CONSTITUTIONAL LAW-I (UNIT-I) 

BA-LL.B.(Hons) IIIrd Semester (2020-

21) STUDY MATERIAL 

Compiled for the exclusive educational use of students of Dr. Ram Manohar Lohiya
National Law University during COVID-19 pandemic as a companion to online classes
(For Private Circulation Only) 

Contents
SYLLABUS ...................................................................................................................................................
................. 2 
UNIT-I: CONSTITUTIONAL
PHILOSOPHY ...................................................................................................................... 4 
PREAMBLE ..................................................................................................................................................
................. 5 
Kesavananda Bharati Sripadagalvaru Vs. State of Kerala
....................................................................................... 9 
CONCEPT OF FUNDAMENTAL RIGHTS
....................................................................................................................... 16 
FUNDAMENTAL RIGHTS IN
INDIA .......................................................................................................................... 22 
FUNDAMENTAL RIGHTS – NATURE, SCOPE AND
IMPORTANCE ............................................................................ 29 
ARTICLE 12 OF THE INDIAN
CONSTITUTION .............................................................................................................. 34 
Article 13:
LAW . ........................................................................................................................................................
74 
UNCONSTITUTIONALITY OF A
STATUTE ................................................................................................................. 82 
DOCTRINE OF
ECLIPSE . .......................................................................................................................................... 84 
DOCTRINE OF
SEVERABILITY .................................................................................................................................. 87 
WAIVER OF FUNDAMENTAL
RIGHTS ..................................................................................................................... 91 
RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE
PRINCIPLES ...................................................... 95 
FUNDAMENTAL RIGHTS VS FUNDAMENTAL
DUTIES ............................................................................................... 114 

Page 1 of 117 
1
 

SYLLABU
S 
CONSTITUTIONAL
LAW- I 

BA-LL.B. (Hons.) III Semester rd

2020-21 

UNIT-I: Constitutional
Philosophy 

•
Preamble 
• Meaning and Scope of Fundamental
Rights 
• Directive Principles of State Policy and Fundamental
Rights 
• Fundamental Duties and Fundamental
Rights 

UNIT-II: Right to
Equality 

• Equality before Law (Article

14) 
• Prohibition on grounds of Religion, Race, Caste, Sex, Place of Birth
(Article 15) 
• Equality of opportunity in public employment (Article
16) 

UNIT-III: Right to
Freedom 

• Basic freedoms (Article

19) 
• Freedom of Speech and expression (Article
19(1) (a) 
• Reasonable restrictions under
Article 19 
• Protection against Ex-post facto Law, Double jeopardy, Self Incrimination
(Article 20) 

UNIT-IV: Right to Life and Personal

Liberty 

• Right to life and personal liberty (Article

21) 
• Due Process of Law and Procedure Established
by Law 
• Maneka Gandhi and
thereafter 
• Safeguards against arbitrary arrest and detention
(Article 22) 

UNIT-V: Right to Religion, Minority Rights and

Remedies 

Page 2 of 117 
• Freedom of Religion (Articles 25-
28) 
• Cultural and Educational Rights of Minorities (Articles
29-30) 

• Constitutional Remedies (Articles

32) 

Suggested
Books: 

1. H.M.Seervai, Constitutional Law of

India 

2. M.P. Jain, Indian Constitutional

Law 

3. M.P.Singh (Ed) V.N.Shukla, Constitutional Law of

India 

4. Udai Raj Rai, Fundamental Rights and their

Enforcement 

----------
- 
 Page 3 of 117 

UNIT-I: CONSTITUTIONAL PHILOSOPHY 

 Page 4 of 117 

PREAMBLE 
M P Jain: Indian Constitutional Law, 7th
Edition MP Jain 

M P Jain: Indian Constitutional Law , 7th Edition > M P Jain: Indian Constitutional
Law, 7th Edition > PART I > CHAPTER I INTRODUCTORY > E. SALIENT FEATURES
OF THE INDIAN CONSTITUTION 

E. SALIENT FEATURES OF THE INDIAN CONSTITUTION 

(c)
PREAMBLE 

Unlike the Constitutions of Australia, Canada or the U.S.A., the Constitution of India has an
elaborate Preamble. The purpose of the Preamble is to clarify who has made the Constitution,
what is its source, what is the ultimate sanction behind it; what is the nature of the polity which is
sought to be established by the Constitution and what are its goals and objectives? 

The Preamble does not grant any power but it gives a direction and purpose to the Constitution.
It outlines the objectives of the whole Constitution. The Preamble contains the fundamentals of
the Constitution. It serves several important purposes, as for example: 

(1) It
contains the enacting clause which brings the Constitution into force. (2) It declares the
great rights and freedoms which the people of India intended to secure to all its 
citizen
s. 
(3) It
declares the basic type of government and polity which is sought to be established in
the country. (4) It throws light on the source of the Constitution, viz. the People of India. 

The words in the Preamble, "We the people of India...in our Constituent Assembly...do hereby
adopt, enact and give to ourselves this Constitution", propound the theory that the ‘sovereignty’
lies in the people, that the Constitution, emanates from them; that the ultimate source for the
validity of, and the sanction behind the Constitution is the will of the people; that the Constitution
has not been imposed on them by any external authority, but is the handiwork of the Indians
themselves. 

Thus, the source of the Constitution are the people themselves from whom the Constitution
derives its ultimate sanction. This assertion affirms the republican and democratic character of
the Indian polity and the sovereignty of the people. The People of India thus constitute the
sovereign political body who hold the ultimate power and who conduct the government of the
country through their elected representatives. 

The claim that the People of India have given to themselves the Constitution is in line with
similar claims made in several other democratic Constitutions, such as those of the U.S.A., 61

Ireland, etc. 

Page 5 of 117 

As regards the nature of the Indian Polity, the Preamble to the Constitution declares India to be
a ‘Sovereign Socialist Secular Democratic Republic’. The term ‘Sovereign’ denotes that India is
subject to no external authority and that the state has power to legislate on any subject in
conformity with constitutional limitations. The term ‘democratic’ signifies that India has a
62

responsible and parliamentary form of government which is accountable to an elected

legislature. The Supreme Court has declared ‘democracy’ as the basic feature of the
Constitution. The term ‘Republic’ denotes that the head of the state is not a hereditary monarch,
63

but an elected functionary. 

As to the grand objectives and socio-economic goals to achieve which the Indian Polity has
been established, these are stated in the Preamble. These are: to secure to all its citizens
social, economic and political justice; liberty of thought, expression, belief, faith and worship;
equality of status and opportunity, and to promote among them fraternity so as to secure the
dignity of the individual and the unity and integrity of the Nation. 

Emphasizing upon the significance of the three concepts of liberty, equality and fraternity used
in the Preamble, Dr. Ambedkar observed in his closing speech in the Constituent Assembly on
November 25, 1949: "The principles of liberty, equality and fraternity are not to be treated as
separate items in a trinity. They form a union of trinity in the sense that to divorce one from the
other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality,
equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity.
Without equality liberty would produce the supremacy of the few over the many. Equality without
liberty, would kill individual initiative".
64 

The Supreme Court has emphasized that the words "fraternity assuring the dignity of the
individual" have "a special relevance in the Indian context" because of the social backwardness
of certain sections of the community who had in the past been looked down upon. 65 

To give a concrete shape to these aspirations, the Constitution has a Chapter on Fundamental
Rights which guarantee certain rights to the people, such as, freedom of the person, freedom of
speech, freedom of religion, etc.66 

According to the Supreme Court, "The Constitution envisions to establish an egalitarian social
order rendering to every citizen, social, economic and political justice in a social and economic
democracy of the Bharat Republic." The Constitution thus ensures economic democracy along
67

with political democracy. 

The goals and objectives of the Indian Polity as stated in the Preamble are sought to be further
clarified, strengthened and concretised through the Directive Principles of State Policy. 68

Therefore, it is essential that the Preamble be read along with the Directive Principles which lay
down certain goals for the government to achieve so as to maximize social welfare of the
people. 

The Constitution is thus an instrument to achieve the goal of economic democracy along with
political and social democracy. This aspect was emphasized upon by Dr. Ambedkar in his
concluding speech in the Constituent Assembly: 

"Political democracy cannot last unless there lies at the base of it social democracy. What
does social democracy mean? It means a way of life which recognises liberty, equality and
fraternity..." 

Page 6 of 117 
Ordinarily, Preamble is not regarded as a part of the statute, and, therefore, at one time, it was
thought that the Preamble does not form part of the Constitution. But that view is no longer
69

extant. The majority of the Judges constituting the Bench in Kesavananda have laid down that
the Preamble does form part of the Constitution. These Judges have bestowed great respect on
the Preamble to the Constitution. For example, SIKRI, C.J., has observed in Kesavananda
Bharati v. Union of India.
70 

"It seems to me that the Preamble to our Constitution is of extreme importance and the
Constitution should be read and interpreted in the light of the grand and noble vision
expressed in the Preamble." 

SHELAT and GROVER, J.J., have observed in the same

case:71 

"Our Court has consistently looked to the Preamble for guidance and given it a
transcendental position while interpreting the Constitution or other laws". 

The preamble of the Constitution is an integral part of the Constitution and the democratic form
of government, federal structure, unity and integrity of the nation, secularism, socialism, social
justice and judicial review are basic features of the Constitution. The Supreme Court has
72

referred to the Preamble several times while interpreting constitutional provisions.

73 
The Preamble lays emphasis on the principle of equality which is basic to the Indian
Constitution. The principle of equality is a basic feature or structure of the Constitution which
means that even a constitutional amendment offending the basic structure of the Constitution is
ultra vires. A legislature cannot transgress this basic feature of the Constitution while making a
law.74 

61 "That the people have original right to establish, for their future government, such
principles, as, in their opinion, shall most conduce to their own happiness is the basis on
which the whole American fabric has been erected. The exercise of this original right is a
great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so
established, are deemed fundamental. And as the authority from which they proceed is
supreme and can seldom act, they are designed to be permanent." MARSHALL, C.J., in
Marbury v. Madison, 1 Cr. 137. 
"India and the United States both recognise that the people are the basis of all sovereignty."
DOUGLAS, 
supra footnote 20, p.
4. 
62 Synthetics v. State of Uttar Pradesh, (1990) 1 SCC 109 [LNIND 1989 SC 672] : AIR 1990
SC 1927 [LNIND 1989 SC 672]. Also see, Charan Lal Sahu v. Union of India, (1990) 1 SCC
613 [LNIND 1989 SC 639] : AIR 1990 SC 1480 [LNIND 1989 SC 639]. 63 See, infra, Ch. XLI;
S.R. Bommai v. Union of India, AIR 1994 SC 1918 : (1994) 3 SCC 1; Indian Medical
Association v. Union of India, AIR 2011 SC 2365 [LNIND 2011 SC 527](2388) : 2011 AIR
SCW 3469 : 2011 (6) SCALE 86 [LNIND 2011 SC 527] : AIR 2011 SC 1638(Civil) : (2011) 7
SCC 179 [LNIND 2011 SC 527]. 64 B. SHIVA RAO, TH FRAMING OF INDIAN
CONSTITUTION : SELECT DOCUMENTS, Vol. IV, 
944
. 

Page 7 of 117 
65 Indra Sawhney v. Union of India, AIR 1993 SC 477 : 1992 Supp (3) SCC 217. For a fuller
discussion 
on this case, see, infra, under Art. 16; Ch.
XXII. 66 See, infra, pp. 23-24; Chs. XX-XXXIII,
infra. 
67 Samatha v. State of Andhra Pradesh, AIR 1997 SC at 3326 : (1997) 8
SCC 191. 68 See below under "Welfare State", p. 20; Ch. XXXIV, infra. 
69 In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 : (1960) 3 SCR 250;
infra, Ch. 
V. 
 70 AIR 1973 SC 1461 [LNIND 1973 SC 154]at 1506 : (1973) 4 SCC 225 [LNIND 1973
SC 154]. 71 Ibid at 1578. 
72 S.R. Bommai v. Union of India, AIR 1994 SC 1918 (2062) : (1994) 3 SCC 1; Union of
India v. Gajanan Chaubal, 1997 (1) MPLJ 65 : (1996) 7 SCALE 494 : (1997) 2 SCC 332. See
also Kuldip Nayar v. Union of India, (2006) 7 SCC 1 [LNIND 2006 SC 635] : AIR 2006 SC
3127 [LNIND 2006 SC 635]; Union of India v. Madhav, (1997) 2 SCC 332 : AIR 1997 SC
3074. 
73 See, for example : In re : Berubari Union, AIR 1960 SC 845 : (1960) 3 SCR 250; Behram
Khurshid Pesikaka v. State of Bombay, AIR 1955 SC 123 [LNIND 1954 SC 116]: (1955) 1
SCR 613 [LNIND 1954 SC 116]; Basheshar Nath v. Commr. I.T., AIR 1959 SC 149 [LNIND
1958 SC 147]: 1959 Supp (1) SCR 528; In re Kerala Education Bill, 1957, AIR 1958 SC 956 :
1959 SCR 995; Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 [LNIND 1973
SC 154]: (1973) 4 SCC 225 [LNIND 1973 SC 154]. 
74 See, infra, Ch.
XLI. 

End of
Document 

Page 8 of 117 
 Writ Petition (civil) 135 of 1970, Decided On: 24.04.1973 Kesavananda Bharati
Sripadagalvaru Vs. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461 

Hon'ble
Judges/Coram: 

S.M. Sikri, C.J., A.N. Grover, A.N. Ray, D.G. Palekar, H.R. Khanna, J.M. Shelat, K.K. Mathew,
K.S. Hegde, M. Hameedullah Beg, P. Jaganmohan Reddy, S.N. Dwivedi, A.K. Mukherjea and
Y.V. Chandrachud, JJ. 

JUDGMENT 

S.M. Sikri,
C.J. 

89. therefore, in order to appreciate the real content of the expression "amendment of this Constitution",
in Article 368 I must look at the whole structure of the Constitution. The Constitution opens with a
preamble which reads: 

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

JUSTICE, social, economic and

political; 

LIBERTY of thought, expression, belief, faith and

worship; 

EQUALITY of status and of opportunity; and to promote among

them all; 

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

IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. 

90. This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objective
Resolutions adopted on January 22, 1947, which runs as follows: 

(1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an
Independent Sovereign Republic and to draw up for her future governance a Constitution- 

(2) wherein the territories that now comprise British India, the territories that now form the Indian States,
and such other parts of India as are outside British India and the States, as well as such other territories
as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and 

(3) wherein the said territories, whether with their present boundaries or with such others as may be
determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall
possess and retain the status of autonomous units, together with residuary powers, and exercise all
powers and functions of government and administration, save and except such powers and functions as
are vested in of assigned to the Union, or as are inherent or implied in the Union or resulting therefrom;
and 

(4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs
of government, are derived from the people; and 

(5) wherein shall be guaranteed and secured to all people of India justice, social, economic and political;
equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith,
worship, vocation, association and action, subject to law and public morality; and 

Page 9 of 117 
(6) wherein adequate safeguards shall be provided for minorities backward and tribal areas, and
depressed and other backward classes; and 

(7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on
land, sea, and air according to justice and the law of civilized nations, and 

(8) this ancient land attains its rightful and honoured place in the world and makes its full and willing
contribution to the promotion of world peace and the welfare of mankind. 

91. While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal
Nehru said: 

It seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now
hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the
House and it is in that spirit that I trust the House will receive it and ultimately pass it. And may I, Sir, also
with all respect, suggest to you and to the House that, when the time comes for the passing of this
Resolution let it be not done in the formal way by the raising of hands, but much more solemnly, by all of
us standing up and thus taking this pledge anew. 

92. I may here trace the history of the shaping of the Preamble because this would show that the
Preamble was in conformity with the Constitution as it was finally accepted. Not only was the Constitution
framed in the light of the Preamble but the Preamble was ultimately settled in the light of the Constitution.
This appears from the following brief survey of the history of the framing of the Preamble extracted from
the Framing of India's Constitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was
something formal and read : "We, the people of India, seeking to promote the common good, do hereby,
through our chosen representatives, enact, adopt and give to ourselves this Constitution, (Shiva Rao's
Framing of India's Constitution-A study-p. 127.). 

93. After the plan of June 3, 1947, which led to the decision to partition the country and to set up two
independent Dominions of India and Pakistan, on June 8, 1947, a joint sub-committee of the Union
Constitution and Provincial Constitution Committees, took note that the objective resolution would require
amendment in view of the latest announcement of the British Government the announcement of June 3
had made it clear that full independence, in the form of Dominion Status, would be conferred on India as
from August 15, 1947. After examining the implications of partition the sub-committee thought that the
question of making changes in the Objectives Resolution could appropriately be considered only when
effect had actually been given to the June 3 Plan.(Special Sub-Committee minutes June 9, 1947. Later
on July 12, 1947, the special sub-committee again postponed consideration of the matter. Select
Documents II, 20(ii), p. 617. (Shiva Rao's-Framing of India's Constitution-A study-(p. 127 footnote). The
Union Constitution Committee provisionally accepted the Preamble as drafted by B.N. Rao and
reproduced it in its report of July 4, 1947 without any change, with the tacit recognition at that stage that
the Preamble would be finally based on the Objectives Resolution. In a statement circulated to members
of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was
covered more or less by the Objectives Resolution which it was intended to incorporate in the final
Constitution subject to some modification on account of the political changes resulting from partition.
Three days later, moving the report of the Union Constitution Committee for the consideration of the
Assembly, he suggested that it was not necessary at that stage to consider the draft of the Preamble
since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could
be incorporated in the Preamble in the light of the changed situation(Shiva Rao's-Framing of India's
Constitution-A study-pp. 127-128 (also see footnote 1 p. 128). The suggestion was accepted by the
Assembly and further consideration of the Preamble was held over. 

94. We need not consider the intermediate drafts, but in the meantime the declaration (See Constituent
Assembly Debates, Vol. 8, page 2) was adopted at the end of April, 1949 by the Government of the
various Commonwealth countries and the resolution was ratified by Constituent Assembly on May 17;
1949 after two days' debate. 

Page 10 of 117 
95. In the meantime the process of merger and integration of Indian States had been completed and
Sardar Vallabhbhai Patel was able to tell the Constituent Assembly on October 12, 1949, that the new
Constitution was "not an alliance between democracies and dynasties, but a real union of the Indian
people, built on the basic concept of the sovereignty of the people (Shiva Rao's-Framing of India's
Constitution-A study-pp. 130-132). 

96. The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that
"the object of putting the Preamble last, the President of the Assembly explained, was to see that it was
in conformity with the Constitution as accepted. "Once the transfer of power had taken place the question
of British Parliament's subsequent approval which was visualised in the British Cabinet Commission's
original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly
thus became automatic with the rapid march of events without any controversy, and the words in the
Preamble "give to ourselves this Constitution" became appropriate. The Preamble was adopted by the
Assembly without any alteration. Subsequently the words and figure "this twenty-sixth day of November
1949" were introduced in the last paragraph to indicate the date on which the Constitution was finally
adopted by the Constituent Assembly. 

97. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no
doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If
the language is not plain and clear, then the preamble may have effect either to extend or restrict the
language used in the body of an enactment. "If the language of the enactment is capable of more than
one meaning then that one is to be preferred which comes nearest to the purpose and scope of the
preamble." (see Tribhuban Parkash Nayyar v. The Union of India) [1970]2SCR732 . 

98. We are, however, not concerned with the interpretation of an ordinary statute. As Sir Alladi
Krishnaswami, a most eminent lawyer said, "so far as the Preamble is concerned, though in an ordinary
statute we do not attach any importance to the Preamble, all importance has' to be attached to the
Preamble in a Constitutional statute". (Constituent Assembly Debates Vol. 10, p. 417). Our Preamble
outlines the objectives of the whole Constitution. It expresses "what we had thought or dreamt for so
long. 

99. In re. Berubari Union and Exchange of Enclaves [1960]3SCR250 this was said about the
Preamble: 

There is no doubt that the declaration made by the people of India in exercise of their sovereign will in
the preamble to the Constitution is, in the words of Story, "a key to open the mind of the makers" which
may show the general purposes for which they made the several provisions in the Constitution; but
nevertheless the preamble is not a part of the Constitution, and, as Willoughby has observed about the"
preamble to the American Constitution, "it has never been regarded as the source of any substantive
power conferred on the Government of the United States or any of its departments. Such powers
embrace only those expressly granted in the body of the Constitution and such as may be implied from
those so granted". 

What is true about the power is equally true about the prohibitions and
limitations. 

100. Wanchoo, J. in Golaknath v. Punjab [1967]2SCR762 relied on Berubari's case

and said: 

on a parity of reasoning we are of opinion that the preamble cannot prohibit or control in any way or
impose any implied prohibitions or limitations on the power to amend the Constitution contained in Article
368. 

101. Bachawat, J. in this case

observed: 

Page 11 of 117 
Moreover the preamble cannot control the unambiguous language of the articles of the Constitution, see
Wynes, Legislative Executive and Judicial powers in Australia, third edition pp. 694-5; in Re. Berubari
Union & Exchange of Enclaves. MANU/SC/0049/1960 : [1960]3SCR250 . 

102. With respect, the Court was wrong in holding, as has been shown above, that the Preamble is not a
part of the Constitution unless the court was thinking of the distinction between the Constitution Statute
and the Constitution, mentioned by Mr. Palkhivala. It was expressly voted to be a part of the Constitution.
Further, with respect, no authority has been referred before us to establish the proposition that "what is
true about the powers is equally true about the prohibitions and limitations." As I will show later, even
from the preamble limitations have been derived in some cases. 

103. It is urged in the written submission of Mr. Palkhivala that there is a distinction between the Indian
Constitution Statute and the Constitution of India. He urges as follows: 

This Constitution is the Constitution which follows the Preamble. It starts with Article 1 and ended
originally with the Eighth Schedule and now ends with the Ninth Schedule after the First Amendment Act,
1951. The way the Preamble is drafted leaves no doubt that what follows, or is annexed to, the
Preamble, is the Constitution of India. 

104. He has also urged that the Preamble came into force on November 26, 1949 alongwith Articles 5, 6,
7 etc. as provided in Article 394 because Articles 5, 6, 7 and the other Articles mentioned therein could
hardly come into force without the enacting clause mentioned in the Preamble having come into force.
He says that the Preamble is a part of the Constitution statute and not a part of the Constitution but
precedes it. There is something to be said for his contention but, in my view, it is not necessary to base
my decision on this distinction as it is not necessary to decide in the present case whether Article 368
enables Parliament to amend the Preamble. Parliament has not as yet chosen to amend the Preamble. 

105. The Preamble was used by this Court as an aid to construction in Behram Khurshed Pasikaka v.
The State of Bombay 1955CriLJ215 . After referring to Part III, Mahajan, C.J., observed: 

We think that the rights described as fundamental rights are a necessary consequence of the declaration
in the preamble that the people of India have solemnly resolved to constitute India into a sovereign
democratic republic and to secure to all its citizens justice, social, economic and political; liberty of
thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental
rights have not been put in the Constitution merely for individual benefits, though ultimately they come
into operation in considering individual rights. They have been put there as a matter of public policy and
the doctrine of waiver can have no application to provisions of law which have been enacted as a matter
of Constitutional policy. 

106. Similarly in In re. The Kerala Education Bill MANU/SC/0029/1958 : [1959]1SCR995 , Das C.J. while
considering the validity of the Kerala Education Bill 1957 observed: 

In order to appreciate the true meaning, import and implications of the provisions of the Bill which are
said to have given rise to doubts, it will be necessary to refer first to certain provisions of the Constitution
which may have a bearing upon the questions under consideration and then to the actual provision of the
Bill. The inspiring and nobly expressed preamble to our Constitution records the solemn resolve of the
people of India to constitute.... (He then sets out the Preamble). Nothing provokes and stimulates thought
and expression in people more than education. It is education that clarifies our belief and faith and helps
to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the
preamble, Part III of our Constitution has provided for us certain fundamental rights. 

Page 12 of 117 
107. In Sajjan Singh v. State of Rajasthan [1965]1SCR933 Mudholkar, J. after assuming that the
Preamble is not a part of the Constitution, observed: 

While considering this question it would be of relevance to bear in mind that the preamble is not of the
common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is
marked by precision. Would this not suggest that the framers of the Constitution attached special
significance to it? 

108. Quick and Garran in their "Annotated Constitution of the Australian Commonwealth (1901 p. 283)
"adopted the following sentence from Lord Thring's "Practical Legislation, p. 36": 
A preamble may be used for other reasons to limit the scope of certain expressions or to explain facts or
introduce definitions. 

109. Thornton on "Legislative Drafting"-p. 137-opines that "construction of the preamble may have effect
either to extend or to restrict general language used in the body of an enactment. 

110. In Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436 the House of Lords
considered the effect of the preamble on the interpretation of Princes Sophia Naturalization Act; 1705. It
was held that "as a matter of construction of the Act, there was nothing in the Act or its preamble,
interpreted in the light of the earlier relevant statutes...capable of controlling and limiting the plain and
ordinary meaning of the material words of the enacting provisions and that the class of lineal
descendants "born or hereafter to be born" meant the class of such descendants in all degrees without
any limit as to time." The House of Lords further held that "looking at the Act from the point of view of
1705 there was no such manifest absurdity in this construction as would entitle the court to reject it. 

111. Mr. Seervai referred to the passage from the speech of Lord Normand, at p. 467. The passage is
lengthy but I may quote these sentences: 

It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite
enacting words that the preamble may legitimately prevail. If they admit of only one construction, that
construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are
capable of either of the constructions offered by the parties, the construction which fits the preamble may
be preferred. 

112. Viscount Simonds put the matter at page 463,

thus: 

On the one hand, the proposition can be accepted that "it is a settled rule that the preamble cannot be
made use of to control the enactments themselves where they are expressed in clear and unambiguous
terms". I quote the words of Chitty L.J., which were cordially approved by Lord Davey in Powell v.
Kempton Park Racecourse Co. Ltd. (1889) A.C. 143. On the other hand it must often be difficult to say
that any terms are clear and unambiguous until they have been studied in their context 

113. This case shows that if on reading Article 368 in the context of the Constitution I find the word
"Amendment" ambiguous I can refer to the Preamble to find which construction would fit in with the
Preamble. 

114. In State of Victoria v. The Commonwealth 45 A.L.J. 251 which is discussed in detail later, a number
of Judges refer to the federal structure of the Constitution. It is in the preamble of the Commonwealth of
Australia Constitution Act, 1902 that 'one indissoluble Federal Commonwealth' is mentioned. 

115. There is a sharp conflict of opinion in Australia respecting the question whether an amendment can
be made which would be inconsistent with the Preamble of the Constitution Act referring to the
"indissoluble" character and 

Page 13 of 117 
the sections which refer to the "Federal" nature of the Constitution. After referring to this conflict, Wynes
(Wynes Legislative, Executive and Judicial Powers in Australia, Fourth Edn. p. 506). observes: 
Apart from the rule which excludes the preamble generally from consideration in statutory interpretation,
it is clear that, when all is said and done, the preamble at the most is, only a recital of the intention which
the Act' seeks to effect; and it is a recital of a present (i.e., as in 1900) intention. But in any event the
insertion of an express reference to amendment in the Constitution itself must surely operate as a
qualification upon the mere recital of the reasons for its creation. 

116. I am not called upon to say which view is correct but it does show that in Australia, there is a sharp
conflict of opinion as to whether the Preamble can control the amending power. 

117. Story in his Commentaries on the Constitution of the United States states :
[(1883) Vol. 1] 

It (Preamble) is properly resorted to, where doubts or ambiguities arise upon the words of the enacting
part; for if they are dear and unambiguous, there seems little room for interpretation, except in cases
leading to an obvious absurdity, or to a direct overthrow of the intention express in the preamble. 

There does not seem any reason why, in a fundamental law or Constitution of government, an equal
attention should not be given to the intention of the framers, as stated in the preamble. And accordingly
we find, that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its
provisions. 

118. Story further states at page 447-

448: 

And the uniform doctrine of the highest judicial authority has accordingly been, that it was the act of the
people, and not of the states; and that it bound the latter, as subordinate to the people. "Let us turn," said
Mr. Chief Justice Jay, "to the Constitution. The people therein declare, that their design in establishing it
comprehended six objects: (1) To form a more perfect union; (2) to establish justice; (3) to insure
domestic tranquillity; (4) to provide for the common defence; (5) to promote the general welfare; (6) to
secure the blessings of liberty to themselves and their posterity. It would," he added, "be pleasing and
useful to consider and trace the relations, which each of these objects bears to the others; and to show,
that, collectively, they comprise everything requisite, with the blessing of Divine Providence, to render a
people prosperous and happy." In Hunter v. Martin (1 Wheat. R. 305, 324), the Supreme Court say, (as
we have seen) "the Constitution of the United States was ordained and established, not by the states in
their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by the people
of the "United States;" and language still more expressive will be found used on other solemn occasions. 

119. "The Supreme Court of United States (borrowing some of the language of the Preamble to the
Federal Constitution) has appropriately stated that the people of the United States erected their
Constitutions or forms of government to establish justice, to promote the general welfare, to secure the
blessings of liberty, and to protect their persons and property from violence". (American Jurisprudence,
2d. Vol. 16 p. 184). 

120. In the United States the Declaration of Independence is sometimes referred to in determining
Constitutional questions. It is stated in American Jurisprudence (2d. 16. p. 189): 

While statements of principles contained in the Declaration of Independence do not have the force of
organic law and therefore cannot be made the basis of judicial decision as to the limits of rights and
duties, yet: it has been said that it is always safe to read the letter of the Constitution in the spirit of the
Declaration of Independence, and the courts sometimes refer to the Declaration in determining
Constitutional questions. 

Page 14 of 117 
121. It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution
should be read and interpreted in the light of the grand and noble vision expressed in the Preamble. 

=======
= 
 Page 15 of 117 

CONCEPT OF FUNDAMENTAL
RIGHTS 
M P Jain: Indian Constitutional Law , 7th
Edition 
MP
Jain 

M P Jain: Indian Constitutional Law , 7th Edition > M P Jain: Indian Constitutional
Law, 7th Edition > PART V > CHAPTER XX FUNDAMENTAL RIGHTS (TOPIC 1) 

CHAPTER XX FUNDAMENTAL RIGHTS (TOPIC 1) 

A. CONCEPT OF FUNDAMENTAL
RIGHTS 

Since the 17th century, if not earlier, human thinking has been veering round to the theory that
man has certain essential, basic, natural and inalienable rights or freedoms and it is the function
of the state, in order that human liberty may be preserved, human personality developed, and an
effective social and democratic life promoted, to recognise these rights and freedoms and allow
them a free play. 

The concept of human rights can be traced to the natural law philosophers, such as, Locke and
Rousseau. The natural law philosophers philosophized over such inherent human rights and
sought to preserve these rights by propounding the theory of "social compact". 1 

According to LOCKE, man is born "with a title to perfect freedom and an uncontrolled enjoyment
of all the rights and privileges of the Law of Nature" and he has by nature a power "to preserve
his property—that is, his life, liberty, and estate, against the injuries and attempts of other men."2 

The Declaration of the French Revolution, 1789, which may be regarded as a concrete political
statement on Human Rights and which was inspired by the LOCKEIAN philosophy declared: 

"The aim of all political association is the conservation of the natural and inalienable rights
of man". 
The concept of human rights protects individuals against the excesses of the state. The concept
of human rights represents an attempt to protect the individual from oppression and injustice. In
modern times, it is widely accepted that the right to liberty is the very essence of a free society
and it must be safeguarded at all times. The idea of guaranteeing certain rights is to ensure that
a person may have a minimum guaranteed freedom. 

The underlying idea in entrenching certain basic and Fundamental Rights is to take them out of
the reach of transient political majorities. It has, therefore, come to be regarded as essential that
these rights be entrenched in such a way that they may not be violated, tampered or interfered
with by an oppressive government. With this end in view, some written constitutions guarantee a
few rights to the people and forbid governmental organs from interfering with the same. In that
case, a guaranteed right can be limited 

Page 16 of 117 
or taken away only by the elaborate and formal process of constitutional amendment rather than
by ordinary legislation. These rights are characterised as Fundamental Rights. 

The entrenched Fundamental Rights have a dual aspect. From one point of view, they confer
justiciable rights on the people which can be enforced through the courts against the
government. From another point of view, the Fundamental Rights constitute restrictions and
limitations on government act ion, whether it is taken by the Centre, or a State or a local
government. The government cannot take any action, administrative or legislative, by which a
Fundamental Right is infringed. 

Entrenchment means that the guaranteed rights cannot be taken away by an ordinary law. A law
curtailing or infringing an entrenched right would be declared to be unconstitutional. If ever it is
deemed necessary to curtail an entrenched right, that can only be done by the elaborate and
more formal procedure by way of a constitutional amendment. As the Supreme Court has
observed, the purpose of enumerating Fundamental Rights in the Constitution "is to safeguard
3

the basic human rights from the vicissitudes of political controversy and to place them beyond
the reach of the political parties who, by virtue of their majority, may come to form the
government at the centre or in the State". 

The modern trend of guaranteeing Fundamental Rights to the people may be traced to the
Constitution of the U.S.A. drafted in 1787. The U.S. Constitution was the first modern
Constitution to give concrete shape to the concept of human Rights by putting them in to the
Constitution and making them justiciable and enforceable through the instrumentality of the
courts. 

The original U.S. Constitution did not contain any Fundamental Rights. There was trenchant
criticism of the Constitution on this score. Consequently, the Bill of Rights came to be
incorporated in the Constitution in 1791 in the form of ten amendments which embody the
LOCKEIAN ideas about the protection of life, liberty and property. 4 
The nature of the Fundamental Rights in the U.S.A. has been described thus: "The very purpose
of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and officials, to establish them as legal principles
to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly and other Fundamental Rights may not be submitted to vote;
they depend on the outcome of no elections." 5 

In modern times, the concept of the people’s basic rights has been given a more concrete and
universal texture by the Charter of Human Rights enacted by the United Nations Organization
(U.N.O.), and the European Convention on Human Rights. The Preamble to the Universal
6 7

Declaration of Human Rights inter alia declares: 

"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world". 

The concept of Fundamental Rights thus represents a trend in the modern democratic thinking. 8

The enforcement of human rights is a matter of major significance to modern constitutional

jurisprudence. The incorporation of Fundamental Rights as enforceable rights in the modern
constitutional documents as well as the internationally recognised Charter of Human Rights
emanate from the doctrine of natural law and natural rights. 

For sometime now a new trend is visible in India, viz., to relate the Fundamental Rights in India
to the 

Page 17 of 117 
International Human Rights. While interpreting the Fundamental Rights provisions in the Indian
Constitution, the Supreme Court has drawn from the International Declarations on Human
Rights. The Supreme Court, for example, has made copious references to the Universal
9

Declaration of Human Rights, 1948, and observed: 

"The applicability of the Universal Declaration of Human Rights and principles thereof may
have to be read, if need be, into the domestic jurisprudence". 10 

There is no formal declaration of people’s Fundamental Rights in Britain. The orthodox doctrine
of the Sovereignty of Parliament prevailing there does not envisage a legal check on the power
of Parliament which is, as a matter of legal theory, free to make any law even though it abridges,
modifies or abolishes any basic civic right and liberty of the people. The power of the executive
11

is however limited in the sense that it cannot interfere with the rights of the people without the
sanction of law.12 

There prevails in Britain the concept of Rule of Law which represents, in short, the thesis
that the executive is answerable to the courts for any act ion which is contrary to the law of the
land. Rule of law constitutes no legal restraint on the legislative power of Parliament and, thus,
cannot be equated to the concept of Fundamental Rights. 
Until 1998, the protection of individual freedom in Britain, therefore, rested not on any
constitutional guarantees but on public opinion, good sense of the people, strong common law
traditions favouring individual liberty and the Parliamentary form of government. British lawyers
often questioned the very basis of the theory of declaring basic civil rights in a constitutional
document. 

The British model could not be duplicated elsewhere. The fact remains that Britain is a small and
homogeneous nation, having deep-rooted democratic traditions. But these conditions do not
prevail in other countries which are composed of diverse elements, having no deep-rooted
traditions of individual liberty, and which, therefore, face very different problems from those of
Britain. 

Even in Britain, there was an ever growing realisation that guaranteed civil rights do serve a
useful purpose and that Britain should also have a written Bill of Rights. Britain had accepted
13

the European Charter on Human Rights. But this was not good enough because the Charter did
14

not bind Parliament but could be used only to interpret the local law. The feeling was that law
made by Parliament was in essence law made by the House of Commons. This, in practice,
meant that a government having support of a majority in the House (though it had the support
only of a minority of electorate), could often force through whatever legislation it desired. What
was, therefore, necessary was a Bill of Rights which could curb parliamentary legislative power.
As SCARMAN observed: 15 

"Without a Bill of Rights protected from repeal, amendment, or suspension by the ordinary
processes of a bare Parliamentary majority controlled by the government of the day, human
Rights will be at risk."
16 

Ultimately, the British Parliament enacted the Human Rights Act, 1998. The purpose of the Act
is to give effect to the rights and freedoms guaranteed under the European Convention on
Human Rights. The Act is a significant constitutional innovation. 

The Act incorporates the Convention in Schedule I. These are the rights to which the Act
gives effect. All legislation, so far as possible, is to be read and given effect to in a way which is
compatible with convention 

Page 18 of 117 
rights [s. 3(1)(a)]. S. 2(1)(a) requires a Court determining a question regarding a convention
right, to take into account any "judgment, decision, declaration or a advisory opinion of the
European Court of Human Rights, so far as the same is relevant to the proceedings in
question." 

Under s. 4(1), the Court may make a declaration that a legal provision is incompatible with a
convention right. In such a case, under s. 10(1)(b), the Minister may by order make such
amendments to the legislation as he considers necessary to remove the incompatibility. Thus,
the Minister is empowered to make "remedial orders" to remove incompatibilities between
primary legislation (as passed by Parliament) and the Convention. But a draft of the order has to
be approved by both Houses of Parliament. 

The British Act falls short of a declaration of Fundamental Rights in the Constitution (such
as is the case in India) in several respects; viz.: 

(5) InIndia, if a law is incompatible with a Fundamental Right, the law is void. Not so in
17

Britain. The Human Rights Act does not provide the courts with the power to strike down
legislation which is inconsistent with the Convention rights. A judicial declaration of
incompatibility does not make the legislation void. In fact, such a declaration does not affect
the validity of the law at all. (6) The incompatibility may be removed by the Minister with the
approval of Parliament. If the Minister does not seek to remove the incompatibility, the law in
question continues to exist. This means that Parliament is free, if it so chooses, to enact and
maintain in force legislation that is incompatible with the Convention rights. Not so in India
where a void law is regarded as non-est. (7) The British Act is only an Act passed by
18

Parliament. Parliament can repeal or amend the same by passing another Act . The Act is
not entrenched against repeal but can be repealed in the ordinary way. On the other hand, a
declaration of Fundamental Rights in the Constitution is of a more enduring and abiding
nature than a mere statutory declaration of rights because to make any change in the
Fundamental Rights, the Constitution needs to be amended which is a much more arduous
and elaborate procedure than passing or amending an ordinary law. 19 

The Australian Constitution, following the traditions of Britain, does not have a Bill of Rights but
guarantees only a few rights, e.g., freedom of religion. 20 

In a federal country, the problem becomes more complicated as there may be attacks on
individual liberty and freedom not only at the Central level, but even at the state level. 

In the modern era, it has become almost a matter of course to prescribe formally the rights and
liberties of the people which are deemed worthy of protection from government interference. The
wide acceptance of the notion that a formal Bill of Rights is a near necessity in the effective
constitutional government arises, to some extent, from a feeling that mere custom or tradition
alone cannot provide to the Fundamental Rights the same protection as their importance
deserves. "The unique English situation is not simply exportable, and other nations have
generally felt that their governments need the constant reminder which a bill of rights provides,
while their people need the reassurance which it can supply." 21 

An outstanding example of this trend is Canada. To begin with, the Canadian Constitution had
only a few guaranteed Rights. Then, the Canadian Parliament enacted a law laying down basic
22

Rights of the people. Being only a law made by Parliament, it did not constitute any restriction
23

on Parliament itself. The matter has now been taken further. The Canadian Constitution has
been amended and a Charter of Rights has been formally incorporated therein in 1982. 24 

Page 19 of 117 
1 See, LLOYD, INTRODUCTION TO JURISPRUDENCE, 117-123, 159
(1985). 
2 Extracts from LOCKE, TWO TREATISES OF GOVERNMENT. 3 Chairman, Rly. Board v.
Chandrima Das, AIR 2000 SC 988 [LNIND 2000 SC 182], 997 : (2000) 
2 SCC 465 [LNIND 2000 SC 182]. 4 B. BAILYN, IDEOLOGICAL ORIGINS OF
THE AMERICAN REVOLUTION, (1967). 
5 JUSTICE JACKSON in West Virginia State Board of Education v. Barnette, 319 U.S. 624.
6 IAN BROWNLIE, BASIC DOCUMENTS ON HUMAN RIGHTS (1971); (1998) 40 JILI, 1-
327.The General Assembly of the United Nations Organisation adopted the Universal
Declaration of Human Rights on Dec. 10, 1948. This document has proved to be a mere
declaration without any teeth. The Charter has so far remained merely a formal document
without any measures having been taken to facilitate the realization of the basic freedoms
and the human rights which the document contains. 7 For trends in the present-day Africa in
the area of human rights, see, D.O. Ahic, Neo-Nigerian Human Rights in Zambia: A
Comparative Study with some countries in Africa and West Indies, 12 J.I.L.I. 609 (1970). 
8 In Europe, the Council of Europe adopted the European Convention for the Protection of
Human Rights and Fundamental Freedoms on Nov. 4, 1950. The Convention has set up
both a Commission and a Court of Human Rights to investigate and adjudicate upon claims
made by individuals. 9 As will be apparent from the following discussion on specific
Fundamental Rights, and the judicial interpretation thereof, the Supreme Court of India has
frequently drawn from the Declaration of Human Rights to define the scope and content of
the Fundamental Rights in India: see, for example: Maneka Gandhi v. Union of India, AIR
1978 SC 597 [LNIND 1978 SC 25]; M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548
[LNIND 1978 SC 199]: (1978) 3 SCC 544 [LNIND 1978 SC 199]; Randhir Singh v. Union of
India, AIR 1982 SC 879 [LNIND 1982 SC 52]; D.K. Basu v. Union of India, AIR 1997 SC 610
[LNIND 1996 SC 2177]; Vishaka v. State of Rajasthan, (1997) AIR SCW 3043 : (1997) 6
SCC 241 [LNIND 1997 SC 1081] ; People’s Union for Civil Liberties v. Union of India, (1997)
1 SCC 301 ; Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 6251 : (1999) 1
SCC 759; Chairman, Rly. Board v. Chandrima Das, AIR 2000 SC 988 [LNIND 2000 SC 182]:
(2000) 2 SCC 465 [LNIND 2000 SC 182]. All these cases are discussed in the text which
follows.In Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864 [LNIND 1996 SC 807]at 1869
: (1996) 5 SCC 125 [LNIND 1996 SC 807], the Supreme Court referred to the Declarations
on "The Right to Development" adopted by the UN General Assembly on December 4, 1986,
and also to Vienna Conventions on the Elimination of all forms of Discrimination against
women (CEDAW) ratified by the UNO on Dec. 18, 1979.Also see, People’s Union for Civil
Liberties v. Union of India, AIR 1997 SC 568 [LNIND 1996 SC 2173], 575 : (1997) 1 SCC
301. 
10 Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988 [LNIND 2000 SC 182]at
997 : 
(2000) 2 SCC 465 [LNIND 2000 SC
182]. 
11 Supra, Ch. II, Sec. M.Also, Lord Wright in Liversidge v. Anderson, 1942
A.C. 206. 12 LORD ATKIN in Eshugbayi v. Govt. of Nigeria, 1931 A.C. 662. 
 Page 20 of 117 
13 HOOD PHILLIPS, CONST. AND ADM. LAW, 40, 438 (1978); also, REFORM OF THE
CONSTITUTION (1970); DE SMITH, CONST. AND ADM. LAW, 439 (1977); SCARMAN, E
NGLISH LAW—THE NEW DIMENSION; ANDERSON, ON LIBERTY, LAW AND JUSTICE
(1978).On July 7, 75, a resolution was moved in the House of Commons demanding that
England should have a Bill of Rights. There is some opposition as well in academic circles to
having a Bill of Rights; See, YARDLEY, Modern Constitutional Developments: Some
Reflections. 1975 Pub. Law 197; LLOYD, Do We Need A Bill of Rights? M.L.R. 121 (1976);
H.W.R. WADE, C ONSTITUTIONAL FUNDAMENTALS, 24-40 (1980).See also, REPORT
OF SELECT COMMITTEE ON A BILL OF RIGHTS (HOUSE OF LORDS, 1978). 
14 There have been some cases in Britain in this area: Waddington v. Miah, (1974) 1 W.LR.
613; R. v. Secretary of State for Home Affairs ex p. Bhajan Singh, (1975) 2 All ER 1081 ;
Bulmer Ltd. v. Bollinger, S.A., (1974) 2 All ER 1226. 15 Supra, footnote 13. 
16 Ibid. 17 See,
infra, Sec. C. 
18 Ibid. 19 See, Ch.
XLI, infra. 
20 Section 116 of the Australian Constitution. 21
BOWIE, STUDIES IN FEDERALISM, 567, 601. 
22 Sections 93 and 133 of the British North America Act. 23 See the various articles on the
subject in 37 Can. B.R. 1-217 (1959). Also AUBURN, Canadian Bill of Rights and
Discriminatory Statutes, 86 LQR 306 (1970); WALTER S. TRANOPOLSKY, The Canadian
Bill of Rights (1975). 
24 See (1983) 61 Can. B.R. 1-
442. 

End of
Document 
 Page 21 of 117 
FUNDAMENTAL RIGHTS IN
INDIA 
M P Jain: Indian Constitutional Law , 7th Edition
MP Jain 

M P Jain: Indian Constitutional Law , 7th Edition > M P Jain: Indian

Constitutional Law, 7th Edition > PART V > CHAPTER XX FUNDAMENTAL
RIGHTS (TOPIC 1) 

CHAPTER XX FUNDAMENTAL RIGHTS (TOPIC 1) 

B. FUNDAMENTAL RIGHTS IN INDIA 

Coming to India, a few good reasons made the enunciation of the Fundamental Rights
in the Constitution rather inevitable. For one thing, the main political party, the
Congress, had for long been demanding these Rights against the British rule. During
the British rule in India, human rights were violated by the rulers on a very wide scale.
Therefore, the framers of the Constitution, many of whom had suffered long
incarceration during the British regime, had a very positive attitude towards these
rights. 

Secondly, the Indian society is fragmented into many religious, cultural and linguistic
groups, and it was necessary to declare Fundamental Rights to give to the people a
sense of security and confidence. Then, it was thought necessary that people should
have some Rights which may be enforced against the government which may become
arbitrary at times. Though democracy was being introduced in India, yet democratic
traditions were lacking, and there was a danger that the majority in the legislature may
enact laws which may be oppressive to individuals or minority groups, and such a
danger could be minimised by having a Bill of Rights in the Constitution. 

The need to have the Fundamental Rights was so very well accepted on all hands that
in the Constituent Assembly, the point was not even considered whether or not to
incorporate such Rights in the Constitution. In fact, the fight all along was against the
restrictions being imposed on them and the effort all along was to have the
Fundamental Rights on as broad and pervasive a basis as possible. 25 

The Fundamental Rights are a necessary consequence of the declaration in the

Preamble to the Constitution that the people of India have solemnly resolved to
constitute India into a sovereign democratic republic and to secure to all its citizens
justice, social, economic, and political; liberty of thought, expression, belief, faith and
worship; equality of status and opportunity.26 
Part III of the Constitution protects substantive as well as procedural
rights.
27 

The inclusion of the chapter in the Constitution is in accordance with the trends of
modern democratic thought. The object is to ensure the inviolability of certain essential
rights against political vicissitudes. Fundamental rights have two aspects, firstly, they
28

act as fetter on 

Page 22 of 117 
plenary legislative powers, and secondly, they provide conditions for fuller
development of our people including their individual dignity.29 

The Fundamental Rights in India, apart from guaranteeing certain basic civil Rights
and freedoms to all, also fulfil the important function of giving a few safeguards to
minorities, outlawing discrimination and protecting religious freedom and cultural rights.
The fundamental rights are part of the basic structure of the Constitution. They cannot
be contravened or abridged by any statutory or constitutional provision. They are
inherent and cannot be extinguished by any constitutional or statutory provision. Any
law that abrogates or abridges such rights would be violative of the doctrine of basic
structure. During emergency, however, some curtailment of the Fundamental Rights
30

does take place. But all these curtailments of Fundamental Rights are of a temporary
31

nature. 

Fundamental Rights must not be read in isolation but along with directive principles
and fundamental duties. 32 

The Indian Constitution guarantees essential human rights in the form of Fundamental
Rights under Part III and also directive principles of State policy in Part IV which are
fundamental in the governance of the country. Freedoms granted under Part III have
been liberally construed by various pronouncements of the Supreme Court in the last
half a century, keeping in view the International Covenants to which India is a party.
The object has been to place citizens at a centre stage and make the State
accountable. 33 

Articles 12 to 35 of the Constitution pertain to Fundamental Rights of the people.

These Rights are reminiscent of some of the provisions of the Bill of Rights in the U.S.
Constitution but the former cover a much wider ground than the latter. Also, the U.S.
Constitution declares the Fundamental Rights in broad and general terms. But as no
right is absolute, the courts have, in course of time, spelled out some restrictions and
limitations on these Rights. The Indian Constitution, however, adopts a different
approach in so far as some Rights are worded generally; in respect of some
Fundamental Rights, the exceptions and qualifications have been formulated and
expressed in a compendious form in the Constitution itself, while in respect of some
other Rights, the Constitution confers power on the Legislature to impose limitations.
The result of this strategy has been that the constitutional provisions pertaining to
Fundamental Rights have become rather detailed and complex. 

The framers of the Indian Constitution, learning from the experiences of the U.S.A.,
visualized a great many difficulties in enunciating the Fundamental Rights in general
terms and in leaving it to the courts to enforce them, viz., the Legislature not being in a
position to know what view the courts would take of a particular enactment, the
process of legislation becomes difficult; there arises a vast mass of litigation about the
validity of the laws and the judicial opinion is often changing so that law becomes
uncertain; the judges are irremovable and are not elected; they are, therefore, not so
sensitive to public needs in the social or economic sphere as the elected legislators
and so a complete and unqualified veto over legislation could not be left in judicial
hands. Even then, certain rights especially economic Rights, have had to be amended
34

from time to time to save some economic programmes. 35 

The Fundamental Rights in the Indian Constitution have been grouped under seven
heads as follows: 

Page 23 of 117 
(i) Rightto Equality comprising Articles 14 to 18, of which Article 14 is the most 
important. (ii) Right to Freedom comprising Articles 19 to 22 which guarantee several
36

freedoms, the 
most important of which is the freedom of
speech. 37 

(iii) Right against Exploitation consists of Articles 23 and

24. 38 

(iv) Right to Freedom of Religion is guaranteed by Articles 25 to

28. 39 

(v) Cultural
and Educational Rights are guaranteed by Articles 29 and 30. (vi) Right
40

to Property is now very much diluted and is secured to some extent by Arts. 30- 
A, 31-A, 31-B and 31-C. 41 

(vii) Right to Constitutional Remedies is secured by Articles 32 to

35. 
These Articles provide the remedies to enforce the Fundamental Rights, and of these
the most important is Art. 32.
42 

As the Fundamental Rights constitute by and large a limitation on the government, the
most important problem which the courts have been faced with while interpreting these
rights has been to achieve a proper balance between the rights of the individual and
those of the state or the society as a whole, between individual liberty and social
control. This is a very difficult as well as a delicate task indeed in these days of
development of the country into a social welfare state. On the whole, however, one
could say that in the area of non-economic matters, like freedom of speech or the right
to life, the line has been shifting in favour of the individual, while in the area of
economic matters, the line has been constantly shifting in favour of social control. This
has been achieved both by judicial interpretation as well as constitutional amendments
as the discussion in the following pages will amply depict. 

The Fundamental Rights guarantee certain economic rights. Too much emphasis on
these rights might have led to the emergence of a laissez faire economy in India which
is now an out of date concept. Accordingly, partly by judicial interpretation, and partly
by constitutional amendment process, emphasis has come to be laid on social control
in economic matters leading to the emergence of a regulated economy. 

The right to property also has had a chequered history. Originally it was secured by
Arts. 19(1)(f) and 31, and the courts were prone to give these provisions a broad
perspective thus giving to property rights a better protection. But now the Fundamental
Right to property has been very much diluted. This development has been discussed
fully later.
43 

But, on the other hand, in the post 1977 era, the most notable development has been
that great emphasis has come to be laid on the right to life and personal liberty, i.e.,
the freedom of the person guaranteed by Art. 21. Article 21 has been given a new
dimension by judicial interpretation. In Maneka Gandhi, the landmark case which
44 45

initiated the process of expansion of the scope of Art. 21, the Court has observed: 

"The attempt of the Court should be to expand the reach and ambit of the
Fundamental Rights rather than to attenuate their meaning and content by a
process of judicial construction." 

Page 24 of 117 
The great metamorphosis that has occurred in the judicial view as regards Art. 21 can
be appreciated if the restrictive view adopted by the Supreme Court in Gopalan is set
46
against the expansive interpretation of Art. 21 in a series of cases beginning Maneka
Gandhi in 1977. 

In a nutshell, it may be said that, on the whole, the Supreme Court has displayed
judicial creativity of a high order in interpreting the Fundamental Rights, especially
during the last two decades. Reference may be made in this connection inter alia to
such landmark Supreme Court cases as Maneka Gandhi, Indra Sawhney, Asiad 47

cases. In Ajay Hasia, BHAGWATI, J., has observed: 

48 49

"It must be remembered that the Fundamental Rights are constitutional guarantees
given to the people of India and are not merely paper hopes or fleeting promises
and so long as they find a place in the Constitution, they should not be allowed to
be emasculated in their application by a narrow and constricted judicial
interpretation". 

The Supreme Court has even enunciated the doctrine of implied Fundamental Rights.
The Court has asserted that in order to treat a right as Fundamental Right it is not
necessary that it should be expressly stated in the Constitution as a Fundamental
Right. Political, social and economic changes occurring in the country may entail the
recognition of new rights and the law in its eternal youth grows to meet social
demands. 50 

There is no rule that unless a right is expressly stated as a Fundamental Right it

cannot be treated as one. Over time, the Supreme Court has been able to imply by its
interpretative process, several Fundamental Rights, such as, freedom of press, right to
privacy, out of the expressly stated Fundamental Rights. 

The Court should interpret the constitutional provisions against the social setting of the
country and not in the abstract. The Court must take into consideration the economic
realities and aspirations of the people and must further the social interest which is the
purpose of legislation. It is for this reason that Courts presume in favour of
constitutionality of the statute because there is always a presumption that the
legislature understands and correctly appreciates the needs of its own people, and the
51

burden of establishing that the Act is not within the competence of Legislature or that it
has transgressed other constitutional mandates, such as those relating to fundamental
rights, is always on the person who challenges its vagaries. 52 

By and large, barring some exceptions, the Supreme Court has, on the whole,
interpreted the Fundamental Rights in a liberal manner. The Court has laid emphasis
on this aspect from time to time. For instance, in Pathumma, the Court has stated that
53

in interpreting the Constitution, "the judicial approach should be dynamic rather than
static, pragmatic and not pedantic and elastic rather than rigid." But the award of a
sentence by the order of a Court cannot amount to violation of any of the Fundamental
Rights.54 
On the whole, the Supreme Court has displayed a liberal and creative attitude in
interpretation of Fundamental Rights and this has had a profound influence on the
development and delineation of the Fundamental Rights in course of time. This will
become clear from the following discussion. 

The Fundamental Rights are not all distinct and mutually exclusive Rights. Each
freedom has different dimensions and a law may have to meet the challenge under
various Fundamental 

Page 25 of 117 
Rights. Thus, a law depriving a person of his personal liberty may have to stand the
test of Arts. 14, 19 and 21 to be valid. Formerly, however, the courts had applied the
doctrine of exclusivity of Fundamental Rights and treated each right as a distinct and
separate entity, but this view has now undergone a change, thus, providing to the
55 56

courts a better leverage to test the validity of laws affecting Fundamental Rights. 

The Supreme Court plays a very significant role in relation to the Fundamental Rights.
In the first place, the Court act s as the protector and the guardian of these rights. In
the second place, the Court acts as the interpreter of the Fundamental Rights. The
Supreme Court act s as the "sentinel on the qui vive" in relation to the Fundamental
Rights. Commenting on its role entrusted to it under the Constitution to protect
Fundamental Rights, the Supreme Court has observed in Daryao :  57

"The Fundamental Rights are intended not only to protect individual’s rights but
they are based on high public policy. Liberty of the individual and the protection of
his Fundamental Rights are the very essence of the democratic way of life adopted
by the Constitution, and it is the privilege and the duty of this Court to uphold those
rights. This Court would naturally refuse to circumscribe them or to curtail them
except as provided by the Constitution itself." 

The Fundamental Rights play a noteworthy role in the area of the Indian Administrative
Law. A phenomenon generally discernible today in practically every democracy is the
vast growth in the functions, powers and activities of the Administration under the
impact of the modern philosophy of ‘welfare state’. A large amount of discretion is left
in the hands of administrative authorities. An important problem of modern
Administrative Law is to seek to strengthen the techniques to control the administration
in the exercise of its various powers. Some of the Fundamental Rights like Arts. 14, 19,
22 and 31 have been used for this purpose. 

In a large number of cases, validity of laws conferring discretion on the Administration

has been scrutinised with reference to the Fundamental Rights. For this purpose, both
substantive as well as procedural parts of the law are taken into consideration. On the
58

substantive side, the courts have taken objection in many cases to bestowal of
 arbitrary and unregulated discretion on the Administration. On the procedural side,
laws conferring discretion without necessary procedural safeguards have been
invalidated. In some cases, objection has been taken to the exercise of administrative
discretion on the ground of its being discriminatory, or having been exercised without
due procedure. The discussion in the following pages amply illustrates the several
points mentioned here. 59 

25 For an analysis of discussion on Fundamental Rights in the Constituent

Assembly; see, GRANVILLE AUSTIN, THE INDIAN CONSTITUTION OF A
NATION, 50- 113 (1966). 
26 See, Ch. I, supra. 27 Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551
[LNIND 2005 SC 100] : AIR 
2005 SC 273 . 28 Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1
SCC 694 [LNIND 
2010 SC 1174] : AIR 2011 SC 312 [LNIND 2010 SC
1174]. 

Page 26 of 117 
29 Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6
SCC 1 
[LNIND 2012 SC 236] (32) : AIR 2012 SC 3445 [LNIND 2012 SC 236]. 30 State of West
Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 [LNIND
2010 SC 186] : AIR 2010 SC 1476 [LNIND 2010 SC 186]: 2010 AIR SCW 1829 :
(2010) 87 AIC 1 : 2010 (1) KLT 723 [LNINDORD 2013 CAL 6796]. 
31 Supra, Ch. XIII, Sec. B(b). Also, infra, Ch. XXXIII, Sec. F. 32 Javed v. State of
Haryana, (2003) 8 SCC 369 [LNIND 2003 SC 596] : AIR 2003 SC 
3057 [LNIND 2003 SC 596]. 33 People’s Union for Civil Liberties v. Union of India,
(2005) 2 SCC 436 [LNIND 2005 
SC 53] : (2005) 1 JT 283. 34 B.N. RAU, INDIA’S CONSTITUTION IN
THE MAKING, 245. 
35 See, infra, Chs. XXIV, Sec. H; Chs. XXXI, XXXII; XLI and XLII.
36 See, Chs. XXI, XXII and XXIII, infra. 
37 See, Chs. XXIV, XXV, XXVI and XXVII, infra.
38 See, Ch. XXVIII, infra. 
39 See, Ch. XXIX, infra.
40 See, Ch. XXX, infra. 
 41 See, Chs. XXXI, XXXII, infra.
42 See, Ch. XXXIII, infra. 
43 Infra, Chs. XXIV, Sec. G; Chs. XXXI and XXXII, infra. 44 Infra, Ch. XXVI. 45 AIR
1978 SC 597 [LNIND 1978 SC 25]: (1978) 1 SCC 248 [LNIND 1978 SC 25]; 
infra, Ch. XXVI, Sec. D. 
46 Infra, Ch. XXVI, Sec. B. 47 Indra Sawhney v. Union of India, AIR 1993 SC 477 ;
infra, Ch. XXIII. 48 People’s Union for Democratic Rights v. Union of India, AIR
1982 SC 1473 [LNIND 
1982 SC 135]: (1982) 3 SCC 235 [LNIND 1982 SC 135]; infra Ch. XXVIII. 49 Ajay
Hasia v. Khalid Mujib, AIR 1981 SC 487 [LNIND 1980 SC 456]at 493 : (1981) 
1 SCC 722 [LNIND 1980 SC 456]. 50 Unni Krishnan, J.P. v. State of Andhra Pradesh,
AIR 1993 SC 2178 [LNIND 1993 SC 1110]: (1993) 1 SCC 645 [LNIND 1993 SC
1110]; infra, Ch. XXVI, for fuller discussion on this aspect. 
51 Government of Andhra Pradesh v. P. Laxmi Devi, (2008) 4 SCC 720 [LNIND
2008 SC 473] : AIR 2008 SC 1640 [LNIND 2008 SC 473]: 2008 AIR SCW 1826 :
2008 (3) SCALE 45 ; K.K. Baskaran v. State of Tamil Nadu, AIR 2011 SC 1485
[LNIND 2011 SC 262](1491) : (2011) 3 SCC 793 [LNIND 2011 SC 262] : 2011 AIR
SCW 1799 : 2011 (3) SCALE 380 [LNIND 2011 SC 262] ; State of M.P. v. Rakesh
Kohli, (2012) 6 SCC 312 [LNIND 2012 SC 326] : AIR 2012 SC 2351 [LNIND 2012
SC 326]; State of W.B. v. Kesoram Industries, (2004) 10 SCC 201 [LNIND 2004 SC
63] : AIR 2005 SC 1646 [LNIND 2004 SC 63]. 

Page 27 of 117 
52 K.B. Nagur, M.D. (Ayu.) v. Union of India, AIR 2012 SC 1774 [LNIND 2012 SC 
156](1778) : (2012) 4 SCC 483 [LNIND 2012 SC 156]. 53 Pathumma v. State of Kerala,
AIR 1978 SC 771 [LNIND 1978 SC 11]: (1978) 2 
SCC 1 [LNIND 1978 SC 11]. 54 Lalita Jalan v. Bombay Gas Co. Ltd., (2003) 6 SCC 107
[LNIND 2003 SC 438] : AIR 
2003 SC 3157 [LNIND 2003 SC 438]. 55 Chs.
XXVI and XXVII, infra. 
56 Cooper (Bank Nationalisation case), infra, Ch. XXVI, Sec. C; Maneka Gandhi,
infra, 
Ch. XXVI, Sec. D. 
57 Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 [LNIND 1961 SC 133], at
1461 
: (1962) 1 SCR 574 [LNIND 1961 SC 133] . See, infra, Ch. XXXIII, Sec.
A. 
 58 N.B. Khare v. Delhi, AIR 1950 SC 211 [LNIND 1950 SC 30]: 1950 SCR 519
[LNIND 
1950 SC 30]. 
59 For a detailed discussion on this aspect of Administrative Law, see : M.P. JAIN,
Administrative Discretion and Fundamental Rights, 1 JILI, 223 (1959); M.P. JAIN, A
TREATISE ON ADMINISTRATIVE LAW, I, Ch. XVIII, 765-835; JAIN, THE
EVOLVING INDIAN ADMINISTRATIVE LAW, Ch. VI (1983); JAIN, CASES &
MATERIALS ON INDIAN ADMN. LAW, II, Ch. XV, 1565-1911. 

End of Document 

Page 28 of 117 
 FUNDAMENTAL RIGHTS – NATURE, SCOPE AND
IMPORTANCE By Mayank Shekhar | September 16, 2016
https://www.legalbites.in/fundamental-rights-nature-scope-importance/ 

India guarantees a set of rights considered essential for protecting human dignity
which is known as Fundamental Rights. The Fundamental Rights, as embedded in the
Indian Constitution, ensure equal and fair treatment of the citizens before the law. The
rights that are basic to the advancement of the human race are called Fundamental
Rights. All other rights are derived from these rights as direct implications or
application of their principles. It is an accepted belief among the philosophers that
these rights are nothing but “natural human rights”, which distinguish between humans
and animals and which have been so instrumental in bringing humans from the stone
age to the present age. Among all, the right to life and liberty is considered to be the
most basic. The history of legally enforceable fundamental rights probably starts from
Magna Carta, which was a list of rights extracted from Kind John by the people of
England in 1214 AD. This was followed by the “Bill of Rights” in 1689 in which
Englishmen were given certain civil and political rights that could not be taken away.
Later on, the French compiled the “Declaration of the rights of Man and of the Citizen”
after the French Revolution in 1789. 

The most important advancement in history of fundamental rights occurred when the
USA incorporated certain fundamental rights in the form on “Bill of Rights” in their
constitution by the way of first 10 amendments. These rights were deemed to be
beyond the vagaries of politics. The protection by the constitution meant that these
rights could not be put to vote and were not dependent on the whims of politicians or of
the majority. After this, nearly all democracies of the world have given a constitutional
sanctity to certain inalienable rights available to their citizens. 

Need for Fundamental Rights 1. Rule of Law – These rights are a protection to the
citizens against the govt. and are necessary for having the rule of law and not of a
govt. or a person. Since explicitly given by the constitution to the people, these rights
dare not be transgressed by the authority. The govt. is fully answerable to the courts
and is fully required to uphold these rights. 2. First fruits of the freedom struggle – After
living in subjugation for such a long time, people had forgotten what is meant by
freedom. These rights give people hope and belief that there is no stopping to their
growth. They are free from the whims of the rulers. In that sense, they are first fruits of
the lengthy freedom struggle and bring a sense of satisfaction and fulfillment. 3.
Quantification of Freedom – Even citizens in gulf countries or communist countries are
free. Then how is our freedom different from theirs? The list of fundamental rights is a
clear measurement for how free we really are. As an example, every Indian citizen in
free to practice a religion of his choice, but that is not so in the gulf countries. Our right
to speech and expression allows us to freely criticize the govt. but this is not so in
China. 
 Page 29 of 117 
Fundamental Rights in India 

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

These rights can be grouped into 6

categories – 

1. Articles 14-18 Right to Equality – Art. 14 ensures that all citizens are treated equally.
It enshrines the principle of “Equality before law and Equal protection of law”. However,
this brings us to an important question. Should people living in unequal circumstance
be treated equally? In Indian Constitution, the answer is a resounding no. We have
adopted the mantra of “equal treatment under equal circumstances”. This is reflected
in Art 15, which, while prohibits the state from discriminating between the citizens only
on the grounds of Caste, Race, Religion, Sex, and Place of Birth or all of them [ Art
15(1)], also allows the state to make special provisions for Women and Children [Art
15(3)] and for Backward classes [Art 15(4)]. Art. 16 takes the same principle further to
employment in govt. jobs. Art. 17 abolishes untouchability and Art. 18 abolishes
various titles such as Rai Bahadur that used to be given in the British rule. 

The cases of Lindsley v Natural Carbonic Gas Co, US SC 1910 and Chiranjit Lal v
Union of India SC AIR 1951 are important cases that illustrate the concept of equal
protection of the laws. In these cases, the SC of both the countries held that all
persons similarly circumstanced should be treated equally. Only like should be treated
alike and thus a reasonable classification can be done. Several cases such as Randhir
Singh v Union of India 1982 (Equal pay for equal work) illustrate the principle of
equality. The SC judgment in Indra Sawhney v Union of India AIR 1993 incorporates
the element of fairness in dealing with inequalities in the society, while balancing the
aspirations of the socially forward classes. 2. Articles 19-22 Right to Freedom – A
citizen of India is given freedom of Speech and Expression, freedom of Assembly,
freedom of Association, freedom of Movement, freedom of Residence, and Freedom of
Profession and Occupation through Art. 19. 20 gives protection with respect to
conviction of offenses. This includes the principles of 

Ex-post facto law: A person can only be with charged with an offence of an action if the
said action was illegal as per the law of the time when the action was committed. 

Double jeopardy: A person cannot be charged with the same crime if he has already
been produced before the court and a verdict has been pronounced. 
Self- incrimination: A person will not be forced to testify against
himself. 

Page 30 of 117 

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

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

3. Art 23-24 Right Against Exploitation – Under Art. 23, the govt. has banned trade in
human beings. This includes flesh trade and forced work or work without pay (begar
system). 

24 prohibits children from being employed in factories and hazardous conditions. 4. Art
25-28 Freedom of Religion – Unlike several countries of the world, we are free to
practice, profess, and propagate any religion under Art. 25. Art. 26 allows us to
establish and maintain institutions for religious and charitable purposes. It also gives
the right to manage our own religious matters. Art. 27 provides tax benefits for
promotion of religion and art. 28 prohibits religious teaching in govt. and govt. aided
schools. 5. 29-30 Cultural and Educational Rights – Art. 29 allows any section of
citizens living anywhere in India who have a distinct language, script, or culture, to
preserve the same. Art. 30 allows minorities to establish and maintain educational
institutions. To prevent discrimination, however, art 29(2) prohibits them from
discrimination in admissions only on the grounds of religion, race, caste, language, or
any of them. 6. Art 32 Right to Constitutional Remedies – Dr. Ambedkar, the chief
architect of our constitution, has said that Article 32 is the soul of our constitution. All
the talk of rights is useless if there is no recourse against their transgression. Under
this article, a citizen is free to go to the Supreme Court for violation of his rights. 

Scope of Fundamental
Rights 
Widest Possible Interpretation – SC in A K Gopalan v State of Madras AIR 1950 had
held that the various rights given under part III talk about different things and are not
be interlinked. This view, however, has been rightly rejected by the SC in Menaka
Gandhi v Union of India AIR 1978 case. In this case, J Bhagvati said that the role of
SC should be to interpret these rights in the widest possible manner and it should not
attenuate these rights by being confined to their narrow definition. All these rights are
not mutually exclusive and form an integrated theme of the constitution. J Beg said that
their waters must mix to form a grand flow of 

Page 31 of 117 
unimpeded and impartial justice. Thus, any law that takes away the life or liberty of a
person, must also satisfy the test of reasonableness under art. 14. 

Natural Justice and Due

Process 

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

Expanding the role of writ of Habeas

Corpus 

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

Absoluteness of Fundamental
Rights 

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

Suspension of Fundamental
Rights 

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

Critical Analysis 

Indian Constitution was written after a thorough analysis of existing constitution of the
world. The framers of the constitution have incorporated the good things from all the
places. As such it is more fair and consistent than religious books. It is for the foresight
of the framers of the 

Page 32 of 117 
constitution that the country is integrated and has progressed. While the framers had
thought about a lot of things, the one thing that they probably missed was the
safeguards against the degrading morality of politicians. 
 Page 33 of 117 
THE CONCEPT OF STATE ACTION
UNDER 

ARTICLE 12 OF THE INDIAN CONSTITUTION 

https://www.amu.ac.in/emp/studym/99999698.pdf 

Introduction 

The concept of State Action is not defined in the Constitution rather it is a

concept which is implied in Article 12 of the Constitution of India. The Article is the
first article in Part III of the Constitution and it enlists the fundamental rights
guaranteed to the people. Defining State was necessary as the Fundamental Rights
are expressly guaranteed against the State. The Article has been put to judicial
scrutiny in a number of cases. In most of the cases the Court has analyzed the fact
situations existing at the particular time and made the judicial meaning of the term in
tandem with the political and economic changes and its impact on State and its role in
the society. In this way an array of institutions are kept under the purview of judicial
scrutiny. 
Though the language in Article 12 is plain, the term ‘other authority’ is put to test
quite a number of times. In order to extract the true meaning of the term and to further
the purpose of fundamental rights the judiciary has evolved the test of instrumentality
or agency under which various criteria’s are laid out, one such important test is ‘Public
Functions Test,’ other tests being deep and pervasive state control test, government
monopoly test etc. The cumulative effect of all the tests is necessary to hold an
authority as ‘other authority’ and thereby state under Article 12. These tests try to
render a meaningful link between the authority in question and the government. 
Despite playing its role as ‘social engineer’ while analyzing the cases what can
be seen is that the various tests acts as a limitation upon the further enlargement of
the concept of State Action though constitution framers intended to give wide
meaning to Article 12. The response of the judiciary towards the changing socio-
economic transformations is also evident from the observations given in the judgment.
In this background the Chapter presents a careful analysis of the development and
scope of the definition of State under Article 12 and also how the strait jacket
formulation of the tests to determine the State Action concept has made the law static
in extending its application to private bodies exercising public functions. 

Enforcement of Fundamental Rights against the

State 

‘Every State is known by the right that it maintains.’ Just as a written law evolved
1

from the concept of natural law as a higher law so the Fundamental Rights may be
said to have sprung from the doctrine of natural rights. As the Indian Supreme Court
2

has put it “Fundamental Rights are the modern name for what have been traditionally
known as natural rights.” The political implication of the theory of natural rights is that
3

these rights being inherent in man existed even prior to the birth of the State itself and
cannot, therefore, be violated by the State. 
The doctrine of natural rights passed into the realm of practical reality for the first
time in the form of Magna Carta when King John was made to acknowledge that there
were certain rights of the subject which could not be violated even by a sovereign in
whom all 

Page 34 of 117 
power was vested as per Social Contract Theory. Further the theory of natural rights
entered into the realm of constitutional realism with two revolutionary documents
American Declaration of Independence and French Declaration of Rights of Man. 4 

The American Declaration of Independence drafted by Jefferson is clear and

unequivocal on this point when he Stated that “all men are created equal, and are
endowed by their Creator with certain unalienable Rights among these are Life,
Liberty and the pursuit of happiness.” As per the American concept, fundamental
5

rights are not matters to be drawn into the vortex of political controversy or to be
placed at the mercy of legislative majorities instead they are to be definitely
recognised in the constitution and protected against any violation either by the
Legislature or through an independent or impartial judiciary. The doctrine of limited
government – the idea that government may not deny the “unalienable rights “of the
people – is thus fundamental in the American approach to civil rights. 6 

Similarly, the Indian Constitution Part III of the Constitution enlists fundamental
rights and this chapter is called as the Magna Carta of the Indian Constitution. It is
more elaborate than the Bill of Rights contained in any other existing Constitution of
importance and covers a wide range of topics. The inclusion of this chapter on
fundamental rights is to preserve the basic elementary rights such as right to life,
liberty, fundamental freedoms which should be regarded as sacrosanct with least
interferences from the people in power. Fundamental rights were incorporated on the
idea that a code of social philosophy regulating the conduct of everyone will remind
the legislatures and executive whenever they begin to trample over rights that they
are treading on a prohibited area, and also to provide an opportunity for citizens to
create public opinion against such measures. 7 

Indian Constitution preserves the natural rights against State encroachments and
constitutes the higher judiciary of the State as the sentinel of the said rights. The
8

reason is that the freedom fighters in India had learnt from their experience that
even a representative assembly of men might be arbitrary and hostile to the
cherished rights of men. As Laski wrote; “and Indians believed in the ‘federation
of minorities’ a declaration of rights was as a necessary as it had been for the
Americans when they first established their federal constitution” 9 
 The constitution framers did not find State as a necessary evil but rather as a
means to an end; welfare of the people being the end and State as a means and with
that aim in mind they had imposed positive obligation on the State to realize certain
socio-economic rights when it state capable of doing so and that forms a very
10

important feature of Indian Constitution viz; Directive Principles of State Policy

(DPSP) under Part IV of the Constitution which are the Directives given to the State
under the Constitution for establishment of a Welfare State. “The fundamental Rights
11

and Directive Principles together constitute the conscience of the Constitution.” 12

Although the Rights and Directives appear in the Constitution as distinct entities, it
was the Assembly that separated them; the leaders of the Independent movement
had drawn no distinction between the positive and negative obligations of the State. 13 

Although it is primarily against the might of the State that the individuals need
protection, the Constitution barring a few exceptions protects fundamental rights of
the people against the even private parties. Fundamental rights are protected against
private persons under Articles 15 (2), 17, 23, 25(2)(b), 28(3) and 29(2). Thus the
14 15 16 17 18 19

State in addition to obeying the Constitutions’ negative injunctions not to interfere with
certain of the citizens’ liberties must fulfill its positive obligation to protect the citizens
‘rights from the encroachment by society. Further for the purpose of Part III and Part
20

IV State is particularly defined under Article 12 of the Indian constitution. Article 12 is

the key to Part III and unless an authority can be said to be a ‘State’ within the 

Page 35 of 117 
meaning of Article 12 none of the provisions of Part III which relate to the ‘State’ will
apply to such authority. Moreover for the effective enforcement of fundamental rights
21

Article 32 is incorporated which is aptly described by Dr. B.R. Ambedkar as the very
heart and soul of the Indian Constitution. 22 

Constitutional Background of Article

12 

A perusal of the Constitution Assembly Debates of India (CAD) itself will reveal
that the Constitution makers wanted fundamental rights to be at a high pedestal than
that of other rights. Under the Draft Constitution it was Article 7 which gave the
definition of State. The definition has been used in order to avoid the inconsistency
23

which existed under the Draft wherein the Indian State and Province was treated in a
separate footing. 24 

The objective behind defining state was to provide an impetus to the effective
enforcement of fundamental rights. The expression state under Article 12
25

enumerates the authorities against which fundamental rights can be claimed and
also it binds such authorities with the obligation to abide by and to respect the
fundamental rights of the people. In the Constituent Assembly there had been
 divergent opinions concerning the phraseology of Articlel2 since it was couched
in the widest extent possible. But Dr. B.R. Ambedkar insisted on its retention so
26

that fundamental rights could be claimed against anybody or authority exercising

power over the people. By ‘authority’ he meant every authority which has got
27

either power to make law or an authority on which discretionary power is vested.

Besides a closer look at the Article reveals that the words have been added in
such a manner as to help the law givers to interpret the term with the changing
needs of the society and that is the spirit of the framers of the constitution to
make it a 'living document' which will stand the test of the time. 28 

The definition of the term State under Article 12 is inclusive and not exhaustive.
The language of Article contains two important flexibility terms to cope up with the
challenges posed by the society. The first one is the “inclusive nature” of the
definition, which is evident through the use of the expression “includes” which can be
used to accommodate new entities within the scope of Article 12. Therefore,
authorities not specified in the Article may also fall within it if they otherwise satisfy the
characteristic of the ‘State’ or if they perform any functions ordinarily performed by the
Government. The second is use of the expression “unless the context otherwise” that
allows the use of the concept of State in different situations in different manner and
context. For instance, the context of Article 21, providing right to life or personal
liberty, requires the widest and frequent use of the concept of State to make those
rights a meaningful reality. 
It is to be noted that the definition is applicable to Part III and as per Article 36 to
Part IV as well. Merely because an authority is a ‘state’ does not make its employees
29

civil servants. Also ‘local authorities’ are ‘state’ but that does not entitle them to claim
30

their status as State Government or Central Government. The reason is that there is
distinction between ‘state’ and ‘government,’ also public corporations cannot be
31

considered as government departments under the state. 32 

Nature and Scope the Concept of State Action in

India 

The doctrine of state action is not defined in the Indian Constitution rather it is
implied in Article 12 of which defines State for the purpose of Part III. It enumerates a
list of authorities against which fundamental rights can be enforced by invoking the
writ 

Page 36 of 117 
jurisdiction if Supreme Court and High Court. As per the Article, State includes the
Government and Parliament of India and government and legislatures of each state in
India. It also includes local and other authorities within the territory of India and local
and other authorities under the control of Government of India. 33 
Government and the
Legislatures 

It is explicitly mentioned in Article 12 that State includes Parliament of India and

the State Legislature and State Executive by virtue of the functions and powers
exercised by these bodies. Besides, Article 32 empowers the Supreme Court to
issue writs against the Government of India as well as the State Government and
also Article 226 expressly includes government as one of the persons against
whom a writ may be issued. In case of legislature also Article 32 and 226 are
34

enforceable and this was held on many occasions by the Court. As was 35

observed in the Reference case by Gajendragadkar S., Article 12 defines the

36

State as including the legislature of such State and so prima facie the power
conferred on the High Court under Article 226 (1 can in proper case be exercised
even against the legislature. 37 

Judiciary as
State 

The definition of 'State' under Article 12 does not explicitly mention judiciary.
Since judiciary is the guardian of fundamental rights there may arise the question
whether judiciary can violate the fundamental rights of the individual. In many of the
cases it has been found that even judiciary can violate the fundamental rights of the
people. If the judiciary is included under the State it must conform to the fundamental
rights conferred by Part III of the Constitution. In India it is undisputed that the
38

judiciary while exercising administrative powers is subjected to the fundamental rights

but the position while adjudicating legal disputes is not settled till now. In Ratilal v.
39

State of Bombay, Bombay High Court expressed the view that the judgment of the
40

Court cannot be challenged for violation of fundamental rights whereas Madras High
Court held that equal protection clause of Article 14 applies to the judiciary with same
force and spirit. But the view of the Supreme Court on the matter is just the opposite.
In Parbhani Transport Co-operative Society v. Regional Transport Authority 41
a
decision offending Article 14 was defended by the Supreme Court on the ground that
as the authority was acting as a quasi-judicial body, its decision might be right or
wrong, but there should not be any question that whether it is in violation of Article 14.
Subsequently in Ujjambai v. State of UP it was unequivocally held by the Supreme
42

Court that “an error of law or fact committed by a judicial body cannot in general be
impeached otherwise than on appeal unless the erroneous determination relates to a
matter in which the jurisdiction of that body depends". 43 

The question whether the judiciary is “State” was directly raised before the
Supreme Court in Naresh Sridhar Mirajkar v. Maharashtra. In the instant case it was
44

argued that the order of the trial judge restricting the press to publish the testimony of
the defense witness given in the open court violates fundamental right to freedom of
speech and expression. The High Court dismissed the petition on the ground that a
judicial order is not amenable to writ jurisdiction. Supreme Court on appeal admitted
-

the petition under Article 32 for violation of fundamental rights by the Trial Judge in
the judicial order and it brought up the following issues- firstly, whether a judicial order
suppressing evidence of a witness on the grounds that his business would suffer
breaches the fundamental rights in order to entitle the 

Page 37 of 117 
petitioner to invoke Article 32 and secondly, whether the Supreme Court could issue a
writ to the High Court in the instant case? 
The majority held that the suppression of evidence was necessary to serve the
cause of justice. It was also opined that the impugned order would not violate Article
19 (1)(a) since the power to withhold publication or to hold an in camera trial were
both protected by Article 19 (2). Moreover, since the freedom of speech was affected
only incidentally and indirectly, there was no violation of fundamental rights.
Regarding amenability of judiciary to writ jurisdiction the majority held that the order
was to be challenged under Article 136 and not under Article 32, since it being a
judicial order. The Constitution did not contemplate the High Court to be inferior to the
Supreme Court and therefore, their decision would not be liable to be quashed by a
writ of certiorari issued by the Supreme Court. 
The dissenting opinion of Hidayatulla J. deserves special attention here. He
negated the findings of the Majority pointing out the fallacy in the procedure adopted
by the judiciary viz; the trial was not conducted in camera by the judge but the
testimony was barred 'perpetually from publication. The Court was not bound to
protect the business interest of witness against the cost of an open and fair end of
justice and Article 19 (1) of the petitioners. He found the case as one involving judge
and the fundamental rights of the petitioner by reason of petitioners’ action. To him
the word ‘state’ includes courts because otherwise courts will be enabled to make
rules which take away or abridge fundamental rights and a judicial decision based on
such a rule would also offend fundamental rights. The argument seems to be
45

appropriate especially if due process has not been complied with. Here in the instant
case the judge's action was not in conformity with the procedure. It was also
mentioned that Article 20 and 22 (1) is addressed to the Court. 
46 47

A similar question arose in A.R. Antulay v. R.S. Nayak, wherein Supreme Court
48

granted relief for violation of fundamental rights in a proceeding other than a writ
petition. It was held that the order of the Constitution Bench transferring case pending
from Special Court to High Court, wherein the case could only be tried in special court
was violation of the fundamental rights of Antulay under Article 14 and 21 of the
Constitution. It was held that the order of the Court be it administrative or judicial,
against the provisions of the Constitution or violates the principles of natural justice,
can always be remedied by the Court ex debito justiitae. This decision has given a
49

ray of hope as it allowed reopening of the cases wherein final decision was already
made. It was also made clear that the remedy against a wrong determination in the
exercise of judicial adjudication functions by the Court is not to allege that the
determination of the Court is not consistent with fundamental rights. In Triveni Ben v.
State of Gujarat, the Supreme Court held that judgment of a Court can never be
50
 challenged under Article 14 or 21 and therefore the judgment of the Court awarding
the sentence of death is not open to challenge as violation of Article 14 and 21. But in
the subsequent decisions involving patent violation of fundamental rights involving
judiciary the Supreme Court has attempted sporadic interventions. Thus in Rupa
Hurra v. Ashok Hurra the Constitution Bench has held that if the justice of a case so
51

demands the Court can exercise curative jurisdiction even after the review application
has been rejected and this has marked the beginning of a new era of 'curative
petitions'.
52 

There is no justifiable reason why the judiciary should not be included in the
inclusive definition of the ‘State’ under Article 12. However unfortunately it has been
held by the Court in a number of decisions that the judiciary is not involved in the
definition of State. Judiciary must be held as a State. The courts are-setup by statutes
and they exercise powers conferred by law. Besides if the Court found that a
fundamental right has been trampled upon, it is not only its duty to act to correct it but
also its obligation to do so.” If the judiciary is excluded from the definition of State, no
53

writ can be issued by the Supreme Court against any judicial institution and Part III of
the Constitution would become futile. 

Page 38 of 117 
In Surya Dev Rai v. Ram Chander Rai & ors., by upholding Mirajkar dictum
54

Supreme Court has ruled that judicial orders of Civil Courts are not amenable to writ
jurisdiction under Article 226. The Court also differentiated its jurisdiction under Article
227 from 226. A notable development in this line happened with the decision of the
Supreme Court in Common Cause v. Union of India wherein Supreme Court made a
55

remark in the following lines that “Part IV of the Constitution is as much a guiding light
for the judicial organ of the state as the Executive and legislature all three being
integral parts of one State within Article 12 of the Constitution.” Though this
observation can only be treated as ‘obiter’ this is a novel approach in looking at the
judiciary as State under Article 12. Recommendation of National Commission on the
Review to Review the Working of the Indian Constitution (NCRWC) 

NCWRC has pondered over the question whether judiciary should be included
56

in the definition of ‘State.’ Commission expressed its desirability over including

State in Article 12. This recommendation was made on a comparative
constitutional plane by taking instances from UK Human Rights Act, 1998 and Bill
of Rights of South African Constitution. In UK ‘public authority’ under UK Human
Rights Act, 1998 is defined to include Court or Tribunal and it is unlawful for a
Court or Tribunal to act in a way incompatible with convention right as per the
Act. The Bill of Rights in South African Constitution is also applicable to the
57

judiciary as per the Constitution of the Republic of South Africa, 1996. 58 

Another strand of thought expressed by the judiciary is that inclusion of judiciary

in ‘State’ should be confined to Article 21 of the Constitution. Thus as per the
Commission a judicial order which is without jurisdiction and null and void is to be
treated as violation of Article 12. Authorities under the Control of Government of India 

(a) Local Authorities- The expression ‘local authorities’ has not been defined in the
Constitution but is defined in the General Clauses Act, 1897 so as to include
municipal committee, district board, body of port commissioners or other authorities.
These bodies must be legally entitled to or entrusted by the Government with the
control or management of municipal fund. Thus autonomy regarding the affairs
financial as well as administrative is necessary to fall under the term ‘local authority’
under Article 12. Further, Article 367 of the Constitution lays down that unless the
59 60

context otherwise requires, the General Clauses Act, 1897, shall subject to any
adaptations and modifications apply for the interpretation of the Constitution also.
Thus the definition can be well applied for the purpose of interpretation of Article 12.
According to the Court the criteria which must be present in order to hold an authority
as a local authority apart from the above are that it must have a separate legal
existence as a corporate body having an independent legal entity. It must have
function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be
elected by the inhabitants of the area. It must enjoy a certain degree of autonomy,
with freedom to decide for it questions of policy affecting the area administered by it. It
must be entrusted by the statute with the performance of civic duties and functions.
Finally it must have power to raise funds for the furtherance of its activities and
fulfillment of its projects by levying taxes, rates, charges or fees in addition to the
monies provided by Government or obtained by borrowing or otherwise. 61 

Applying this test it was held that Local authorities like Municipalities, District
62

Boards, Panchayats, Improvement Trusts, Port Trusts, and Mining 

63 64 65

Page 39 of 117 
Settlement Trusts etc. are local authorities and was also held by the court
through various judicial decisions. 
The question whether housing boards can be considered as 'local authority'
came before the Supreme Court in many cases. The decision reveals the difficulty in
holding an authority as State even if it performs an important public function. In
Housing Board of Haryana v. Haryana Housing Board Employees Union 66
the
Supreme Court held that the Housing Board is not a ‘local authority’ and denied to
make applicable Payment of Bonus Act to employees of Haryana Housing Board. The
reason was that it does not enjoy a ‘local fund’ and the members are not elected like
in other local authorities like panchayats, municipalities and also on the ground that it
is not an autonomous body as there is government control in the functions performed
by it. The legislature had given it the status of ‘local authority’ for the purpose of Land
67

Acquisitions Act. But Court held that the status is given only for a limited purpose. 68

Simultaneously, the Supreme Court also denied making it as ‘other authority’ under
Article 12. 
 Further, in M/S Andhra Pradesh Housing Board v. Department of IT the question
69

was whether Andhra Pradesh Housing Board is a government agency or not. Unlike
the former case, in the instant case the independent character of the Housing Board
was upheld. If in the first case the Housing Board was declared not an 'other authority'
for the government control, in the instant case it was declared as not as an ‘other
authority’ because it is functioning as an autonomous body. But in both cases the fact
that the Housing Boards are performing an important government function and the
element of public purpose in the respective activity was ignored by the Court. Thus it
can be found that rather than nature of the activity importance is given by the Court to
the tests or criteria’s in determining whether a body fall under the term `State' or not.
70

Other Authorities 

Article 12 ends up enumerating the authorities under Article 12 by referring finally

‘other authorities’ within the territory of India and under the control of government
of India. The term ‘authority’ is defined as the person or persons in whom
government or command is vested. It is also defined as a public administrative
71

agency or corporation having quasi-governmental powers and authorized to

administer a revenue-producing public enterprise. This dictionary meaning of the
72

word is clearly wide enough to include all bodies created by a statute on which
powers are confined to carry out governmental or quasi-governmental functions
and it was quoted with approval by the Constitutional Bench in Rajasthan State
Electricity Board and later this was reiterated by the Apex Court in Pradeep
73

Kumar Biswas. 74 

Interpretation of ‘Within the Territory of India or Under the Control Government of

India’ 

In the draft Constitution these words ‘under the control of Government of India’
were not there and it was subsequently made part of Article 12 by Dr. B.R.
Ambedkar to expressly guarantee fundamental rights to those who are staying in
the territories not under the control of Government of India for e.g. Trust
territories. It was added despite the oppositions grounded on the inconclusive
nature of Article 12 and especially of the words ‘other authorities’, which
extended the definition beyond the category of authorities usually known to
possess governmental power. But Dr. B.R. Ambedkar said that “anybody who
cared for the fundamental rights could not object to the definition.”
75 

Regarding the interpretation of the term ‘within the territory of India’ and
‘under 

Page 40 of 117 
the control of Government of India’ it can be seen that they are interconnected by
the word ‘or’ which implies that they are disjunctive. The term ‘under the control
 of Government India’ is meant to bring into the definition of State, not only every
authority within the territory of India but also those functioning outside, provided
they are under the control of the Government of India. In N. Masthan Sahib v.
76

Chief Commissioner, Pondicherry and in K.S. Ramamurthi Reddiar v. Chief

77

Commissioner, Pondicherry it was said that the words ‘under the control of the
78

government of India’ qualified the words ‘other authorities’ and not the territory. 
Thus, the term ‘within the territory of India’ may also imply that there are a set of
bodies that comes under Article 12 which are not under the control of Government of
India. Those bodies may be under the control of the State Government. But to
interpret the term in that way will cut down its scope of Article 12, also it may not be
intended by the framers since that fact is expressly mentioned in the Article. To
interpret the term in a very creative manner it is possible to say that ‘within the
territory of India’ might be narrower than ‘under the control of the Government of
India’ if it refers only to those bodies expressly set up under the statute and also this
interpretation would make the former part superfluous. Thus within the territory must
be read as covering a set of circumstances parallel to that of bodies ‘under the control
of government’ i.e. private bodies not under the control of government, but performing
governmental functions. This interpretation would be apt considering the philosophy
and historical background in which our Constitution was made. 

Judicial Interpretation of ‘Other

authorities’ 

The most important question regarding the interpretation of Article 12 is the

construal of the term ‘other authorities’ so that one can know as to what are the
entities against which the fundamental rights can be claimed. The answer to this
crucial question can be both broad and narrow, and whether one accepts either view
largely depends on one’s notion about the reach of the fundamental rights. 79 

Ejusdem Generis
Rule 

Ejusdem generis rule is the first test devised by the Court to construe the
meaning of ‘other authorities’ under Article 12. The expression ‘other authorities’
is used after mentioning government of India, State Government, Union
legislature and State legislature and local authorities, it is thus reasonable to
construe this expression in relation only to government or legislature. If we apply
80

this meaning it could only mean authorities exercising governmental or sovereign

functions. Thus to invoke the application of ejusdem generis rule, there must be
81

a distinct genus or category running through the bodies already named. 

This test was applied by Madras High Court in University of Madras v. Shantha
Bai wherein Madras High Court interpreted the term ‘other authority’ by applying the
82

test of ejusdem generis and by applying this test it was held that only such authorities
could be included within the term 'other authorities' as possessed governmental
power. The Court also drew distinction between government aided and maintained
institutions and held that University of Madras is an autonomous institution receiving
aid not only from the government but also from private sources like collection of fees
from the students and in such a case it cannot be held as a ‘State’ under Article 12. 83

This was a narrow interpretation of the term ‘other authorities.’ 

The above decision was open to many criticisms firstly, if the word ‘authority’ 

Page 41 of 117 
comprises only authorities exercising governmental functions, the expression local
authorities would have been sufficient for the purpose secondly, University is also
vested with the power to make subordinate legislations in the form of rules and
regulations but this fact was not mentioned from which it is evident that the Court had
considered it as a law making power without bearing any sovereign or peremptory
authority. Thirdly, the distinction between state aided institutions and state maintained
institution as is applied in Article 28(1)(3) and 29(2) cannot be imported to interpret
84 85

the general provisions of Article 12 and 15(1) because the purpose of both articles are
totally different. The criteria for determining whether an authority falls under Article 12
cannot be made on the ground of such a narrow distinction as the question relates to
the enforceability of fundamental rights. This was a very narrow interpretation of other
authorities since it restricts the application of Article 12 to bodies exercising sovereign
power. 

Sovereign Power
Test 

The criteria to find out authority as ‘other authority’ under Article 12 was further
evolved in the case of Rajasthan Electricity Board v Mohanla1 wherein the Apex
86

Court overruled Shanta Bai and declared incorrect its basic thesis that for the
interpretation of 'other authority' in Article12 ejusdem generis rule would be
inapplicable because there was no common genus present in the authorities specially
enumerated in the Article. In the instant case Rajasthan Electricity Board was
87

unanimously held to be a ‘State.’ But the uncertainty over the criteria to be adopted in
holding an authority as State is also reflected in the opinion of the judges. 
According to the Court only such statutory or constitutional authorities are ‘state’
which possesses power to make law and to administer such law or have the power to
make binding directions, the disobedience of which is punishable as offence. It is
pertinent to note that according to this holding it is immaterial if such bodies are
performing commercial functions because under Article 19(g) and 298 the state is
88

specifically empowered to carry on any business or trade. The importance was

attached to the fact that the Board was established by a statute. This was the finding
made by Bhargava J. 89 

Though Shah J. agreed with the above order proposed by Bhargava J. he

disagreed with the latter’s view that every constitutional or statutory authority on
whom powers is conferred by law is ‘other authority’ within the meaning of Article 12.
According to him ‘authority’ means a body invested with ‘sovereign power’ to make
rules and regulations and to administer or enforce them to the detriment of the
citizens and such a body will fall within the definition of State in Article 12. He also
pointed out that if fundamental rights are available against the state, the state also
has the power to put restrictions under Article 19(6) and thereby remarked that the
true content of the expression ‘other authority’ in Article 12 must be determined in the
light of this dual phase of fundamental rights. He did not concur to the wide
proposition laid down by Bhargava J. that every statutory body on which powers was
conferred by law as ‘State.’90 

Thus we can see two approaches in interpreting Article 12 one is purely based on
the standpoint of creation of a body/authority statutory or constitutional and the other
is from the standpoint of Part III of the Constitution and the limitation upon
fundamental rights of the individual. As per Shah J.’s judgment bodies that can affect
91

those rights in a manner similar to that of the state are assimilated to the state.
Through this decision Court has differentiated the sovereign and non- sovereign
functions of the State. Sovereign power means power to make rules or regulations
and to enforce and administer them to the detriment of the citizen and others. The
approach of Shah J. is a wide approach to 

Page 42 of 117 
fundamental right approach since it posits the individual and individual’s right at the
centre. It is also in consonance with the limitations set by the constitution on
fundamental rights. As per this approach if the private bodies like cooperative
society’s which has the power to make bye-laws, rules etc. will fall under Article 12 if
they encroaches fundamental rights of the individual. 

Agency or Instrumentality of State

Test 

The terms instrumentality or agency are not to be found place in Article 12. It is
through the process of judicial that they have been included as falling within the net of
Article 12 subject to satisfying certain tests. If we look into the definitions of
instrumentality, Black’s Law Dictionary defines instrumentality as “a means or agency
through which a function of another entity is accomplished, such as a branch of
governing body.” Whereas agency is defined as “fiduciary relationship created by
express or implied contract or by law, in which one party (the agent may act on behalf
of another party (the principal and bind the other party by words or actions.” Having
referred the dictionary meaning it is important to analyze the judicial view in the
interpretation of ‘other authorities.’ Following is explained landmark decisions on the
point in chronological order through which Court has developed the concept of
instrumentality or agency test which stands as ever shining criteria to determine ‘other
authorities’ as State under Article 12 of the Indian Constitution. 
The test of instrumentality or agency was put forward by Mathew J. in Sukhdev
Singh v. Bhagatram. The majority decision in Rajasthan Electricity Board was clearly
92

the controlling precedent in this decision but the judges differed in its correct
interpretation. Therefore the Corporations were State because they were statutory in
origin and had been conferred with power to make regulations which had the status of
law and law making is a sovereign power of the state. It is pertinent to note that only
ONGC had the power to issue binding directions which could be made punishable as
an offence, IFC and LIC does not possess such power. So Mathew J. relied on some
other justification for calling corporations state relying on the functional aspect. As per
Mathew J. the State unlike in the past is a ‘service corporation’ obliged to undertake
welfare obligations under Part IV. When corporations act as arms of the State to
exercise those functions they must be regulated by Constitutional limitations. To
substantiate this view doctrine of State Action as applied in US was relied upon.
Relying upon the US position and the decision in Marsh v. Alabama Court said that it
93

is not necessary that the entity or organization must wield authority in the sense that it
must have power to issue commands in the Austinian sense, or that it must have
sovereign power to pass laws or regulations having the force of law. 
It was observed that the power of the large corporations does not come from the
statutes but rather they acquire power because produce goods and services upon
which the public comes to rely. They play a vital role in the lives of many people and
are a supply line of the country. Because of these reasons it was held that
corporations are no longer a private phenomenon and so governing power which lies
with the corporation must be subjected to the same constitutional limitations as that of
other public bodies like in the US. 

What is an Agency or Instrumentality of

State? 

In this case a more conceptual understanding of Article 12 was given by Mathew

J. in his concurring opinion in Sukhdev Singh. He found Article 13 (2) as a limitation
upon Article 12. Borrowing the dictum in Civil Rights case he said that it is the state
94

action of 

Page 43 of 117 
a particular character that is prohibited individual invasion of individual rights is not
covered under Article 13 (2). Taking hues from the US position of state action he
95

devised some formulas to find out state action in an alleged activity. Does any amount
of self-help however inconsequential make an act something more than an individual
act like a direct financial aid from the state received by a privately managed and
owned body. But financial aid alone does not render the institution a state agency a
finding of it plus an unusual degree of control over the management and policies will
render the operation a state action. Public functions test was rendered as a major
96

test. If the given function is of such public importance and so closely related to
government functions as to be classified as a government agency then even the
presence or absence of state financial aid might be irrelevant in making a finding of
state action. Court also elaborated the various ways of state aid in a private operation
97

than by direct financial assistance. It can be through giving the organization the power
of eminent domain, grant of tax exemption, grant of monopolistic status. All these are
relevant in making an assessment whether the operation is private or savors of state
action.98 

Mathew J. was explicit about the Public Functions test as a test to find out
whether a body/authority is an instrumentality or agency of the state. For
explaining the test he took cases from USA wherein State Action doctrine was
applied by the Court against purely private actors unlike public corporation which
was called in question in the instant case. Though his decision reflected the
99

view that even private corporations need to be considered as a State at the

concluding part he washed off his hand in the matter by making it clear that he
does not have any opinion on the question whether private corporations or other
like organizations though they exercise power over their employees which might
violate their fundamental rights. 100 

Uncertainty also lies in the fact when he stated the two preconditions for a
subjecting Corporation to the Constitutional limitations. The public corporation should
be created by State and the existence of power in the corporation to invade the
Constitutional right of the individual. The major premise of this conclusion was that the
Constitution should wherever possible be so construed as to apply to arbitrary
application of power against individuals by centres of power. Though in Sukhdev
101

Singh’s the Court attempted to extend the meaning of State but could not come to a
logical conclusion as to how and when an authority can be called as other authority
under Article 12. 102 

Sabhajit Tewary v. Union of India also left doubt as to whether Mathew J.

103

intended to apply his test to registered societies. The case was decided on the same
day he decided Sukhdev Singh. The question was whether Centre for Scientific and
Industrial Research (CSIR) is a State or not. Although government recognized that
government takes special care in the promotion, guidance and co-operation of
scientific and industrial researches, establishment or development and assistance to
special institution or departments of the existing institutions for scientific study etc., the
Court did not find any State Action in its activities mainly on two premises – (a) the
society does not have a statutory character like ONGC, LIC, IFC since it is a society
(b) the previous judgments of the Court denied protection under Article 311 104 to
Corporations which has an independent existence under the Government. 105 

Government Control
Test 
 The subsequent case in determining the criteria for ‘other authority’ was R.D. Shetty
v. International Airport Authority. The matter whether International Airport 
106

Page 44 of 117 
Authority was a State could have been decided by following the majority decision in
Sukhdev Singh. But Bhagwati J. who delivered the judgment of the Court used the
agency test as an alternative ground for the decision and pointed out that the
corporations acting as instrumentality or agency of government would obviously be
subject to the same limitations in the field of administrative and constitutional law as
the government itself. It was also observed that there cannot be any ‘cut and dried
formula’ for determining agency and instrumentality of state. 
The American doctrine of State Action where “extensive and unusual financial
assistance” from the government is a relevant consideration was applied in the instant
case, to a situation where there is unusual degree of state control over the policies
and management of the corporation. It is to be noted that in this case the statutory
107

character of the authority was not much noticed. As per the Court what is material is
“whether the Corporation is an instrumentality of the Government in the sense that a
part of the State is located in the Corporation and though the Corporation is acting on
its own behalf and not on behalf of the Government its action is really in the nature of
State Action.” While Mathew J. was unclear about the form in which corporate agency
brought in to existence which will make it amenable to agency or instrumentality test,
on the other hand Bhagwati J. was explicit in his opinion when he said “it is not the
outer form that mattered, but its substance” Finally the following questions were held
as important to determine whether a corporation is an instrumentality or agency of the
government. 
a. Does the state give financial assistance to the corporation, if yes, to what
extent? b. Is there any control of the management and policies of the
corporation by the 
state if yes, the extent of such
control? 

c. Does the corporation enjoy any monopoly status which is state protected or
state 
conferred? Establishment of cumulative effect of all the factors is necessary. The
presence of only a single factor will not field a satisfactory answer. The Court
108

has also given importance to public functions test and illustrated a test as well in
order to ease out the difficulty in determining what functions are governmental
and what are not. As per the Court “the modern government operates a multitude
of public enterprises and discharges a host of other public functions. If the
functions of the corporation are of 
 public importance and closely related to governmental functions, it would be a
relevant factor in classifying corporation as an instrumentality or agency of
government.” 
To substantiate his view on public functions test Court relied on the American
case of Marsh v. Alabama wherein it was held that a town may be privately owned
109

and managed but that does not necessarily allow the corporation to treat it as if it was
wholly in the private sector. The Court added by quoting from Marsh that “the more an
owner opens up his property for his advantage for use by the public in general, the
more does his right become circumscribed by the statutory and constitutional rights of
those who use it.” Another finding by the Court was that the function exercised by the
corporation was in the nature of municipal function and it was therefore, subject to the
constitutional limitations placed upon State action. Thus in the instant case public
functions test was treated in a separate pedestal. In conceptualizing the test the Court
has done nothing better than importing the view of Mathew J. in Sukhdev. 

Government Instrumentality
Test 

Page 45 of 117 
In R.D. Shetty Bhagwati J. reiterated with approval Mathew J’s approach in
Sukhdev Singh’s Case wherein it was held that an entity would be treated as
110

an 

instrumentality of the State, “where a Corporation is wholly controlled by Government

not only in its policy making but also in carrying out the functions entrusted to it by the
law establishing it or by the Charter of its incorporation.” Further, the Court held that a
corporation created by statute which is otherwise autonomous in its functioning will
answer to the test laid down in Article 12 when “extensive and unusual financial
assistance is given and the purpose of the Government in giving such assistance
coincides with the purpose for which the corporation is expected to use the assistance
and such purpose is of public character.” The Court also noted that the existence of
monopoly, which is either State conferred or State recognized, may also lead to an
inference of “State Action.” Importantly, the Court hinted at the importance of the
functional test and observed that, “the public nature of the function, if impregnated
with governmental character or ‘tied or entwined with Government’ or fortified by
some other additional factor, may render the corporation an instrumentality or agency
of Government.” 
The scope of Article 12 was further widened in Som Prakash Rekhi v. Union of
India, 111 wherein the Court observed that, “if only fundamental rights were forbidden access to corporations, companies,
bureaus, institutes, councils and kindred bodies which act as agencies of the
administration there may be a breakdown of the rule of law and the constitutional
order in a large sector of governmental activity carried on under the guise of jural
persons,” and held that a public corporation (Bharat Petroleum Corporation) would fall
under the definition of Article 12. 
The subsequent case Som Prakash Rekhi v. Union of India was set in the
112

background of Nationalisation of Burmah Shell ltd. by Bharat Petroleum. By

applying the criteria in International Airport Authority the Supreme Court held that
Bharat Petroleum Corporation registered as a Company under the Companies
Act, is 

State within the enlarged meaning of Article 12. By noting the relevant provisions in
113

the Burmah Shell Act, 1976 Court held that the Corporation is clearly a creature of the
statute, a limb of the government, an agency of the State and is recognized and
clothed with rights and duties by the statute. The Court embarked upon the growing
governmental functions and observed that the governments, its agencies and
instrumentalities, corporations set up or owned by the Government should be bound
by the equality clause. The Court also took charge of its responsibility under Part III
and IV and said that if the corporations are liberated from the basic obligations of Part
III there would be a treachery on the founding fathers and a mockery of the
Constitution.114 

While determining the criteria to determine instrumentality or agency Court culled

out five criterions from R.D. Shetty and it was laid down on the basis of financial
support in the form of holding of entire share capital by the state, existence of deep
and pervasive state control, performance of functions which are of public importance
or closely related to governmental functions, state conferred or protected monopoly
status and transfer of a department of the Government to the Corporation. The Court
distinguished the instant case from Sabhajit Tewary and supported the wide meaning
adopted in Rajasthan Electricity Board that it is not material if some functions of the
body are commercial functions and that the expression ‘other authority’ is wide
enough to include all constitutional and statutory authorities on whom powers are
conferred by law. The Court altogether rejected the criteria based on statutory
character of the body. 
In the end Court further expressed its opinion that ‘other authorities’ under the
control of the Government of India’ is plain and there is no reason to make exclusions
on 

Page 46 of 117 
sophisticated grounds such as that the legal person must be a statutory corporation,
must have power to make laws, must be created by and not under a statute and so
on.115 

The subsequent decision was Ajay Hasia v. Khalid Mujib. Since the question
116

involved was whether a college registered under the Society's' Registration Act is an
'other authority' or not, the ratio in Sukhdev and International Airport Authority would
have been became the obiter but Bhagwati J. by applying Instrumentality test held
 that college was a ‘State.’ From the beginning the Court relied on Governmental
control as the determining test for Article 12. Taking hues from Som Prakash Rekhi
Court followed an approach similar to looking from behind the corporate veil. The 117

most important aspect of the judgment lies in the matter that the court held that it is
immaterial whether a particular entity was a statutory corporation created by law, or a
government company incorporated in accordance with the provisions of Companies
Act, 1956 or a mere registered society. What mattered was the substance, whether
the particular entity had enough nexus with the government to be called it as an
agency or instrumentality. Bhagwati J. specified the following six considerations to
118

be taken into account in order to determine whether an ‘authority’ is an instrumentality

or agency of State. 
(a) whether the entire share capital of the corporation is owned by the
Government (b) whether the financial assistance given by the State is enough to
cover the entire 
expenditure of the entity; (c) whether the Corporation enjoys a monopoly status which
is either Government 
conferred or Government protected; (d) whether there is existence of deep and
pervasive State control from the part of the 
Governmental; (e) whether the functions of the entity are of public importance or
closely related to 
Governmental functions; (f) whether a Government department is
transferred to a corporation. 
In the instant case it was said that the Courts should be anxious to enlarge the
scope and width of fundamental rights by bringing within their sweep every authority
which is an instrumentality or agency or through the corporate personality of which
government is acting, so as to subject the government in all its myriad activities,
whether through natural persons or through corporate entities, to the basic obligation
of Fundamental Rights. It was made clear that the genesis of the corporation is
immaterial and that that the concept of instrumentality or agency of the government is
not limited to corporation created by a statute but is equally applicable to a company
or society. 
What can be seen regarding public functions test is that the Court has relegated
it as one of the tests unlike in Sukhdev Singh and R.D. Shetty. The Court has diluted
functional aspect of the case and instead gave importance to governmental control
which could be either administrative or financial or both. The Court after examining
the principles to the facts of the case concluded by saying that “the control of the state
and the Central Governments is indeed so deep and pervasive” that the society was
undeniably and instrumentality or agency of the state under Article12. The Court
119

paid no attention to the fact that functions performed by the society i.e. higher
education in its analysis. 
Applying the test of ‘government control’ in Ajay Hasia, subsequently in P. K
Ramachandra Iyer v. Union of India, and similarly in B.S. Minhas Indian
120 121

Council of Agricultural Research and Indian Statistical Institute respectively was

held as an “other authority” because the Central Government exercises deep and
 pervasive control over them. But in Chander Mohan Khanna v. National Council
of 

Educational Research and Training, Supreme Court held that NCERT is not an
122

‘authority’ under Article 12 because the exercise of control by the government was
limited and because 

Page 47 of 117 
the activities of it are not wholly public functions. The final triumph of governmental
control test can be seen in Pradeep Kumar Biswas with the majority decision by
Ruma Pal J. 123 

(f) Deep and Pervasive Control

Test 

In Pradeep Kumar Biswas v Indian Institute of Chemical Biology the Hon'ble

124

Supreme Court overruled the decision of the Court in Sabhajit Tewary. The 125

Court distinguished the narrow test as applied in Shanta Bai and broader
approach to the interpretation to Article 12 i.e. the interpretation of Article 12 from
Rajasthan Electricity Board and onwards. The Court referred the ‘voice and
hands’ approach in Sukhdev Singh and R.D. Shetty and in the end Court
reformulated the agency and instrumentality test and it was held that “the picture
which ultimately emerges here is that the tests formulated in Ajay Hasia are not a
rigid set of principles so that if a body falls within any one of them it must ex
hypothesi, be considered to be State within the meaning of Article 12. To the
Court the question in each case would be — whether in the light of the
cumulative facts as established, the body is financially, functionally and
administratively dominated by or under the control of the Government. Such
control must be particular to the body in question and must be pervasive and
must not be merely regulatory. If this is found even if the body is created under a
statute it is State.” 
As far as CSIR is concerned it is a non-profit making body brought into existence
-

at the initiative of the Government to serve a definite governmental objective of

planned industrial development and Government plays a dominant role in the
governing body of CSIR. It also receives substantial funds from the government and
the assets and funds of CSIR are owned by the government. To cap it all, the Union
Government had issued the order that cases relating to service natters of CSIR
employees would be adjudicated by the Central Administrative Tribunal. Taking into
account all these factors it was held that CSIR is administratively, financially and
functionally controlled by the Government and thus it is held as a State under Article
12 of the Indian Constitution. Thus with Pradeep Kumar Biswas the focus of the
126

instrumentality or agency test shifted from the six fold test in Ajay Hasia to the “deep
and pervasive control” test. After Pradeep Kumar in the subsequent cases Court
applied the six fold test and in addition to it the ‘deep and pervasive control’ test in
Pradeep Kumar Biswas. With the reformulation of agency or instrumentality test in
Pradeep Kumar Biwas, there is no further scope for extension of the reach of
fundamental rights via Article 12 of the Constitution, the decision in is a bottleneck for
all further expansion of Article 12. Though it overruled the narrow interpretation in
Sabhajit Tewary there appears to be dim prospects of government patronized
authorities bring recognized as State after Pradeep Kumar Biswas as well as Zee
Televisions. It is to be noted that there is a difference between government
127

sponsored and government patronized authorities. According to Pradeep Kumar

Biswas, mere government patronization is not enough to hold an authority as ‘State’
under Article 12. There must be deep and pervasive governmental control over the
financial, administrative and functional activities of the authority. If all these are
cumulatively established then only an authority becomes an instrumentality or agency
of the State. 
A compelling factor in the dissenting opinion was the objection to the use of the
term ‘instrumentality or agency’ as synonymous with the term ‘State’ under
Article12. The Court made rational opinion that if an entity is veiled or disguised
as a Corporation or society or in any other form found to be an instrumentality or
agency of the State then in that case it is a State in itself in narrower sense acting
through the instrumentality 

Page 48 of 117 
or agency and included in the ‘State’ in the wider sense for the purpose of Article
12. Having found an entity, juristic or natural to be an instrumentality or agency of
the State, it is not necessary to call it as an instrumentality or agency of the State
or the Central Government and it is an ‘authority’ within the meaning of Article 12
by entirely obliterating the dividing line between ‘instrumentality or agency of
State’ and ‘other authorities.’ This trend of the judiciary was found to have been a
confusion and misdirection in the thought process. Further it was stated that an
authority must be an authority sui generis to fall within the meaning of the
expression ‘other authorities’ under Article 12. A judicial entity, though an
authority, may also satisfy the test of being an instrumentality or agency of the
State and in such cases such an authority may also be an instrumentality or
agency of State but not vice versa. 
The Minority decision in the instant case altogether gives a clear picture of the
meaning of ‘other authorities’ in Article 12, that the authority should be created by or
under a statute functioning with the liability or obligation to the public. Further, the
statute creating the entity should have vested that entity with power to make law or
power to issue binding directions amounting to law within the meaning of Article 13 (2)
governing its relationship with other people or the affairs of the people-their rights,
duties, liabilities and other legal relations. In either case it should have been entrusted
with such functions as are governmental or closely associated therewith by being of
public importance or being fundamental to the life of the people hence governmental.
It is this criterion which in a given case depending on the facts and circumstances
makes an authority as an instrumentality or agency of the State. 
On the above basis various tests laid down in Ajay Hasia was put under two
categories 1 2 and 4 for determining government ownership and control and 3 5
st nd th128 rd th

and 6 are the functional tests. Initially the tests were considered relevant for
th 129 130

finding out whether an entity is an instrumentality or agency of State but when the
difference between authority and instrumentality or agency obliterated these factors
were considered relevant for testing if an ‘authority’ is a State or not. To determine
instrumentality or agency neither all tests are required to be answered in positive nor
would a positive answer to one or more tests suffice rather a combination of one or
more of the relevant factors would be relevant tin identifying the real source of
governing power, if necessary by piercing the veil. The minority decision contains
factors which are very much relevant in the interpretation of Article 12 mainly with
regard to the difference between term ‘other authority’ under Article 12 and the test of
‘instrumentality or agency.’ Both are different entities yet having some overlapping.
The difference is mainly based on the degree of control exercised by the government
over the body in question. The decision also reminds the alternative way of reading
‘other authorities’ with ‘within the territory of India’ or ‘under the control of government
India’ a long forgotten phrase in Article 12. The decision also adhered to the majority
view that a cumulative effect of all the tests and a deep and pervasive control of the
government are necessary to hold an authority as an agency or instrumentality of
State. The minority view though good at some points, presents a very narrow and
constricted interpretation of ‘other authority’ and in the present scenario when the role
of the state has underwent a paradigm shift this narrow construal will not do any good
for the people. A right based approach rather than a rule oriented approach towards
Article 12 is a fundamental right is what is required today. 
Followed by Pradeep Kumar Biswas, in Zee Telefilms & Ors .v. Union of India
&Ors., it was contended that taking into account the broad interpretation of Article 12
131

Board of Control for Cricket in India (BCCI must be held as a State. As per the
majority judgment BCCI is an autonomous body and there is little control of
government over the functions of it, and such control is purely regulatory which will
not make it a ‘State’ under 

Page 49 of 117 
Article 12 as per Pradeep Kumar Biswas so as to indicate pervasive state control.
Though the Board controls the right to profession of 
131(2005) 4 SCC 649 (In this case the petitioners were the bidders for the tender for the grant of exclusive
television rights for a period of four years. After accepting the tender for a sum of
Rs. 92.5 crore, BCCI cancelled the entire process of tender arbitrarily on the
ground that no concluded contract was reached between the parties. In fact, in
response to a draft letter of intent sent by the Board, the petitioners agreed to
abide by the terms and conditions of the tender. The order of the Board
 terminating the contract was in question in the writ petition under Article 32
contending that the action on the part of the Board terminating the contract was
arbitrary and thus violates of Article 14 of the Constitution and under Article 19
(1)(g) of the Constitution, according to the majority verdict unlike Article 17, 21
etc., Article 19 (1) (g) cannot be claimed against non- state actors. But despite
132

highlighting this fact, it, was not accounted for. Thus according to the majority the
petitioners has failed to establish the prerequisite for invoking the enforcement of
fundamental right under Article 12 i.e. the violator should be a State first. 133 

The Court followed the precedent in Pradeep Kumar Biswas and concluded that
the Board is not financially, functionally and administratively under the control of the
government and so it cannot be a State under Article 12 and that mere regulatory
control by the Government will not suffice to fulfill the requirements of Article 12. It 134

was held that the tests formulated in Ajay Hasia are not a rigid set of principles so that
if a body falls within any one of them it must, ex hypothesis, be considered to be a
State within the meaning of Article 12. The majority judgment does not leave any
scope for further extension of the reach of the fundamental rights via Article 12 of the
Constitution and it is pertinent to note here that due to the strength of the Bench, the
ratio in this case would be binding on all other Constitutional Benches, comprising of
five judges unless the same were to be overruled by a larger bench. Court also noted
that the State is distancing from its socio-economic obligations and is concentrating
more on governance than on business. Therefore the situation prevailing at the time
of Sukhdev Singh is not in existence. So there is no need to expand the meaning of
Article 12. 
According to the minority opinion the though a private body, BCCI discharges
public duties which are in the nature of state functions like selection of team, making
rules that govern the activities of the cricket players, umpires and other etc. These
activities are all in the nature of state functions and therefore BCCI is an
instrumentality of State. It enjoys a virtual monopoly over the game of cricket. It
represents India in international tournaments. All these must be held to have changed
the character of BCCI from private to public. Instances were taken from the judicial
decisions and public laws of other countries and thereby opened a forum for 
 Page 50 of 117 
judicial review of actions taken by BCCI when it encroach the fundamental rights. The
necessity to keep the law in consonance with the development taken place after
independence was also stressed by referring John Vallamattom and the concept of
135

right to development as a human right. 136 

By applying public functions test to the facts it was said that there cannot be a
single test for defining public functions. Statutes are not the only means of
conferring public functions in a body, it can be assumed voluntarily or through
‘prescriptive patterns of conduct.’ The decision also stated tests to find State
137

Action, like whether the body is a public authority or has public duty to perform,
obligation to protect public duties, regulation of fundamental right to profession or
vacation of a citizen, presence of de jure or de facto monopoly, outsourcing of
state’s legislative function, presence of positive obligation of public nature.
Regarding applicability of Pradeep Kumar Biswas it was said that it would have
application only when the body is created by the State itself for different purposes
but incorporated under the Indian Companies Act or Societies Registration Act,
the questions raised questions raised in Pradeep Kumar Biswas were neither
canvassed and there was no necessity for that and therefore the case cannot be
treated as a binding precedent under 141 of the Constitution. 138 

The minority decision was well thought out it altogether placed BCCI as ‘other
authority’ under Article 12 by drawing out new criterions like coercion test, joint action
test, public function test, entertainment test, nexus test, supplemental governmental
activity test, and the importance of sport test. The decision has thus combined many
factors and viewed BCCI as a power centre in the era of globalization. The minority
was also right in their rational behind rejecting the ratio in Pradeep Kumar since the
functions performed by BCCI cannot be compared to an educational society or such
other public corporations cannot be equated at any cost. 
After analyzing the tests it can be seen that the approach of the Court regarding
the interpretation of Article 12 is cumbersome. In US the position is much more clear
and flexible. In India irrespective of the body in question and the nature of the rights
involved the same tests are applied again and again. The test of instrumentality or
agency as a condition precedent to establish an authority as ‘other authority’ is quite
stringent especially in situations when the State is withdrawing from the welfare
activities. Thre I no clarity in determining what is a public function, the trend adopted
by the judiciary makes functions of private action/actor, private function forever. The
Court is not willing to go beyond the earlier precedents. But in cases involving
interpretation of ‘other authorities’ a case to case analysis will be more apt rather than
devising a straitjacket formula for all cases. 

Bodies under ‘Other

Authority’ 

Public
Corporations 
 A public corporation is a hybrid organization combining the features of a business
company and a government department. Their powers are set out in the Acts which
139

created them and they are empowered to make regulations subject to the doctrine of
ultra vires. Corporations have emerged in Indian scenario on account of the
140

transformations in the nature of governmental functions in a Welfare State and they

are regarded as the third arm of the government. The genesis of the emergence of
corporations in India as instrumentalities and agencies of government can be found in
the Government of India Resolution on Industrial Policy. The 
141

Page 51 of 117 
reason behind this was that the civil service was found inadequate to discharge
governmental functions, which were of traditional vintage. Article 298 of the Indian
Constitution also empowers the State to carry on a business or trade by virtue of its
142

'executive power.' 143 

In India, Supreme Court in a number of decisions held that Public Corporations

and Undertakings fall within the definition of State, therefore these corporations and
undertakings are subject to Part III of the Constitution. Now there is little
indeterminacy as to the status of Corporation in relation to Article 12 of the
Constitution. Thus State Bank of India, Food Corporation of India, State Financial
144 145

Corporation, Central Inland Water Transport Board, Steel Authority of India

146 147

Limited, Warehousing Corporation etc. would fall in the category of ‘State’ and their
148 149

acts have to be in conformity with the Fundamental Rights. 

In the 145 Report of the Law Commission, Bureau of Public Enterprises have
th 150

recommended that Public Sector Undertakings must be excluded from the purview of
Article 12 so as to ensure avoidance of judicial review and interference by the Courts
in the functioning of these Undertakings. But it was found to be-not-a proper measure
to-be adopted for-dealing with the difficulties experienced by PSU in the matter of
award of contracts, rejection of tenders, service matters and the like arising out of the
present applicability of Article 12 to such undertakings. It was also concluded that
such an amendment will be against the constitutional philosophy and 

corporations which has become the third arm of the Government. They are
regarded as agencies of the Government.”) As observed in RD. Shetty. would
take away a large slice of activities, conducted practically under the control of the
State, from the ambit of fundamental rights especially Article 14 of the
Constitution. 151 

Government
Companies 

Apart from corporations created by statute there are a number of non- statutory
companies sprung up with the advent of State into the commercial sphere. These
 are to all intents and purposes, limited liability companies registered under the
Companies Act. But owing to the fact that the Government is the owner of the
share capital or the major portion thereof, these companies raise the question
whether they should be treated as government or public bodies for any purposes.
It was held by the Supreme Court that “unless entrusted with any public duties,
by statute or it constitutes an agency of the government,” no relief can be had
152

against a government company, in a proceeding against Article 32 or 226 of the

Constitution. 153 

Notwithstanding the predominant Government control, Government Company

was not identified with the Government and the employees could not invoke Article
311 (2) The reason is that there is no relationship of master and servant between
154

these employees and the State: The status of a government company is only for the
purposes of that Act, namely, to confer upon it special rights and obligations. Later the
position regarding the applicability of Article 311 (2) transformed with the decision of
Supreme Court in U. P. Warehousing Corpn. v. Vinay, and Kalra v. Projects &
155

Equipment Corpn. and it was held that even though Article 311 (2) may not be
156 157

attracted to a government company yet, when a government company or a public

corporation constitutes an agency or instrumentality of the State for the purposes of
Article 12 of the Constitution, the principles underlying Article 311 (2) should be
applicable to employees of this 

Page 52 of 117 
category of government companies as for principles of natural justice read with Article
12. As regards Article 12 of the Constitution too, the consensus of opinion in the
158

High Court was that notwithstanding the share or management control by the
government, a government company did not lose its juristic entity as a company
registered under the Companies Act, 1956 so as to be identified with the State under
Article 12. But this stand was later changed with the decision of the Supreme Court in
R.D. Shetty and Ajay Hasia. In Som Prakash Rekhi v. Union of India wherein for
159 160 161

the first time Supreme Court encountered the question as to whether a Government
Company is a ‘State’ or not, and it was held that Government Company is a ‘State’
under Article 12.162 

For the application of state agency it is immaterial whether a corporation has

been created by or under a statute. What is essential is that the company must
163

exercise some function of the government and should be acting on behalf of the
government and not on its own behalf. By applying this test Central Water Transport
164

Corporation ltd,v. Brojo Nath Gangulay a government company was held as a ‘State’
165

within the meaning of Article 12. Court held an unconscionable term in the
employment contract of the respondent as invalid as per Section 16 and 
 23 of Indian Contract Act, 1872 as it afforded only a less bargaining power to
166

the employee. The term was held to be opposed to the public policy as it affected
the rights and interest of the employees and created a sense of insecurity. 
In Air India Statutory Corporation & ors.v. United Labour Association & ors., 167 the
Court directed that all contract workers shall be regularized as employees of the Air India Ltd. It is pertinent to
note the view expressed by the Court, according to the Court “while interpreting
the Act, judicial orientation should shift towards public law orientation rather than
private law. Such an interpretation would elongate the spirit and purpose of the
Constitution. The individual interest must give way to the broader purpose of
establishing social and economic justice.” 168 

But subsequently, this case was overruled in Steel Authority of India ltd. v. National
Union, Water Front Workers wherein Court held that abolition of prohibition of
169

contract labour under Section of the Contract Labour (Regulation and Abolition) Act,
1970 will not automatically become the employees of the principal employer. The
main thrust behind this decision is the New Economic Policy of 1991 and not the
socio economic principles which were put into limelight in Air India. The decision also
restricted the scope of public law by holding that the divide between public law and
the private law is material only with regard to the remedies availed for enforcing rights
and not in regard to interpretation of the statute. In BALCO v. Union of India it was 170

held disinvestment which is a policy decision of the government have consistently

refrained from interfering economic decisions because of the fact that economic
expediencies lack administrative adjudication. It was also held that Article 12 does not
place any embargo on an instrumentality from changing its character. By holding so
Court invalidated the claim of the employees of the BALCO that the disinvestment
policy of the Union to disinvest and transfer 51% of shares of Bharat Aluminum
Company ltd. is invalid. It was the claim of the employees that disinvestment affects
the rights given to them under Article 14 and 16 of the Constitution. 
As far as the economic or political policy decision is concerned government
enjoys immunity and the Court can strike down a policy decision only if it is arbitrary,
discriminatory or mala fide. This position was affirmed in the recent case of State of
171

Madhya Pradesh & ors. v. Mala Banerjee wherein it was held that “where a policy is
172

contrary to law or is in violation of the provisions of Constitution or arbitrary or

irrational the Courts must perform their constitutional duties by striking it down.” 
In Mysore Paper Mills ltd. v. Mysore Paper Mills Officers' Association Mysore 173

Paper Mills was held to be a State since more than 97% of the 

Page 53 of 117 
share capital was contributed by the state government and the company was
entrusted with important public duties obliging to undertake, permit, and sponsor
rural development. Besides out of 12 directors 5 are government and department
persons and other directors were also to be appointed with the concurrence of
the government which shows that the state government has deep and pervasive
control over the said company. In Balmer Lawrie & Co. Ltd & ors. v. Partha
 Sarathi Sen Roy & ors., by applying the test in Pradeep Kumar Biswas Court
174

held that the company is an ‘authority’ amenable to writ jurisdiction of the High
Court.175 

Thus we have seen the cases where the public policy of the realm and the
fundamental rights of the individual came face to face. Though Court can strike out
public policy it can be done sparingly. In the era of LPG most of the policy decisions
are done through executive actions and with least consideration of the individual
rights. In such situations by giving leeway to the policy decisions, the judiciary should
be giving wide scope for public policy at the cost of fundamental rights of the
individual. It can also be seen that after Pradeep Kumar Biswas the cumulative effect
of all the criteria is a mandatory condition to hold an authority as ‘State’ and it limits
the scope of Article 12 as well as of fundamental rights. 

Registered
Societies 

Applying the rationale in Ajay Hasia several non-statutory bodies were also held
to be authorities under Article 12. The Council for Indian School Certificate
Examinations (CBSE), a society for imparting education and holding examinations
was held to be an authority in Vibhu Kapoor v. Council of ISC Examinations Indian 176

Council of Agricultural Research Sainik School were held to be an authority since it

177

was ‘fully funded’ by the Central and state Government and the Central Government
exercises complete control over it. Similarly, in Sheela Barse v. Secretary, Children
Aid Society, a registered body having Chief Minister of Maharashtra as the ex-officio
178

President and the Minister of Social Welfare as the Vice President was held to be
amenable to Article 12. 
In Tekraj v. Union of India the Supreme Court has held the Institute of
179

Constitutional and Parliamentary Studies as not being an ‘authority’ under Article 12.
The institute was receiving grants from the Central Government and has the
President of India, Vice-President and the Prime Minister among its honorary
members. The Central Government exercises a good deal of control over the
Institute. But in spite of Government funding and control, the Court has refused to
hold it as an authority with the remark that “ICPS is a case of its type-typical in many
ways and the normal tests may perhaps not properly apply to test its character.” 
Similarly, in Chander Mohan Khanna v. NCERT, 180
National Council of
Educational Research and Training, a largely autonomous body was held to be
outside the purview of Article 12 since its activities are not wholly related to
governmental functions; government control is mostly confined to ensuring that its
funds are properly utilized and because its funding is not entirely from the government
sources. In Zee Telefilms the Court held that ‘BCCI’ is not a State taking into account
the fact that it is not financially, functionally and administratively under the control of
the Government. Subsequently in Sindhi Education Society v. Chief Secretary, Govt.
of NCT of Delhi it was held that unless all the three aspects of state control viz;
181

‘financial control,’ ‘managerial control’ and ‘administrative control’ are exercised by the
State over any other authority, society, organization or private body it will not be
permissible to term that society, organization or body is State. Thus it can 

Page 54 of 117 
be seen that in the case of registered societies extensive state control is mandatory.
The functional test, grant- in-aid cannot play a prominent role here. 

Nationalized Banks 

The question whether banks are ‘state’ or not had been answered in a number of
cases. As per various decisions nationalized banks are purely an instrumentality of
182

state under Article 12 of the Constitution. In State Bank of India, Canara Bank v.
Ganesan, Madras High Court held that “nationalized banks are falling within the
183

ambit of the other authority, the right to get salary is a right to property and the
nationalized banks shouldn’t act arbitrarily and illegally withholding the salary of their
employees for the period during which they had worked.” 184 

In the case of nationalized banks the test which is applied is ‘test of control.’ As
mentioned in the 145 Report of Law Commission of India “tests are not exhaustive
th

sometimes one or other factor may come to be emphasized but essentially, it is the
totality of the circumstances which would be taken into account. The fact that share
185

contribution of the government is very dominant may, along with other factors become
material, as happened in the case of Hyderabad Commercials v. Indian Bank & ors. 186

wherein Court has recognized Indian Bank as ‘instrumentality of state’ and directed to
perform its function honestly to serve its customers. 

Scope of Article 32 and 226 vis-a-vis Article

12 

The language used in Article 32 and 226 of the Constitution is very wide. Under
187 188

Article 226 every High Court has the power to issue directions, orders or writs to any
person or authority including in appropriate cases any Government within the
territories in relation to which it exercise its jurisdiction. It can also be issued for “for
the enforcement of any of the fundamental rights and for any other purpose.” The
term authority used in Article 226 has a wider ambit than the term authorities in Article
32. It is because Article 12 is relevant only for the purpose of enforcement of
fundamental rights under Article 32 whereas Article 226 confers power on the High
Courts to issue writs for the enforcement of fundamental rights as well as non-
fundamental rights. 189 

When Article 32 is silent about against whom a remedy would lay against Article
226 expressly allows the High Court to issue such remedies against ‘any person or
authority, including any government. This wide definition of Article 226 often helps
190
the Court in enforcing fundamental rights against bodies performing functions in
public interest or against bodies performing public duties without invoking Article 12
and 32. 
In Anandi Mukta Sadguru it was held that; the words “any person or authority”
used in Article 226 are, therefore not to be confined only to statutory authorities
and instrumentalities of the State. They may cover any other person or body
performing public duty. The form of the body concerned is not very much
relevant. What is relevant is the nature of the duly imposed on the body. The duly
must be judged in the light of positive obligation owed by the person or authority
to the affected party. No matter by what means the duty is imposed. If a positive
obligation exists mandamus cannot be denied.” 

Private Actors as State: Position in India and

US 

In the above mentioned cases the question encountered by the Court was
the 

Page 55 of 117 
applicability of Article 12 as against public corporations, registered societies,
government companies etc. Both in Indian and in the US context some nexus
between the two is very much essential to constitute State Action. The cases are
also decided in the background of the political and economic developments taken
place during those times and the same is reflected in the decisions as well. For
instance the decision in Sukhdev Singh was decided taking into account the
‘Welfare State’ functions and R.D. Shetty reflects the recognition of new forms of
government wealth in the form of largess which was in the backdrop of ‘License
Raj’ Government. 
This attitude of the judiciary is a testimony to the fact that judiciary played its part
as a ‘social engineer’ in the changing ‘politico-legal’ scenario. But the situations
have further changed due to the foray of neo-liberalism developments in India.
The judiciary has to move again one step further if it wants to dispense with the
constitutional responsibility as the protector and guarantor of the fundamental
rights of the people despite the fact that other organs are distancing away from
the constitutional obligations. In India in none of the cases there was a
declaration to the effect that private actors are state. 
In M.C. Mehta v. Union of India the Court had the opportunity to hold Shriram
191

Gas and Fertilizer Industry as ‘State Actor’ since it was performing a public
function which and the activities of it involved great public interest since it could
affect the lives of large number of people. But Court declined to give such a
verdict. The Court gave an opinion that the historical context in which the doctrine
evolved in US is not applicable to Indian situation but US doctrine of State Action
 can serve as useful guide and the principles behind various doctrines of state
action can be Indianised and harmoniously blended with Indian Constitutional
jurisprudence.192 

In US, the doctrine is mainly applicable to state and authorities who violate the
mandate of Bill of Rights. It is also held applicable to situations where state officials
acted either in violation of or in excess of their authority under ‘colour of law theory’
and also against the acts of private persons under particular circumstances under
‘instrumentality theory.’ Thus the prohibitions under the Fourteenth Amendment are
193

also applicable even to the acts of private persons. But the major difficulty posed by
194

this doctrine is the problem of identifying the standards by which ‘private action’ is
converted to state action without obliterating the two. 195 

The State Action doctrine focuses upon actions which are subject to
constitutional review namely actions that are attributable to the government. All 196

the cases involving, state action issue has an essentially similar fact pattern. In
these cases the aggrieved party feels that his rights or freedoms have been
violated by the actions of another. The issue is regarding which party's rights are
of the greater constitutional significance. This question is answered by
determining whether the challenged party's activities involve sufficient
governmental action so that they are subjected to the values and limitations
reflected in the Constitution and its amendments. 197 

If the Court finds sufficient connections to the government it will declare that the
aggrieved party's rights must prevail. If the Court finds that the alleged party does not
have sufficient contacts with the government to justify subjecting him to constitutional
limitations, his activity will be free from-constitutional limitations and his rights will
prevail. Thus the concept of state action is about finding governmental element in the
act which is done by the alleged party so as to make it fall under the purview of the
constitutional limitations. If the alleged activity happens to be one which is
198

traditionally performed by the government 

Page 56 of 117 
then it will be a case fit for applying the doctrine of state action. The doctrine was
199

effectively used to prohibit racial discrimination in US. 

Conclusi
on 

The words ‘State’ and ‘Authority’ used in Article 12 remain as great generalities of
the Constitution the content of which has been and continuously supplied by the Court
from time to time. Initially the definition was treated as exhaustive and confined to the
authorities or those which could be read ejusdem generis with the authorities mentioned in
the definition of Article 12. The next stage was reached when the ‘State’ came to be
 identified with the conferment of sovereign power by law. A considerable change
happened when Mathew J. applied the test of instrumentality and agency i.e. ‘the voice
and hands approach’ in Sukhdev Singh, according to which the government must be
acting through the body in question. R.D. Shetty and Ajay Hasia took the test to another
level and established that the cumulative effect of the entire test i.e. government
monopoly, public functions, financial and administrative control, transfer of a government
department as necessary to call an entity as an ‘instrumentality or agency’ and thereby
‘other authority’ under Article 12. These tests were crystallized and became a single test in
Pradeep Kumar Biswas which stated that if a body or entity if financially functionally and
administratively controlled by the government, then the body or authority can be held as a
state. 
Constitution should be kept adept to meet the social transformation. This role is in
the hands of the judiciary. Now non-state actors are the power-centers in the society. Most of
the essential services are at their hands and there is a diminution in the role of the state as
‘service provider.’ In this context the judiciary needs to relook into the feasibility of tests are
devised by the Court under Article 12 to enforce fundamental rights against private actors. A
declaration of private actors as ‘State’ is necessary because of the changing role of State in the
light of the neo-liberal reforms inducted from 1991 onwards. Now the most of the functions
traditionally performed by the states are performed by private actors. If the fundamental rights
are rendered ineffective against private bodies when they violate fundamental right it is a clear
negation of constitutional values and principles. The US doctrine of state action can serve as a
tool to interpret and include private actors as ‘State’ under Article 12. For the same purpose the
following chapter analyses the US doctrine of State Action by giving emphasis to the various
tests employed by the Court in finding state action in private actions and actors.
====================== 

1 HAROLD J. LASKI, A GRAMMAR OF POLITICS (1925). 2 (In the words of Blackstone natural rights were founded on nature and reason so they coeval
with form of government) BLACKSTONE COMMENTARIES 127-28 (1765). 3 Golak Nath v. State of
Punjab A.I.R. 1967 SC 1643 at para.16.Per SUBBA RAO J. 4 THE FRENCH DECLARATION OF THE RIGHTS OF MAN (1791) reinforces the concept of
natural, inalienable, imprescriptible rights i.e.; the fundamental rights against the absolute
monarchs. (French Declaration reads ii. The end of all political associations is the
preservation of the natural and imprescriptible rights of the man and these rights are
Liberty, Property, Security and Resistance of Oppression). 5 (The philosophy of John Locke and his tenets of
Puritan Revolution permeates both the Declaration 

Page 57 of 117 
of Independence of 1776 and the Federal Convention of 1787. To him man is amenable to
reason and susceptible to the claims of conscience, endowed by his creator with these
potentialities, man can shape his role in society and determine the kind of government to
which he will give his concept) MARIAN D. IRISH & JAMES W. PROTHRO POLITICS OF
INDIAN DEMOCRACY 215 (2 ed. 1964). 6 On the contrary USSR established a Communist government wherein the State is
nd

more powerful and the private citizen enjoys only those liberties that the government finds it
expedient to grant him. 7M.V. PYLEE, CONSTITUTIONAL GOVERNMENT IN INDIA 190 (1968). 8D.D.BASU, HUMAN RIGHTS IN
CONSTITUTIONAL LAW 55 (2nd ed. 2005). 9 HAROLD J. LASKI, supra note 1, at p. 97 10CONSTITUTION OF INDIA art.37 (“The provisions contained in
 by any court, but the principles therein laid down are nevertheless
this Part shall not be enforceable
fundamental in the governance of the country and it shall be the duty of the State to apply
these principles in making laws.”). 11CONSTITUTION OF INDIA art.38(1) (“The State shall strive to promote the welfare of the
people by securing and protecting as effectively as it may a social order in which justice, social,
economic and political, shall inform all the institutions of the national life.”). 12 GLANVILLE AUSTIN,
INDIAN CONSTITUTION: CORNERSTONE OF A NATION 50 (1985). 13Id. at 52. 14CONSTITUTION OF INDIA art. 15(2) (Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.-(2) No citizen shall, on grounds only of religion,
race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction
or condition with regard to-(a) access to shops, public restaurants, hotels and places of
public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds or dedicated to the use of the
general public). 15CONSTITUTION OF INDIA art.17 (“Abolition of Untouchability.-“Untouchability” is abolished and its practice in
any form is forbidden. The enforcement of any disability rising out of “Untouchability” shall
be an offence punishable in accordance with law.”). 16 CONSTITUTION OF INDIA art. 23(1) (“Traffic in human beings
and begar and other similar forms of forced labour are prohibited and any contravention of this provision
shall be an offence punishable in accordance with law (2) Nothing in this article shall
prevent the State from imposing compulsory service for public purposes, and in imposing
such service the State shall not make any discrimination on grounds only of religion, race,
caste or class or any of them.”). 17CONSTITUTION OF INDIA art. 25(1) (“Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practice and propagate 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.”). 

Page 58 of 117 
18CONSTITUTION OF INDIA art. 28(3) (“No person attending any educational institution recognized by the State or receiving aid out
of State funds shall be required to take part in any religious instruction that may be imparted
in such institution or to attend any religious worship that may be conducted in such
institution or in any premises attached thereto unless such person or, if such person is a
minor, his guardian has given his consent thereto.”). 19 CONSTITUTION OF INDIA art. 29(1) (“Any section of the
citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its
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.”). 20 Supra note 8 (Moreover the framers
appear to have taken the above precautions in view of the experience of U.S.A. where it had been held by the
Supreme Court in Civil Rights Cases 109 U.S. 3 (1883) that the equal protection clause of
the Fourteenth Amendment inserted after the civil war was limited in its application to only
against the State Action). 21The University of Madras v. Shanta Bai A.I.R. 1954 Mad. 67 (In this case the question was whether the
direction issued by the University to its affiliated college to prevent it from admitting girl
students was valid or not. The direction was given because the college lacked facilities to
be accommodating girls. It was alleged by the respondent college that the direction violated
Article 15 (1) and 29 of the Constitution). 22 VII CONSTITUTIONAL ASSEMBLY DEBATES 953 (1949). 23VII
CONSTITUTION ASSEMBLY DEBATES, (1948) DRAFT CONSTITUTION art. 7 (“In this part unless the context otherwise
requires, ‘the State’ includes the Government and the Parliament of India and the
Government and the Legislature of each of the States and all local or other authorities
within the territory of India.”). 24 DR. SUMAN SHARMA, STATE BOUNDARY CHANGES IN INDIA: CONSTITUTIONAL PROVISIONS
AND CONSEQUENCES, 162 (1995) (In the First Schedule, the Indian States have been put
in Part III while the Provinces have been put in Part I and in Article 3 Part I and II were
treated separately. Whereas, in respect of the States under Part I their Legislature was only
be considered, Shri Raj Bahadur of United States of Matsya wanted to change this state of
affairs and he felt that people of the Indian States should be treated on equal footing with
the people of the provinces and equal rights and opportunities should be provided to them.
He observed that the Constituent Assembly was committed to the principle of unification
and of democratization of the entire Union and as such cannot be contemplated by any
provision of the Draft Constitution that there can be some sort of a different treatment
between Provinces and the States). 25 VII CONSTITUTION ASSEMBLY DEBATES 607-610 (1948) 26Id. Opposition was
raised by Mahhoob Ali Baig Sahib Bahadur from Madras. 27UDAI RAJ UDAI, FUNDAMENTAL RIGHTS AND THEIR ENFORCEMENT 690 (2011). 28Id.
at 17. 29CONSTITUTION OF INDIA art. 36 (“In this Part, unless the context otherwise requires, “the State” has the same meaning as in
Part III.”). 

Page 59 of 117 
30Rajith Ghosh v. Damodar Valley Corporation AIR 1960 Cal. 549; S.L. Agarwal v. GM, Hindustan Steel ltd. (1970). 3 SCR 363 (It
was held that Hindusthan Steel Ltd. Was not a Department of the Government of India and
the employees did not hold a civil post and as such were not entitled to the protection of
Article 311 of the Constitution). 31`(Local authority' shall mean a Municipal Committee, District Board, Body of Port Commissioners
or other authorities legally entitled to, or entrusted by the Government with, the control or
management of a municipal or local fund). Natwar Ghodidas v. District Panchayat,
Jamnagar AIR 1990 Guj. 142 (In this case under Section 32 of the Bombay Civil Courts Act,
1869, a suit against Central or State Government could be filed only in the Court of Civil
Judge (Senior Division) A suit was filed in the Court of Civil Judge (Junior Division).
challenging the suspension of an employee of a Panchayat. It was held that the suit was
correctly filed in that Court). 32A.P. Road Transport Corporation v. Income Tax Officer (1964) 7 SCR 17. 33CONSTITUTION OF
INDIA art. 12 (“In this part, unless the context otherwise requires, 'the State' includes the Government and Parliament of
India and the Government and, the legislature of each of the States and all local or other authorities within the
territory of India or under the control of the Government of India.”). 34 Khajoor Singh v. Union of India AIR 1961 SC 532, Pratap Singh
Khairon v. State of Punjab AIR 1964 SC 72, State of Bombay v. Laxmidas AIR 1952 Born. 468. 35 AIR 1965 SC
745. 36 Id. (In this case a non-member was detained by an order of the legislature for contempt of the House and he had moved the
High Court for Habeas Corpus. It was held that such a writ against the legislature is
maintainable). 37CONSTITUTION OF INDIA art. 361 (1) (“The President, or the Governor or Rajpramukh of a State, shall not be
answerable to any court for the exercise and performance of the powers and duties of his
office or for any act done or purporting to be done by him in the exercise and performance
of those powers and duties: Provided that the conduct of the President may be brought
under review by any court, tribunal or body appointed or designated by either House of
Parliament for the investigation of a charge under article 61: Provided further that nothing in
this clause shall be construed as restricting the right of any person to bring appropriate
proceedings against the Government of India or the Government of a State (2) No criminal
proceedings whatsoever shall be instituted or continued against the President, or the
Governor 1 of a State, in any court during his term of office. (3) No process for the arrest or
imprisonment of the President, or the Governor of a State, shall issue from any court during
his term of office.”). 38 For example Article 14 of the Constitution which says that “the State shall not deny to any person equality
before the law or the equal protection of laws within the territory of India.” In U.S.it is well
settled that the judiciary is within the prohibition of the 14 Amendment. 39Prem Chand Garg v. Excise
th

Commissioner, U.P. 1963 Supp. (1) SCR 885. 

Page 60 of 117 
40AIR 1954 SC 388 (The question was relating to the rights of Hindu religious denomination to manage their affairs and their rights
to spend property or income for religious purposes). 41 (Similarly in Sahibzada Saiyed Muhammed v. State of Madhya
Bharath AIR 1960 SC 786, Supreme Court observed; "Denial of equality before the law or the equal
protection of laws can be claimed against the executive action or legislative process but not
against the decision of a competent tribunal. The remedy of a person aggrieved by the
decision of a competent judicial tribunal is to approach for redress before a superior
tribunal, if there be one.). 421963 (1) SCR 778. 43Ayyangar J. in a powerful dissenting opinion pointed out that by including writs of
prohibition and certiorari in Article 32 the framers had clearly indicated that the fundamental rights
in appropriate cases could be enforced against the judicial or quasi-judicial authorities in as
much as these writs lay only against such authorities. 44 (1966) 3 SCR 744 (In this case a defamation suit was filed
against the editor of a weekly newspaper, one of the prayed that the Court order that publicity should not be
given to his evidence in the press as his business would be affected. After hearing the
arguments the trial judge passed an oral order prohibiting the publishing of the evidence of
the witness. The reporter and other journalists of the weekly filed writ petition under Article
32). 45Id. at para. 26 & 28 (According to Seervai the dissenting judgment is correct on all the questions raised by the petitioners. He
is also of the opinion that the judiciary wield the judicial power of the State, and Article 144
emphasises the fact that judgments will be worth little if the full authority of state were not
exerted to give effect to them. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 394,
399 (4 ed. 1999). 46 COSTITUTION OF INDIA art. 20 (1) No person shall be convicted of any offence except for violation of a law in
th

force at the time of the commission of the Act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force at the time
of the commission of the offence. (2) No person shall be prosecuted and punished for the
same offence more than once. (3) No person accused of any offence shall be compelled to
be a witness against himself.”). 47 CONSTITUTION OF INDIA art. 22 (1) No person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of his choice. 48 1988 (2)
SCC 602 (The case went to the Supreme Court by way of Special Leave Petition but no appeal would lay against it under Article
136 and also it was not a review petition nor did the Supreme Court treat it as such. Some
majority judges specifically denied that they were exercising jurisdiction under Article 32).
49Of or by reason of an obligation of justice, as a matter of right etc. 50 (1989) 1 SCC 678 (The contention of the accused was that pursuant to being
convicted under Section 302 of 1PC, there was a long delay in executing punishment of sentence
to death and that dehumanizing aspect is violates Article 21). 51 (2002) 4 SCC 388 (Prior to this case in
Harbans Singh v. State of U.P. (1982) 2 SCC 103 and in Attorney General v. Lachma Devi AIR 1986 SC 467 the
Court has reconsidered the judgment and the 
 Page 61 of 117 
remedy was granted under Article 32. But nowhere was it mentioned whether the judiciary
has to be brought under Article 12). 52 In Azadi Bachao Andolan v. Union of India (2004) 10 SCC 1 53 V.G.
RAMACHANDRAN, LAW OF WRITS 55 (1993) also in Unnikrishrnan it was held by Jeevan Reddy J. that “under Article 37 of the
Constitution it was the duty of the State to take into account the directives in making laws
and observed that since the judiciary was part of the State, it was its duty to interpret the
scope of fundamental rights in the light of the relevant directives.” 54 (2003) 6 SCC 675 (The respondent
had contended that there was no reason to exclude the civil courts from the the expression “any person or authority”
in Article 226 of the Constitution because conceptually writ of certiorari can be issued by a
superior Court to an inferior Court). 55 2015 (7) SCC 1 (In this case a PIL was filed seeking an appropriate writ to restrain the
Union of India and State Government from using public funds in government advertisement
which were primarily intended to project individual functionaries of the Government or a
political party. It was also prayed in the petition that the Supreme Court may lay down
appropriate guidelines to regulate government action in the matter to prevent
misuse/wastage of public funds in connection with such advertisements). 56 (NCWRC constituted in
the year 2001 presented a Consultation Paper the Enlargement of Fundamental Rights with the aim of strengthening it)
National Commission on the Review to Review the Working of the Indian Constitution,
Ministry of Law, Justice and Company Affairs Department of Legal Affairs available at
http://lawmin.nic.in/ncrwc/finalreport/volume2book1.htm (last visited on Oct. 12, 201 

57 U. K. Human Rights Act, 1998 § 6 (“Acts of Public Authorities 

(1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right. (2) Sub-Section (1) does not apply to an act if - (a) as the result of one
or more provisions of primary legislation, the authority could not have acted differently;
or (b) in the case of one or more provisions of, or made under primary legislation which
cannot be read or given effect in a way which is compatible with the convention rights,
the authority was acting so as to give effect to or enforce those provisions. (3) In this
section ‘public authority’ includes - (a) a court or tribunal, and (b) any person certain of
whose functions are functions of a public nature. But does not include either House of
Parliament or a person exercising functions in connection with proceedings in
Parliament. (4) In sub-section (3) ‘Parliament’ does not include the House of Lords in its
judicial capacity. (5) In relation to a particular act, a person is not a public authority by
virtue only of sub-section 
(3) (b) if the nature of the act is private. (6) ‘An act’ includes a failure to act but does not
include a failure to - (a) introduce in, or lay before, 
Parliament a proposal for legislation; or (b) make any primary legislation or
remedial.”). 58 THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA 1996 art.8 (1) (“The Bill of Rights applies to all law, and
binds the legislature, the executive, the judiciary and all organs of State.”). 59 GENERAL CLAUSES
ACT § 3 (LXI); CONSTITUTION OF INDIA Sch. VII, List II, Entry 5 (“Local government, that is to say, the constitution
.

and powers of municipal corporations, improvement trusts, districts boards, mining

settlement authorities and other local authorities for the purpose of local self-government or
village administration.”). 
 Page 62 of 117 
60 CONSTITUTION OF INDIA art. 367 (1) (`Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to
any adaptations and modifications that may be made therein under Article 372, apply for
the interpretation of this Constitution as it applies for the interpretation of an Act of the
Legislature of the Dominion of India.”). 61 Union of India v. R.C. Jain 1979 SCR (3) 1014 (In this case the question was
whether the Delhi Development Authority created under Delhi Development Act, 1957 was a local
authority within the meaning of Sec. 32 (iv) of the Payment of Bonus Act, 1965). 62 1n Rashid
Ahmed v. M. B. Kairana AIR 1950 SC 163 (It was held that the right to occupation, trade and business guaranteed under Article
19 (1) (g) was available against municipal board). Followed in State of Gujarat v. Shantilal
Mangaldas (1969) 1 SCC 509: Also Municipal Corporation of Delhi v. Birla Cotton Mills AIR
1968 SC 1232: Ashok Kumar v. Ajay Biswas (1985) 1 SCC 151. 63 Hari Nath v. State of Bihar AIR 1967
Pat.305 (It was held that the fundamental rights guaranteed under Articles 14 and 16 were available against the
District Board, Patna). 64Ajit Singh v. State of Punjab AIR 1967 SC 355; Bhagat Ram v. State of Punjab AIR 1967 SC 927; Kishan
Singh v. State of Punjab AIR 1961 Punj. 1. 65 S. Sarangapani v. Madras Port Trust AIR 1961 Mad. 234; Dwarkadas
Marfatia & Sons v. Bombay Port Trust 1990 (1) Bom. C.R. 405. 66 1996 (1) SCC 95. 67 Id. (The Supreme Court observed that
the functions as are indicated in the housing scheme are essentially performed by Municipal Boards and Council
which are ‘local authorities’ but on that analogy the Haryana Housing Board cannot be
treated to be a local authority as the extent of the control of the State Government under
which the Board had to function is prominently pervasive that it is almost destructive to its
independence which will also be apparent from the facts that in matters of settlement of its
annual programmes, budget and establishment schedule, the Board has to obtain the
sanction of the State Government. The Housing Board does not have the semblance of
independence which are normally possessed by local self-government. The Board does not
even partially consist of elected representative of the people). 68 Id. (Court observed that the legislature could
well have given this status to the Board for the purpose of Payment of Bonus Act but this has not been done
and so it cannot be treated as a ’local authority’ under the Payment of Bonus Act, 1965). 69
Available at http://indiankanoon.org/doc/42396226/ accessed on 28, February 2014. 70 It is also to be noted that Budha Veerinaidu v. State of Andhra
Pradesh and anr.1983 (143) ITR 1021 Agricultural Market Committee functioning under Andhra Pradesh
Agricultural Produce and Live Stock Markets Act, 1966 was held to be a ‘Local Authority’
As it was found that the Market Committee was entrusted by the Government with the
control and management of “Local Fund” whereas Housing Board which also performs an
equally or more important function was held to be not performing a governmental activity.
71 Rajasthan Electricity Board v. Mohanlal 1967 SCR (3) 377 (The services of the permanent employees were placed at the
disposal of the appellant, Electricity Board. While framing its own 

Page 63 of 117 
grades and conditions for promotions the Board discriminated the employees and this
matter went in appeal before the Supreme Court from Madras High Court). 72 Id. 73Id. at 378 (The
Apex Court overruled Shanta Bai and declared incorrect its basic thesis on the ground that for the interpretation of ‘other
authority’ in Article12 ejusdem generis rule would be applicable because there was no
common genus present in the authorities specifically enumerated in the Article). 74Pradeep
Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111. 75 VI CONSTITUTION
ASSEMBLY DEBATES 608-09 (1948-49). 76V.N. SHUKLA, THE CONSTITUTION OF INDIA 27 (2003). 77(1962) Supp (1) SCR 981. 78 (1964) 1 SCR
656. 79 Hina Doon, The Doctrine of State Action —The Politics of Law Making, NALSAR S.L.R. 1-21 (2009). 80 AIR 1954 Mad. 67 (The question
for consideration was whether the rule of the University restricting admission on the basis of sex is valid or not).
81Id. B.W. Devdas v. Selection Committee AIR 1964 Mys.6; Krishne Gopal v. Punjab University AIR Punj. 34. 82 In simple terms it means that
where certain entities which are specifically enumerated have a common characteristic and this enumeration is
followed by some general phrase leaving room to include some more, the additional cases
to be covered in this residuary category should also possess the common characteristic of
possessing power of a governmental nature. 83 Supra note 80 at para. 7. 84 CONSTITUTION OF INDIA art. 28 (1) (“No
religious instruction shall be provided in any educational institution wholly maintained out of State funds. (3) No
person attending any educational institution recognised by the State or receiving aid out of
State funds shall be required to take part in any instruction that may be imparted in such
institution or to attend any religious worship that may be conducted in such institution or in
any premises attached thereto unless such person or, if such person is a minor, his
guardian has given his consent thereto.”). 85 CONSTITUTION OF INDIA art. 29 (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.”). 86 1967 SCR (3) 3771. The Bench
consisted of Subba Rao C.J., Shelat J., Bhargava J., G.K. Mitter J., Vishishta J. 87 This view was further reiterated in the case of B. W. Devadas v.
The Selection Committee for Admission of Students to the Karnatak Engineering College A.I.R 1964
Mysore 6 wherein the Court observed that: “there is an essential difference between a
political association of persons called ‘the State’ giving rise to political power connoted by
the well-known expression ‘imperative law’ and a non-political association of persons
created for other purposes by contract, consent or similar type of mutual understanding
related to the common object of persons so associating themselves 

Page 64 of 117 
together giving rise to a power which operates not in the manner in which imperative law
operates, but by virtue of its acceptance by such associating persons.” 88 CONSTITUTION OF INDIA
art.19 (1) (g) (“All citizens shall have the right to practice any profession, or to carry on any occupation, trade or
business.”). CONSTITUTION OF INDIA art. 298 (“The executive power of the Union and of
each State shall extend to the carrying on of any trade or business and to the acquisition,
holding and disposal of property and the making of contracts for any purpose: Provided
that-- (a) the said executive power of the Union shall, in\so far as such trade or business or
such purpose is not one with respect to which Parliament may make laws, be subject in
each State to legislation by the State; and (b) the said executive power of each State shall,
in so far as such trade or business or such purpose is not one with respect to which the
State Legislature may make laws, be subject to legislation by Parliament.”). 89 Per Bhargawa J. The
Rajasthan State Electricity Board was a corporate body that had been constituted under Electricity Supplies Act, 1948
for the purpose of supplying electricity to the State of Rajasthan. 90 Thus as to the meaning of ‘other
authorities’ there was a difference of opinion between he majority judgment delivered by Bhargawa J. and the
concurring judgment of Shah J. This difference does not call for discussion in subsequent
developments of the law. H.M. SEERVAI, supra note 45, at 372. 91Id. (“In my judgment, authorities
constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the
expression "State" as defined in Art. 12. Those authorities which are invested with
sovereign power i.e., power to make rules or regulations and to administer or enforce them
to the detriment of citizens and others fall within the definition of “State” in Art. 12, and
constitutional or statutory bodies which do not share that sovereign power of the State are
not, in my judgment, “State” within the meaning of Art.12 of the Constitution.”). 92 AIR 1975 SC
1331(The question that arose for consideration in this case was whether statutorycorporations such as the Oil and Natural
Gas Corporation, Life Insurance Corporation and the Finance Corporation would fall within
the definition of State under Article 12). 93 326 U.S. 501 (1946). 94109 U.S. 3 (1883). 95Id at para. 95. 96Id at para. 97.
97Id at para 98. 98Id. at para 99 (Court referred Kerr v. Enoch Pratt Free library 149 F.2d 212 (4th Cir). wherein discriminatory practices
in a private library was abolished by the Court since it enjoyed government support in
supply of budget, property holding etc. and distinguished it from Dorsey v. Stuyvesant
Corporation 299 N.Y. 512 wherein the Court had found only state financial aid in the
private library and government control was found to be absent). 99 McCullough v. Maryland 4 Wheat. 315
(US 1819); Marsh v. Alabama 326 U.S. 501 (1946); Kerr v. Enoch Pratt Free library 149 F.2d 212 (4th Cir); Dorsey
v. Stuyvesant Corporation 299 N.Y. 512. 100Id. at para 113. 101Id. at para 90. 

Page 65 of 117 
102 As pointed out by Seervai “but the discussion of cases cannot be set out profitably, because having considered each decision
he (Mathew J.) has not deduced any principle or principles from those decisions. But
subsequently Seervai opines that the line of reasoning developed by Mathew J. can also
be supported on the ground that it prevents a large scale evasion of fundamental rights by
transferring the work in government departments to statutory corporations, while retaining
control over the corporation. H.M. SEERVAI, supra note 45, at 373 & 375. 103 1975 (3) SCR 616
(In this case a junior stenographer with CSIR filed a writ petition under Article 32 claiming parity of remuneration with newly
recruited employees of QM based on Article 14. The contention of the employee was that
CSIR is an agency of the Central Government on the basis of the CSIR Rules). 104
CONSTITUTION OF INDIA art. 311 (“Dismissal, removal or reduction in rank of persons employed in civil capacities under the
Union or a State; 
(1) No person who is a member of a civil service of the Union or an all India service or a
civil service of a State or holds a civil post under the Union or a State shall be dismissed
or removed by a authority subordinate to that by which he was appointed (2) No such
person as aforesaid shall be dismissed or removed or reduced in rank except after an
inquiry in which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges 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:
Provided further that this clause shall not apply (a) where a person is dismissed or
removed or reduced in rank on the ground of conduct which has led to his 
conviction on a criminal charge; or (b) where the authority empowered to dismiss or
remove a person or to reduce him in rank ins satisfied that for some reason, to be
recorded by that authority in writing, it is not reasonably practicable to hold such inquiry;
or (c) where the President or the Governor, as the case may be, is satisfied that in the
interest of the security of 
the State, it is not expedient to hold such inquiry (3) If, in respect of any such person as
aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is
referred to in clause (2), the decision thereon of the authority empowered to dismiss or
remove such person or to reduce him in rank shall be final.”). 105 Praga Tools Corporation v. Shri C.A.
Immanuel & Ors.1969 (3) SCR 773; Heavy Engineering Mazdoor Union v. State of Bihar &ors.1969 (3) SCR 995;
S.L. Aggarwal v. General Manager, Hindusthan Steel Ltd. 1970 (3) SCR 363. 106 1979 SCR (3)
1014 (International Airport authority invited tenders from registered second class hoteliers having five years of experience for
running two second class restaurants and two snack bars. Out of the six tenders one
tender from a person not fulfilling the required criteria was accepted and other tenders
were rejected without mentioning any reason. This was challenged by one of the renderer
whose was the highest tender amount). 107Id. at para. 15. 108 Id. at 1017. 109 326 U.S. 501 (1946) (In the instant
case a Jehova witness was arrested for trespassing after attempting to distribute religious texts in privately owned
company town in Alabama. Court held 

Page 66 of 117 
that company town served a public function and therefore its decisions were subjected to
constitutional scrutiny under the First and Fourteenth Amendments). 110 BHAGWATI J. pointed out that
the corporation acting as instrumentality or agency of government would obviously be subject to the same limitations in
the same field of constitutional or administrative law as the government itself though in the
eye of law they would be distinct and separate legal entities. But however the relief was
refused to the appellant because of the conduct including delay and also because of the 4 th

respondent had already incurred expenditure to put up the restaurant. 111 AIR 1981 SC 212
Subsequently in Star Enterprises v. C.T.D.C. of Maharashtra Ltd. AIR I981 SC 212 wherein government company under
Section 617 of the Companies Act was held to be a ‘State.’ 112(1981) 1 SCC 449 (Per V.R.
Krishna Iyer, Bench O. Chinnappa Reddy, R.S. Pathak, V.R. Krishna Iyer. (In this case the
petitioner who was an employee of India-Burmah Shell Oil Storage ltd. was entitled to
pension from the respective company and a dispute regarding the same was pending
before the Court. In the meantime by India-Burmah Shell (Acquisition of Undertaking in
India) Act, 1976 the company came to be vested with Bharat Petroleum ltd. He filed a writ
petition against BPL. Preliminary objection was raised on the ground that the corporation is
neither a government department nor a statutory corporation but just a company and so writ
is not maintainable under Article 12). 113Id. (“According to the Court ‘Other authorities’ under the Control of the Government of
India” are comprehensive enough to take care of Part III without unduly stretching the meaning
of ‘the State’ to rope in whatever any autonomous body which has some nexus with
Government. A wide expansion coupled with a wise limitation may and must readily and
rightly be read into the last words of Article 12.”). 114 Id. 115 Id. (“To substantiate this he quoted Salmond who said
that the jurisprudence of Third World countries cannot afford the luxury of besetting the sin of the legal
mind. To him “Partly through the methods of its historical development, and partly through
the influence of that love of subtlety which has always been the besetting of the legal mind
our law is filled with needless distinctions, which add enormously to its bulk and nothing to
its value, while they render a greater part of it unintelligible to any but experts.”). 116 1981 AIR
487. (Per P.N. Bhagwati, Bench P.N. Bhagwati, Y.V. Chandrachud, V.R. Krishna Iyer, Fazal Ali, A.D. Syed Murtaza Koshal. The
case was decided on the same day in which Som Prakash Rekhi was decided and both the
cases reiterated the position of law in Sukhdev and International Airport Authority). 117 Id.at 7
(“To the Court Article 12 was to cover those corporations where behind the formal ownership which is cast in the corporate
mould, the reality is very much the deep and pervasive presence of the government. It is
really the government which acts through the instrumentality or agency of the corporation
and juristic veil of the corporate personality won for the purpose of convenience of
management and administration cannot be allowed to obliterate the true nature of the
reality behind which is government.”). 1181981 SCR (2) 79 at para. 82. 
 Page 67 of 117 
119Id. 120 (1984) 2 SCC 141, 1984 SCC (L&S) 214 (In this case the question was whether Indian Council of Agricultural Research
(ICAR) registered under Societies Registration Act was a 'State' or not). 121 (1983) 4 SCC 141; 1984
SCC (L&S) 420 (Its composition is dominated by the members appointed by the Central Government. The money required
for its functioning is provided entirely by the Central Government. The accounts of it have to
be approved by the Central Government and the Society has to comply with the directions
issued by the Central Government); Central Inland Water Transport Corpn. v. Brojo Nath
Ganguly (1986). 3 SCC 156 and All India Sainik Schools Employees Association v. Defence
Minister Cum Chairman, Board of Governors, Sainik School Society, (1989) Supp. (1) SCC
205. 122(1991) 4SCC 578. 123Id. at 21 (In the words of Court “normally, a precedent like Sabhajit Tewary which stood for a length of time
should not be reversed, however erroneous the reasoning if it has stood unquestioned,
without its reasoning being “distinguished” out of all recognition by subsequent decisions
and if the principles enunciated in the earlier decision can stand consistently and be
reconciled with subsequent decisions of this Court, some equally authoritative. In our view
Sabhajit Tewary fulfils both conditions.”) para. 21). 124Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology (2002) 5 SCC 111 (The question was whether CSIR is a State
or not under Article 12. Reiterating Sabhajith Tewary the Court answered the question in
negative). 125 (In Sabhajit Tewary, a junior stenographer with CSIR filed a writ petition under Article 32 claiming parity of
remuneration with newly recruited employees of QM based on Article 14. The contention of
the employee was that CSIR is an agency of the Central Government on the basis of the
CSIR Rules. Although the Court noted that the Government takes “special care” in the
activities of CSIR it dismissed the writ petition). 126 Supra 123, at para. 40. 127 UDAI RAJ UDAI, supra note 27 128
(1) if the entire share capital of the corporation is owned by the Government; (2) when the financial assistance given by the State
is enough to cover the entire expenditure of the entity; (4) existence of deep and pervasive
State control may afford an indication that the entity is imbued with Governmental
character. 129 (3) if the Corporation enjoys a monopoly status which is either Government conferred or Government protected;
(5) if the functions of the entity are of public importance or closely related to Governmental functions;
(6) if a Government department is transferred to a corporation, it will be a strong indicator of the fact that the entity is an
instrumentality of the State. 130 (As per Lahoti J. the profounder of the test himself has used the words suggesting relevancy of
those tests for finding out if an entity is an instrumentality or agency of State). 131 (2005) 4 SCC
649 (In this case the petitioners were the bidders for the tender for the grant of exclusive television rights for a period of four
years. After accepting the tender for a sum of Rs. 92.5 

Page 68 of 117 
crore, BCCI cancelled the entire process of tender arbitrarily on the ground that no
concluded contract was reached between the parties. In fact, in response to a draft letter of
intent sent by the Board, the petitioners agreed to abide by the terms and conditions of the
tender. The order of the Board terminating the contract was in question in the writ petition
under Article 32 contending that the action on the part of the Board terminating the contract
was arbitrary and thus violates of Article 14 of the Constitution). 132 Id. at para 34 (But BCCI enjoys
monopolistic control over not only the game of cricket but also has pervasive control a person's overall cricket career
as it has the sole authority to decide on the membership and affiliation to any particular
cricket association, which in turn would affect his right to play cricket at any level in India as
well as abroad). 133Id. at para. 28. 134Id. at 704. 135John Vallamattom & anr. v. Union of India JT 2003 (6) SC 37. 136 United
Nations Covenant on Civil and Political Rights art. 18 (“To the Court right to development and the preservation and protection of
human right precede form a common platform. Both reflect the commitment of the people to
promote freedom, well-being and dignity of the individual.”). 137 (By reason of Prerogative, Charter or Franchise.
To substantiate the view Court also referred A.J. Harding on ‘Public Duties and Public Law’ wherein it was
mentioned “there is for certain purposes, particularly for the remedy of mandamus or its
equivalent). a distinct body of public law, certain bodies are regarded under that law as
being amenable to it, certain functions of these bodies are regarded under that law as
opposed to merely permitting certain conduct, these prescriptions are public duties. In BCCI
v. Cricket Association of Bengal, Court encountered again with the question on the status of
BCCI as State under Article 12. It was held not a ‘state’ but reaffirmed the ration in Zee
Television that though it is not a state under Article 12 writ can be filed against it under
Article 226. The Court also recognized that the functions of BCCI as public functions).
138CONSTITUTION OF INDIA art. 141 (“The law declared by the Supreme Court shall be binding on all courts within the territory of
India.”). 139 D.D. BASU, ADMINISTRATIVE LAW 345 (2000). (“A public corporation is set created by a statute whenever it is
intended to take over some industry or social service from private enterprise and to run it in
public interest. Instead of giving over the public corporation which has a separate legal
entity and can carry on the function with autonomy subject to the ultimate control of
Parliament and the Government., mainly on policy matters, so as to safeguard the interest
of the public.”). 140Id. 141 (It was in pursuance of this policy and subsequent resolutions on Industrial Policy that corporations
were created by the Government for setting up and management of public enterprises and
carrying out public functions. “With the advent of the welfare state the civil service, which
traditionally carried out functions of Government through natural persons, was found
inadequate to handle the new tasks of specialized and highly technical character. To fill the
gap it became necessary to forge a new instrumentality or administrative device for
handling these new problems and that is done by public corporations which has become
the third arm of the Government. They are regarded as agencies of the Government.”) As
observed in RD. Shetty. 

Page 69 of 117 
142CONSTITUTION OF INDIA art. 298 (“The executive power of the Union and of each State shall extend to the carrying on of
any trade or business and to the acquisition, holding and disposal of property and the
making of contracts for any purpose: Provided that— (a) the said executive power of the
Union shall, in so far as such trade or business or such purpose is not one with respect to
which Parliament may make laws, be subject in each State to legislation by the State; and
(a) the said executive power of each State shall, in so far as such trade or business or
such purpose is not one with respect to which the State Legislature may make laws, be
subject to legislation by Parliament.”). 143 UDAI RAJ UDAI, supra note 27, at 700. 144 State Bank of India v. Kalpaka
Transport Company, AIR 1979 Born. 250. 145 Workmen , Food Corporation of India v. Food Corporation of India (1985) 2 SCC 136; Satpal v.
Himachal Pradesh Food Corporation (1977) SLR 447. 146 Gujarat State Financial Corporation v. Lotus Hotels
Pvt. ltd. AIR 1983 SC 848. 147 Balbir Kaur v. Steel Authority of India Ltd. (2006) 6 SCC 493. 148 Steel Authority of India ltd v. National Union Water
Front (2001) 7 SCC 1. 149 K.L. Mathew v. Union of India AIR 1974 Ker.4; U. P. Warehousing Corpn. v. Vinay AIR 1980 SC at 845-46. 150
Law Commission 145th Report150 on Article 12 of the Constitution and Public Sector Undertakings (02/10/2015) available at
http://lawcommissionofindia.nic.in/101- 169/Report145.pdf. 151 CONSTITUTION OF INDIA art. 14 (“The State
shall not deny to any person equality before the law or the equal protection of the laws within the territory of
India.”). 152 Agarwal v. Hindustan Steel AIR 1970 SC 1150 at para.10, approved in R.D Shetty v. International Airport Authority AIR
1979 SC 1928 at para. 30; Heavy Engineering Mazdoor Union v. State of Bihar AIR 1970
SC 1150. 153 Praga Tool Corporation v. Immanuel AIR 1969 SC 1306; CF Guru Gobindh v. Sankari Prasad AIR 1964 SC 254.
154Supra note at 103. 155AIR 1980 SCC at 845-46. 156AIR 1984 SC 1361 at para. 20. 157 Supra note 103. 158Id. 159 (It was held that
anybody or authority, whether constituted by statute or not may come within the definition of ‘State’ under Article 12 if it
acts as an ‘agent’ or ‘instrumentality of the government.’ Agency means the `factum' of
such body exercising governmental powers or functions, so that its acts may be treated
under constitutional law, to be ‘Sate Action’). 160 In Ajay Hasia, V.R. Krishna Iyer J. held that the enquiry has to be not
as to how the juristic person is born but why it has been brought into existence. The same test has
been applied by him in Som Prakash Rekhi v. Union of India AIR 1981 SC 212. 

Page 70 of 117 
161 1981 (1) SCC 449; AIR 1981 SC 222 decided on the same day (Nov. 30, 1980) on which Ajay Hasia was decided. 162Id. 163 (Hence a
Government Company or an ordinary company or Society registered under the Society's Registration Act would be regarded
as agency or instrumentality of government for the application of Article 12 if the tests of
state control over it are established) MINHAS v. Indian Statistical Institute AIR 1984 SC
363, Ramachandra v. Union of India AIR 1984 SC 541; Sabhajt Tewary v. Union of India
AIR 1975 SC 1`329. 164R.D. Shetty at para. 20. 165 1986 (3) SCC 156; AIR 1986 SC 1571 (In this case the plaintiff worked in a
company which was dissolved by Court’s order and they were inducted into the defendant
corporation. After serving for a long period of time the plaintiff’s services were terminated arbitrarily on three months’ notice. The
termination was done in accordance with a clause in the terms and conditions of the
employment contract. The question was whether the term can be held void/voidable under
Indian Contract Act by declaring the term as unconscionable). 166 Indian Contract Act, § 16 defines undue
influence wherein it says that if the relationship subsisting between the parties are such that one of the parties is
in a position to dominate the will of the other and uses is position to obtain an unfair
advantage over the other, whereas § 23 says that considerations or object of an agreement
is unlawful inter alia if it is opposed to public policy. 167AIR 1997 SC 645 (In this case a writ petition was filed to
abolish the contract labour system adopted by the Steel Authority Steel Authority by engaging in Contract
Labor for sweeping, cleaning, dusting and watching of the building owned and occupied by
the appellants. Despite the order from the Central Government prohibiting Contract Labour
under the provisions of Contract Labor Act, 1970) appellants continued contract labour and
thereafter a writ was filed to absorb the contract labourer as employees of the corporation
by the respondent). 168Id. at para 26 (It was observed by the Court that that the instrumentality, agency or person must have an
element of public service and should be accountable to health and strength of the workmen
and women, adequate means of livelihood, the security for payment of living wages,
reasonable conditions of work, decent standard of life and opportunity to enjoy full leisure
and social and cultural activities to the workmen. Their action should be guided by public
interest in exercise of public power or action hedged with public element and is open to
challenge. It must meet the test of arbitrariness, fairness and justness and should not
prescribe any unconstitutional conditions or limitations in their actions). 169 (2001) 7 SCC 1 (In this
case the appellants were a Central Government Company engaged in the manufacture and sale of iron, steel etc. in
various plants in India and also their business includes import and export of several
products. The goods were handled in the stockyards by contractors rough calling tenders.
Government of West Bengal issued a notification prohibiting contract labour in stockyards
against which writ was filed. During the pendency of the petition Air India case was
delivered which 

Page 71 of 117 
stated that in case of Central Government Companies, Central Government is the
appropriate regulating authority under Contract Labour Act, 1970. Thus remedy was
sought on two grounds. 1702002 (2) SCC 333. 171 Permian Basin Area Rate cases 390 U.S. 747 (1968) 172 2015 (3) SCALE
721 (In this case discriminatory conditions in the pay scale was challenged by the petitioner who was working as teachers in
the Educational and Tribal Welfare Department, Government of Madhya Pradesh). 173 AIR
2002 SC 609 at para. 6; Federation of Railway Officers Association v. Union of India 2003(4) SCC 289. 174 2013 (2) SCJ 818 (In this case the
question was whether the appellant a public limited company is a State or not. It was a subsidiary of Indo-Burma
Petroleum C. ltd. which was also a government company holding 61.8 % of the shares of
the appellant company). 175 In deciding so the Court taken into account the objectives, functions, management and control, extent
of domination by the government, and control by Government being not regulatory and
cumulative effect of all these factors. 176 AIR 1985 Del 142. 177P.K. RamachandraIyer v. Union of India AIR 1984 SC 541.
178 (1987) 3 SCC 50. 179AIR 1988 SC 469. 180(1991) 4 SCC 578. 181 I.T. 2010 (7) SC 98 (In this case the question was whether the
provisions of Delhi School Education Act, 1973 violates the minority character of Sindhi School
Education Society). 182Krishna Reddy v. Canara Bank AIR 2002 Kant. 100. 183 (1981) 1 LLJ 64 (In this case the employees of the
Canara Bank held a strike and during the proposed strike hours they did not do the allotted work. As a result
the Bank withheld the pay and allowances for the whole day during which they conducted
the strike). 184 Ranjit Kumar Rajak v. Union of India (2009) 5 Bom CR 227. 185Supra note 149. 186 1991 (2) Supp. SCC 340 (In this case
the appellant had been depositing money through cheques in its current account from time to time without
authorization). 187 CONSTITUTION OF INDIA art. 32 (1) (“The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court
shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without
prejudice to the powers conferred on the Supreme Court by clauses (1) and (2) Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all
or any of the powers exercisable by the Supreme Court under clause (2) (4) The right
guaranteed by this article shall not be suspended except as otherwise provided for by this 

Page 72 of 117 
Constitution.”). 188 CONSTITUTION OF INDIA art. 226 (1) 189Shri Anandi Mukta Sadguru Trust v. V.R. Rudani AIR (1989) 2 SCC at 1097-
98 (In this case a dispute between teachers association and university and teachers were referred
to the Vice- chancellor and he ordered for payment to the teachers. In view of this order
the college run by the trustees of the appellant college retrenched it employees. The
retrenched employees filed writ petition demanding arrears of salary, gratuity, and
provident fund). 190State of Orissa v. Ram Chandra Dev AIR 1964 SC 685. 191AIR 1987 SC 1086 (The question that arose in MC Mehta
was whether victims of a gas leak from a private chemical and fertilizer plant could sue for compensation
under Article 32 of the Constitution). 192Id. at para. 825 (“The historical context in which the American doctrine of State action
evolved in the united States is irrelevant for the purpose of Indian Courts, especially in view of
 Art. 15 (2) of the Indian Constitution. But, it is the principle behind the doctrine of State aid,
control and regulation so impregnating a private activity as to give it the colour of State
action which can be applied to the limited extent to which it can be can be Indianised and
harmoniously blended with Indian constitutional jurisprudence.”). 193 E. Chemirinsky, Rethinking State
Action, 80 NW. UL. REV. 504 (1985). 194 (Marsh v. Alabama 326 US 501, (1946); Rice v. Elmore 165 F.2d387 (4 th Cir. 1945) 326 US 721 (1945);
Kerr v. Enoch Pratt Free Library 149 F.2d 212 1948; Kern v. City Comm'rs of Newton, 151
Kan. 565, 100 P.2d 709 (1940); Culver v. City of Warren, 84 Ohio App. 373, 83 N E. 2d 82
(1948). 195 JOHN E. NOWAK, RONALDL D. ROTUNDA, NELSON J. YOUNG, CONSTITUTIONAL LAW, 497-498 (1983) (In US
whether a private authority is ‘state’ or not is determined by analyzing the answers to the
questions such as (i) did the government grant any aid to the private person? (ii) did the
government give any authority to him? (iii) Is he carrying on a function of a governmental
nature? If these questions are answered in affirmative then lastly whether there is enough
aid or `authority' or ‘function’ to make the private person into some sort of 'instrumentality'
by reason of an affinity to the movement). 196 Wilson R. Huhn, The State Action Doctrine and the Principles of Democratic
Choice, 34 HOFSTRA LAW REVIEW 1379, 1379-1460 (2006). 197 Donald M. Cahen, The Impact of Shelly v. Kraemer in
the State Action Concept, 4 CAL. L. REV. 718-720 (1956). 198JOHN E. NOWAK, supra note 196, at 497-498. 199Id. 

Page 73 of 117 

Article 13:
LAW 
M P Jain: Indian Constitutional Law , 7th
Edition 

MP
Jain 

M P Jain: Indian Constitutional Law , 7th Edition > M P Jain: Indian Constitutional Law, 7th
Edition > PART V > CHAPTER XX FUNDAMENTAL RIGHTS (TOPIC 1) > E. LAW 
CHAPTER XX FUNDAMENTAL RIGHTS (TOPIC
1) 

E.
LAW 

Another term used in Art. 13(2) is ‘law’. 56 

The basic norm contained in Art. 13(2) is that any ‘law’ inconsistent with a Fundamental Right is
void. 

The term ‘law’ in Art. 13 has been given a wide connotation so as to include any ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the territory of India the force of law [Art. 13(3)(a)]. This means
that, not only a piece of legislation, but any of the things mentioned here can be challenged as infringing a
Fundamental Right. Clause (3)(a) of Article 13 of the Constitution therefore makes it clear that not only law made by
the legislature but also an order or notification which takes away or abridges the fundamental rights conferred by
Part III of the Constitution would be void. Accordingly, inter alia the following have been held to be ‘law’ under Art.
57

13, the validity of which can be tested on the touchstone of Fundamental Rights: 

(8) a resolution passed by a State Government under Fundamental Rule 44 of the State; 58 

(ii) a government notification under the Commissions of Inquiry Act setting up a commission of inquiry; 59 

(iii) a notification or an order under a statute; 

60 61

(iv) an administrative order; but administrative instruction is not law within the meaning of Article 13.
62 63 

(v) a custom or usage; 64 

(vi) bye-laws of a municipal or a statutory body; 65 

(vii) regulations made by a statutory corporation like the Life Insurance Corporation. The validity of the above 
66

can be questioned under the Fundamental

Rights. 

The Regulations validly made under statutory powers are binding and effective as the enactment of the competent
legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid 

Page 74 of 117 
down in the Regulations as a legal compulsion. Any act ion or order in breach of the terms and conditions of the
Regulations shall amount to violation of Regulations which are in the nature of statutory provisions and shall render
such act ion or order illegal and invalid. 67 
The bye-laws of a co-operative society framed under the Co-operative Societies Act do not fall within the purview of
Art. 13.
68 

Parliament, while making an Act cannot be deemed to have taken into consideration an earlier law found to be in
contravention of Art. 13.69 

Though a law as such may not be invalid, yet an order made under it can still be challenged as being inconsistent
with a Fundamental Right because no law can be presumed to authorise anything unconstitutional. 70 

A question of great importance which has been debated in India from time to time is whether the term ‘law’ in Art.
13(1) would include an Act passed by Parliament to amend the Constitution. The question has been discussed fully
at a later stage in this book. 71 

One point needs to be emphasized. A restriction on a Fundamental Right can be imposed only through a statute,
statutory rule or statutory regulation. A Fundamental Right cannot be put under restraint merely by an
administrative direction not having the force of law. 72 

56 Supra. 

57 Union of India v. Col. L.S.N. Murthy, (2012) 1 SCC 718 [LNIND 2011 SC 1177] (723) : (2011) 13 SCALE 67 [LNIND 
2011 SC
1177]. 

58 State of Madhya Pradesh v. Mandawar, AIR 1954 SC 493 [LNIND 1954 SC 90]: (1955) 1 SCR 599 [LNIND 1954 SC 
90]
. 

59 Dalmia v. Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31]: 1959 SCR 279 [LNIND 1958 SC 31]. 

60 Madhubhai Amathalal Gandhi v. Union of India, AIR 1961 SC 21 [LNIND 1960 SC 403]: (1961) 1 SCR 191 [LNIND 1960 
SC
403]. 

61 Pannalal Binjraj v. Union of India, AIR 1957 SC 397 [LNIND 1956 SC 117]: 1957 SCR 233 [LNIND 1956 SC 117]. 

62 Balaji v. State of Mysore, AIR 1963 SC 649 [LNIND 1962 SC 320]: 1963 Supp (1) SCR 439. 

63 Punit Rai v. Dinesh Chaudhary, (2003) 8 SCC 204 [LNIND 2003 SC 682] : AIR 2003 SC 4355 [LNIND 2003 SC 682]. 

64 Sant Ram v. Labh Singh, AIR 1965 SC 314 [LNIND 1964 SC 137]: (1964) 7 SCR 756 [LNIND 1964 SC 137]. 

65 Tahir v. District Board, AIR 1954 SC 630 [LNIND 1954 SC 289]. 

66 Bhagatram,supra; Hirendra Nath Bakshi v. Life Insurance Corp., AIR 1976 Cal. 88 [LNIND 1975 CAL 220]. 

67 Pepsu Road Transport Corporation, Patiala v. Mangal Singh, AIR 2011 SC 1974 [LNIND 2011 SC 525](1981) : (2011) 11
SCC 702 [LNIND 2011 SC 525] ; Sukhdev Singh v. Bhagatram Sardar Singh Raghuvansi, (1975) 1 SCC 421 [LNIND 1975
SC 79] : AIR 1975 SC 1331 [LNIND 1975 SC 79]. 

68 Co-op. Credit Bank v. Industrial Tribunal, AIR 1970 SC 245 [LNIND 1969 SC 152]. 
 Page 75 of 117 
69 Rakesh Vij v. Raminder Pal Singh Sethi, (2005) 8 SCC 504 [LNIND 2005 SC 753] : AIR 2005 SC 3593 [LNIND 2005 
SC
753]. 

70 Narendra Kumar v. Union of India, AIR 1960 SC 430 [LNIND 1959 SC 217]: (1960) 2 SCR 375 [LNIND 1959 SC 217];
State of Madhya Pradesh v. Bharat Singh, AIR 1967 SC 1170 [LNIND 1967 SC 16]: (1967) 2 SCR 454 [LNIND 1967 SC
16]. 

71 Infra, Ch. XLI. 

72 Bishan Dass v. State of Punjab, AIR 1961 SC 1570 [LNIND 1961 SC 189]: (1962) 2 SCR 69 [LNIND 1961 SC 189];
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 [LNIND 1962 SC 436]: (1964) 1 SCR 332 [LNIND 1962 SC
436]; Satwant Singh v. A.P.O., AIR 1967 SC 1836 [LNIND 1967 SC 427]: (1967) 3 SCR 525 [LNIND 1967 SC 427]. 

End of
Document 
 Page 76 of 117 

(a) PERSONAL
LAWS 
M P Jain: Indian Constitutional Law , 7th
Edition 

MP
Jain 

M P Jain: Indian Constitutional Law , 7th Edition > M P Jain: Indian Constitutional Law, 7th
Edition > PART V > CHAPTER XX FUNDAMENTAL RIGHTS (TOPIC 1) > E. LAW 

E.
LAW 

(a) PERSONAL
LAWS 

There prevail in India several personal laws, such as, Hindu Law, Muslim Law, Parsi Law, Christian Law of
marriage and divorce. These are by and large non-statutory, traditional systems of law having some affinity with the
concerned religion. Being ancient systems of law, there are several aspects of these systems of laws which are out
of time with the modern thinking and may even be incompatible with some Fundamental Rights. 

From time to time, several features of these laws have been challenged before the courts on the ground of their
incompatibility with the Fundamental Rights. By and large, in such cases, the courts have adopted an equivocal
attitude. The courts have adopted the policy of non-interference keeping in view the susceptibilities of the groups to
which these laws apply. 

For this purpose, the courts have adopted two strategies. One, in some cases the courts have ruled that the
challenged features of personal laws are not incompatible with the Fundamental Rights. Reference to this aspect is
made in the course of the following discussion on specific Fundamental Rights, especially, under Arts. 14, 15, 25
and 26. Two, the courts have denied that the personal laws fall within the coverage of Art. 13 and, thus, these laws
cannot be challenged under the Fundamental Rights. For instance, GAJENDRAGADKAR, J., observed in State of
Bombay v. Nara-su Appa Mali : 73 

"........ the framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution (viz.,
Fundamental Rights). They must have been aware that these personal laws needed to the reformed in many material
particulars and in fact they wanted to abolish these different personal laws and to evolve one common code. Yet they did
 not wish that the provisions of the personal laws should be challenged by reason of the Fundamental Rights .... and so they
did not intend to include these personal laws within the definition of the expression "laws in force". 

The view expressed by the Bombay High Court in Narasu has been reiterated in several cases by the High Courts 74

and the Supreme Court. For example, in Ahmedabad Women Action Group v. Union of India, a public interest
75 76

litigation was filed through a writ petition to declare the Muslim Personal Law which allows polygamy as void as 

Page 77 of 117 
offending Arts. 14 and 15. The Supreme Court refused to take cognisance of the matter. The Court observed that
77

the issues raised involve questions of state policy with which the Court does not ordinarily have any concern. The
remedy lies somewhere else (meaning the Legislature) rather than the courts. 

In P.E. Mathew v. Union of India, s. 17 of the Indian Divorce Act, a Central pre-Constitutional Law, was challenged
78

as arbitrary, discriminatory and violative of Art. 14. But the Kerala High Court adopted the ratio of the Supreme
Court cases, cited above, that the personal Christian Law, lay outside the scope of Fundamental Rights. Though
the Court did agree that s. 17 was unjustified and discriminatory yet it did not say so. The Court left the matter to the
Legislature to amend the law adopting the plea that personal laws do not fall under the purview of the Fundamental
Rights. The Court ruled that personal laws are outside the scope of Art. 13(1) as they are not laws as defined in Art.
13(3)(b). A word of comment on the line of decisions mentioned above may be in order at this stage. 

After the commencement of the Constitution, several Acts have been passed by Parliament and the State
Legislatures modifying several aspects of these personal laws. Prima facie, it is difficult to argue that these statutes
do not fall within the scope of Art. 13(3)(a). But because of the sensitivities of the people and the delicate nature of
the issues involved, the Courts have thought it prudent not to interfere with these laws on the touchstone of
Fundamental Rights and leave it to the Legislature to reform these laws so as to bring them in conformity with the
Fundamental Rights. 

Article 13(1) says that all "laws in force" in India when the Constitution comes in force shall be void if inconsistent
with a Fundamental Right. The mandate of Article 13(1) is clear that such law can continue provided it is not
inconsistent with the provision of Part III. In the event of such laws becoming inconsistent with the provision of Part
III, such laws, to the extent of their inconsistency, shall be void. According to Art. 13(3)(b), the expression "laws in
79

force" includes laws passed or made by a Legislature or other competent authority." This is an inclusive definition. It
is clear, that Art. 13(3)(b) does not exclude other forms of law besides the pre-Constitution legislative enactments.
But the Court has rejected the argument that Art. 13(1)(b) is only inclusive and not exhaustive. Even if we accept
the literal, technical and narrow interpretation of Art. 13(3)(b) that it refers only to pre-Constitution legislation and
does not include uncodified judge-made amorphous personal laws, there is no reasons or logic in excluding from
the scope of Fundamental Rights legislative Acts enacted in the area of personal laws before and after the
commencement of the Constitution, such as, the Indian Divorce Act . The only explanation for this judicial stance
can be that as a matter of judicial policy the courts do not wish to get involved in the delicate task of adjudging
these Acts vis--vis Fundamental Rights. 80 

73 AIR 1952 Bom 84 [LNIND 1951 BOM 113]. 

 74 Srinivasa Aiyar v. Saraswati Ammal, AIR 1952 Mad 193 [LNIND 1951 MAD 230]; Ram Prasad v. State of Uttar Pradesh,
AIR 1957 All 411 [LNIND 1957 ALL 76]. But see Kunhimohammed v. Ayishakutty, 2010 (2) KLT 71 [LNIND 2010 KER 203] :
AIR 2010 (NOC) 8992(Ker) : ILR 2010 (2) Ker 140; Saumya Ann Thomas v. Union of India, 2010 (1) KLT 869 [LNIND 2010
KER 143] : ILR 2010 (1) Ker 805 [LNIND 2010 KER 16358]: 2010 (89) AIC 16(Ker) laying down that a personal law must
satisfy the provisions of Chapter III of the Constitution and any personal law which offends fundamental right to equality and
life under Articles 14 and 21 shall also have to be declared void under Article 13. 

75 Krishna Singh v. Mathura Ahir, AIR 1980 SC 707 : (1981) 3 SCC 689. But see C. Masilamani Mudaliar v. Idol of Sri 
Swaminathathaswami Therukoil, (1996) 8 SCC 525 [LNIND 1996 SC 226] : AIR 1996 SC 1697 [LNIND 1996 SC 226]. 

76 AIR 1997 SC 3614 [LNIND 1997 SC 1946]: (1997) 3 SCC 573 [LNIND 1997 SC 1946]. 

77 For discussion on Arts. 14 and 15(1), see, Chapters XXI and XXII, infra. 

78 AIR 1999 Ker 345 [LNIND 1999 KER 162]. 

Page 78 of 117 
79 Delhi Airtech Services Pvt. Ltd. v. State of U.P., AIR 2012 SC 573 [LNIND 2011 SC 788](582) : (2011) 9 SCC 354 
[LNIND 2011 SC
788]. 

80 This topic has further been discussed later. See, Chs. XXI, XXII, XXIX and XXXIV, infra. 

End of
Document 
 Page 79 of 117 

(b)
CUSTOM 
M P Jain: Indian Constitutional Law , 7th
Edition 

MP
Jain 

M P Jain: Indian Constitutional Law , 7th Edition > M P Jain: Indian Constitutional Law, 7th
Edition > PART V > CHAPTER XX FUNDAMENTAL RIGHTS (TOPIC 1) > E. LAW 

E.
LAW 

(b)
CUSTOM 

What is the position of customs extant in India before the commencement of the Constitution and continued
thereafter. In Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, the Constitution Bench of the Supreme
81

Court expressed the view that Art. 13(1) which says that laws in force in India before the commencement of the
Constitution shall be void if inconsistent with Fundamental Rights "includes custom or usage having the force of
law". The Court observed: 

"Therefore, even if there was a custom which has been recognized by law... that custom must yield to a Fundamental
Right". 

In Sant Ram v. Labh Singh, the Constitution Bench of the Supreme Court ruled that a customary right of pre-
82

emption by vicinage was void under Art. 19(1)(f). The Court referred to Art. 13(1)(a) which says that ‘law’ includes
83

‘custom’. The Court also ruled that the definition of ‘laws in force’ contained in Art. 13(1)(b) "does not in any way
restrict the ambit of the word ‘law’ in Art. 13(1)(a).
84 

In Madhu Kishwar v. State of Bihar, RAMASWAMI, J., expressed the view that customs of tribals, though elevated
85

to the status of law by Art. 13(1)(a), "yet it is essential that the customs inconsistent with or repugnant to
constitutional Scheme must always yield place to Fundamental Rights." 
RAMASWAMI, J., adopting an act ivist attitude ruled that tribal women would succeed to the estate of their male
relations. The majority generally agreed with this approach though it adopted a conservative approach in the
specific situation and desisted from declaring a tribal custom as inconsistent with Art. 14 saying that to do so "would
bring about a chaos in the existing state of law." The majority made male succession subject to the right of
86

livelihood of the female dependent. 

This discussion reveals a dichotomy in the judicial attitudes as expressed in Madhu Kishwar and Narasu Appa 
87

Page 80 of 117