
two Articles. ‘Place of birth’ and ‘sex’ do not occur in Art. 29(2), while
‘language’ is not mentioned as a ground in Art. 15. Thus, under Art. 29(2), a
girl student can be denied admission in educational institutions.
Art. 29(2) is quite general and applies to all citizens, whether they belong to majority
or minority groups. Therefore, a school run by minority, if it is aided by State funds,
cannot refuse admission to boys of other communities. Also, the State cannot direct
such school to restrict admissions to their own community. However, nothing in Art.
29(2) shall prevent the State from making reservations for backward classes under
Art, 15.
In State of Bombay v Bombay Educational Society {AIR 1954 SC 561), court
struck down an order of Bombay Government banning admission of those whose
language was not English into schools having English as a medium of instruction,
because it denied admission solely on the ground of language.
Art. 29(2) would not be attracted where a person is refused admission because
he does not possess the requisite qualifications or has not secured prescribed
percentage of marks or has not applied within the prescribed time.
ARTICLE 30 [RIGHT OF
MINORITIES TO ESTABLISH AND ADMINISTER
EDUCATIONAL INSTITUTIONS]56
(1) All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
55 Art. 29(2) and Art, 15(1) of the Constitution both prohibits discrimination on
grounds of religion, race, caste, sex or place of birth. Discuss their points of
difference. [C.L.C.-2007]
56 Explain briefly the scope and content of right of minorities to establish and
administer educational institutions of their choice. [C.LC.-20Q6] [D.U.-2008]
If the words “All minorities .......... ” in Art. 30 are replaced by the words “AH
sections of citizens having distinct language or religion ... ", what fundamental
rights of the minorities would be affected? [I. A. S.-2002]
216 Constitutional Law o f India- II
It is not necessary that the institution is for the benefit of the minority exclusively. It
can admit persons belonging to non-minority community also.
only reasonable in interest of general secular education but also improve the[I.A.S.-2001]
strength of
minority institutions. Therefore, measures which regulate the course of study, the
qualifications and appointment of teachers, the conditions of employment of teachers,
health and hygiene of students, facilities for libraries and labs, are all compared in matters
germane to affiliation of minority institutions. These regulatory measures for affiliation are
for uniformity, efficiency and excellence in educational courses and do not violate rights
XVI
under Art 30. Constitutional Law o f India- II
In N. Ammad v Emjay High School (1998) 6 SCC 674, it was held that a school
which is otherwise a minority school would continue to be so whether the government
declared it as such or not. When the government declared the school as a minority school
it has, recognised a factual position that the school was established and is being
administered by a minority community. The declaration is only an open acceptance of a
legal character which should necessarily have existed antecedent to such declaration.
In Re Kerala Education Bill, 1967 (AIR 1958 SC 956), the court did not uphold the
validity of clause 14 and 15 in the Kerala Education Bill, 1957, which authorised the
Government to take over any aided school under certain circumstances. Those clauses
amounted to expropriation of the schools. The schools were recognised on condition that
they submitted to those clauses. Such submission amounted to surrender of right under
Art. 30. The State cannot do indirectly what it cannot do directly.58
In State of T.N. v Melapalayam Muslim MegalirK.alvi Sangam (AIR 1998 Mad 91), it
was held that Minorities could not be asked to maintain their educational institutions
without State aid. The educational institutions are not business houses. They do not
generate wealth and therefore they could not survive without public funds or private aid.
The Minorities could not be saddled with the burden of maintaining educational institutions
without grant-in-aid. The paucity of finance could not be a valid ground to deny aid to
minority institutions. The same view was held in Re Kerala Education Bill case.
58 Discuss the validity of the following act of the State vis-S-vis right of religioU*
minority: Taking over of the management of the minority educational institution on
seeking State-aid. [C,L,C.-200'>
59 What is the scope of State power to regulate administrative aspects of institutions?
Discuss in the light of recent decisions. [LC.H-ZW
Rights to Minorities 219
An institution established for commercial purpose can lay no claim for being
protected under Art. 30(1). The regulatory measures should not abridge the right of
administration. The minority has the right to choose the members of the governing council,
and the teachers. The regulations imposed must be reasonable and must regulate the
educative character of the institution.
The power of the government to take over management of an institution which has
failed to carry out the directions of the government was declared void on the ground that it
robbed the minority of its right.
In St. Xaviers College v State of Gujarat, the Government Act provided that every
college shall be under the . management of government body which shall include amongst
its members, a representative of the University nominated by Vice- Chancellor and
representatives of teachers, students, etc. It also provides for a selection committee,
consisting of representatives nominated by vice-chancellor, for recruitment of the Principal
and staff members. These provisions in effect displace the managing committee of college.
Further, no member of the teaching/non-teaching staff of affiliated college shall be
dismissed or reduced in rank except after an inquiry and he be given a reasonable
opportunity of being heard and to make representation against penalty, and the penalty is
approved by Vice-Chancellor.
The court held that these provisions abridged the right of minority to administer
educational institutions of their choice and, therefore, did not apply to minority institutions.
Under Art. 30(1), the “right to administer" is the right to ‘conduct’ and ‘manage’ the affairs
of institution. The right to administer is said to consist of 4 principal matters: right to choose
its managing or governing body; right to choose its teachers, who have compatibility with
the aims and aspirations of institution; right to admit students of their choice subject to
reasonable regulations about academic qualifications; and right to use its properties and
assets for benefit of institution. Thus, the management must be free of control so that
founders of their community can mould the institution as they think fit in accordance with
their ideas of how the interest of community in general and institution in particular will be
served.
However, right to administer is not an absolute right. Just as regulatory measures
are necessary for maintaining educational character and content of minority institutions,
similarly regulations are necessary for ensuring efficient and sound administration. The
right to administer is not the right to maladministration fvide re Kerala’ case).
The right to administer implies a correlative duty to good administration. The
regulatory measures should not restrict the right of administration but facilitate it through
instrumentality of management of minority institution. In the present case, the said
provisions have the effect of displacing the management and entrusting it to a different
agency. The autonomy in administration is lost. Autonomy is very hecessary to administer
effectively the affairs of the institution.
LEADING CASE: FRANK ANTHONY PUBLIC SCHOOL
EMPLOYEES ASSOCIATION v UNION OF INDIA (AIR 1987 SC 311)
Facts and Issues - The Delhi School Education Act was passed to provide better
organisation and development of school education in Delhi. Sections 8 to 11 deals with
“terms and conditions of service of employees of recognised private schools”. Sec. 10
requires that scales of pay and other conditions shall not be less than those of the
employees of government schools of Delhi. But Sec, 12 makes these beneficial provisions
of Secs. 8 to 11 inapplicable to 'unaided' minority schools.
The scales of pay and other conditions of service of teachers and employees of
Frank Anthony School, Delhi compare very unfavourably with those of their counterparts of
Delhi administration schools, thus their association sought a declaration from court that
Sec. 12 was unconstitutional as being violative of Arts. 14, 21 and 23 The management of
school contended that Sec. 12 is valid, as Sec, 8 to 11 interfere with the right of
management vested in minorities under Art, 30(1). The payment of salary was the part of
the right of management to appoint members of staff, especially in an unaided institution.
XVI
Constitutional Law o f India- II
Observations - The Supreme Court observed that “the idea of giving special rights to
minorities is not to have a kind of a privileged or pampered section of the population but to
give them a sense of security and feeling of confidence”. The words “of their own choice” in
Art. 30(1) indicate that the extent of the right to be determined, not with reference to any
concept of State necessity and general interest of society, but with reference to
educational institutions themselves i.e. making institutions effective vehicles of education
for the minorities or other persons who resort to them. The regulatory measures aimed at
making minority institutions effective instruments for imparting education, without nullifying
management’s right in substantial measures, are permissible.
In St. Xaviers College case, the court observed that although disciplinary control
over teachers of a minority institution would be with the management, regulations can be
made for ensuring proper conditions of service of teachers and for securing a fair
procedure in the matter of disciplinary action against teachers. In All Saints High School v
State of
A. P. (AIR 1980 SC 1042), court said that for maintenance of educational standard of
institution it was necessary to ensure that it was competently staffed, and therefore,
service conditions viz. minimum qualifications, pay scales, other benefits of service and
safeguards which must be observed before their removal or dismissal, were permissible
measures of a regulatory character.
Decision - The Supreme Court held that the statutory measures regulating terms and
conditions of service of teachers and other employees of
L
30(1) and 14. The Recognition Rules provided for the extent of land sizes of class
rooms, cost of library with 10,000 books, number of bathrooms, furnitures and lab
equipments, sports, music equipments, minimum qualifications for teaching and
non- teaching staffs, hostel, etc. The High Court dismissed the writ petition holding
that these conditions were regulatory in nature and framed with a view to promoting
excellence of educational standard and ensuring security of the services of teachers
and other employees. The minority institutions must be fully equipped with
educational excellence to keep in step with other institutions The Supreme Court
agreed with the High Court.
However, in N. Ammad v Emjay High School (1998) 6 SCC 674, the
Supreme Court relying on Ahmedabad St. Xavier's College case held that the
management's right to choose a qualified person as the Headmaster of the school is
weil insulated by the protective cover of Art.30(1) of the Constitution and it cannot
be chiselled out through any legislative act or executive rule except for fixing up the
qualifications and conditions of service for the post. Selection and appointment of
Headmaster in a school (or Principal of a college) are of prime importance in
administration of that educational institution. If management of the school is not
given very wide freedom to choose the personnel for holding such a key post,
subject of course to the restrictions regarding qualifications to be prescribed by the
State, the ‘right to administer’ the school would get much diminished.
The right to choose the principal is an important part of the right to
administer. Even if the institution is aided there can be no interference. The minority
has the right to select the principal [Secretary, Malankar Syrian Catholic College v T
Jose, 2006 (13) SCALE 1],
In State of Bihar v Syed Asad Mirza (AIR 1997 SC 2425), it was held that
creation of a post in a minority institution without prior sanction of the State
governmentA/ice-chancellor, is a valid exercise of power keeping in view the rights
given to the Minorities by Art. 30 of the Constitution. The persons so appointed
would be entitled to grant-in-aid in view of Art. 30(1).
XVI
Constitutional Law o f India- II
In Lilly Kurian v University Appellate Tribunal (1997) 2 SCC 240, Secs. 60(7)
and 61 of the Kerala University Act, 1974 were in question. In the case of a dispute
between management and teacher of a private college relating to conditions of
service, Sec. 60(7) conferred power on University Appellate Tribunal to pass such
order as it may deem fit including order of reinstatement, and Sec. 62 conferred a
right of appeal on the teacher in respect of past disputes. It was held that Secs.
60(7) and 61 were violative of the rights of minority educational institutions under
Art. 30(1). The Court observed: Conferment of a right of appeal to an outside
authority took away the disciplinary power of a minority educational authority,
particularly because the appellate power was unlimited and undefined. The
Appellate Tribunal can even order reinstatement of a dismissed teacher. Such an
unguided and uncanalised power which could be exercised in appeal constituted
interference with the right of a minority institution to administer its own institutions. It
could not be construed merely as a check on maladministration.
Leading Case: t.m.a. pai foundation V state
Rights to Minorities 223
OF KARNATAKA
[(2002) 8 SCC 481]
In this case, an 11-Judge Constitution Bench (6:5 majority) of the Supreme Court
held that the right to establish and administer educational institutions is guaranteed
to all citizens [Arts. 19(1)(g) and 26] and to minorities specifically under Art. 30.
These rights are not limited to minorities and are available to all persons The State
is to be regarded as the unit for determining both “linguistic minority” as well as
"religious minority." The question whether a sect or denomination of a religion can
claim minority status even though followers of that religion are in majority was left
unanswered. The question as to what is the criteria for treating an 'educational
institution’ as minority institution was left open.
The rights of minorities, under Art. 30, cover professional institutions. Minority
communities have an untrammelled right to establish and administer unaided
educational institutions, while the institutions which receive State aid could be
subject to Government rules and regulations. In respect of ’unaided’ institutions, the
only regulation a State Government or University can make is regarding the
qualifications and minimum conditions of eligibility of teachers and principal (and
also in regard to the service conditions) in the interest of academic standards. The
State can make no laws regarding admissions or fees in such institutions.
Conditions of recognition and affiliation by or to a Board or University have to be
complied. But the appointment of teaching and non teaching staff and control over
them will vest in the management.
A minority institution does not cease to be so, the moment grant- in-aid is
received An aided institution will be entitled to have the right of admission of
students belonging to the minority group. At the same time, it would be required to
admit a reasonable extent of non-minority students, so that the rights under Art.
30(1) are not substantially impaired and further, citizen’s rights under Art. 29(2) are
not infringed The State can provide that in aided institutions consideration is shown
to weaker sections.
A minority institution may have its own procedure and method of admission
but the procedure must be fair and transparent. Selection in professional and higher
education colleges should be based on merit (that also applies to minority group
admissions). In case of aided professional institutions the State may prescribe that
only those persons may be admitted who have passed a common entrance test.
The Apex Court also ruled that the basic ratio in the St. Stephen’s case
(reservation of 50 per cent of the seats in aided institutions to the management’s
discretion) is correct, however, rigid per centage cannot be stipulated. The Court
empowered States to fix quotas for minority students taking into account the type of
institution, population and educational needs of the minorities. The Court reiterated
that the constitutional rights conferred on minorities to establish and administer
educational institutions of their choice is not absolute or above other laws.
The court also held as “unconstitutional” the Scheme framed by the Apex
Court in the Unnikrishnan’s case viz. fixing ‘free’ and ‘payment’ seats. The court
lifted the regulation on fees to be charged by unaided institutions (i.e. they can
charge any fees) with the proviso that there would not be “profiteering”. No
institution can charge capitation fee. Reasonable surplus to meet the cost of
expansion and augmentation of facilities does not, however, amount to profiteering.
In this case, the Apex Court (7-Judge Bench) clarified some issues
raised in T.M.A. Pai case (2002) 8 SCC 481 and Islamic Academy case
(2003)
6 SCC 697, relating to rights of professional unaided (minority and non-
minority) educational institutions. The court held:
(i) ‘Minority,’ whether linguistic or religious, is to be
determined by the demography of a State. ‘Minority
educational institutions’ may be classified into 3
categories: (i) those which do not seek aid or recognition,
(ii) those which want aid, and (iii) those which want only
recognition and no aid. Category (i) may exercise their
right without interference. Category (ii) and (iii) may be
subjected to restrictions and conditions.
XVI
Constitutional Law o f India- II
(ii) Each minority institution is entitled to have its own fee structure
subject to the condition that there can be no profiteering and
capitation fees cannot be charged- To check profiteering and
capitation fees, the method of admission has to be regulated so
that admissions are based on merit and is transparent and the
students are not exploited. Hence it is permissible to regulate
admission and fee structure for achieving the same.
(iii) Minority institutions stand on a better footing than non- minority
institutions. Minority educational institutions have a guarantee or
assurance to establish and administer educational institutions of
their choice. State legislation cannot favour non-minority institutions
over minority institutions. The difference arises because of Art. 30,
the protection whereunder is available to minority institutions only
(iv) The unaided professional institutions will have full autonomy in their
administration, but the principle of merit cannot be sacrificed, as
excellence in professions is in the national interest. Right to
administer does not include right to mal- administer.
(v) Without interfering with the autonomy of unaided institutions, the
object of merit-based admissions can be secured by insisting on it
as a condition to the grant of recognition and subject to the
recognition of merit (via conduct of a common entrance test by a
centralized mechanism), the management can be given certain
discretion in admitting students. The State can provide for
reservation in favour of financially or socially backward sections of
the society. The plea that each minority unaided institution can hold
its own admission test cannot be sustained (to avoid great hardship
to hapless students).
The court, however, clarified that neither can the policy of reservation be enforced
by the State nor can any quota or percentage of admissions be carved out to be
appropriated by the State in a minority or non-minority unaided educational
institution. There is nothing in T.M.A. Pai case (2002) 8 SCC 481 or in Kerala
Education Bill case (1959 SCR 995) (approved by Pai Foundation), which permits
the same. Else it would amount to nationalization of seats, which has been
specifically disapproved in T.M.A. Pai case.
Such State imposition would constitute a serious encroachment on the right
and autonomy of private professional institutions and also cannot be held to be a
regulatory measure in the interest of the minority within the meaning of Art. 30(1),
or, a reasonable restriction under Art. 19(6) [Right to establish an educational
institution is an occupation protected by
Art 19(1 )(g)]. The judgment in T.M.A. Pai case only mentioned the possible
consensual arrangements, which could be reached between the minority
institution and the State. In T.M.A. Pai it has been very clearly held at several
places that unaided institutions should be given greater autonomy in
determination of admission procedure and fee structure. State regulation should
be minimal and only with a view to maintain fairness and transparency in
Rights to Minorities 227
(i) A State law providing for appointment of all teachers in its coileges
with prior approval of State.
(ii) A State law allotting 50% of all seats for non-minority students in
aided minority colleges in the State.
In Kerala Education Bill case, the court upheld the conditions designed to
protect ill-paid teachers who were rendering service to the nation, as permissible
regulations.
In Frank Anthony School Employees Association case, held that the
management of a minority institution can’t be permitted under the guise of Art.
30(1), to oppress or exploit its employees which would lead to discontent and
adversely affect the object of making the institution an effective vehicle of
education for minorities or other persons. Also, mere prescription of scales of pay
and other service conditions would not jeopardise the right of the management to
appoint teachers of their choice.
(d) !n PA. Inamdar case, the Apex Court observed: Without interfering with
the autonomy of unaided minority institutions, the object of merit-based
admissions can be secured by insisting on it as a condition to the grant
of recognition and subject to the recognition of merit (via conduct of a
common entrance test by a centralized mechanism), the management
can be given certain discretion in admitting students. The State can
provide for reservation in favour of financially or socially backward
sections of the society. The plea that each minority unaided institution
can hold its own admission test cannot be sustained (to avoid great
hardship to hapless students).
(e) In T.M.A. Pai case, The Apex Court ruled that the basic ratio in the St.
Stephen’s case (reservation of 50 per cent of the seats in aided
institutions to the management’s discretion) is correct; however, rigid
per centage cannot be stipulated. The court empowered States to fix
quotas for minority students taking into account the type of institution,
population and educational needs of the minorities. In PA. Inamdar
case, also, the Apex Court observed: The prescription for percentage of
seats, that is allotment of different quotas such as management seats,
State's quota, appropriated by the State for allotment to reserved
categories, etc. has to be done by the State in accordance with the
“local needs” and the interests/needs of that minority community in the
State, both deserving paramount consideration.
courts, to be integral to our Constitutional scheme. While several judgments have There is no need to resort to Art. 226 before approaching the Supreme
made specific references to this aspect [Beg, J. and Khanna, J. in Keshavananda Court under Art. 32. Thus, a person may directly move the Supreme Court. As
Bharati case; Chandrachud, CJ. and Bhagwati, J. in Minerva Mills; etc.] the rest regards the enforcement of the orders and direction of the Supreme Court, Art.
have made general observations highlighting the significance of this feature. 144 says that, “All authorities civil and judicial in the territory of India shall act in
Therefore the power of judicial review is an integral and essential feature of the aid of the Supreme Court. If any of these authorities fail to carry out the orders of
Constitution' constituting part of its basic structure. the Court, the Court can punish them for the contempt of the court.”
Appropriate Proceedings
ARTICLE 32 [RIGHT TO CONSTITUTIONAL REMEDIES] The Supreme Court has to be moved by appropriate proceedings. It means
proceedings which may be appropriate having regard to the nature of order,
direction or writ which the petitioner seeks to obtain from the court (Daryaov State
of U,P. AIR 1961 SC 1457).
Importance of Art. 32/ 226 The Court has been extremely liberal and favourable to the petitioner who
A right without a remedy is but a worthless declaration. A right becomes valuable approaches it. When it relates to the enforcement of fundamental rights of the
when there is an effective means to implement it. The existence of a right is felt poor, disabled or ignorant even a letter addressed by him to the Court can
only through the pronouncements of a court. Dr. Ambedkar regarded Art. 32 as legitimately be regarded as an appropriate proceeding. The letter need net be in
“the most important article of the Constitution without which this Constitution any particular form. It may not be addressed to the Court or the Chief Justice.
would be a nullity. It is the very soul of the Constitution and the very heart of it.” It Postcards addressed to any judge have been entertained as appropriate
is a substantive right not a mere procedural right. proceedings. It has come to be known as epistolatory proceedings.
Art. 32(1) states: “The right to move the Supreme Court by appropriate Appropriate proceedings may not be adversary proceedings which are
proceedings for the enforcement of the rights conferred by this Part is aimed at or against a particular person [Bandhua Mukti Morcha v UOI (1984) 3
guaranteed." Art. 32(2) deals with Supreme Court’s power to issue order or writs, SCC 161]. They may be inquisitorial where the court wiil make general inquiries
for the enforcement of fundamental rights. to find out whether a fundamental right is being trammelled.
The jurisdiction conferred on the Supreme Court by Art. 32 is an important The Supreme Court cannot refuse relief under Art. 32 on the ground that
part of the ‘basic structure’ of the Constitution because it is meaningless to confer the aggrieved person may have his remedy from other court; the disputed facts
fundamental rights without providing an effective remedy for their enforcement have to be investigated before the relief given; and that petitioner has not asked
when they are violated. Parliament can, however, empower the Supreme Court for proper writ applicable to his case. It is necessary that the petitioner is presently
with such a power under Art. 139. affected by the impugned order or the like i.e. his fundamental rights are either
The right to move the Supreme Court where a fundamental right has been threatened or violated. It is not necessary for him to wait till the actual threat has
infringed is itself a fundamental right. It is a constitutional remedy which has been taken place; however, his rights should be in imminent danger of being evaded.
guaranteed by the Constitution. Art. 32, thus, provides an expeditious and The maintainability of a petition will depend on the facts as they were on the date
inexpensive remedy for the protection of fundamental rights from legislative and of the petition and rot on subsequent events.
executive interference.
Effect of Guarantee
Article 226 (Concurrent Jurisdiction of High Courts) The effect of the use of the word guaranteed in Art. 32(1) is that the right to move
Article 226 enables the High Courts to issue writs for the enforcement of fundamental the Supreme Court where a fundamental right has been infringed is itself a
rights and also other ordinary legal rights. Thus, Arts. 32 and 226 provides the right fundamental right. The following consequences flow from this guarantee:
to constitutional remedies. The power of the High Court is wider than the power (i) The right cannot be suspended except as provided in Art. 359.
conferred by Art. 32 on the Supreme Court. However, a petition under Art. 32 (ii) Supreme Court is the guarantor of fundamental rights and it is the duty
may be filed to challenge the validity of a law with reference to a provision other of the Supreme Court to grant relief under Art. 32 where a fundamental
than those involving fundamental rights, provided it inevitably causes a restriction right has been violated.
on the enjoyment of fundamental rights.
It may be noted that the power of the High Court to issue writs cannot be in
derogation of the Supreme Court’s power. In other words, an order under Art. 32
will supersede the orders of the High Court previously passed.
(iii) An aggrieved person may approach the Supreme Court in the first instance.
XVI He need notC move
o n sta
i t High
u t i oCourt,
n a l Lexcept
a w o inf service
I n d i a -matters
II (where a person
has to go to the High Court).
(iv) Availability of alternate remedy is no bar to relief under Art. 32.
(v) There is no territorial limitation to the powers of the Supreme Court,
(vi) The grant of a writ is not discretionary but as a matter of right.
(vii) The right cannot be abridged or taken away by legislation.
Though Art. 32 is itself a guaranteed right, it could not be contended that the Supreme
Court does not have discretion to deny relief. Undoubtedly, Art. 32 guaranteed the right
to approach the Supreme Court but that does not restrict the Court's discretion to grant
relief. One of the considerations relevant for the exercise of such discretion is laches
(discussed below).
such a petition even after a lapse of time. It will all depend on what the breach of
the fundamental right and the remedy are and why the delay arose.”
Again, in K. Prasad v UOI (AIR 1988 SC 535), it was held that there is no
inviolable rule that whenever there is delay the Court must necessarily refuse to
entertain the petition. Each case is to be decided on its facts and circumstances.
Where the petitioners challenged seniority rules after 16 years the Court refused
to grant relief on the ground of inordinate delay (Rabindra Nath v UOI AIR 1970
SC 470).
For example, in J.M. Desai v Roshan Kumar (AIR 1976 SC 518), the court
noticed that the Bombay Cinematograph Act 1918 and the Bombay Cinema Rules,
1954 made under that Act, recognised a special interest of persons residing, or
concerned with any institution such as a school, temple, etc. located within a distance
of 200 yards of the site on which the cinema house is proposed to be constructed and
held that as the petitioner, a rival cinema owner, did not fall within the category of such
persons having a special interest in the locality, he had no locus standi to maintain a
writ petition.
In Sunil Batra v Delhi Administration (AIR 1980 SC 1579), the court accepted the
habeas corpus petition of a prisoner complaining of a brutal assault by a head waiden
on another prisoner, in this case, the Supreme Court broadened the scope of habeas
corpus by holding that this writ can be issued not only for releasing a prisoner from
illegal detention, but also for protecting prisoners from inhuman and barbarious
treatment. In Dr. Upendra Baxi v State of Uttar Pradesh (1983) 2 SCC 308) the
Supreme Court permitted the petitioner, a law professor, to raise infringement of Article
21 on behalf of the inmates of the Agra Protective Home, who were living in inhuman
and degrading conditions.
Representative Proceedings Why Necessary?
The Constitution-makers did not lay down any particular form of proceeding [the
expression 'appropriate proceeding in clause (1) of Article 32 is with reference to
clause (2) i.e. nature of order or writ], nor did they stipulate that such proceeding
should conform to any rigid patternR i g hort at ostrait-jacket
C o n s t i t uformula...
t i o n a l because
R e m e d ithey
e s knew that 239
in a country like India with so much of poverty, ignorance and exploitation, any
insistence on rigid formula of proceeding would be self-defeating. The procedure is but
a hand-maid of justice and cause of justice may never be allowed to be wasted by any
procedural technicalities (S.P. Gupta v UOI AIR 1984 SC 802).
In the aforesaid case, the Apex Court observed: The broadening of the rule of
locus standi has been largely responsible for the development of public law, because it
is only the availability of judicial remedy for enforcement which invests taw with
meaning and purpose, or else the law would remain merely a teasing illusion and a
promise of unreality. This broad rule gives standing to any member °f the public who is
not a mere busybody or a meddlesome interloper but who has sufficient interest in the
proceeding. Also, it would have to be decided from case to case that whether person
has sufficient interest and has not acted, for personal Sains or political motives, or
mala fides. If such a person moves the court, it would amount to abuse of public
interest litigation. Moreover, the court may confine this strategic exercise of jurisdiction
to cases where legal injury is caused to a determinate ctass or group of persons, and
not entertain cases of private or individual wrong 0r injury at the Instance of a third
party, where there is an effective legal aid Or9anisation which can take care of such
cases.
The public interest litigation is absolutely necessary for maintaining the rule law,
furthering the cause of justice and accelerating the pace of realisation of °nstitutional
objectives. There can be no doubt that the risk of legal action against
the State or public authority by any citizen will induce the State or such authority to act
with greater responsibility and thereby improving the administration of justice
There is also another reason why the rule of locus standi needs to be liberalised.
Today we find that the law is being increasingly used as a device of organised social
action for the purpose of bringing about socio-economic change. An enormous increase
in developmental activities has created more and more a new category of rights in favour
of large sections of people and imposed a new category of duties on the State officials
with a view to reaching the social justice to the common man. Individual rights and
duties are giving place to meta-individual, collective ‘diffuse’ social rights and duties of
classes or groups of persons.
The conferment of socio-economic rights (under the Directive Principles) and
imposition of public duties on the State authorities for taking positive actions generates
situations in which single human action can be beneficial or prejudicial to a large
number of people, thus making entirely inadequate the traditional scheme of litigation as
merely a two-party affair. For example, the discharge of effluents in a a lake or river
may harm all who want to enjoy its clean water; defective or unhealthy papkaging may
cause damage to all consumers of goods and so also the illegal raising of railway or bus
fares may affect the entire public which wants to use the railway or bus as a means of
transport. In these cases, the duty which is breached giving rise to the injury is owed by
the State authority not to any specific or determinate class of persons, but to the
general public. In other words, the duty is one which is not correlated to any individual
rights; public injury is one caused to an indeterminate or unspecified class of persons.
In Bandhua Mukti Morcha case, the court explained the nature and purpose of
public interest litigation: It is a challenge and an opportunity to government to make
basic human rights meaningful to deprived sections and assure them socio-economic
justice. Government must welcome PIL, because it provides them an accession to
examine whether poor are getting their socio-economic entitlements or not. The court
did not want to tilt at executive authority or usurp it, but to protect poor against violation
of their basic human rights, thus court is merely assisting in the realisation of
Constitutional
XVI objectives.
Constitutional Law o f India- II
The court observed: It is not at all necessary that an adversarial procedure,
where each party produces his own evidence tested by cross-examination by other
side, and the judges playing a passive role, must be followed in a proceeding under Art.
32. A strict adherence to adversarial procedure may lead to injustice, particularly when
the parties are not evenly balanced in social or economic strength. Art. 32 does not
merely confer power on the court to issue a writ, but it also lays a constitutional
obligation to protect fundamental rights, and for that purpose the court has all incidental
and ancillary powers ... to forge new remedies and fashion new strategies to enforce
fundamental rights, to make fundamental rights meaningful for the large masses of
people.
In M.C. Mehta v UOI (AIR 1987 SC 1086), the Supreme Court further widened the
scope of public interest litigation under Article 32:
(i) Held that a poor can move the court, by writing a Tetter (even without an
affidavit) to any judge (instead of the entire court), as they might not know the
proper form of address to the court.
(ii) The court has power to grant remedial relief, in the form of compensations,
where violation of fundamental right is “gross and patent” and “affects persons
on a large scale”.
(iii) The court can appoint socio-legal commission or device any procedure and
forge any tools, for the enforcement of fundamental rights under Article 32
(vide Bandhua Mukti’s case).
The 5-judge bench of the court in this landmark judgement opened the doors of the
highest court of the nation for the oppressed, the exploited and the down-trodden in
villages or urban slums. The court has brought legal aid to the door steps of the
teeming millions of the India which the executive has not been able to do despite that a
lot of money is being spent on the legal aid schemes operating at the Central and State
level.
Misuse of PIL
It is now clearly and firmly established that any member of the public having 'sufficient
interest’ can approach the court for enforcing the rights of other persons and redressal
of a common grievance (‘public injury’). The liberal view of permitting PIL does not
mean that locus standi is completely dead and buried The court does not allow a
person to abuse the legal process pretending to be a public spirited person. The court
scrutinizes the proceeding to find out whether it will serve a public purpose.
Public interest litigation has been criticised on a number of grounds, viz. that it
can be misused for private motive or political ends, that it would result in the
tremendous increase in the litigation, that it would develop uncertainty as to the
admission of the petition for hearing. It is said that there is no guideline as to the cases
which should be admitted and the cases which should not be admitted. Due to this, the
PIL has become unpredictable. Moreover, the court has no capacity to enforce its
orders and in many cases the conditions have not changed.
Some judges and jurists have sounded a note of caution against PIL. It
increases the work load so that regular matters are delayed. PIL is a sort of interference
by the courts in matters which strictly fall in the domain of the executive. This leads to
friction between the different organs of the State. The court has no means to enforce its
orders. But none of this has deterred the courts in their commitment to help the
disadvantaged. PIL has generally been welcomed. It has been able to secure relief for
those who did not even know that there is a law to protect them and look after their
welfare. Public authorities are now more circumspect in exercising their powers. A
measure of accountability has come to all those who wield power.
The Supreme Court has sounded a note of warning. It observed, “there is ... a
feeling ... that public interest litigation is now tending to become ‘publicity interest
litigation’ or ‘private interest litigation’... PIL is not a pill or panacea for all wrongs, (it)
was not meant to be a weaponRtoi gchallenge
h t t o C the
o n sfinancial
t i t u t i oor
n aeconomic
l R e m e ddecisions
ies which 241
are taken by the Government ...”
The tide of PIL has not yet subsided. The Supreme Court has stated that time
has come to weed out the petitions, which though titled as public interest are in essence
something else. The Court has cautioned that because of false PIL innumerable days
are wasted. PIL is a weapon which has to be used with great care. The judiciary has to
be extremely careful to see that behind the beautiful veil of PIL an ugly private malice,
vested interest and/or publicity seeking is not lurking. It should be aimed at redressal of
genuine public wrongs or public injury.
[a] Writs
A writ is a quick remedy against injustice, a device for the protection of the rights of
citizens against any encroachment by the governmental authority. Writs originated in
Britain where they were King’s or Queen’s ‘prerogative’ writs and were commands to the
judicial tribunals or other bodies to do or not to do something. In India, the power to
issue writs has been vested in the Supreme Court and the High Courts. It is a speedy
remedy and is made available without going into avoidable technicalities. It is an
extraordinary remedy which can be expected in special circumstances.
The Supreme Court has been empowered to issue writs in the nature of habeas
corpus, mandamus, prohibition, certiorari and quo warranto for protecting the
63 Narendra Kumar, Constitutional Law of India, Pioneer Publications, pp. 292' 293
(1997).
fundamental rights (Art. 32). Similar power has been conferred on the High Courts via
Art. X226
V I of the Constitution. The High Court can issue the above writs for protecting the
Constitutional Law o f India- II
fundamental as well as statutory and common law rights. The High Courts can issue
writs to any governmental authority outside its territorial jurisdiction, provided the cause
of action arises within their territorial jurisdiction. A writ is a discretionary remedy and
the High Court can refuse it on the ground of acquiescence, laches (delay), available
alternative remedy and no benefit to the party.
Under Art. 226, writs can be issued to “any persons or authority” (any person or
body performing public duty). There are five well-known writs:
(i) Habeas Corpus - (a) Habeas Corpus It literally means ‘a demand to produce
the body (whether dead or alive) in the Court’. The issuance of the writ means
an order to the detaining authority or person to physically present before the
Court the detained person and show the cause of detention so that the Court
can determine its legality or otherwise (However, the production of the body of
the person alleged to be unlawfully detained is not essential). If the detention
is found to be illegal, the detained person is set free forthwith.
While the Supreme Court can issue the writ of habeas corpus only against the State in
cases of violation of fundamental rights, the High Court can issue it also against private
individuals illegally or arbitrarily detaining any other person.
(ii) Mandamus - (b) Mandamuslt is a command to act lawfully and to desist from
perpetrating an unlawful act. Where A has a legal right which casts certain
legal obligations on B, A can seek a writ of mandamus directing B to perform
its legal duty. Mandamus may lie against any authority, officers, government
or even judicial bodies that fail to or refuse to perform a public duty and
discharge a legal obligation. Mandamus is a judicial remedy in the form of ‘an
order to do or to forbear from doing some specific act’ which that agency is
obliged to do or to refrain from doing under the law.
(iii) Certiorari - (c) Certiorari'Certiorari’ is a Latin word meaning ‘to inform’. It was
essentially a royal demand for information. ‘Certiorari’ may be defined as a
judicial order directed to any constitutional, statutory/ non-statutory body/
person, requiring the records of any action to be certified by the court and
dealt with according to law. Certiorari can be issued to quash judicial, quasi-
judicial as well as administrative actions.
Grounds for the issue of certiorari are: (1) Lack of jurisdiction; or the authority declining
jurisdiction where it legally belongs to it. (2) Excess of jurisdiction. (3) ^buse of
jurisdiction. (4) Violation of the principles of natural justice. (5) Error of aw apparent on
the face of the record. The jurisdiction of the High Court to issue a Writ of certiorari is a
supervisory jurisdiction.
243 Constitutional Law o f India- II
Art. 32(3): Powers of the Supreme Court and Any Other Court
Article 32(3) empowers Parliament to confer by law, all or any of the powers,
exercisable by the Supreme Court under Art. 32, on any other Court. The words
“any other court” refers to a court other than the High Courts. It is because the
High Courts are expressly vested with such power under Art. 226 as is
exercisable by the Supreme Court under Art. 32(2).
The Fundamental Rights and the Directive Principles have a common origin. The
Nehru Report of 1928 which contained a Swaraj Constitution of India
incorporated some fundamental rights. These included such rights as the right of
elementary education. The Sapru Report of 1945 clearly divided the fundamental
rights into two categories- justiciable and non-justiciable. Sir B.N. Rau,
Constitutional Adviser to the Constituent Assembly advised that the individual
executive, the local and other authorities, by which their success or failure can be
judged. Sanctions behind the Directive Principles are based on sound
constitutional and moral obligations. Constitutional obligation are secured by
having Directive Principles as an integral part of Constitution. The biggest moral
force is public opinion which can enforce the Directive Principles and ensure
government’s accountability at the time of elections. Thus, sanctions behind
Directive Principles are political.
Art. 37 of the Constitution lays down that it shall be the duty of State to
apply these Directives in making laws. Articles 38 to 51 contain 17 Directive
Principles. Arts. 355 and 365 of the Constitution can be applied for enforcing
implementation of Directive Principles. The Constitution contains directives in
[246j
places other than Part IV. These directives are equally important. Article 335
states that in making appointments to services and posts in the government the
claims of Scheduled Castes and Tribes shall be taken into consideration,
248 Constitutional Law o f India- II
precedence over the Fundamental Rights They are relevant to consider what are
reasonable restrictions under Art. 19.
Uniform Civil Code
The State, according to Art. 44, has been enjoined to take steps for establishing a
uniform civil code for citizens of India. While the State has tried to reform and
codify the personal law of the Hindus (which is also applicable to Sikhs, Jains and
Buddhists), no attempt has been made to bring the Muslims, Christians and
Parsees under the purview of a common civil code.
One-objection to the promulgation of a uniform civil code has been that it
would violate Art. 25 (right to religious freedom). This objection is misconceived as
Art. 25(2) specifically saves secular activities associated with religious practices
from the guarantee of religious freedom mentioned in Art. 25(1). Another objection
to uniform civil code even raised by som<= secularists is that it could be tyrannical
to minorities A modernised uniform civil code drafted on rational principles will
come into clash with the sacramental laws of all communities including Hindus,
not merely minorities. It will surely contradict the existing gender bias and
patriarchal notions of Hindu law regarding marriage, family and succession as
those found in the existing personal law of the Muslims or the Christians.
In Sarla Mudgal v Union of India (AIR 1995 SC 1531), the Supreme Court
strongly recommended the need for a uniform civil code, declaring illegal the
second marriage by a Hindu husband after conversion to Islam. This judgment
came in the wake of four petitions filed by Hindu women who had been deserted
by their husbands after their opportunistic conversion to Islam. A two-judge bench
requested the Government through the Prime Minister to have a fresh look at Art.
44 of Constitution and expedite the promulgation of a common civil code which,
according to the court, is imperative for both protection of the oppressed and
promotion of national unity and integrity. The court directed the Union government
to ask the lav/ commission to draft a comprehensive legislation incorporating the
present day concept of human rights for women in consultation with the Minority
Commission.
The judges argued that religious practices, violative of human rights and
dignity and sacredotal suffocation of essentially civil and material freedoms, are
not autonomy but oppression. The judges upheld the view that unified,
progressive civil law would promote national unity and solidarity and safeguard
the interests of the weaker and oppressed sections. The court declared that when
more than 80 percent of the citizens have already been brought under the codified
personal law, there is no justification to keep in abeyance any more the
introduction of the code. The court observed that Art. 44 sought to divest religion
from social relations and personal laws. Further, no community could claim to
remain a separate entity on the basis of religion. Marriage, succession and like
matters of a secular character cannot be brought within the guarantees under Arts
25 and 26 of Constitution.
It is legislation, not religion which has the final authority to determine the
nature of personal law of citizens. The legislature is within its rights to supersede
or supplement this personal law by a uniform civil code. Mr. Justice Sahai
XVI
Constitutional Law o f India- II
Fundamental Duties did not form part of the Constitution as originally adopted.
Fundamental Duties are incorporated in Part IV-A, which consists of only one Art.
51-A, added by 42nd Amendment, 1976.
None of the major democracies i.e the U.S.A., Australia, Canada, France,
Germany, etc. contain a table of duties. However, the Constitution of socialist
countries lay great emphasis on the citizens' duties. Art. 29(1) of the Universal
Declaration of Human Rights makes a succinct statement regarding duties. It
states: “Everyone has duties to the community in which alone the free and full
development of his personality is possible.”
Art. 51-A says that it shall be the duty of every citizen of India -
(a) to abide by the Constitution and respect its ideals and institutions, the
National Flag and National Anthem,
(b) to cherish and follow the noble ideals which inspired our national
struggle for freedom,
(c) to uphold and protect the sovereignty, unity and integrity of India,
(d) to defend the country and render national service when called upon to
do so,
(e) to promote harmony and the spirit of common brotherhood amongst all
the people of India transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to the dignity of
women,
(f) to value and preserve the rich heritage of our composite culture,
(g) to protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creature,
(h) to develop the scientific temper, humanism and the spirit of inquiry and
reform,
(i) to safeguard public property and to abjure violence, and,
(j) to strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour
and achievements. «
(k) [who is a parent or guardian to provide opportunities for education to his
child or, as the case may be, ward between the age of six and fourteen
years- Inserted by the Constitution (86th Amendment) Act, 2002].
Significance of Duties- Rights and Duties are correlative. The fundamental duties
(code of conduct) are intended to serve as a constant reminder to every citizen
that while the Constitution specifically conferred on them certain fundamental
rights, it also requires citizens to observe certain basic norms of democratic
conduct and democratic behaviour. The fundamental duties seek to limit the
operation of fundamental rights - a countervailing factor and a warning to reckless
citizens against anti-social activites like destroying public property, burning
national flag, and the like.
Some critics held the view that there was too heavy an emphasis on the
rights in Constitution. A society in which everyone is conscious of his rights and
not of his duties is bound to find himself in state of anarchy, sooner or later.
However, the Constitution has incorporated the duties - the preamble emphasises
the duties, “justice, social, economic and political". Further, the State is
empowered to impose reasonable restriction and curtail the rights in the interest of
society.
Further, some critics question the utility of these duties amidst starvation
and poverty. A poor and unemployed cannot be expected to perform his duties
towards the society if the society fails to discharge its obligation towards
individuals The ‘right to work’ should, therefore, be guaranteed to every citizen,
who are expected to do certain duties to the nation
Comparison with Directive Principles - Fundamental Duties are comparable to the
Directive Principles. The duties are addressed to the citizens. The country expects
XVI
Constitutional Law o f India- II
them to perform certain duties as citizens. They are not spectators but active
participants in attainment of national goals. The Directive Principles are goals set
up by the Constitution for all governments. It is the duty of the State to apply these
principle in making laws (Art. 37). But in case a State does not implement a
Directive Principle it cannot be penalized. There is no legal sanction attached.
The citizen must introspect and endeavour to perform these duties. The sanction
should be self imposed. They cannot be enforced by a court. 6
In Union of India v Navin Jindal (2004) 2 SCC 410, the Supreme Court
observed: For the purpose of interpretation of the constitutional scheme and for
the purpose of maintaining a balance between the fundamental/legal rights of a
citizen vis-a-vis, the regulatory measures/restrictions, both Parts IV and IV-A of
the Constitution can be taken recourse to.
Enforcement of Duties- Parliament may, by law, provide penalties to be imposed
for failure to fulfil fundamental duties and obligations. The success of this
provision would, however, depend much upon the manner in which and the
person against whom these duties would be enforced.
For the proper enforcement of duties, it is necessary that it should be
known to all. Most of the people of this country are illiterate and not politically
conscious of what they owe to society and country. Thus, what is needed is a
systematic and intensive education of the people. In M.C. Mehta v Union of India
(!983) 1 SCC 471, held that under Art. 51-A(g) it is the duty of the Central
Government to introduce compulsory teaching of lessons at least for one hour in
a week on protection and improvement of natural environment in all educational
institutions.
A court in determining the constitutional validity of any law seeking to give
effect to duties, may consider law to be ‘reasonable’ in relation to Art. 14 or 19.
The courts will uphold as void any law which prohibits an act which is violative of
the duties. Fundamental duties provide a valuable guide and aid to interpretation
of the Constitution. The Supreme Court has held that the duties must be used as
a tool to control State action drifting from constitutional values [AIIMS Students’
Union v AIIMS (2002) 1 SCC 428],
Fundamental Duties are a mixed bag of expectations and exhortations - A
number of duties (clauses a, c and d) are enforceable today without specific
incorporation in the Constitution.
Write a short note on: The scope of the constitutional harmony and
balance between Fundamental Rights and Directive Principles.
[I.A.S.-2008]
A. 1 Relation between Directive Principles and Fundamental Rights
The Directive Principles differs from Fundamental Rights in certain respects -
(1) The Directives are non-justiciable i.e. can’t be enforced by the courts;
they are declaratory. While Fundamental Rights are justiciable i.e. can
be enforced by courts; they are mandatory.
(2) The Directives are instrument of instructions to the Government, they
contains positive commands to the State to promote a social and
welfare State. The Fundamental Rights are limitations upon the State
actions, they contain negative injunctions to the State not to do various
things. Articles 14 and 21 are negatively worded.
(3) Unlike Fundamental Rights, the Directives are required to be
implemented by legislation.
(4) The courts cannot declare as void any law which is otherwise valid on
the ground that it contravenes any of the Directives. On the other hand,
the courts are bound to declare as void any law that is inconsistent with
fundamental rights.
(5) The scope of Directive Principles is larger. The Directives set the
guidelines, in the larger interest of community, for achieving socialistic
goals through democratic methods. They are social rights and pertain to
the economic field. The Fundamental Rights guarantees some basic
rights to individuals. They are mostly political rights which tend to
restrain the State.
The place the Directive Principles occupy in the Constitution vis-a-vis the
Fundamental Rights has been a subject-matter of controversy for a long time. The
controversy has now been set at rest by the Supreme Court.
(1) In State of Madras v Champakam Dorairajan (AIR 1951 SC 228), held
that the Directive Principles cannot override the Fundamental Rights
The Directives have to conform and to run as subsidiary to the
Fundamental Rights.
(2) In Re Kerala Education Bill (AIR 1957 SC 956), the court observed that
though the Directive Principles cannot override the Fundamental Rights,
nevertheless, in determining the scope and ambit of Rights the court
may not entirely ignore the Directives but should adopt the principles of
harmonious construction and should attempt to give effect to both as
much as possible.
(3) 25th Amendment, 1971 considerably enhanced the importance of
Directives. Art. 31-C, added by it, provided that a law for implementing
XVI
Constitutional Law o f India- II
Directives contained in Art. 39 (b) and (c) could not be struck down on
the ground that it contravened rights conferred by Art 14, 19 or 31.
(4) 42ndD Amendment,
i r e c t i v e P r1976
i n c iwidened
p l e s a nthe
d Fscope
u n d aofmArt.
e n t31-C
a l D so
u t ias
e sto2cover
4 9
all Directive Principles Thus it gave precedence to all the Directives
over the Fundamental Rights - Arts. 14, 19 or 31.
(5) In Keshavananda Bharati v Union of India (AIR 1978 SC 1461), the
court observed that the Fundamental Rights and Directive Principles
are meant to supplement one another. It can well be said that the
Directives prescribed the goal to be attained and Fundamental Rights
lay down the means by which that goal is to be achieved. Both are
equally fundamental though Directives are not directly enforceable by
(6) courts
In Minerva Mills v Union of India (AIR 1980 SC 1789), the court struck
down Art. 31-C as amended by 42nd amendment as unconstitutional on the
ground that it destroys the “basic features” of the Constitution. The majority
observed that the Constitution is founded on the bed rock of the balance between
Part III and IV. To give absolute primacy to one over the other is to disturb the
harmony of the Constitution which is the essential feature of the basic structure.
The goals set out in Part IV have to be achieved without the abrogation of the
means provided for by Part III.
The court heid that the unamended Art. 31-C is valid as it does not destroy the
basic features of Constitution. Art. 39(b) and (c) are vital for the welfare of people
and do not violate Arts. 14 and 19. Other Directive Principles could not override
Fundamental Rights.
(7) But in Sanjeev Coke Mfg. Co. v Bharat Coking Coal Ltd (1983) 1 SCC
147, the Supreme Court expressed doubt on the validity of its decision
in Minerva Mills case. It held that amended Art. 31-C is valid. The
extension of constitutional immunity to other Directives does not destroy
the basic structure of Constitution.
(8) The confusion created by the above judgment has been removed in
State of T.N. v Abu Kavur Bai (AIR 1984 SC 626). A five-judge Bench
held that although the Directives are not enforceable yet the court
should make a real attempt at harmonising and reconciling the
Directives and the Rights and any collision between the two should be
avoided as far as possible. The reason why the founding fathers of our
Constitution did not make these principles enforceable was, the court
said, perhaps due to the vital consideration of giving the government
sufficient latitude to implement these principles from time to time
according to capacity, situation and circumstances that may arise.
(9) In Uni Krishnan v State of A P. (1993) 1 SCC 645, the court has
reiterated the same principle that the Fundamental Rights and Directive
Principles are supplementary and complementary to each other and the
provisions in Part III should be interpreted having regard to the
preamble and Directive Principles.
Conclusions - There is no conflict or disharmony between Directive Principles and
Fundamental Rights, because they supplement each other in aiming at the same
goal of bringing about a social revolution and establishment of a welfare State As
described by Granvil Austin, the Fundamental Rights and Directive Principles are
XVI
Constitutional Law o f India- II
the “Conscience of our Constitution’
D i r e c t iof
The objective v eboth
P r iis
n csecuring
i p l e s a social,
n d F u economic
n d a m e n tand
al D 2 4 9 and
u t i e s justice
political
dignity and welfare of the individual Both are on the same level. In case of an
apparent conflict it is for the court to resolve it in exercise of its power of judicial
review. For example, the exercise of a Fundamental Right by a person seems to be
inconsistent with a Directive Principle - A butcher’s right to carry on his business and
Art. 48 prohibiting slaughter of cows, etc. Similarly, a legislation to give effect to a
Directive Principle infringes or abridges a Fundamental Right. A legislation fixing a
minimum wage violates the right to carry on a trade under Art. 19(1 )(g).
The court cannot declare a law which is inconsistent with a Directive principle
as void but the courts have upheld the validity of a law on the ground that it was
enacted to implement a Directive Principle. In recent times, certain directive
principles have been judicially enforced by imaginative and creative interpretation of
fundamental rights (viz. right to education, right to clean environment, etc.). 68
12
Civil Servants
(Articles 308- 323)
The permanent civil service was regarded as the steel framework of the British
Empire in India. Even after Independence the framework continues though some
attempts are periodically made to reorient it with the new objectives of the Republic.
Tne law relating to Government Services in India is spread over in many
places. It is found in the Constitution (Articles 309-312), Acts of Parliament and State
legislature, Rules and Regulations made by the appropriate Government, directions
and clarifications issued by the authorities and judicial decisions. These have to be
combined with the principles of natural justice and fundamental and other rights
conferred by the Constitution.
The courts have a delicate task to perform. They must give an amount of
security to the employee yet ensure that he performs his duties with care. The
Government as employer must have the necessary power to discipline employees
who neglect their duties or are corrupt but the power has to be exercised in a
judicious manner and not arbitrarily.
Although matters concerning Government services could be normally
regulated by laws and the power to lay down detailed rules for recruitment and
conditions of service of the Union and State employees was left to the respective
legislatures (vide Entry 70 of List I and Entry 41 of List II), the Constitution-makers
deemed it most prudent to assure the services by providing some constitutional
guarantees and safeguards in the matter of recruitment, security of tenure,
procedure for disciplinary action, etc. In this connection, the Constitution also
provided for the setting up of an independent Public Service Commission. The
provisions for the Union and State Services applied to the whole of India except the
State of Jammu & Kashmir (Art 308).
been held that the rule making power conferred by the proviso to Art. 309 is
legislative power (S.S. Yadav v State of Haryana AIR 1981 SC 561).
Art. 309, however, does not make it mandatory for the Parliament or a State
Legislature to make laws for the said purpose. Art. 309 is an enabling provisions
conferring power on the Legislature. It does not impose on the Legislature a duty to
enact regulations in regard to recruitment and conditions of service of persons
appointed to public services (State of W.B. v Nripen Bagchi AIR 1966 SC 447). Nor,
it is obligatory for the Executive to make rules for recruitment etc., before a service
can be constituted or a post created or filled Art. 309 does not limit the right of the
State under Art. 73 or 162. It can recruit persons in exercise of its executive power
(Ramesh Prasad v State of Bihar AIR 1978 SC 327). The Court or the Administrative
Tribunal, therefore, cannot issue a mandate to the Government to legislate under Art.
309.
If appointments are made in contravention of the statutory rules they cannot
be regularized in exercise of the power conferred by Art 162 [State of U. P. v Neeraj
Awasthi (2006) 1 SCC 667], Executive order cannot prevail over an Act or the Rules
made under Art. 309.
‘Executive instructions’ may be issued to fill in the gap or to clarify an
ambiguity or may supplement the Rules. But the instructions issued must not be
inconsistent with any Rule or law. An instruction cannot amend or alter a Rule (6. N.
Nagarajan v State of Mysore AIR 1966 SC 1942).
Article 313 says that if neither the appropriate Legislature has made a law nor
the Executive has framed rules, then all the laws in force immediately before the
commencement of the Constitution and applicable to any public service or any post
which continue to exist, shall continue in force so far as consistent with the
provisions of the Constitution.
Conditions of service - Article 309 speaks of rules for appointment and general
conditions of service. The expression conditions of service” is substantially wide in
amplitude and would inter alia include matters relating to salary, time scale of pay or
grades; provident funds; dearness allowance; tenure of service; termination of
service; eligibility for promotion; seniority; retirement; pensions; suspension; and the
like. The rules dealing with functions of the Public Service Commissions, Union or
State, are not rules relating to recruitment and therefore do not fall within the scope
of Art. 309
Civil Servants 263
The legislature has left the field to the executive - The Union and the State make
recruitment to a very large number of posts. The essential and desirable
qualifications and length of experience required vary from post to post. The mode of
recruitment- by open selection, deputation, promotion, limited departmental
examination, etc. is best left to the executive because it may conveniently change
the mode in the light of the experience gained. Under Art. 320, the Public Service
Commission (Union or State) has to be consulted on all matters relating to methods
of recruitment and the principles to be followed in making appointments The
Government (Executive) finds it convenient to consult the Commission while making
a rule but if it is a legislation the procedure may be cumbersome and time
consuming. There are few Acts governing recruitment to services and these Acts
only lay down a skeletal framework leaving the rest to be done by delegated
legislation.
69 The Government has the right to regulate or determine the tenure of its
employees at pleasure, notwithstanding anything in their contract to the
contrary, provided that the mandatory provisions of Article 311. have been
observed. Discuss.
XVI
Constitutional Law o f India- II
of an all-India service or holds any post connected with defence or any civil post
under the Union, holds office during the pleasure of the President, and, every
person who is a member of a civil service of a State or holds any civil post under
a State, holds office during the pleasure of the Governor of the State ”
Art. 310(1) laid down the principle that every Government employee - in a
defence service or a civil service - held his office 'during the pleasure of the
President or the Governor.' Art. 310(1) embodies a rule of constitutional doctrine
pertaining to the tenure of service.
It was, however, possible to provide in special cases by contract to pay
compensation for early termination of service. Otherwise, the doctrine of pleasure
cannot be fettered or limited by a contract. Also, it cannot be fettered or limited by
Rules made under Art. 309 or by an Act of Parliament/State legislature. Article
309 is subject to Art. 310. Thus, pleasure is not fettered by ordinary legislation
(State of U.P. v Babu Ram Upadhya AIR 1961 SC 751).
In UOI v Tulsiram Patel (AIR 1985 SC 1416), held that the Acts or Rules
made in pursuance of Art. 309, were subject to the doctrine of pleasure contained
in Art. 310(1), and except to the extent that the pleasure had been restricted by
the “express provisions of the Constitution" such as Art. 311, no restrictions could
be placed on the exercise of pleasure by an Act or Rules framed under Art 309.
Doctrine of Pleasure
70
Article 310 derives its ancestry from the English (Common) Law where the rule is
that all service, military or civil, under the crown is held at the pleasure of the
Crown. The expression “doctrine of pleasure" is drawn from the Latin phrase
“durante bene placito" which means “during pleasure.” The services of a public
servant may be dispensed with and he may be dismissed at will. There is no need
to assign reasons. He could not even claim arrears of his salary due to him. Nor
he could claim any damages for his wrongful dismissal. The Common Law “rule of
pleasure" was, however, subject to one exception that it could be excluded by a
Statute of Parliament, for the Crown being a party to every Statute.
The “doctrine of pleasure" is based on public policy. That a public servant,
whose continuance in office is not or is against the public interest should be
reiieved of his office. The theory is that the Crown cou!d not fetter its future
executive action by entering into a contract in such matters concerning the
welfare of the country.
It is held that the doctrine is not based upon any special prerogative of the
Crown but upon public policy. The Government has a right to expect that each of
its servants will observe certain standards of decency or morality not only in his
public but also private life e.g. the Government may demand that none of its
servant would remany during the life-time of his first wife (Madho Singh v Stale of
Bombay AIR 1960 Bom. 285)
70 Explain doctrine of
pleasure [L.C.II-2007] [D.U.- 2008]
Civil Servants 265
71 Mention the offices/posts which are excluded from the doctrine of pleasure
under Art. 310 of the Constitution. [L.C.II-
2006]
264 Constitutional Law o f India- II Civil Servants 265
except where the services of such a person are required in the public employed by the defence services The Armed Forces are governed by Special
interest (Pratap Singh v State of Punjab MR 1964 SC 72). Acts e.g. The Army Act, the Navy Act, and, the Air Force Act.
(7) The pleasure of the President/Governor may be done away with by A ‘Civil Post’ means an appointment or office or employment on the civil
repealing Art. 310(1) by the Parliament in the exercise of its power to side of the administration. There must be a relation of master and servant
amend the Constitution under Art. 368. between the State and the person holding the post. A person employed in the
Police holds a civil post. But employees of statutory corporations or government
Delegation of Pleasure by the President/ Governor companies are not civil servants. A person procuring appointment on the basis of
The pleasure conferred by Art. 310(1) can be exercised by the President/ a false certificate is not a person holding a civil post.
Governor either with the aid and on the advice of the Council of Ministers or by The protection of Art. 311 was not mailable in case of civil employees if the
the authority specified in the Acts or Rules made under Art. 309. penalty was any other than dismissal, removal or reduction in rank. The Article,
In State of U.P. v Babu Ram Upadhya, the majority held that power to however, made no distinction between a person holding a temporary post and
dismiss a public servant subject to the provisions of Article 311, was not an one holding a permanent post (Parshottam Lai Dhingra v UOI AIR 1958 SC 36;
executive power under Art. 154 but a constitutional power and was not capable of State of Punjab v Ram AIR 1992 SC 2188).
being delegated to officers subordinate to the Governor. However, in Moti Ram Temporary employee and probationer- In Parshottam case, held that reasonable
Deka v N.E.F. Rly. (AIR 1964 SC 600), the Court overruled the majority view in opportunity is the right of temporary servants as it is of the permanent servants.
Babu Ram Upadhya case. But later many situations came before the Apex Court which necessitated
The question was considered in UOI v Tulsiram Fatel (AIR 1985 SC 1416), formulation of general rules. For example, if a government employs a person for a
and held that the pleasure of the President/Governor was not required to be specific project and terminates his services when the project comes to an end, no
exercised by either of them personally. It being an executive power within the hearing is required because of the nature of employment. The rules were
meaning of Article 53(1), 74(1), 77(1), 154(1), 163(1), 166(1), may be exercised formulated by the Supreme Court in State of Punjab v Sukh Raj Bahadur (MR
by the President/Governor acting on the aid and advice of the Council of Ministers 1968 SC 1089);
(1) The services of a temporary employee or of a probationer may be
72 terminated in accordance with the rules of employment. Such
Art. 311: Constitutional Safeguards to Civil Servants
termination does not call for an enquiry.
Article 311 sought to place certain limitations on the exercise of the ‘pleasure
principle’ in respect of civil seivants. it provides certain safeguards and protection (2) The circumstances preceding the termination have to be examined. The
to the government servants. It is to be noted that they are available only to - (a) a motive behind it is immaterial.
member of a civil service of the Union or of a State (b) a member of an All India (3) If the order visits the public servant with evil consequences or casts
Service, and (c) a person who holds a civil post under the Union or a State. They stigma on his character on integrity then the order is by way of
are not available to members of the Armed Forces. punishment. In such cases, Art. 311 is attracted even in case of a
probationer or a temporary servant.
No civil servant could be dismissed or removed by an authority subordinate
to the appointing authority [Art. 311(1)] and no civil servant could be dismissed or (4) If the order is in a simple form which does not cast any aspersion on the
removed or reduced in rank except after an enquiry informing him of the charges civil servant then Art. 311 is not attracted even though superior
against him and giving him a reasonable opportunity of being heard in respect of authorities conducted an enquiry to ascertain the suitability of the public
those charges [Art. 311 (2)].73 servant to conclude whether to retain him or not.
As stated above the safeguards can be claimed by a class of persons who (5) If there is an enquiry i.e. a charge-sheet is served, an enquiry officer is
hold “civil posts.” It is not available to defence personnel or even civil employees appointed and an explanation is called, Art. 311 will apply 74
Dismissed, removed or /educed in rank- A person who is dismissed is not eligible
for re-empioyment under the Government. A person who is removed does not
4. What constitutional safeguards are available to “Civil Servants” under the become disqualified and may be re-employed. Both are termination of services.
Constitution of India? [L.C.II- 2006] [I.A.S.- Art.
2003/2C06]
Do these safeguards override the “Doctrine of Pleasure" embodied in the
Constitution? [I A. S.- when it was proposed to impose a penalty. After the 42'“’ Amendment the
2003] penalty may be imposed on the basis of the evidence adduced during such
73 Prior to the 42 ^ Amendment Act, 1976, the opportunity of being heard was inquiry. There is no legal requirement that a second hearing be given. The
to be given twice. Firstly, in respect of the charges against him and secondly, lawSharma,
6. B.K. has been changed. See B K. Sharma, p 308.
pp. 308-309.
XVI
Constitutional Law o f India- II
311 treats both in the same manner. All termination of services may not be
removal or dismissal.
Both removal and dismissal are 'penalties’ awarded on the ground of
misconduct or inefficiency, etc. Both entail penal consequences which are
contained in the relevant rules. In both the cases, Art. 311(2) is attracted. Art 311
would not be attracted if there are no penal consequences like ioss of salary,
allowances or pension accompanying the action against him. Whatever the words
used , if these amount to removal or dismissal, the Article would apply.
I
be proceeded against;
(b) the charges (clear, precise and accurate) must be formally conveyed;
(c) he must be provided a reasonable opportunity of answering the charges;
(d) he should be informed of the evidence by which the charges are sought
to be substantiated;
(e) all evidence must be given in his presence;
(f) he must be given an opportunity of defending himself by cross-
examining the witnesses and adducing all evidence on which he relies;
(g) the decision in the matter must be based on the facts and materials
placed before the enquiring authority and no materials should be relied
upon without the civil servant concerned having an opportunity to
examine and explain them,
Some other requirements are: if the government servant demands a personal
hearing it must be provided. The employee has a right to argue his case. The
enquiry officer himself cannot be a witness.
The basic principle is that the enquiry must follow rules of natural justice
(Union of India v Verma AIR 1957 SC 882). The broad principles are: No one can
be a judge in his own cause; Both the parties must be heard; Reasonable notice
must be given; There should be no bias (viz. on the part of the enquiry officer).
for the purpose of this exception, must be under any law which provides for
punishment for a criminal offence, whether involving moral turpitude or other
crimes. However, conviction must be one which has been imposed upon the
delinquent servant during the course of and not prior to the appointment in
question
Conviction means final conviction i.e. conviction by the final court of appeal.
However, the passing of order of dismissal, removal or reduction in rank is not
barred on ground that sentence was suspended by appellate court or accused
was released on bail pending appeal/revision. But if the conviction is
subsequently set aside, the order of dismissal or removal made against the
delinquent would cease to have effect and he would be entitled to be reinstated
along with salary and allowances for the back period {State of U.P. v Mohd. A/oor
AIR 1958 SC 26).
In Roshan Lai Ahuja v S.C Jain (AIR 1987 SC 384), the petitioner working
as a Draftsman, was dismissed from service cn the ground of his conviction for
attempting to commit murder of his wife. Although, he was absolved of moral
turpitude, the Supreme Court held his dismissal under clause (a) of second
proviso to Art. 311(2), without giving him an opportunity of hearing, as neither
illegal nor improper.
meaning of the provisions of the M.P. Civil Services Rules, 1966. The
disciplinary authority has been empowered to consider the circumstances
of the case where any penalty is imposed on a Government servant on
the ground of conduct which has led to his conviction on a criminal
charge. But the same would not mean that irrespective of the nature of
the case in which he was involved or the punishment which has been
imposed on him, an order of dismissal must be passed. Such a
construction, in our opinion, is not warranted.
An authority which is conferred with a statutory discretionary power
is bound to take into consideration all the attending facts and
circumstances of the case before imposing an order of punishment. While
exercising such power, the disciplinary authority must act reasonably and
fairly. The respondent occupied the lowest rank of the cadre. Continuation
of his service in the department would not bring a bad name to the State
He was not convicted for any act involving moral turpitude. He was
involved in a matter for causing simple injury to another person. He was
not punished for any heinous offence. He was not even sent to prison and
only a nominal fine was imposed on him.
In Shankar Das v UOI (AIR 1985 SC 772), the appellant
(Government servant), under compelling circumstances, could not deposit
the money in question. He was not a previous convict. The Magistrate
observed that having regard to the circumstances of the case, he should
be dealt with under the Probation of Offenders Act, 1958. Despite the said
observation, he was dismissed from the service. The Supreme Court held
that: “It is to be lamented that despite these observations, the
Government chose to dismiss the appellant in a huff, without applying its
mind to the penalty which could appropriately be imposed upon him
insofar his service career was concerned." Referring to Art. 311, Proviso
2(a), the court observed that the right to impose a penalty carries with it
the duty to act justly. Considering the facts of the case, the penalty
imposed upon the appellant was whimsical.77
In the present case, the Apex Court observed: Furthermore the
legal parameters of judicial review has undergone a change. Wednesbury
principle of unreasonableness has been repealed by the doctrine of
proportionality. It is interesting to note that distinguishing between the
traditional grounds of judicial review and the doctrine of proportionality,
Lord Carswell in Tweed v Parades Commission for Northern Ireland
(2007) 2 All ER 1007, observed:
“The starting point is that there is an overlap between the traditional
grounds of review and the approach of proportionality. Most cases wouid
be decided in the same way whichever approach is adopted. But the
77 A civil servant is convicted of embezzlement but let off under the Probation of
Offenders Act. He is dismissed by the President without enquiry and hearing.
Is the dismissal valid? [D.U.-2008\
Civil Servants 271
authority came to the conclusion that the delinquent had thrown threats.
Prior to the Constitution (42nd Amendment) Act, 1976, opportunity to be heard had
to be offered to the delinquent servant at the two stages i.e. at the inquiry stage and
at the punishing stage. 80
Thus, Art. 311 (2) as it stood prior to 1976, enabled the delinquent servant to
make his representation as to why the proposed punishment should not be inflicted
on him. This, second opportunity enabled the delinquent to plead that no case had
been made out against him, or that the conclusions drawn from the evidence taken
at the inquiry were not correct or that the punishment proposed to be imposed was
excessive. There was a plethora of case-law around this second opportunity of
hearing, and punishment was liable to be quashed for the non-compliance with this
requirement. With a view to expedite the disciplinary proceedings, the Constitution
(42nd Amendment) Act, 1976, cut down the procedural formalities, by abolishing the
second opportunity. It is now expressly provided that -
“Where it is proposed after such inquiry, to impose upon him any such
penalty, such penalty may be imposed on the basis of the evidence adduced during
such inquiry and it shall not be necessary to give such person any opportunity of
making representation on the penalty proposed.”
However, this amendment has not taken away the right of the delinquent to
approach the Court and challenge the order of the disciplinary authority at least on
the ground that the findings of the Inquiry Officer have not been established on the
materials adduced during the inquiry and also that the authority has not been
influenced by such findings while deciding the punishment to be imposed on the
delinquent servant.
The delinquent servant can challenge the order of punishment only when he
is furnished with a copy of the ‘inquiry report.’ The Supreme Court in UOI v Mohd
Ramzan Khan (AIR 1991 SC 471) held that deletion of the second opportunity by
the 42nd Amendment, 1976, had nothing to do with providing of a copy of the Inquiry
Report to the delinquent in the matter of making his representation. Though the
second stage of the inquiry in Art. 311(2) had been abolished, the delinquent was
still held entitled to represent against the conclusions of the Inquiry Officer. The
court, however,
restricted the right of the delinquent to the copy of the inquiry report only to the
cases where the disciplinary authority himself was not the inquiry officer. 81
80 Art. 311(2) lays down that a civil servant cannot be dismissed, removed or
reduced in rank unless he has been given a reasonable opportunity to show
cause against the action proposed to be taken against him.” Critically
examine the statement with reference to the Constitution (42n Amendment)
Act, 1976.
[I.A.S.- 2000\
81 Narendra Kumar, pp. 569-570.
82 What is the scope and content of the phrase “reasonable opportunity of being
XVI
Constitutional Law o f India- II
setting aside of the inquiry for failure to supply the report should be
treated as a reinstatement for the purpose of holding the fresh inquiry
from the stage of furnishing the report and no more, where such fresh
inquiry was held.
The Supreme Court thus affirmed the ruling in Ramzan's case,
that the law laid down therein in regard to the furnishing of the report of
the Inquiry Officer, would have prospective application. Therefore, the
orders of punishment passed prior to the decision in Mohd Ramzan
Khan’s case (i.e. 20th November, 1990), without furnishing the report of
the Inquiry Officer should not be disturbed and the disciplinary
proceedings which gave rise to the said orders should not be reopened
on that account. It was considered desirable for administrative reality
and public interests.]16
“infirmity of body” must have arisen after appointment and not which existed at the
time of appointment. In this case, a blind qualified person was appointed as a
member of the Bihar State Public Service Commission. The court upheld his
appointment
Member of a Public Service Commission on expiration of his term of office is
ineligible for re-appointment to that office. They are also ineligible for any other
employment under the Central or State Governments. This provision is necessary to
ensure impartiality (Art. 319). Members of the Commission are not eligible for any
other appointment under the Government (Union of India v U.D. Dwivedi AIR 1997
SC 1313).
The Chairman of a State Commission can become a member or Chairman of
UPSC or Chairman of another State Commission. A member of the UPSC is eligible
to become chairman of UPSC or of a State Commission and a member of a State
Commission is eligible to become a member or Chairman of UPSC or any State
Commission (Art. 319).
The functions of a Public Service Commission are:
(i) to conduct examinations for appointment to the services of the Union/State;
(ii) to make recommendations to the Union/State Government for appointment
of persons to its services;
(iii) to be consulted in regard to method of recruitment, principles in matters of
appointments, promotions, transfers from one service to another, and
disciplinary matters of civilian employees;
(iv) on any claim for compensation in respect of injuries sustained by a person
while in service of the Government;
(v) to advise on any other matter ,that may be referred by the President/
Governor;
(vi) on request to assist two or more States in regard to schemes for joint
recruitment;
(vii) to present an annual report to the President/Governor who shall cause it to
be laid, before Houses of Parliament/State Legislature (together with a
memorandum as regards the cases where the advice of the Commission
was not accepted and the reasons for such non-acceptance) (Art. 323);
and
(viii) any other function that Parliament/State Assembly may by law assign (Art.
321).
The Supreme Court has held that the function of the Commission is purely advisory
and if the Government fails to consult it in any matter specified for consultation, a
public servant affected thereby cannot expect a remedy in a court of law under Art.
320. But, where law or regulation provides for consultation, it will constitute a legal
obligation [Keshav v U.R HESC (1985) 1 SCC 671; Neelima v State of Haryana MR
1987 SC 169]
The President and the Governors may make regulations specifying the matters
in which the Commission may not be consulted. Art. 320 (4) lays down that the
Commission need not be consulted as regards the reservation of post for Backward
Classes, SCs/ STs.
Amendment of the Constitution (ARTICLE 368)
2
Amendment by Special Majority i.e. majority of ‘total members of each House' and by
(b) a majority of at least 2/3rd 'present and voting' All amendments, other
than those referred to above, come within this category.
Amendment by Special Majority and Ratification by States - The States
jo) are given an important voice in the amendment of these matters.
Election of President, Extent of executive power of Union and States,
Supreme and High Courts, Distribution of legislative powers between
Centre and States, and three lists, Representation of States in Parliament
and Art. 368 itself. These are provisions which relate to the federal
structure of the Constitution and the powers, position and authority of the
constituent States.85
In 1951, within a year of the Constitution coming into force, the Constitution
(First Amendment) Act was passed. This Act sought to curtail the right to
property guaranteed by Art. 31. Its constitutionality was questioned in
Shankari Prasad v UOI (AIR 1951 SC455).
The argument addressed by the petitioners was that Art. 13(2) prohibited the State
from making any law which takes away or abridges a fundamental right. The word
‘law’ used in Art. 13(2) includes all Acts including the Constitution Amendment Acts.
Rejecting the contention the Supreme Court held that an Act passed in exercise of
the power conferred by Art. 368 is not a law within the meaning of Art. 13(2). The
Court ruled that law in that article referred to an ordinary law but not to a Constitution
Amendment Act (Constituent law) The Court thus distinguished between the ordinary
legislative power and constituent power. Fundamental rights are subject, to the
amending power of the Parliament under Art. 368. In other words, ordinary laws
cannot amend the fundamental rights but constituent laws can.
87 Are there features in the Constitution that arc basic or fundamental to it? Would
you subscribe to the proposition that the Parliament's competence to amend the
Constitution is subject to the basic or fundamental features of the Constitution?
Elucidate. [M.S.- 2007]
88 Is the power of amendment implicit in the Constitution of India and is it wide
enough to replace the present Constitution by a new one without the need of
revolution or referendum? Discuss by making reference to Keshavananda Bharati
case doctrine. [I.A.S.-91]
Judgment in Keshavananda Bharati case led to introduction of new constitutional
jurisprudence by the name of the ‘Doctrne of Basic Structure/Feature’. This has
introduced uncertainty with respect to limits of legislative power by the way of
constitutional amendment. Comment. [L.C.II- 2007]
[Note: Also see under the heading 'Doctrine of Basic Features as it Stands
Today', below.]
Amendment of the Constitution 287
‘amendment.’ Khanna J., said that the word ‘amendment' postulated
that the old Constitution must survive without loss of identity and must
be retained though in the amended form and, thus, the power does not
include the power to abrogate the basic structure.
Sikri, C.J. said that the word ‘‘amendment’’ must derive its colour from Art, 368 and
rest of constitutional provisions. Reading the Preamble, the fundamental importance
of freedom of individual, the importance of Directive Principles, and various other
provisions, a conclusion emerges that it was not the intention of Constitution makers
to use the word “amendment” in the widest sense The expression “amendment of
Constitution” in Art. 368 means any change in any of the provisions of Constitution
within the broad contours of Preamble and the Constitution to carry out the
objectives in Preamble and Directive Principles. Thus it would mean that while
fundamental rights cannot be abrogated, reasonable abridgements'of fundamental
rights can be effected in the public interest.
(iv) ‘Basic Structure’ - According to Sikri, C.J., the ‘basic structure’ was built
on the basic foundation i.e. the freedom and dignity of the individual;
the basic structure of the Constitution consists of following features:
(a) Supremacy of Constitution, (b) Republican and Democratic form of
Government, and sovereignty of country, (c) Secular and federal
character of Constitution, and (d) Separation of powers between
Legislature, Executive and Judiciary.
Shelat and Grover, J.J , also included the ‘fundamental rights' and ‘Directive
Principles' in the basic structure.
The Minority View - The remaining 6 judges (Ray, Palekar, Mathew, Beg, Divedi and
Chandrachud) held that there are no limitations, express oi implied, on the amending
power. The word “amendment" did not include the power to completely abrogating
the Constitution at one stroke, it was, however, wide enough to erode the
Constitution completely step by step so as to replace it by another Constitution.
Thus, fundamental rights can be abrogated.
The ‘doctrine of basic structure' has been criticised, on the ground that it lays
down a vague and uncertain test. However, the court observed that there are many
concepts of law which cannot be defined precisely, but they do exist and play very
important part in our law, for example, natural justice and negligence. The Chief
Justice said that the argument that because something cannot be cut and dried or
nicely weighed or measured and therefore does not exist is fallacious. If the historical
background, the Preamble, the entire scheme of Constitution and the relevant
provisions thereof including Art. 368 are kept in mind, there can be no difficulty in
determining what are basic elements of the basic structure of Constitution. The
doctrine of basic structure will act as a safety-valve against the arbitrary use of amending
power.
Comments - After Golak Nath no fundamental right could be taken away or
abridged but after Keshavanand it is for the court to decide whether a
fundamental right is a basic feature or not. If it is so, then it cannot be
abrogated]
(V) Application of the Doctrine of Basic Structure - In Indira Gandhi v Raj Narain
(AIR 1975 SC 2299), the Supreme Court added the following features as
‘basic features’ to the list of basic features laid down in Keshavanand's
XVI
Constitutional Law o f India- II
case: (i) Rule of Law; (ii) Judicial review; (iii) Democracy, which implies free
and fair elections; (iv) Jurisdiction of Supreme Court under Art. 32.
(VI) 42nd Amendment and Doctrine of Basic Structure89 - In Minerva Mills Ltd. v
UOI (AIR 1980 SC 1789), the constitutional validity of the Secs 4 and 55 of
42nd Amendment, 1976, which effected changes in the Art. 31-C and Art.
368 respectively, were challenged by the petitioner Minerva Mills.
(a) Sec. 55 of 42nd Amendment added two new clauses, Clauses (4) and
(5) to Article 368: Cl. (4) provided that “no amendment of Constitution
(including the provisions of Part III) made under Art. 368 (whether
before or after the commencement of 42nd Amendment), shall be
called in question in any court on any ground. Ci. (5) declared that
there shall be no limitation whatever on the constituent power of
Parliament to amend by way of addition, variation or repeal the
provisions of Constitution under this Article. Thus, it would mean that
even the “basic feature” of Constitution could be amended.
Clause (4) asserted the supremacy of Parliament. It was urged by the Union that
Parliament represents the will of people and if people desire to amend Constitution
through Parliament, there can be no limitations whatsoever on the exercise of this
power. The theory of 'basic structure’ as invented by Supreme Court is vague and
will create difficulties. It was argued that the amending body under Art. 368 has the
full constituent power. In other words, the Parliament acts in the same capacity as
the Constituent Assembly when exercising the power of amendment under Art. 368.
The Supreme Court by 4 to 1 majority struck down clauses (4) and (5) of Art.
368 on the ground that these clauses destroyed the essential feature of basic
structure of the Constitution. The Court held, that the following are the basic features
of Constitution:
(i) Limited power of Parliament to amend the Constitution
(ii) Harmony and balance between fundamental rights and directive
principles.
(iii) Fundamental rights in certain cases.
(iv) Power of judicial review in certain cases.
The judgment thus makes it clear that it is the Constitution that is supreme in
India, and not the Parliament. Parliament is a creature of the Constitution and
derives its power from Constitution, including the power to amend under Art. 368.
Laws passed by Parliament can be declared ultra vires the Constitution. There is a
clear distinction between the ordinary legislative power and the constituent power
(amending power) of Parliament. The amending power, therefore, cannot be
exercised in such a way so as to subvert or abrogate the Constitution. The court,
however, held that doctrine of basic structure is to be applied only in judging the
validity of amendments to the Constitution and it does not apply for judging the
validity of ordinary laws made by legislatures.
(b) Sec. 4 of 42nd Amendment amended Article 31-C, which further widened
the scope of Art. 31-C so as to cover all directive principles. It
90 Write a short note on: Meaning and basis of Judicial Review. [L C.II- 2006]
‘Judicial review is one of the basic features of the Constitution'? Do you agree
with this view? Cite relevant case laws [I.A.S.-2008]
XVI
Constitutional Law o f India- II
!n People’s Union for Civil Liberties v UOI AIR 2003 SC 2363, the “Republican
and democratic form of Government” and “free and fair election” have been
reiterated to be basic features of the Constitution, Similarly, held in T.N. Seshan v
UOI (1995) 4 SCC 611.
In Special Reference No. 1 of 2002 (AIR 2003 SC 87), the apex court held that
“democracy” is a part of the basic structure of the Constitution and periodical, free
and fair election is the substratum of democracy, if there is no free and fair periodic
election, it is end of democracy. Whether any particular brand or system of
government by itself, has this attribute of a basic feature, as long as the essential
characteristics that entitle a system of government to be called democratic are
otherwise satisfied is not necessary to be gone into.
In State of Bihar v Bal Mukund Sah (AIR 2000 SC 12S6), it was held that the
concepts of “Separation of powers between the legislature, the executive and the
judiciary” and “Independent Judiciary" are now elevated to the level of basic structure
of the Constitution. In this case, the issue related to recruitment to District Judiciary
and to subordinate judiciary. It was held that the High Court could get consulted by
the Governor for forming appropriate rules governing recruitment, etc. under Arts.
233-234 of the Constitution. But so long as it is not done, the Legislature cannot, by
an indirect method, completely bypassing the High Court and exercising its
legislative power, circumvent and cut across the very scheme of recruitment and
appointment as envisaged by £he makers of the Constitution.
In Indra Sawhney v UOI (AIR 2000 SC 498), “Principle of equality” was
reiterated to be a basic structure of the Constitution. It was held that Parliament and
State Legislatures cannot transgress the feature of the Constitution, namely, the
principle of equality enshrined in Art. 14 of which Art. 16(1) is a facet. Whether
creamy layer is not excluded or whether forward castes get included in the list of
backward classes, the position will be the same, namely, that there will be a breach
not only of Art. 14 but of the basic structure of the Constitution.
91 “The doctrine of basic structure has established judicial supermacy in the area
of constitutional amendment”. Examine. [/.AS.-95]
Amendment of the Constitution 293
Conflict between Different Basic Features
Sometimes, an amendment may indirectly affect a basic feature of the Constitution
while promoting or protecting another basic feature of the Constitution. The following
such amendments have been held not to destroy or damage the basic structure of
the Constitution:
(i) The insertion of Art. 31A by the Constitution (1st Amendment) Act, 1951
(relating to agrarian reforms), because, instead of damaging the principle
of equality, these amendments strengthen the basic feature, by removing
inequalities in the matter of agricultural holdings (Waman v UOI AIR 1981
SC 271).
(ii) Even though Parliamentary democracy is a basic feature of the
Constitution, the rights and immunities provided to the members of
Parliament under Art 105(2) cannot be elevated into the status of
fundamental rights or basic features so as to invalidate a Constitutional
Amendment (by inserting the Tenth Schedule) for the purpose of
condemning defection (Kihota Hollohon v Zachilhu AIR 1993 SC 412).
(iii) The amendment of Art. 334 by the 45th Amendment Act, 1978, extending
the reservation for SCs, STs, and Anglo-Indians in the Legislatures
(Vicihtra v UOI AIR 1982 Raj. 297).
(iv) The insertion of Art. 323A (by the 42nd Amendment Act, 1976) which takes
away the jurisdiction of the High Courts and the Civil Courts to decide
'service matters', because that jurisdiction of the Courts is replaced by that
of an Administrative Tribunal which is “a complete substitute of the High
Court” being competent to decide any question and grant any relief which
the High Court could (Sampat v UOI AIR 1987 SC 386).
The addendum of Sampat to the doctrine of basic features is that the basic feature of
‘judicial review’ is not violated by an amendment of the Constitution which, instead of
totally excluding judicial review, substitutes “an effective alternative institutional
mechanism or authority for judicial review”, i.e , provides for the setting up of a
Tribunal with similar powers as that of the courts.92
(v) When a fundamental right itself is taken away by an amendment of the
Constitution, the Amendment Act cannot be challenged on the ground that
it has abridged judicial review - a basic feature of the Constitution
{Shankari Prasad v UOI AIR 1951 SC 458).
Vagueness and Uncertainty93
The doctrine of basic structure is criticised ort various grounds, for instance, that it lays
down a vague and uncertain test. Can anything be called ‘basic’ which is not prone to any
definite definition and even the creator of which is not sure about its contour? Further, the
basic rational behind an amending provision in any Constitution is to provide an
opportunity to the future generation to make suitable adjustments in it and thus, bypass
the fear of revolt /constitutional breakdown, if this is the position then how can it be
assumed that certain provisions (i.e. basic features) of the Constitution would never
require amendment? For instance, in recent times, in India, there is a talk about the
‘Parliamentary to Presidential system’, because of the decline in standards of
“Parliamentary democracy" (a basic feature). The question thus arises: if a basic feature
such as the Parliamentary system of Government may be replaced by the Presidential
system?
Further, what would happen if two or more basic features come in conflict? In
Turkey, ‘secularism’ and ‘democracy’ came in conflict. The conflict was resolved by
banning a fundamentalist party even though that enjoyed the support of more than 3/4th of
the population.
Nevertheless, the doctrine of basic features will act as a safety-valve against the
arbitrary use of the amending power by Parliament (Sikri, C.J. in Keshvananda case).
94 Discuss the
limits of the amending power of the Parliament. [/.AS.-93]
Write a short note on: Scope of amending power of Parliament under Art. 368.
[C L.C.-96]
XVI
Constitutional Law o f India- II
F URTHER Q UESTIONS
Q.1 Discuss the principles and philosophy underlying the doctrine of 'basic
structure’ as enunciated in Keshavananda Bharati's case. Which
features of the Constitution have been so far been declared as part of
its basic structure by the Supreme Court?
[C.L.C.-95/97]
(b) Art. 13(2) says that State shall not make any law which takes away or
abridges the rights conferred by Part III (Fundamental Rights) and any
law made in contravention of it be void. By an Amendment, cl.
(5) inserted in Art. 13: 'Nothing in this Article shall apply to any law
enacted for giving effect to the Directive Principles of State Policy.'
The Amendment Act further provides that validity of this amendment
shall not be called in question in any court on any ground whatsoever.
Discuss the validity of the above amendment. [C.L.C.-
94]
destruction of its basic structure or loss of its original entity or character and render it
unworkable.
It may be noted that every integral part of the Constitution is not necessarily
an essential feature of the Constitution. Both are totally distinct and qualitatively
different concepts. Therefore, destroying an integral part of the Constitution did not
amount to destroying the basic structure or framework of the Constitution (Madhav
Rao Scindia v UOI AIR 1971 SC 530, Raghunathrao Ganpathrao case).
For determining whether a particular feature of the Constitution is part of the
basic structure, it nas to be examined in each individual case keeping in mind the
scheme of the Constitution, its objects and purpose and the integrity of the
Constitution as a fundamental instrument for the country's governance [Ashoka
Kumar Thakur v UOI (2008) 6 SCC 1j.
Amendment of the Constitution 301
Various features held to be part of 'basic structure' are.
(1) Supremacy of the Constitution (K Bharati case; B.R. Kapoor v State of T.N).
(2) Republican, and Democratic form of government - free and fair elections (K.
Bharat/ case, Indira Gandhi v Raj Narain\ PUCL v UOI\ T.N. Seshan v UOI,
Special Reference No. 1 of 2002). Also, Parliamentary system of Government.
(3) Sovereignty (unity and integrity) of country (K. Bharati case, R.C. Poudyal v
UOI AIR 1993 SC 1804).
(4) Federalism and Securalism (S.R. Bommai case).
(5) Separation of Powers between Legislature, Executive and Judiciary (K. Bharati
case; State of Bihar v Bal Mukund Sah).
(6) Rule of law and Judicial Review [Indira Gandhi v Raj Narain, S.R. Bommai
case, P. Sambhamurthy v State of A P. AIR 1987 SC 663, L. Chandra Kumar
v UOI AIR 1997 SC 1125],
(7) Independence of judiciary (Supreme Court’s Advocates-on-Record Asscn. v
UOI AIR 1994 SC 268; State of Bihar v Bal Mukund Sah)' Judicial
Superintendence - Power of High Courts over decisions of all courts/ tribunals
within their respective jurisdictions (L Chandra Kumar v UOI AIR 1997 SC
1125); Powers of the Supreme Court under Arts. 32, 136, 141, 142 (Delhi
J.S.A. v State of Gujarat MR 1991 SC 2176).
(8) Jurisdiction of Supreme Court under Art. 32 (Indira Gandhi’s case).
(9) Harmony and balance between Fundamental Rights and Directive Principles
(Minerva Mill’s case). The ‘essence’ of FundamorrtaJJ^ights (Waman v UOI
MR 1981 SC 271).
(10) Fundamental Rights in certain cases (Minerva Mill’s case); Right to equality
(Indira Gandhi’s case; Indra Sawhney v UOI): Not every feature of equality,
but the quintessence of equal justice (Raghunathrao’s case).
(11) The concept of Soc:al and Economic Justice - to built a welfare State, Part
IV in toto (Bhim v UOI AIR 1981 SC 234).
(12) Limited power of Parliament to amend the Constitution (Minerva Mill's case).
(13) Un-amendability of ‘basic structure’ (Minerva Mill’s case, R.C. Poudyal’s case).
(14) Objectives mentioned in the Preamble to the Constitution (Indira Gandhi's
case).
(15) Freedom and dignity of the individual (Keshavananda's case, Bommai case).
(16) Effective access to justice (Central Coal Fields v Jaiswal Coal Co. AIR 1980
SC 2125).
It may be noted that ‘Right to Property' under Art.300-A is not a basic feature of the
Constitution [Jilubhai Nanbhai v State of Gujarat (1995) Supp.(1) SCC 596].
Decision of the cases in question
(a) Insertion of words “or is likely to arise” poses a great danger to the
Federalism (a basic feature of Constitution). Similarly, judicial review is a
part of the basic structure. Thus, the amendment is invalid on both counts.
(b) Harmony and balance between fundamental rights and directive principles
is part of the basic structure of the Constitution. The amendment insofar as
it gives primacy to directive principles over fundamental rights is invalid. It
may be noted that directives contained in Art. 39(b) and (c) (relating to
XVI
Constitutional Law o f India- II
religion.
(2) Nothing in this Article shall affect the operation of any existing law or
prevent the State from making any law -
(a) regulating or restricting any economic, financial, political, or other
secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of
Hindu. religious institutions of a public character to all classes and
sections of Hindus.
Explanation I - The wearing and carrying of Kirpans shall be deemed to be
included ln the profession of Sikh religion.
Explanation II- The expression “Hindu” includes Jain, Sikhs and Buddhists.
25
(1) guarantees to every person, and not merely to the citizens of India, the
eed
°m of conscience, etc.
12. Write a short note on: Validity of legislations included in Ninth Schedule
affecting basic structure. [L.C.II-
2007]
The Parliament enacts the "Restrictions on Press Act, 2008” imposing
certain restrictions on page number, price, new publications and
advertisements. The legislation is included in Ninth Schedule of the
Constitution by an amendment. Discuss the validity of the legislation.
[D.U.-
2008]
Assuming that the Parliament, under Art. 368, passes the following
constitutional amendments:
(i) Religion is a matter of personal faith. Its propagation in any form is
strictly prohibited.
(ii) Art. 16(4) of the Constitution empowering the State to make
reservation in services under the State in favour of backward class of
citizens is completely deleted.
Discuss whether these amendments are likely to be held valid. [I.A S.-2000]