UNIT -I

Salient Features of Indian Constitution

A Written Constitution:
For a federal State, the Constitution must necessarily be a written constitution that defines the
relation between the Central Government and the Regional Governments; demarcates the
sphere of each, and is paramount to the constitutions of Regional Governments.

Lengthy Document:
The Constitution of India has the distinction of being the most lengthy and detailed
constitutional document, the world has produced so far. The original Constitution contained as
many as 395 Articles and 8 schedules.

Democratic Republic:
The Preamble to the Constitution declares that India is a Sovereign Democratic Republic. It
has been argued that the word “Democratic” used before the word “Republic” is redundant.
But it is not so, for democracy does not involve the existence of a republican form of
government.

It may be obtainable under a hereditary monarchy as well, as in the case of Britain. The
President of India is indirectly elected by the representatives of the people for a period of five
years. The Council of Ministers, which aids and advises the President, is constituted from the
party or parties commanding a majority in the Parliament.

A Federal Polity with a Unitary Bias:

In accordance with the federal set-up there has been a division of powers between the Centre
and the States. There are three lists: The Union List, State List and Concurrent List and the
residuary powers have been given to the centre.

Legislation on the subjects mentioned in the Central List is the responsibility of the Centre,
whereas legislation for the subjects mentioned in the State List is the responsibility of States.
Both the Centre and the States can enact on the subjects mentioned in the Concurrent List, but
when the laws passed by the Centre and the State are at variance with each other, Central law
will get precedence over the State law and latter will be repugnant to that extent.

India also has a Supreme Court which is the guardian of our Constitution and decides all
disputes which might arise between the Centre and the States. The residuary power to make
laws on subjects that are not mentioned in any of the lists, like the cyber laws, rest completely
with the centre.

But there are also certain peculiar features of our federal system which have made the critics
to say that India is over-centralised or that India is quasi-federal. Few have even said that India
is unitary in spirit but federal in structure. Unlike other federations, the Union has a right to
change the boundaries of the States, divide them or completely end up their existence in the
existing territorial form.

The heads of the States i.e. the Governors are appointed by the President and are his agents in
the States. They are responsible to him for their acts of omission and commission. The governor
can reserve any bill passed in the state, legislative for the assent of the Union that may delay it
or lead to a complete veto by the President.

Articles 33 and 34 authorize the parliament to protect persons in service of the union or state
with respect to any action taken by them during martial law to maintain or restore order that
further strengthens the union’s control over states.

The Centre can, at any time, declare emergency in the States and with that declaration, can take
over the administration of that State in its control. Moreover, the country’s financial set-up and
structure is such that the States are financially dependent on the Centre.

Single Citizenship:
In a federation there is usually dual citizenship. A citizen belongs to the State in which he is
born and also enjoys the citizenship rights of the federation.

This is based on the principle that the states in a federation are of course units, but do not, at
the same time, give up their individual identity. But in India there is only one citizenship.
Citizens belong to the Indian Union and not to any state.

More Flexible than Rigid:

Another distinctive feature of the Indian Constitution is that it seeks to impart flexibility to a
written federal constitution. The amendment of only a few of the provisions of the Constitution
requires ratification by the State Legislatures and even then ratification by only 1/2 of them
would suffice (while the American Constitution requires ratification by 3/4th of the States).

The rest of the Constitution may be amended by a special majority of the Union Parliament.
On the other hand, the Parliament has been given the power to alter or modify many of the
provisions of the Constitution by a simple majority as is required for general legislation. The
flexibility of our Constitution is illustrated by the fact that since its working, it has been
amended 94 times (till July 2009).

Balance between Judicial Supremacy and Parliamentary Sovereignty:

An independent Judiciary with the power of judicial review is a prominent feature of our
Constitution. The harmonization which our Constitution has effected between Parliamentary
Sovereignty and a written Constitution with a provision for Judicial Review is an important
achievement of the framers of our Constitution.
The Indian Constitution adopts the via media between the American system of Judicial
Supremacy and the English principle of Parliamentary Supremacy, by endowing the Judiciary
with the power to declare a law as unconstitutional if it is beyond the competence of the
Legislature as per the distribution of powers provided by the Constitution or if, it is in
contravention to the fundamental rights guaranteed by the Constitution.

Further, the major portion of the Constitution is liable to be amended by the Union Parliament
by a special majority, if in any case the Judiciary proves to be too obstructive. The balance
between Parliamentary Sovereignty and Judicial Review was however seriously disturbed, and
a drift towards the former was made by the Constitution (42nd Amendment) Act, 1976.

Universal Adult Franchise:

The introduction of adult suffrage without qualifications of any kind was the boldest step taken
by the Constitution-makers and it was an act of faith they had placed in the common man.
Article 326 of the Constitution provides that the election to the House of the People and to the
Legislative Assembly of every State shall be on the basis of adult suffrage.

Every person who is a citizen of India and who is not otherwise disqualified is entitled to be
registered as a voter in any such election. Adult suffrage is an acceptance of the fullest
implication of democracy.

Secular State:
A multi-religious nation like India has to be a secular state. The word “Secular” was missing
in our Constitution till the 42nd Amendment of the Constitution was passed. Secularism in
India does not mean an irreligious or an anti-religious state.

It only means: (i) there is no official religion for India and the Parliament has no right of
imposing a particular religion as an official religion, (ii) It also means that all citizens,
irrespective of their religious beliefs, are to be considered and treated as equal and (iii) no
discrimination is to be shown by the State against any person on account of his/her religion
either for participation in political affairs or entry into government service or admission into
educational institutions.

The Provision of Fundamental Rights:

The fundamental rights consist of the Right to Equality, the Right to Freedom, the Right against
Exploitation, the Right to Freedom of Religion, Cultural and Educational Rights, and finally,
the most important right, the Right to Constitutional Remedies that makes the enjoyment of
other rights real and enforceable.

The rights are negative obligations of the State to not to encroach upon individual liberty and
the courts are the guardians of these rights. One of the salient features of Fundamental Rights
is that during emergencies, these can be suspended.
Yet another restriction on Fundamental Rights, as provided in the Indian Constitution, is that
none of these rights are absolute. Each and every right has got certain restrictions and
limitations. Each and every citizen of India is supposed to accept those limitations for
enjoyment of these rights.
Directive Principles for a Welfare State:
These are well-prepared guidelines available to the government that can become fundamental
for the governance of the country. The objective of the Constitution-makers was to draft a
Constitution with social and economic justice accompanied by equality that underlie a welfare
state model.

The basic aim of a Welfare State was clearly foreshadowed in the Preamble to the Constitution,
and virtually in the Part IV of the constitution containing the Directive Principles of State
Policy.

The essence of justice is the attainment of happiness and good for all, as distinguished from
the happiness and good of individuals or even for the majority of them. Justice in this sense
cannot be secured unless there is a society of equals in status and opportunity.

Equality of status and opportunity are not available unless all sections of the people are equally
in a position and circumstances to benefit from the social order that prevails. The Constitution
of India not only prohibits discrimination on grounds of birth, sex, religion, caste and creed,
but also adequately provides for the promotion of the interests of the Backward Classes and
areas.

It seeks to remove all inequalities created by inequalities in the possession of wealth and
opportunity, race, gender, caste and religion by providing just and humane conditions of work,
maternity relief, leisure and cultural opportunity to every individual, prevention of exploitation
in labour and industry, free education for all and the like.

Incorporation of Fundamental Duties:

It was with the passing of Forty-Second Constitutional Amendment Act that a Chp on
Fundamental Duties was incorporated in the Constitution with the addition of a new Article
(Art. 51 A). The Article provides that every citizen of India has specific Fundamental Duties,
that (s) he ought to perform.

Emergency Provisions:
Article 352, 356 and 360 of the Constitution provide the provisions for emergency. According
to these provisions when the Head of the State is dissatisfied with the administration of the
country or a part thereof, in accordance with the normal procedure laid down in the
Constitution, (s)he can declare emergency and take the administration of the country or a part
thereof, in his/her own hands.

Protection of Minorities:
The Constitution has provided for a system of reservation of seats for cultural minorities, in all
spheres of life. This is, however, a temporary provision and it has been mentioned in the
Constitution that as soon as it is felt that these minorities have come at par with other sections
of society, this reservation will cease to exist.

During the pre-independence era, in India, there was a system of reservation of seats for
religious minorities. The system proved to be very dangerous and ultimately resulted in the
partition of the country. This system has however been completely abandoned and now there
is no reservation for religious minorities.

Preamble to the Constitution of India

The original text of the Preamble, before the 42nd Amendment) of the Constitution
The preamble to the Constitution of India is a brief introductory statement that sets out the
guiding purpose and principles of the document.The hopes and aspiration of the people as well
as the ideals before our nation are described in the preamble in clear cut words. It may be
considered as the soul of Constitution. The preamble can be referred to as the preface which
highlights the essence of the entire Constitution. It was adopted on 26 November 1949 by the
Constituent Assembly.

It is based on the Objectives Resolution which was drafted and moved in the Constituent
Assembly by Jawaharlal Nehru on 13 December 1946.[1] The preamble-page, along with other
pages of the original Constitution of India, was designed and decorated solely by renowned
painter Beohar Rammanohar Sinha of Jabalpur who was at Shantiniketan with acharya
Nandalal Bose at that time. Nandalal Bose endorsed Beohar Rammanohar Sinha's artwork
without any alteration whatsoever. As such, the page bears Beohar Rammanohar Sinha's short
signature Ram in Devanagari lower-right corner.

That the preamble is not an integral part of the Indian constitution was declared by the Supreme
Court of India in BeruBari case therefore it is not enforceable in a court of law. However,
Supreme Court of India has, in the Kesavananda case, overruled earlier decisions and
recognised that the preamble may be used to interpret ambiguous areas of the constitution
where differing interpretations present themselves. In the 1995 case of Union Government Vs
LIC of India also, the Supreme Court has once again held that Preamble is the integral part of
the Constitution.

As originally enacted the preamble described the state as a "sovereign democratic republic". In
1976 the Forty-second Amendment changed this to read "sovereign socialist secular
democratic republic".[2]

These are the opening words of the preamble to the Indian Constitution
 “ WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to
all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do
HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The Preamble reflects the philosophy as well as fundamental values of Indian Constitution. It
clarifies four important aspects
1. It mentions that the Constitution derives its Authority from the people of India
2. It declares India to be Sovereign, Socialist, secular, Democratic and Republican
country.
3. It clarifies the objectives of the Constitution are Justice, Liberty, Equality and
Fraternity.
4. It states the date of Adoption i.e., 26 November 1949

The enacting words, "We, the people of India ...in our constituent assembly ...do here by adopt,
enact and give to ourselves this constitution", signify the democratic principle that power is
ultimately rested in the hands of the people. It also emphasises that the constitution is made by
and for the Indian people and not given to them by any outside power (such as the British
Parliament). The phrase "we the people" emphasises the concept of popular sovereignty as laid
down by J. J. Rousseau: All the power emanates from the people and the political system will
be accountable and responsible to the people.

Sovereign
The word sovereign means supreme or independence. India is internally and externally
sovereign - externally free from the control of any foreign power and internally, it has a free
government which is directly elected by the people and makes laws that govern the people. She
allies in peace and war. The Popular sovereignty is also one of the basic structure of
constitution of India. Hence, Citizens of India also enjoy sovereign power to elect their
representatives in elections held for parliament, state legislature and local bodies as well.
People have supreme right to make decisions on internal as well as external matters. No
external power can dictate the government of India. India’s membership of the commonwealth
or of the United Nations does not impose any external limit on her sovereignty. The
Commonwealth is a free association of sovereign Nations. It is no longer British
Commonwealth. India does not accept the British Queen as the head of state. The sovereignty
empowers India to either acquire a foreign territory or cede a part of its territory in favour of a
foreign state.[3]

Socialist
The term socialist here means democratic socialism i.e. achievement of socialistic goals
through democratic,evolutionary and non-violent means. A mixed economy in which both
Public sector and Private sector run together as two wheels of economic development.

Secular
Secular means the relationship between the government and the people which is determined
according to constitution and law. By the 42nd Amendment, the term "Secular" was also
incorporated in the Preamble. Secularism is the basic structure of the Indian constitution. The
Government respects all religions. It does not uplift or degrade any particular religion. There
is no such thing as a state religion for India. In S.R. Bommai vs UOI (1994) The SC of India
held "A state which does not recognise any religion as the state religion, it treats all religions
equally". Positively, Indian secularism guarantees equal freedom to all religion. it stands for
the right to freedom of religion for all citizens. Explaining the meaning of secularism as
adopted by India, AlexandrOwics has written, "Secularism is a part of the basic of the Indian
Constitution and it means equal freedom and respect for all religions."[3]

Democratic
The first part of the preamble “We, the people of India” and, its last part “give to ourselves this
Constitution” clearly indicate the democratic spirit involved even in the Constitution. India is
a democracy. The people of India elect their governments at all levels (Union, State and local)
by a system of universal adult franchise; popularly known as "one man one vote". Every citizen
of India, who is 18[4] years of age and above and not otherwise debarred by law, is entitled to
vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed,
colour, sex, Religious intolerance or education. The word 'democratic' not only refer to
political but also to social & economic democracy.[3]

Republic
As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a
lifetime or until he abdicates from the throne, a democratic republic is an entity in which the
head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected
by an electoral college for a term of five years. The post of the President of India is not
hereditary. Every citizen of India is eligible to become the President of the country. The leader
of the state is elected by the people.[5]

Justice
The term 'justice' in the preamble refers to three varying aspects - Political, Social and
Economic which are secured through different provisions of Fundamental Rights & Directive
Principles of State Policy.[5]
Liberty
The ideal of Liberty refers to the freedom on the activities of Indian nationals. This is found to
be an important tool in ensuring democratic framework. All the citizens are secured with liberty
of thought, expression, belief, faith & worship through the Fundamental Rights which are
justiciable in nature. However, liberty does not mean freedom to do anything, and it must be
exercised within the constitutional limits.

Equality
This envisages that no section of the society enjoys special privileges and individuals are
provided with adequate opportunities without any discrimination. Again, there are three
dimensions of Equality - Political, Economic & Civic.[5]

Fraternity
This refers to a feeling of brotherhood & a sense of belonging with the country among its
people. It embraces psychological as well as territorial dimensions of National Integration. It
leaves no room for regionalism, communalism, casteism etc. which hinders the Unity of the
State.

Amendablity
It has been clarified by the Supreme Court of India that being a part of Constitution, the
Preamble can be subjected to Constitutional Amendments exercised under article 368,
however, the basic structure cannot be altered.
 FUNDAMENTAL RIGHT

ARTICLE 14- EQUALITY BEFORE LAW

Article 14 declares that ‘the State shall not deny to any person equality before the law or equal
protection of law within the territory of India.’. thus article 14 uses the two expressions
“equality before law” and “equal protection of law”. The phrase “equality before law” find a
place in almost in written constitution that guarantees fundamental right both these
expression .both this expression aim at establishing what is called “equality of status” While
both the expression are kind of identical but they don’t give similar meaning.

EQUALITY BEFORE LAW

Its origin is from America. And somehow its negative concept. It aims at implying the absence
of any special privilege by reason of birth, sex, religion etc in favor of individuals and the
equal subject of all the classes to the ordinary law

EQUAL PROTECTION OF LAW

Its origin is from British. And somehow it is a positive concept. it aims at equality of treatment
in equal circumstances. It means whether someone is P.M. or President he should be deal with
same law as normal being deals with

RULE OF LAW
The guarantee of equality before the law is an aspect of what Dicey calls the Rule OF Law in
England. It means that no man is above the law and that every person whatever be his rank or
condition is subject to the jurisdiction of ordinary courts.
Rule of law require that no person shall be subjected to harsh, uncivilized or discriminatory
treatment even when the object is the securing of the paramount exigencies of law and order.

Professor Dicey gave three meanings of the Rule Of Law

1. Absence of arbitrary power or supremacy of the law
It means the absolute supremacy of law as opposed to the arbitrary power of the
Government. In other words-a man may be punished for a breach of law, but he cant be
punish for anything else.
2. Equality before law
It means subjection of all classes to the ordinary law of land administrated by ordinary law
courts. This means that no one is above law all are equal in eyes of law
3. Absence of individual liberty
There are various constitution that provide individual liberty but not provide method It
means that the source of the right of individuals is not the written constitution. U.K. don’t
have provision for individual liberty.
Rule of Law in India

1. Supremacy of Law:
The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be made to
suffer in body or goods except for a distinct breach of law established in the ordinary legal
manner before the ordinary courts of the land. It implies that a man may be punished for a
breach of law but cannot be punished for anything else. No man can be punished except for a
breach of law. An alleged offence is required to be proved before the ordinary courts in
accordance with the ordinary procedure.

2. Equality before Law:-

The Second meaning of the Rule of Law is that no man is above law. Every man whatever be
his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction
of the ordinary tribunals. Everybody under Article 14 is equal before law and have equal
protection.

3. Individual Liberty
Lot of individual liberty is mention like fundamental right in Article 21- protection of life and
personal liberty, article 19- Right to freedom etc. and courts are their to protect individual
liberty.

The first and second aspect apply to Indian system but the third aspect of the diceys rule of law
does not apply to Indian system as the source of right of individuals is the constitution of India.
The constitution is the supreme law of the land and all laws passed by the legislature must be
consistent with provisions of the constitution

The rule of law impose a duty upon state to take special measure to prevent and punish brutality
by police methodology. The rule of law embodied in article 14 is the basic feature of the Indian
constitution and hence it can’t be destroyed even by an amendment of the constitution under
article 368 of the constitution.

Exception To Rule OF Law

The above rule of equality is however not an absolute rule and there are number exception to
it
 ‘Equality of Law’ does not mean the power of the private citizens are the same as the power
of the public officials. Thus a police officer has the power to arrest you while no other
private person has this power. This is not violation of rule of law. But rule of law does
require that these powers should be clearly defined by law and that abuse of authority by
public officers must be punished by ordinary courts.

 The rule of law does not prevent certain class of persons being subject to special rules.
Thus members of armed forces are controlled by military rules. Similarly medical
practitioners are controlled by medical council of India
 vCertain members of society are governed by special rules in their profession i.e. lawyers,
doctors, nurses, members of armed forces and police. Such classes of people are treated
differently from ordinary citizens.

Article 14 Permits Classification But Prohibits Class Legislation

The equal protection of laws guaranteed by Article 14 does not mean that all laws must be
general in character. It does not mean that the same laws should apply to all persons. It does
not attainment or circumstances in the same position. The varying needs of different classes of
persons often requires separate treatment. From the vary nature of society there should be
different laws in different places and the legitimate controls the policy and enacts laws in the
best interest of the safety and security of the state. In fact identical treatment in unequal
circumstances would amount to inequality. So a reasonable classification is only not permitted
but is necessary if society is to progress.

Thus what Article 14 forbids is class-legislation but it does not forbid reasonable classification.
The classification however must not be “arbitrary ,artificial or evasive” but must be based on
some real and substantial bearing a just and reasonable relation to the object sought to be
achieved by the legislation. Article 14 applies where equals are treated differently without any
reasonable basis. But where equals and unequals are treated differently, Article 14 does not
apply. Class legislation is that which makes an improper discrimination by conferring
particular privileges upon a class of persons arbitrarily selected from a large number of
persons all of whom stand in the same relation to the privilege granted that between whom and
the persons not so favored no reasonable distinction or substantial difference can be found
justifying the inclusion of one and the exclusion of the other from such privilege.

Test of Reasonable Classification

While Article 14 frobids class legislation it does not forbid reasonable classification of persons,
objects, and transactions by the legislature for the purpose of achieving specific ends. But
classification must not be “arbitrary ,artificial or evasive”. It must always rest upon some real
upon some real and substantial distinction bearing a just and reasonable relation to the object
sought to be achieved by the legislation. Classification to be reasonable must fulfil the
following two conditions

 Firstly the classification must be founded on the intelligible differentia which distinguishes
persons or thing that are grouped together from others left out of the group
 Secondly the differentia must have a rational relation to the object sought to be achieved
by the act.

The differentia which is the basis of the classification and the object of the act are two distinct
things. What is necessary is that there must be nexus between the basis of classification and
the object of the act which makes the classification. It is only when there is no reasonable basis
for a classification that legislation making such classification may be declared discriminatory.
Thus the legislature may fix the age at which persons shall be deemed competent to contract
between themselves but no one will claim that competency. No contract can be made to depend
upon the stature or colour of the hair. Such a classification will be arbitrary.

The true meaning and scope of Article 14 have been explained in a number of cases by the
supreme court. In view of this the propositions laid down in Damia case still hold good
governing a valid classification and are as follows.
a. A law may be constitutional even though it relates to a single individual if on account of
some special circumstances or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by itself
b. There is always presumption in favour of the constitutionality of a statute and the burden
is upon him who attacks it to show that there has been a clear transgression of constitutional
principles.
c. The presumption may be rebutted in certain cases by showing that on the fact of the statue,
there is no classification and no difference peculiar to any individual or class and not
applicable to any other individual or class, and yet the law hits only a particular individual
or class
4. It must be assumed that Legislature correctly understand and appreciates the need of its
own people that its law are directed to problem made manifest by experience and that its
discrimination are based on adequate grounds
5. In order to sustain the presumption of constitutionality the court may take into
consideration maters of common knowledge, matters of report, the history of the times and
may assume every state of facts which can be conceived existing at the time of the
legislation.
6. Thus the legislation is free to recognize degrees of harm and may confine its restriction to
those cases where the need is deemed to be the clearest.
7. While good faith and knowledge of the existing conditions on the part of a legislature are
to be presumed, if there is nothing on the face of the law or the surrounding circumstances
brought to the notice of the court on which the classification may reasonable be regarded
as based, the presumption of constitutionality cannot be carried to extent always that there
must be some undisclosed and unknown reason for subjecting certain individuals or
corporation to be hostile or discriminating legislation
8. The classification may be made on different bases e.g. geographical or according to object
or occupation or the like.
9. The classification made by the legislature need not be scientifically perfect or logically
complete.Mathematical nicety and perfect equality are not required.
10. Equality before the law does not require mathematical equality of all persons in all
circumstances. Equal treatment does not mean identical treatment. Similarly not identity of
treatment is enough.
11. There can be discrimination both in the substantive as well as the procedural law. Article
14 applies to both.
If the classification satisfies the test laid down in the above propositions, the law will be
declared constitutional. The question whether a classification is reasonable and proper and not
must however, be judged more on commonsense than on legal subtitles.
Article 15- PROHIBITION OF DISCRIMINATION
Article 15 of the Constitution provides that no citizen shall be subjected to discrimination in
matters of rights, privileges and immunities pertaining to him. This Article lays down:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them,
(2) No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them,
be subjected 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.
(3) Nothing in this Article shall prevent the State from making any special provision for women
and children.
(4) Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and Scheduled Tribes.

The guarantee under Article 15 is available to citizens only and not to every person whether
citizen or non-citizen as applicable under Article 14 of the Constitution.

Article 15 directs that the State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, and place of birth or any of them. Any law discriminating on one or
more on these grounds would be void. The word, “only” has been purposely used In the Article.

Discrimination based on one or more of these grounds and also on other grounds or grounds
will not be affected by Article 15 (1). It means that if one or more of the specified grounds is
combined with a ground not mentioned In Article 15 (1); the laws will be outside the
prohibition contained in Article 15 (1). Article 15 (1) prohibits discrimination on the ground
of birth and not that of residence. A State can, therefore, grant concessions to its residents in
matters of fees in an educational institution.

In D.P. Joshi v. State of Madhya Bharat, AIR 1955 S.C. 334, a rule of medical colleges
provided that all students who are bona fide residents of Madhya Bharat, no capitation fee
should be charged but for non-resident students, capitation fee should be retained.

The validity of this rule was challenged on the ground that it contravened Articles 14 and 15
(1) of the Constitution. It was held that the rule was not open to attack as infringing Article 15
(1). The ground for exemption from payment of capitation fee is bona fide residence in the
State.
Residence and place of birth are two distinct conceptions with different connotations both in
law and fact. Article 15 (1) prohibits discrimination on the ground of place of birth but not on
the ground of residence.

Similarly, the requirement of a test in the regional languages for State employment does not
contravene Article 15, as a test in the regional language for State employment does not
contravene Article 15, as the test is compulsory for all persons seeking employment. It has
been held so in P. Raghunandha Rao v. State of Orissa AIR 1955 Orissa 1131.

In Air India v. Nargesh Miija, AIR 1981 S.C. 1829, the Supreme Court struck down
Regulations 46 and 47 of the Air India and Indian Airlines. Regulation 46 provided that an air-
hostess shall retire from the service of the corporation upon attaining the age of 35 years or on
marriage, if it takes place within 4 years or on first pregnancy whichever is earlier.

Under Regulation 47, Managing Director had discretion to extend the age of retirement by one
year at the time up to the age of 45 years, if the air-hostess is found medically fit. The court
held that termination of service on the basis of pregnancy is unfair and clearly violates Article
14. The power of managing director for the extension of age of retirement is also
unconstitutional.

Article 15 (2) applies to States as well as private actions while Article 15(1) refers to the
obligation of the States only.

Clauses (3) and (4) of Article 15 embodies exception to the general rule enunciated above.
They empower the State to make special provisions for women and children and for the
advancement of any socially and educationally backward classes of citizens for the Scheduled
Castes and Scheduled Tribes.

In M.R. Balaji v. State of Mysore, AIR 1963 S.C. 649, the government reserved seats in the
Medical and Engineering colleges in the State as follows:

Backward classes 28%; more backward classes 22%; Scheduled Castes and Tribes 18%. The
court held that the sub-classification made by the order between backward classes, was not
justified under Article 15 (4). Caste is not the sole criteria for determining backwardness.
Reservation up to 68% is a fraud on the Constitution. Article 15 (4) only enables the State to
make special provision and not exclusive provision for the backward classes.

In State of Madhya Pradesh v. Nivedita Jain, AIR 1981 S.C. 2045, the Supreme Court upheld
the validity of an executive order of the Government of Madhya Pradesh completely relaxing
the condition of qualifying marks for the candidates of Scheduled Castes and Scheduled Tribes
in Pre-Medical Tests.

The court observed that in the absence of any law to the contrary, it is open to the government
to impose such conditions which would make the reservation effective for the advancement of
candidates of such classes.

The court held that the executive order completely relaxing the minimum qualifying marks was
not volatile of the Regulation and Article 15 (4) of the Constitution.
In Mandal Commission case, the Supreme Court by a majority of 6-3 has held that the sub-
classification of backward classes into more backward castes and backward castes for the
purposes of Article 16(4) can be made. But as a result of sub-classification the reservation
cannot exceed more than 50%. The distinction should be on the basis of degrees of social
backwardness.

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

(1) There shall be quality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard
to a class or classes of employment or appointment to an office under the Government of ,
or any local or other authority within, a State or Union territory, any requirement as to
residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation
of appointments or posts in favour of any backward class of citizens which, in the opinion
of the State, is not adequately represented in the service under the State.
(4-A) Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion, with consequential seniority, to any class or classes
of posts in the services under the State in favour of the Scheduled Castes and the Scheduled
Tribes which, in the opinion of the State, are not adequately represented in the service
under the State.

(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies
of a year which are reserved for being filled up in (4) or Clause (4-A) as a separate class
of vacancies to be filled up in any succeeding year or years and such class of vacancies
shall not be considered together with the vacancies of the year in which they are being
filled up for determining the ceiling fifty per cent reservation on total number of vacancies
of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
Art. 16(1) is a facet of Art. 14. Arts. 14 and 16(1) are closely inter-connected. Art. 16(1)
takes its roots from Art. 14. An important point of distinction between Arts. 14 and 16 is
that while Art. 14 applies to all persons, citizens as well as non-citizens, Art. 16 applies
only to citizens and not to non citizens. The goal of Articles 14 and 16 is limited to equality
among comparables, a necessary implication of which is permissibility of reasonable
classification, having nexus with the object to be achieved.
Art. 16 deals with a very limited subject, viz., public employment. The Scope of Art. 15(1)
is much wider as it covers the entire range of state activities. The ambit of Art. 16(2) is
restrictive in scope than that of Art. 15(1) because Art. 16(2) is confined to employment
or office under the state, meaning services under the Central and State Governments and
their instrumentalities, Art. 15 being more general in nature covers many varied situations
of discrimination. Further, the prohibited grounds of discrimination under Art. 16(2) are
somewhat wider than those under Art. 15(2) because At. 16(2) prohibits discrimination on
the additional grounds or descent and residence apart from religion, race, caste, sex and
place of birth.
In Clause (1) the general rule is laid down hat there shall be equal opportunity for citizens
in matters relating to ‘employment’ or ‘appointment to any office’ under the State. What
is guaranteed is the equality of opportunity.
Clause (2) lays down specific grounds on the basis of which citizens are not to be
discriminated against each other in respect of any appointment or office under the State.
The scope of clause (1) of Article 16 is wider than the scope of clause (2), because
discrimination on grounds other than those mentioned in clause (2) of the Article 16 has
to be weighed and judged in the light of the general principles laid down in clause (1).
Under Clause (3) Parliament is competent to regulate the extent to which it would be
permissible for a State to depart from the law laid down in clause (2). It is Parliament alone
which can prescribe such conditions, and that too in regard to State and not the Union
appointments.

Explaining the nature of Art. 16(4), the Supreme Court has stated that it is “an enabling
provision” conferring a discretionary power on the state for making any provision or
reservation of appointments or posts in favour of any backward class of citizens which, in
the opinion of the state, is not adequately represented in the service of the state. Art. 16(4)
neither imposes any constitutional duty nor confers any Fundamental Right on any one for
claiming reservation.

The equality of opportunity guaranteed by Art. 16(1) is to each individual citizen of the
country while Art. 16(4) contemplates special provision being made in favour of the
socially disadvantaged classes. Both must be balanced against each other. Neither should
be allowed to eclipse the other. Accordingly, the rule of 50% reservation in a year should
be taken as a unit and not the entire strength of the cadre, service or the unit as the case
may be.

In Devadasan case the Supreme Court was required to adjudge the validity of the carry
forward rule. The carry forward rule envisaged that in a year, 17½ per cent posts were to
be reserved for Scheduled Castes/Tribes; if all the reserved posts were not filled in a year
for want of suitable candidates from those classes, then the shortfall was to be carried
forward to the next year and added to the reserved quota for that year, and this could be
done for the next two years. The result of the rule was that in a year out of 45 vacancies in
the cadre of section officers, 29 went to the reserved quota and only 16 posts were left for
others. This meant reservation upto 65% in the third year, and while candidates with low
marks from the Scheduled Castes and Scheduled Tribes were appointed, candidates with
higher marks from other classes were not taken.

Basing itself on the Balaji principle, the Supreme Court declared that more than 50 per
cent reservation of posts in a single year would be unconstitutional as it per se destroys
Art. 16(1). The Court emphasized that in the name of advancement of backward
communities, the Fundamental Rights of other communities should not be completely
annihilated. The Court held that as Article 16(4) was a proviso or an exception to Art.
16(1), it should not be interpreted so as to nullify or destroy the main provision, as
otherwise it would in effect render the guarantee of equality of opportunity in the matter
of public employment under Art. 16(1) wholly illusory and meaningless.
The overriding effect of Cl. (4) of Art. 16 on Cls. (1) and (2) could only extend to the
making of a reasonable number of reservations of appointments and posts in certain
circumstances. A ‘reasonable number’ is one which strikes a reasonable balance between
the claims of the backward classes and those of other citizens.

The Court emphasized that each year of recruitment has to be considered by itself and the
reservation for backward communities should not be so excessive as to create a monopoly
or to disturb unduly the legitimate claims of other communities.
In State of Kerala V. N.M. Thomas, the Supreme Court held that it was permissible to give
preferential treatment to Scheduled Castes/Tribes under Art. 16(1) outside Art. 16(4). In
this case in a dissenting opinion, Subba Rao, J., had express the opinion that Art. 16(4)
was not an exception to Art. 16(1), but was a legislative device by which the framers of
the Constitution had sought to preserve a power untrammeled by the other provisions of
the Article. It was a facet of Art. 16(1) as “it fosters and furthers the idea of equality of
opportunity with special reference to under privileged and deprived classes of citizens.

The majority accepted this view of Subba Rao, J. Accordingly, the Court observed: Art.
16(4) is not in the nature of an exception of Art. 16(1). It is a facet of Art. 16(1) which
fosters and furthers the idea of equality of opportunity with special reference to an under
privileged and deprived class of citizens. Thus, Art. 16(1) being a facet of the doctrine of
equality enshrined in Art. 14 permits reasonable classification just as Art. 14 does. The
majority ruled that Art. 16(4) is not an exception to Art. 16(1). Art. 16(1) itself permits
reasonable classification for attaining equality of opportunity assured by it.
Thomas marks the beginning of a new judicial thinking on Art. 16 and leads to greater
concessions to SC, ST and other backward persons. If the Supreme Court had stuck to the
view propagated in earlier cases that Art. 16(4) was an exception to Art. 16(1), then no
reservation for any other class, such as army personnel, freedom fighters, physically
handicapped, could have been made in services.

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

By majority, the Supreme Court rejected the argument. It ruled that Art. 16(1) being a
facet of Art. 14, would permit reasonable classification and, thus, envisaged equality
between the members of the same class of employees but not equality between members
of a separate, independent class. Classification on the basis of backwardness did not fall
within Art. 16(2) and was legitimate for the purposes of Art. 16(1). Giving preference to
an under-represented backward community was valid and would not contravene Arts. 14,
16(1) and 16(2). Art. 16(4) removes any doubt in this respect. The classification of
employees belonging to SC and ST for allowing them an extended period of two years for
passing the special tests for promotion is a just and reasonable classification having
rational nexus to the object of providing equal opportunity for all citizens in matters
relating to employment or appointment to public office.

The majority adopted a very liberal attitude in Thomas as regards SCs and STs and
backward classes. The result of the pronouncement is to enable the state to give the
backward classes a preferential treatment in many different ways other than reservation of
posts as envisaged in Art. 16(4). Preferential treatment for one is discriminatory treatment
for another and, therefore, it is necessary to draw a balance between the interests of the
backward classes and the other classes. The Supreme court has shown consciousness of
this danger and, therefore, has laid down a few criteria which a classification must fulfill,
viz.:
i. The basis of the classification has to be backwardness.
ii. The preferential treatment accorded to backward classes has to be reasonable and
must have a rational nexus to the object in view, namely, adequate representation
of the under-represented backward classes;
iii. the overall consideration of administrative efficiency should be kept in view in
giving preferential treatment to the backward classes.

It is obvious that in Thomas, the Court has taken a more flexible view of Art. 16(1) than had
been taken by it is earlier cases. It is now clearly established that Art. 16(4) does not cover the
entire field covered by Arts. 16(1) and (2) and some of the matters relating to employment in
respect of which equality of opportunity is guaranteed by Arts. 16(1) and (2) do not fall within
Art. 16(4).
In Akhil Bhartiya Soshit Karamchari Sangh (Railway) V. Union of India, the Supreme Court
again went into the question of reservation in public services vis-à-vis Art. 16. The Court
upheld reservation of posts at various levels and making of various concessions in favour of
the members of the SC and ST.
The Court reiterated the Thomas proposition that under Art. 16(1) itself, the state may classify,
“based upon substantial differentia, groups or classes” for recruitment to public services and
“this process does not necessarily spell violation of Article 14 to 16”
Art. 1692) expressly forbids discrimination on the basis of ‘caste’. SC and ST are not castes
within the ordinary meaning of caste. These are backward human groups. There is a great
divide between these persons and the rest of the community.

Thus, reservation in selection posts in railways for SC and St was held valid. The quantum of
reservation (17½%) in railway services for SC and ST was held not excessive and the field of
eligibility was not too unreasonable. The carry forward rule for three years was held not bad.
Under the Carry forward rule, the quota for SC and ST could go up to a maximum of 66% of
posts. This was upheld with the remark that figures on paper were not so important as the facts
and circumstances in real life which showed that the quota was never fully filled. But this
fixation was subject to the rider that, as a fact, in any particular year, there would not be a
substantial increase over 50% in induction of reserved candidates. Here the Court took the
actual facts, rather than the paper rules, into consideration.

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

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

One, the over-all reservation in a year is now limited to a maximum of 50%.
Two, amongst the classes granted reservation, those who have been benefited from reservation
and have thus improved their social status (called the ‘creamy layer’ by the Court), should not
be allowed to benefit from reservation over and over again. This means that the benefit of
reservation should not be misappropriated by the upper crust but that the benefit of reservation
should be allowed to filter down to the lowliest so that they may benefit from reservation to
improve the position.

Three, an element of merit has now been introduced into the scheme of reservation. This has
been done in several ways, e.g.:
a. promotions are to be merit-based and are to be excluded from the reservation rule
 b. certain posts are to be excluded from the reservation rule and recruitment to such posts
is to be merit based;
c. minimum standards have to be laid down for recruitment to the reserved posts. IN facts,
the Courts has insisted that some minimum standards must be laid down even though
the same may be lower than the standards laid down for the non-reserved posts.

In his opinion in Indra Sawhney, Jeevan Reddy,J., has emphasized upon the member of a
backward class reaching an “advanced social level or status”, he would no longer belong
to the backward class and would have to be weeded out. The Court has opined that
exclusion of creamy layer, i.e., socially advanced members, will make the class a truly
backward class and would more appropriately serve the purpose and object of Art. 16(4).
Jeevan Reddy, J., has stated that there are sections among the backward classes who are
highly advanced socially and educationally, and they constitute the forward section of the
community. These advanced sections do not belong to the true backward class. “After
excluding them alone, would be the class be a compact class. In fact, such exclusion
benefits the truly backward.”

Accordingly to Jeevan Reddy, J., the exclusion of the creamy layer must be on the basis of
social advancement and not on the basis of economic interest alone. It is difficult to draw
a line where a person belonging to the backward class ceases to be so and becomes part of
the ‘creamy layer’.

In Ashoka Kumar Thakur V. State of Bihar, the Supreme Court has assessed the validity
of unrealistically high levels of income or holdings of other conditions prescribed by the
Legislatures of UP and Bihar as criteria to identify the creamy layer. For example, while
the Supreme Court in the Mandal case has categorically said that the Chiildren of IAS or
IPS, etc. without anything more could not avail the benefit of reservation, in the scheme
drawn in UP and Bihar, a few more conditions were added for falling in the creamy layer,
such as, he/she should be getting a salary or Rs. 10,000/- p.m. or more; the wife or husband
to be a graduate and owing a house in an urban area. OR, if a professional doctor, surgeon,
lawyer, architect, etc., he should be having an income not less than Rs. 10 lakh, his/ her
spouse is a graduate and having family property worth Rs. 20 Lakhs. Similar conditions
were added in case of others, such as, traders, artisans, etc.
The Supreme Court has quashed these conditions as discriminatory. The Court has ruled
that these conditions laid down by the two States have no ‘nexus’ with the object sought to
be achieved. The criterion laid down by the two States to identify the creamylayer are
violative of Art. 16(4), wholly arbitrary, violative or Art. 14, and against the law laid down
by the Supreme Court in the Mandal case, where the Court has expressed the view that a
member of the All India Service without anything more ought to be regarded as belonging
to the “creamy layer”

Article 19 Right to Freedom

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

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

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

A law restricting the exercise of any of the seven freedoms guaranteed by clause (1) of Article
19 to be constitutionally valid, must satisfy two conditions, namely:-

1. The restriction must be for the particular purpose mentioned in the clause permitting the
imposition of the restriction on that particular right, and permitting the imposition of the
restriction.
2. The restriction must be a reasonable restriction. It may be emphasized that the requirement
that a restriction should be reasonable is of great constitutional significance, for it acts as a
limitation on the power of the legislature, and consequently, widens the scope of judicial
review of laws restraining the exercise of freedoms guaranteed by Article 19.

Freedom of speech is essential for the proper functioning of the democratic process. The
freedom of speech and expression is regarded as the first condition of liberty. It occupies a
preferred position in the hierarchy of liberties giving succour and protection to all other
liberties.
The test of reasonableness has to be applied to each individual statute impugned and no abstract
standard or general pattern of reasonableness can be laid down as applicable to all cases. The
meaning would vary according to which of the six rights guaranteed under clause (1) is being
restricted by the impugned law. Some of the principles which the Supreme Court has affirmed
in ascertaining the reasonableness of restrictions on the exercise of the rights secured under
this article.

(1) Reasonableness demands proper balancing:- The phrase ‘reasonable restrictions’ connotes
that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary
or of an excessive nature. Legislation which arbitrarily or excessively invades any of the
six freedoms cannot be said to contain the quality of reasonableness, and unless it strikes a
proper balance between the freedoms guaranteed under Article 19(1) and social control
permitted by clauses (2) to (6) of Article 19, it must beheld to be wanting in reasonableness.
(2) Reasonableness both substantive and procedural:- In determining the reasonableness of a
statute, the court would see both to the nature of the restriction and procedure prescribed
by the statute for enforcing the restriction on the individual freedom. Principles of natural
justice are an element in considering the reasonableness of a restriction where Article 19 is
applicable. Absence of provision for review makes the provisions unreasonable.
(3) Reasonableness and objective concept:- The reasonableness of a restriction has to be
determined in an objective manner and from the standpoint of the interests of the general
public and not from the point of view of the persons upon whom the restrictions are
imposed or upon abstract considerations.
(4) Reasonableness of restriction and not of law:- The court is called upon to ascertain the
reasonableness of the restriction and not of the law which permits the restriction. A law
may be reasonable, but the restriction imposed by it on the exercise of freedom may not be
reasonable.
(5) Reasonableness includes total prohibition:- The word ‘restriction’ also includes cases of
prohibition and the State can establish that a law, though purporting to deprive a person of
his fundamental right, under certain circumstances amounts to a reasonable restriction only.
(6) Reasonableness and American ‘Due Process’:- The Constitution framers deliberately
avoided the use of the expression ‘due process’ with its comprehensiveness, flexibility and
attendant vagueness, in favour of the somewhat more definite word, ‘reasonable’, and
caution has, therefore, to be exercised before the literal application of American decisions.
Our Constitution provides reasonably precise general guidance in this matter.
(7) Reasonableness and Directive Principles of State Policy:- That the restrictions are imposed
in carrying out the Directive Principles of State Policy is a point in favour of the
reasonableness of the restrictions.
(8) Reasonableness of Taxes:- Prima facie a tax is not a restriction on any of the freedoms
guaranteed under Article 19. Mere excessiveness of a tax is not a ground for challenging it
as a restriction on one of the freedom in Article 19(1).

Art. 19(1)(a) guarantees to all citizens the right to ‘freedom of speech and expression’. Under
Article 19(2), reasonable restrictions can be imposed on the exercise of this right for certain
purposes. Any limitation on the exercise of the right under Art. 19(1)(a) not falling within the
four corners of Art. 19(2) cannot be valid.
The freedom of speech under Art. 19(1)(a) includes the right to express one’s views and
opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture,
film, movie, etc. It thus includes the freedom of communication and the right to propagate or
publish opinion. But this right is subject to reasonable restrictions being imposed under Art.
19(2).

Unlike Art. 19(1)(a) of the Indian Constitution, the provision in the U.S. Constitution has two
notable features, viz.,
(1) Freedom of Press is specifically mentioned therein;
(2) No restrictions are mentioned on the freedom of speech unlike Art. 19(2) which spells
out the restrictions on Art. 19(1).

The Courts in the U.S.A. have to spell out the restrictions on this right from case to case.
The ‘freedom of speech and expression’ includes the right to acquire information and
disseminate the same. It includes the right to communicate it through any available media
whether print or electronic or audio-visual. This freedom includes the freedom to communicate
or circulate one’s opinion without interference to as large a population in the country, as well
as abroad, as is possible to reach.

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

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

The Supreme Court has emphasized that the freedom of the press is not so much for the benefit
of the press as for he benefit of the general community because the community has a right to
be supplied with information and the government owes a duty to educate the people within the
limits of its resources.
Imposition of pre-censorship on publication is, therefore, unless justified under clause (2),
violative of freedom of speech and expr3ession. In Brij Bhushan V. State of Delhi, an order
issued under East Punjab Safety Act, directing the editor and publisher of a newspaper “to
submit for scrutiny, in duplicate, before publication ,till further orders, all communal matters
and news and views about Pakistan, including photographs and cartoons”, was struck down by
the Supreme Court observing, there can be little doubt that the imposition of pre-censorship on
a journal is a restriction on the liberty of the press which is an essential part of the freedom of
speech and expression declared by Art. 19(1)(a).

Das C.J. said in Virendra V. State of Punjab, that “It is certainly a serious encroachment on the
valuable and cherished right to freedom of speech if a newspaper is prevented from publishing
its own view or views of its correspondents”.

Freedom of speech and expression includes the freedom of propagation of ideas and is ensured
by the freedom of circulation. In Romesh Thappar V. State of Madras, the notification banning
the entry into or circulation, sale, or distribution in the State of Madras or any part of it of the
newspaper entitled ‘Crossroads’ published at Bombay was held invalid because, “without
liberty of circulation, the publication would be of little value”.
The right of freedom of speech is infringed not only by a direct ban on the circulation of a
publication, but also by an action of the government which would adversely affect the
circulation of the paper. In Sakal Papers (p) ltd. V. Union of India, a government order which
fixed the number of pages and size which a newspaper could publish at a price was challenged
by the petitioners on the ground that it infringed the liberty of the press implicit in the terms of
Art. 19(1)(a). The order affected the liberty of the press because its adoption would mean, the
petitioners explained, either the reduction in the existing number of pages or raising of the
price. In either case, there would be reduction in the volume or circulation of the paper and
therefore a direct violation of the liberty of the press. On behalf of the State, the law was
justified as a reasonable restriction on the business activity of a newspaper in the interests of
the general public.

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

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

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

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

The Supreme Court in concluded in Tata Press Case that “commercial speech” cannot be
denied the protection of Art. 19(1)(a) merely because the same is issued by business man.
“Commercial Speech” is a part of freedom of speech guaranteed under Art. 19(1)(a). The public
at large has a right to receive the “commercial speech”. The protection of Art. 19(1)(a) is
available both to the speaker as well as the recipient of the speech.
The Supreme Court accepted as valid the printing of yellow pages by the Tata Press. Printing
of a directory of telephone subscribers is to be done exclusively by the Telephone Department
as a part of its service to the telephone subscribers. But yellow pages only contain commercial
advertisements and Art. 19(1)(a) guarantee freedom to publish the same.
In LIC V. Manubhai D. Shah, the Supreme Court stated a liberal interpretation should be given
to the right of freedom of speech and expression guaranteed by Rt. 19(1)(a) . The Court has
characterized this right as a “basic human right”. This right includes “the right to propagate
one’s views through the print media or through any other communication channel, e.g. the
radio and television”. Thus, every citizen “has the right to air his or her views through the print
and/or the electronic media subject, of course, to permissible restrictions imposed under Art.
19(2) of the Constitution.
In this case the Supreme court has taken cognizance of two situations. One, the respondent
circulated a research article suggesting that the LIC was charging unduly high premiums from
those who took out life insurance policies. The LIC published a counter reply to this paper in
a daily newspaper and also in its own in-house magazine. The respondent then prepared a
rejoinder and got it printed in the same daily newspaper. He also wanted the LIC to print his
rejoinder in their magazine, but the LIC refused to do so. The Supreme Court was called upon
to decide the question whether the LIC was right in refusing to publish the rejoinder the
responded in magazine. Answering in the negative the court pointed out that the attitude of the
LIC was both “unfair and unreasonable”-unfair because fairness demanded that both view
points were placed before the readers and unreasonable because there was no justification for
refusing publication. By refusing to print and publish the rejoinder the LIC had violated the
respondent’s Fundamental Right.

Every free citizen has an undoubted right to lay what sentiments he pleases before the public.
Freedom of speech and expression is subject only to the restrictions imposable under Art. 19(2).
Efforts by intolerant authorities to curb or suffocate this freedom must be firmly replied, more
so when public authorities betray autocratic, tendencies.
LIC is a ‘state’ within the meaning of Art. 12. The LIC Act enacted by Parliament requires LIC
to function in the best interest of the community. The community is, therefore, entitled to know
whether or not, this requirement of the statute is being satisfied in the functioning of the LIC.

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

Virendra V. State of Punjab.

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

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

i. Prohibit the Printing or Publication of any article, report news item, letter or any other
material relating to or connected with “Save Hindi Agitation”;
ii. The imposition of ban against the entry and circulation of the said papers published
from New Delhi in the State of Punjab and
iii. Authorizing the State Government of its delegate to impose Pre-censorship, for a
maximum period of two months in any issue of a newspaper.

These provisions were challenged on the ground of giving arbitrary and uncontrolled discretion
to the government to curtail freedom of speech ‘on its subjective satisfaction’. The Supreme
Court pointed out that there existed in Punjab serious tension amongst the various communities
and in such a situation, conferment of wide powers to be exercised in the subjective satisfaction
of the government could not be regarded as an unreasonable restriction. The State Government
being in possession of all material facts, was the best authority to take anticipatory action for
prevention of threatened breach of peace. Therefore, determination of necessity be left to the
judgment and discretion of the government. To make the exercise of those powers justiciable
would defeat the very purpose of the Act.
The first provision relating to ban on publication of news, etc. was upheld in the time of tension
brought about or aided by the ‘Save Hindi Agitation’, taking into consideration the safeguard
provided therein, as being a reasonable restriction and procedurally reasonable were:

a. The positive requirement of the existence of the satisfaction of the authority as to the
necessity for the making of order for the specific purposes mentioned in the Act.
b. The discretion was given in the first instance to the State Government and not to every
subordinate officer to determine the necessity of passing the order.
c. The order could remain in force only for two months from the making thereof.
d. The aggrieved party was given the right to make representation to the State government
which could, on consideration thereof, modify, confirm or rescind the order.

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

Further the court held that a law conferring discretion on the executive could not be invalid if
it laid down the policy so that discretion was exercised to effectuate the policy. The law in
question satisfied this test for it laid down the purpose for which the power could be exercised.
Further there were two safeguards subject to which the government was to exercise its power,
viz., an order could remain in force only for two months, and the aggrieved person could make
a representation to the government against the order, and so Act as a whole was valid of the
order, nor did it provide for any representation to the government against the order.
Article 21. Protection of Personal Life and Liberty:-

No person shall be deprived of his life or personal liberty except according to procedure
established by law.

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

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

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

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

More importantly, in Unni Krishanan V. State of A.P. the Court has recognized a fundamental
right to education in the right to life under Art.21. Taking help from Art. 41 and 45 it has held
that ‘every child/citizen of this country has a right to free education until he completes the age
of fourteen years. Thereafter his right to education is subject to the limits of economic capacity
and development of the State. But this right does not include the right to participate in the
student union activities and to contest union elections.
In Art. 21, in contrast to with the American Constitution, the word ‘liberty’ is qualified by the
word ‘personal’, leading to an inference that the scope of liberty under our Constitution is
narrower than in the U.S. Constitution. Seemingly that was the impression drawn by some of
the judges in A.K. Gopalan V. State of Madras. Though that case was concerned about the
constitutionality of preventive detention of the petitioner which in any case was an
infringement of the ‘personal liberty’ even in the narrowest sense of the term and therefore it
may be said that the scope of ‘personal liberty’ was not an issue in that case, yet some of the
learned judges looking at the difference in the expression in U.S. and Indian Constitutions and
relying upon the meaning given to ‘personal liberty’ by some English jurists concluded that
‘personal liberty’ was confined to freedom from detention or physical restraints. “But there
was no definite pronouncement made on this point since the question before the Court was not
so much the interpretation of the words ‘personal liberty’ as the inter-relation between Art. 19
and 21.

For the First time the meaning and scope of ‘personal liberty’ came up pointedly for
consideration in Kharak Singh V. State of U.P. In that case validity of certain police regulations
which, without any statutory basis, authorized the police to keep under surveillance persons
whose names were recorded in the ‘history-sheet’ maintained by the police in respect of
persons who are or are likely to become habitual criminals. Surveillance as defined in the
impugned regulation included secret picketing of the house, domiciliary visits at night,
periodical inquiries about the person, an eye on his movements, etc. The petitioner alleged that
this regulation violated his fundamental right to movement in Article 19(1)(d) and ‘personal
liberty’ in Art. 21. For determining the claim of the petitioner the Court, apart from defining
the scope of Art. 19(1)(d) had to define the scope of ‘personal liberty’ in Art. 21.

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

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

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

In Maneka Gandhi V. Union of India, the passport authorities impounded the passport of
Maneka Gandhi under S. 10(3) of the Passport Act which provides authorizes if it deems it
necessary to do so in the interest of the sovereignty and integrity of India. Maneka challenged
the order on the ground of violation of her fundamental right under Art. 21. One of the major
grounds of challenge was that the order impounding the passport was null and void as it had
been made without affording her an opportunity of being heard in her defence.
Bhagwati, J. in Maneka Gandhi case, established that the requirement of reasonableness of
procedure in Art. 21 through Art. 14, some of the judges in that case and in some other
subsequent cases have read it in Art. 21 itself and particularly in the word ‘law’ leading to the
conversion of ‘procedure established by law’ into ‘due process of law’ in the American sense
which the Constitution-makers had intended to avoid by replacing the latter expression by the
former. Thus in Maneka Gandhi, it was said that the procedure in Art. 21 “has to be fair, just
and reasonable, not fanciful, oppressive or arbitrary”. The ‘law’ in Art. 21 “is reasonable law,
not any enacted piece”.

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

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

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

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

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

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

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

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

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

There are many more heads concerning the expansion of Art. 21 in different directions such
as:

(i) Right of Prisoners:-

In Sunil Batra V. Delhi Administration, the solitary confinement of a prisoner, who was
awarded the capital sentence for having committed the offence of murder under the Prisons
Act, was held bad as it was imposed not as a consequence of violation of the prison discipline
but on the ground that the prisoner was one under sentence of death. Court pointed out that
ground that the conviction of a person for a crime did not reduce him to a non-person
vulnerable to major punishment imposed by jail authorities without observance of procedural
safeguards.

(ii) Right of Inmates of Protective Homes:-

Appropriate directions have been given by the courts to the inmates of protective and remand
homes for woman and children for providing suitable human conditions in the homes and for
providing appropriate machinery for effective safeguard of their interests.

(iii) Right to Legal Aid:-

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

(iv) Right to Speedy Trial:-

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

(v) Right against Cruel and Unusal Punishment.

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

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

(viii) Right to Know:- The courts have also recognized the right to know in Art. 21 as a
necessary ingredient of particularly democracy.

Article 22 SAFE GUARD AGAINST ARBITRARY ARREST

AND DETENTION.
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.
2. Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the court of the magistrate and no such person
shall be detained in custody beyond the said period without the authority of a magistrate.
3. Nothing in clauses (1) and (2) shall apply —
a. to any person who for the time being is an enemy alien; or
b. to any person who is arrested or detained under any law providing for preventive
detention.
4. No law providing for preventive detention shall authorise the detention of a person for a
longer period than three months unless—
a. an Advisory Board consisting of persons who are, or have been, or are qualified to
be appointed nothing in this sub-clause shall authorise the detention of any person
beyond the maximum period prescribed by any law made by Parliament under sub-
clause (b) of clause (7); or
b. such person is detained in accordance with the provisions of any law made by
Parliament under subclauses (a) and (b) of clause (7).
5. When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate
to such person the grounds on which the order has been made and shall afford him the
earliest opportunity of making a representation against the order.
6. Nothing in clause (5) shall require the authority making any such order as is referred to in
that clause to disclose facts which such authority considers to be against the public interest
to disclose.
7. Parliament may by law prescribe—
a. the circumstances under which, and the class or classes of cases in which, a person
may be detained for a period longer than three months under any law providing for
preventive detention without obtaining the opinion of an Advisory Board in
accordance with the provisions of sub-clause (a) of clause (4);
b. the maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and
c. the procedure to be followed by an Advisory Board in an inquiry under ***[sub-
clause (a) of clause (4)].

ARTICLE 23-24 Right Against Exploitation

The right against exploitation is one of the most vital fundamental rights given by the Indian
Constitution. These rights aim at protecting citizens from being subjugated to environmental,
domestic and work hazards. Articles 23 and 24 of the Indian Constitution safeguard women
and children and others against exploitation of various forms.
Article Against Human Trafficking And Forced Labor

The first provision in the Article that mentions the Right against exploitation, states the
‘eradication of human trafficking and forced labor (beggar)’. Article 23 declares slave trade,
prostitution and human trafficking a punishable offence. There is, however, an exception here
in the form of employment without payment for compulsory services for public purposes.
Compulsory military conscription is covered by this provision

Article Against Child Labor

Article 24 of the Indian Constitution prohibits abolition of employment of children below the
age of 14 years in dangerous jobs like factories and mines. Child labour is considered gross
violation of the spirit and provisions of the constitution. The parliament has also passed the
Child Labor act of 1986, by providing penalties for employers and relief and rehabilitation
amenities for those affected.

Although Articles 23 and 24 lay down definite provisions against trafficking and child labor,
the weaker sections of the society are still faced by such grave problems. Punishable by law,
these acts are now legitimately bound by legal actions of the Parliament in the form of Bonded
Labor Abolition Act of 1976 and the Child Labor Act of 1986, along with the ground rules and
provisions stated in the Right against Exploitation act.

ARTICLE 25-28 FREEDOM OF RELIGION

i. The preamble to the Constitution which contains the ideals and aspirations or the objects
which the Constitution makers intended to be realised clearly proclaims that the people of
India have solemnly resolved to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC. The expression " Socialist Secular" was
inserted in the preamble by the Constitution (42nd Amendment) Act, 1976. The object of
inserting this expression was to spell out expressly the high ideas of socialism and
secularism and the integrity of the Nation. In short, the object of the Government, in
making this amendment was to make explicit what was already provided in the
Constitution.

Even before the word 'secular' was inserted in the preamble in 1976, in 1973 the Supreme
Court observed that secularism was a basic feature of the Constitution. So far as secularism
is concerned, Articles 25 to 30 provide for the same. In Kesavanada V State of Kerala (AIR
1973 S.C. 1461) and in Indira V Rajnarain (AIR 1975 S.C. 2299) the Supreme Court has
observed that by secularism it is meant that the State shall not discriminate against any
 citizen on the ground of religion only and that the State shall have no religion of its own
and all persons shall be equally entitled to the freedom of conscience and the right freely
to profess, practise and propagate religion. To spell out the above ideas which in fact existed
prior to 1976, the preamble to the Constitution was amended in 1976.

ii. In the background of the proclamation in the preamble to the Constitution that India is a
secular country i.e. India shall have no religion of its own and all persons shall be entitled
to the freedom of conscience and the right freely to profess, practise and propagate
religion, the recent activities targetted against Christians in Gujarat, Madhya Pradesh,
Rajasthan and Orissa will have to be examined.

iii. The right to freedom of religion is a fundamental right guaranteed under Article 25 of the
Constitution of India. Article 25 reads as follows:-
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,
practise 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.
3. Explanation I. The wearing and carrying of Kirpans shall be deemed to be included in
the profession of the Sikh religion.
4. Explanation II. In sub-clause (b) of clause (2), the reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious institutions shall be construed
accordingly.

This Article guarantees that every person in India shall have the freedom of conscience and
shall have the right to profess, practise and propagate religion, subject to the restrictions that
may be imposed by the State on the following grounds, namely:-
1. public order, morality and health;
2. other provisions of the Constitution;
3. regulation of non-religious activity associated with religious practise;
4. social welfare and reform;
5. throwing open of Hindu religious institutions of a public character to all classes of
Hindus.

The freedom of religion conferred by this Article is not confined to citizens of India alone but
extends to all persons including aliens and individuals exercising their rights either in their
individual capacity or on behalf of some church or institution. Freedom of conscience connotes
a person's right to entertain beliefs and doctrines concering matters, which are regarded by him
to be conducive to his spiritual well being.
A person has freedom to believe in the religious tenets of any sect or community. The right is
not only to entertain such religious beliefs as may be approved by his judgement or conscience
but also to exhibit his sentiments in overt acts as are enjoined by his religion. According to this
Article, he may 'profess, practise and propagate his religion'.

To profess a religion means the right to declare freely and openly one's faith. Modes of worship
considered by a religion to be its integral and essential part are also secured. He may propagate
freely his religious views for the edification of others. Thus, freedom of conscience would be
meaningless unless it is supplemented by the freedom of unhampered expression of spiritual
conviction in word and action.

The right to propagate one's religion means the right to communicate the person's beliefs to
another person or to expose the tenets of that faih, but would not include the right to convert
another person to the former's faith, becuase the latter is equally entitled to freedom of
conscience.

Of course, the latter person is free to adopt another religion in the free exercise of his
conscience. Thus, Article 25(1) guarantees to every person not only the right to entertain such
religious beliefs as may appeal to his conscience, but also the right to exhibit his belief in his
conduct by such outward acts as may appear to him proper in order to spread his ideas for the
benefit of others. Therefore, every person is guaranteed the freedom to practise his religion- or
to spread it if he so wishes - if that freedom is not abused to commit crimes or indulge in anti
social activities.

iv. Any attempt to impose a ban on all religious conversions would interfere with one's right
to propagate one's religion under Article 25(1), apart from infringing the right to freedom
of speech guaranteed under Article 19(1) of the Constitution. The Supreme Court has held
that there is no fundamental right to convert another person to one's religion as such a
right would infringe on the right to freedom of conscience guaranteed to all citizens of the
country alike.

In this context, the Supreme Court has upheld the validity of the Acts passed by the Madhya
Pradesh and Orissa Govts., which prohibited forcible conversion from one religion to
another in a manner reprehensible to the conscience of the community and which made
conversions by force, fraudulence or allurement an offence. Please see Rev Stainislaus vs
State of M.P. (A.I.R. 1997 SC 908)

v. The resultant position is that Article 25(1) of the Constitution does not guarantee the right
to convert but only the right freely to profess, practise and propagate one's religion.
Forcible conversion which is likely to give rise to an apprehension of breech of public
order and which is reprehensible to the conscience of the community is not permissible
under this Article.
 It is absolutely impossible to forcibly convert any person against his will. No Christian
missionary has ever been accused of resorting to physical threats while propagating the
religion. The said Article unequivocally states that people have the freedom to freely
profess and practise, the religion of their choice. This means that if a person propagates his
faith to another person and the person to whom the faith is propagated is convinced and
wants to profess or practise it, he has the right to do so. If this is not allowed then the right
to propagate religion guaranteed by the Constitution will be meaningless.

vi. The question whether the right to propagate one's religion should be incorporated in
Article 25 (draft Article 19) was the subject matter of discussion in the Constituent
Assembly on 3.12.1948 and 6.12.1948. Although some members expressed the view that
the right to propagate should not be included in Article 25 (1), the majority of the members
felt otherwise. The following are the views expressed by certain members:-

Shri. T.T. Krishnamachari

The right to propagate one's religion is not given to any particular community or to people who
follow any particular religion. It is perfectly open to Hindus and Arya Samajis to carry on their
suddhi propaganda as it is open to the Christians, the Muslims, the Jains etc., so long as they
do it subject to public order, morality and the other conditions that have to be observed in any
civilized Government. So, it is not a question of taking away anybody's rights.

It is question of conferring these rights on all citizens and seeing that these rights are exercised
in a manner which will not upset the economy of the country, which will not create disorder
and which will not create undue conflicts in the minds of the people. ---------- Sir, I know as a
person who has studied for about fourteen years in Christian institutions, that no attempt has
been made to convert me from my own faith and to practise Christianity.---------------- The fact
that many people in this country have embraced Christianity is due partly to the status that it
gave to them. Why should we forget that particular fact.

Right To Constitutional Remedies - Article 32

Article 32 of the Indian constitution provides for constitutional remedies against the violation
or transgression of fundamental rights. The fundamental rights are of highest importance to the
individuals. They are basic conditions for the fullest development of personality.

Article 32 which was referred to “as the very soul of the constitution” by Dr. Ambedkar,
provides for constitutional remedies. Clause 2 of Article 32 provides that, “The Supreme Court
shall have the power to issue directions or order or writs including the writs in the nature of
habeas corpus, mandamus, prohibition, Quo warranto and criterion, whichever may be
appropriate for the enforcement of any of the rights conferred by” fundamental rights. The
citizens are given the right to move—the Supreme Court in case of transgression of
fundamental rights. The Supreme Court thus is constituted into a protector and guarantor
fundamental rights. The right to constitutional remedy is itself a fundamental right.

Besides the Supreme Court, the High Courts also have been given a role in the protection of
fundamental rights. Under Art. 226 of the constitution, High Courts also can issue writs for the
enforcement of fundamental rights.

But the jurisdictions of the Supreme Court and the High Courts in the matter of issue of writs
are slightly different. The Supreme Court can issue writs only in case of infringement of a
fundmental right in part III of the constitution. The High Courts on the other can issue writs
against infringement of fundamental rights, as well as against contravention of ordinary law of
redress grievances arising therefrom. Thus the area of High Courts, with respect to the power
to issue writs is wider than that of the Supreme Court. However, competence of the High Courts
to issue writs is limited within its territorial jurisdiction. The Supreme Court’s area of
competence is co-terminus with the territory of India as a whole.

In case of transgression of fundamental rights the Supreme Court or the High Courts may issue
five kinds of writs. These are writs of Habeas Corpus, Mandamus, Prohibition, Criterion, and
Quowarranto.
 Habeas Corpus—Habeas Corpus literally means—that human person is sacred. Hence
no man may be detained illegally. Whenever a man is detained, he must be produced
before a court. This writ is a powerful safeguard against arbitrary arrest and detention.
 Mandamus—meaning ‘command’, mandamus calls upon public servants to perform
some duties. Thus mandamus is issued against dereliction of duty.
 Prohibition—as the very term prohibition—suggests, this writ is issued by the
Supreme Court or the High Courts, to prohibit inferior courts under them to overstep
their jurisdiction.
 Criterion—it enables a superior court of compels inferior courts to submit records of
proceedings to the higher court.
 Quo warranto—literally means by what right. This writ is issued to determine the
legality of a person’s claim to public office. The purpose of this writ is to prevent
usurpation of a public office by an undesirable or, unqualified person.

Limitations
Like fundamental rights themselves, the right to constitutional remedies under Article 32 are
not without limits. The constitution visualizes there situations when fundamental rights may
be denied hut constitutional remedies will not be available i.e. Article 32 will not be applicable.
 Article 33 empower the Parliament to modify application of fundamental rights to
armed forces and the Police to ensure proper discharge of their duties.
 Secondly, under Article 34, during the operation of Martial law in any area, the
Parliament may indemnify any person in the service of the central or a state government
for acts for the maintenance or restoration of law and order.
  Thirdly, during emergency proclaimed under Art 352 of the constitution, the
fundamental rights guaranteed to the citizens, will remain suspended. Article 358
authorize the Parliament to restrict fundamental rights guaranteed by Art 19 during the
pendency of an emergency under Article 352.

Article 359 empower the President to suspend the right to move the courts for the restoration
of fundamental rights. In other words, Article 359 empowers the President to suspend Art 32
of the constitution. Such an order however is to be submitted to the Parliament, and the
Parliament has the right to disapprove the Presidential order.

Right to Information
Elonnai Hickok summarises the Right to Information Act, 2005, how it works, how to file an
RTI request, the information that an individual can request under the Act, the possible
responses and the challenges to the citizen and the government. She concludes by saying that
there are many structural changes that both citizens and governmental officers can make to
improve the system.

Introduction
The Right to Information Act, 2005 (RTI) was created in 2005 and marked an important time
in Indian legislative history. The Right to Information enables citizens to hold the government
accountable and ensure that it is a transparent body. Questions that can be asked by the citizen
to the government range from anything that may concern to some meeting notes to why a
teacher is not present in a public school, etc. In the current RTI system there are many
challenges that are inhibiting the government’s efficient delivery of the RTI as a service to the
people. This has changed the concept of how the citizens view the RTI, as the government feels
harassed and the citizens feel as though their rights are being unjustly denied. Additionally,
individuals have turned the RTI into a redressal mechanism rather than a way to ensure
transparency and learn/understand how their government is functioning. The use of the RTI as
a redressal mechanism has created a relationship of animosity between the government and
citizens. The below note outlines the ecosystem of the RTI and notes specific challenges that
both citizens and the government face.[1]

The RTI Ecosystem

RTI work flow
 An individual files an RTI with the central/ state public information officer (PIO) or a
specific PIO. PIOs are often not trained, and rarely apply for the position, but are
instead designated.
 Within five days the information is to be forwarded to the correct PIO.
 The PIO must open a file and dispose of the request within 30 days.
 If the PIO fails to reply to the applicant by either approving or denying a request, the PIO
is liable to pay a fine of Rs. 250 for each day of delay.
 If information is electronically uploaded, it is stored in any format the officer chooses (jpeg,
pdf, html, etc).
 Except for land records and staff records, files are retained for a maximum of one year.
 If the PIO does not dispose of the request, there is scope for an appeal within 30-45 days
to the appellate authority.
 There is scope for a second appeal to the information commissioner if the authority does
not respond within 90 days or the answer is found to be unsatisfactory.
 The final decision of the information commissioner is binding.

Filing an RTI request

Though there is no specific format an individual must follow when submitting an RTI, when
filing a request, individuals must include:
 His /her name and address.
 The name and address of the public information officer (PIO).
 The particulars of information/documents required (limited to 150 words and one subject
matter).
 The time period of the information required.
 Proof of payment.
 Signature.
 Proof if the individual is a BPL holder.[2]

Information that an individual can request under the RTI Act

 Inspection of work, documents, and records
 Taking notes, extracts or certified copies of documents or records.
 Taking certified samples of material.
 Obtaining of information in the form of diskettes, floppies, tapes, and video cassettes, or
in any other electronic mode, or through printouts where such information is stored in a
computer, or in any other device.
 Obtaining the status of an RTI request or complaint.

Note: If an individual is requesting third party information, the PIO must inform the third party
and provide the individual the opportunity to state a reason for not disclosing the information.

Accepted format of requested materials and records

 Material requested can be in any format including: records, documents, memos, emails,
opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers,
samples, models, and data material held in any electronic form.
 Records requested can include: any document, manuscript and file, any microfilm,
microfiche and facsimile copy of a document, and reproduction of image or images
embodied in such microfilm (whether enlarged or not), and any other material produced by
a computer or any other device.

Possible Responses to an RTI request

An information officer can respond to an RTI in the following ways:
 Transfer request to appropriate PIO within five days and notify the applicant about the
transfer.
 Provide the requested information within 30 days.
 Reject the request information within 30 days stating the reasons for rejection, the period
within which an appeal against such rejection may be preferred, and the details of the
appellate authority.
 Not respond to the applicant. If no response is received within 30 days the officer is liable
for a penalty of Rs. 250 per day.

Appeal/Complaint Process
 First appeal can be filed after 30 days or if the information given was unsatisfactory. The
appeal must include: name and address of the appellant, name and address of the PIO
involved, brief facts leading to appeal, relief sought, grounds for appeal, and copies of the
application or documents involved, including copies of the reply, if received from the PIO.
 Second appeal must contain: name and address of the applicant, and name and address of
the PIO involved, particulars of the Order including the number if any against which the
appeal is preferred, brief facts leading to the appeal, if appeal/complaint is preferred against
deemed refusal then the particulars of the application, including number and date and name,
address of the PIO to whom the application was originally made, relief sought, grounds
for the relief, verification by the applicant, any other information which the commission
may deem necessary for deciding during the appeal, self attested copies of the application
or documents involved, copies of the documents relied upon by the appellant and referred
to in the appeal, and an index of the documents referred to in the appeal.
 A complaint must include: name and address of the complainant, name and address of the
state PIO against whom the complaint is being made, facts leading to the complaint,
particulars of the application [number, date, name and address of the PIO (three copies)],
relief sought, grounds and proof for relief, verification of the complainant (three copies),
index of documents referred to in the complaint, and any other necessary information.[3]

Challenges to the Citizen

Knowing the correct Public Information Officer

Knowing which public information officer to mail in the RTI request is the first difficulty that
an individual faces. As noted above in 2008 there were a total of 73,256 recorded public
information commissioners in the State of Karnataka. New public information commissioners
are created every day, because the RTI extends not only to any department of the government,
but to any sub-contracted company, organization, school, or NGO that is receiving government
funding and doing work on behalf of the government directly or indirectly. Lists of PIOs can
be found on department bulletin boards and websites, but there is no clear method for an
individual to know what information each PIO is the custodian over. Thus, they are left to
determine on their own, and rely on the PIO to forward their application to the correct
individual.
Filing in the correct format
Though it is stated in the law what language an RTI request will be accepted in, and what
information should be included – individuals are often unaware of the guidelines and unaware
of how to correctly fill out an RTI request. An incorrectly formatted request is one of the major
reasons for rejection of a request by the PIO.

Language
In the State of Karnataka, RTIs can be filed only in two languages: Kannada and English. By
law, RTI responses are given only in the language that the department works in on a daily basis,
and in English. The information that is supplied through the request is given in its original
language. For example, if you ask for a document that is originally in Marathi, the document
will be photo copied and sent to you. No translation of documents takes place, because it is not
the job function of the officer to translate documents.

Appeals
If an individual is denied information, or does not receive a reply within 30 days, they have the
option of seeking an appeal through an appellate authority. In 2008 Karnataka had 5416
Appellate Authorities. Currently, because of the backlog in appeal cases and the slow
functioning of the system, an individual might have to wait for upto one year for his/her appeal
to be heard. Often at this point the information is no longer relevant or needed.

Privacy
In some cases individuals are denied a request for information based on the grounds that it
would invade the privacy of the public officer. This is sometimes the case and sometimes not
the case. Finding the right balance between the right to information and privacy is important,
as protecting an individual’s privacy is crucial, but privacy should not be used as a reason for
the government to be less transparent to the citizen and be used as a way to deny a citizen the
information that they are entitled to.[4]

Challenges in the RTI System for the Government

 Too many RTI requests and no system to record duplicates: As the figure shows above,
in 2008, the Karnataka Government received 42208 RTI requests. Currently, it is not
possible to know how many of these requests were duplicates since departments handling
RTIs do not make it a practice to upload and organize filed RTI requests in a format easily
accessible to citizens. Thus, there is no present system in place to track, upload, and store
past RTI's in a meaningful way.
 Additional overhead in recording, organizing, accessing, and storing data: In the
current system every time an RTI request is received by the government, they open a new
file for that request. Though in some ways this system of storage simplifies the process of
finding past RTIs, it adds an additional overhead cost as photocopies must be made, new
files created, and correctly added to the organized system. Each state follows its own
method of recording, organizing, accessing, and storing data – thus, currently it is not
 possible to easily access the information from another state or combine information from
two separate states.
 Lack of compliance with section 4(d) pro-active disclosure: Under section 4 (d), the
government is required to pro-actively disclose a pre-determined data to the public via
websites and other useful modes. Currently there is very little compliance with section 4(d)
from governmental departments. There are many factors that contribute to the low rate of
compliance that exist including lack of resources and lack of proper enforcement. If
governmental departments were to comply with section 4(d) then the load of RTI requests
and the time each request must take to answer could be lightened considerably as the
government could respond by pointing citizens to the already disclosed information.

Conclusion
Though the Right to Information is an important right, the above entry looks at some of the
weaknesses and challenges in the system. There are many structural changes that both citizens
and governmental officers can make to improve the system such as pro-actively disclosing
information, ensuring that an RTI is filed correctly, and creating a system for organizing
previously asked questions. Alongside of these structural changes it is also critical that a
positive culture of transparency and accountability is fostered throughout society, thus
encouraging citizens to actively engage with the government and exercise their right to
information.

Unit - II
Directive Principles of State Policy
The Directive Principles of State Policy are guidelines to the central and state governments of
India, to be kept in mind while framing laws and policies. These provisions, contained in Part
IV of the Constitution of India, are not enforceable by any court, but the principles laid down
therein are considered fundamental in the governance of the country, making it the duty of the
State. To apply these principles in making laws to establish a just society in the country. The
principles have been inspired by the Directive Principles given in the Constitution of Ireland
and also by the principles of Gandhism; and relate to social justice, economic welfare, foreign
policy, and legal and administrative matters.

Directive Principles are classified under the following categories: Gandhian, economic and
socialistic, political and administrative, justice and legal, environmental, protection of
monuments and peace and security.

History
The concept of Directive Principles of State Policy was borrowed from the Irish Constitution.
The makers of the Constitution of India were influenced by the Irish nationalist movement.
Hence, the Directive Principles of the Indian constitution have been greatly influenced by the
Directive Principles of State Policy. The idea of such policies "can be traced to the Declaration
of the Rights of Man proclaimed Revolutionary France and the Declaration of Independence
by the American Colonies." The Indian constitution was also influenced by the United Nations
Universal Declaration of Human Rights.

When India obtained independence on 15 August 1947, the task of developing a constitution
for the nation was undertaken by the Constituent Assembly of India, composing of elected
representatives under the presidency of Dr. Rajendra Prasad. While members of Congress
composed of a large majority, Congress leaders appointed persons from diverse political
backgrounds to responsibilities of developing the constitution and national laws.[6] Notably,
Bhimrao Ramji Ambedkar became the chairperson of the drafting committee, while Jawaharlal
Nehru and Sardar Vallabhbhai Patel became chairpersons of committees and sub-committees
responsible for different subjects. A notable development during that period having significant
effect on the Indian constitution took place on 10 December 1948 when the United Nations
General Assembly adopted the Universal Declaration of Human Rights and called upon all
member states to adopt these rights in their respective constitution

➢ Article 36 {Definition}
In this Part, unless the context otherwise requires, "the State" has the same meaning as in Part
III

➢ Article 37 {Application of the principles contained in this Part}

The provisions contained in this Part shall not be enforced by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall be
the duty of the State to apply these principles in making laws

➢ Article 38 {State to secure a social order for the promotion of welfare of the people}
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.

The State shall, in particular, strive to minimise the inequalities in income, and endeavour to
eliminate inequalities in status, facilities and opportunities, not only amongst individuals but
also amongst groups of people residing in different areas or engaged in different vocations.

➢ Article 39 {Certain principles of policy to be followed by the State}

The State shall, in particular, direct its policy towards securing -
➢ that the citizen, men and women equally, have the right to an adequate means of livelihood;
➢ that the ownership and control of the material resources of the community are so distributed
as best to subserve the common good;
➢ that the operation of the economic system does not result in the concentration of wealth
and means of production to the common detriment;
➢ that there is equal pay for equal work for both men and women;
➢ that the health and strength of workers, men and women, and the tender age of children are
not abused and that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength;
➢ that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.

➢ Article 39A {Equal justice and free legal aid}

The State shall secure that the operation of the legal system promotes justice, on a basis of
equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities.

➢ Article 40 {Organisation of village panchayats}

The State shall take steps to organise village panchayats and endow them with such powers
and authority as may be necessary to enable them to function as units of self-government.

➢ Article 41 {Right to work, to education and to public assistance in certain cases}

The State shall, within the limits of its economic capacity and development, make effective
provision for securing the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in other cases of undeserved want
➢ Article 42 {Provision for just and humane conditions of work and maternity relief}
The State shall make provision for securing just and humane conditions of work and for
maternity relief.

➢ Article 43 {Living wage, etc., for workers}

The State shall endeavor to secure, by suitable legislation or economic organisation or in any
other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions
of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural
opportunities and, in particular, the State shall endeavour to promote cottage industries on an
individual or co-operative basis in rural areas.

➢ Article 43A {Participation of workers in management of industries}

The State shall take steps, by suitable legislation or in any other way, to secure the participation
of workers in the management of undertakings, establishments or other organisation engaged
in any industry.

➢ Article 44 {Uniform civil code for the citizen}

The State shall endeavour to secure for the citizens a uniform civil code throughout the territory
of India.

➢ Article 45 {Provision for free and compulsory education for children}

The State shall endeavor to provide, within a period of ten years from the commencement of
this Constitution, for free and compulsory education for all children until they complete the
age of fourteen years.

➢ Article 46 {Promotion of educational and economic interests of Scheduled Castes,

Scheduled Tribes and other weaker sections}
The State shall promote with special care the educational and economic interests of the weaker
sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and
shall protect them from social injustice and all forms of exploitation.

➢ Article 47 {Duty of the State to raise the level of nutrition and the standard of living
and to improve public health}
The State shall regard the raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption except for medicinal purpose of
intoxicating drinks and of drugs which are injurious to health

➢ Article 48 {Organisation of agriculture and animal husbandry}

The State shall endeavour to organise agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for preserving and improving the breeds, and
prohibiting the slaughter, of cows and calves and other milch and draught cattle.

➢ Article 48A {Protection and improvement of environment and safeguarding of forests

and wild life}
The State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country.

➢ Article 49 {Protection of monuments and places and objects of national importance}

It shall be the obligation of the State to protect every monument or place or object of artistic or
historic interest, declared by or under law made by Parliament to be of national importance,
from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

➢ Article 50 {Separation of judiciary from executive}

The State shall take steps to separate the judiciary from the executive in the public services of
the State.

➢ Article 51 {Promotion of international peace and security}

The State shall endeavour to -
 promote international peace and security;
maintain just and honourable relations between nations;
foster respect for international law and treaty obligations in the dealings of organised
people with one another; and
encourage settlement of international disputes by arbitration.

References:
 http://en.wikipedia.org/wiki/Directive_Principles_of_State_Policy
 Pylee, M.V. (1999), India’s constitution, New Delhi: S. Chand and Company, ISBN 81-
219-1907-X
 Basu, Durga Das (1993), Introduction to the constitution of India, New Delhi: Prentice Hall
of India

Union Executive
THE PRESIDENT: is the head of state and first citizen of India, as well as the Supreme
Commander of the Indian Armed Forces. In theory, the President possesses considerable
power. With few exceptions, most of the authority vested in the President is in practice
exercised by the Council of Ministers, headed by the Prime Minister.

Electoral Procedure (Article54 & 55): the new president is chosen by an electoral college
consisting of the elected members of both houses of the Parliament and the elected
members of the State Legislative Assemblies (Vidhan Sabha). The election is held in
accordance to the system of Proportional Representation by means of Single
Transferable Vote method.

The number of votes assigned to a particular voter from a state assembly is decided as follows.

Total population of the state

Total number of elected members*1000

Term(Article 56) : five years from t he date on which he enters his office ; may
terminate
➢ By resignation in writing addressed to the Vice- President of India
➢ By removal for violation of the Constitution, by the process in impeachment.

Article 57: confirms that president is eligible for re-election to the office.
Qualification (Article 58) :

➢ Citizen of India
➢ Have completed 35 yrs
 ➢ Be qualified for election as member of the Lok Sabha
➢ Must not hold any office of profit under the Govt. or local authority

Condition Of Office (Article 59): president is not to be a member of either House of

Parliament or of a House of any State Legislature. If he is member of the parliament or
state Legislature, on his election as president, he shall be deemed to have vacated his
seat in the House on the date on which he enters the office of president. He should not
hold any other office of profit.

Emoluments(Article 59):
The President receives a salary of Rs. 1.5 lakh month. However, almost everything that
the President does or wants to do is taken care of by the annual R s 225 million (U
S$ 4.6 million) budget that the Government allots for his or her upkeep.
Oath / Affirmation (Article 60): The President or person acting as president is to take
an oath in the presence of the Chief Justice of India or in his absence. The senior –most
judge of the Supreme Court.

Impeachment

The President may be removed before the expiry of his/her term through impeachment .A
President can be removed for violation of the Constitution. The process may start in either of
the two houses of the Parliament. The house initiates the process by leveling the charges against
the President. The charges are contained in a notice that has to be signed by at least one quarter
of the total members of that house. The notice is sent up to the President and 14 days later, it
is taken up for consideration.

A resolution to impeach the President has to be passed by a two-third majority of the total
members of the originating house. It is then sent to the other house. The other house
investigates the charges that have been made. During this process, the President has the right
to defend himself/herself through an authorised counsel No President has faced impeachment
proceedings. Hence, the above provisions have never been tested.

Powers and duties

Legislative powers
The president summons both the Houses of the Parliament and prorogues them. He or she can
dissolve the Lok Sabha. These powers are formal, and by convention, the President uses these
powers according to the advice of the Council of Ministers headed by the Prime Minister.

President inaugurates the Parliament by addressing it after the general elections and also at the
beginning of the first session each year. Presidential address on these occasions is generally
meant to outline the new policies of the government.
All bills passed by the Parliament can become laws only after receiving the assent of the
President. The President can return a bill to the Parliament, if it is not a money bill, for
reconsideration. When after reconsideration, the bill is passed and presented to the President,
with or without amendments, President is obliged to assent to it. The President can also
withhold his assent to the bill thereby exercising pocket veto.

When both Houses of the Parliament are not in session and if government feels the need for
immediate action, President can promulgate ordinances which have the same force and effect
as laws passed by Parliament. These are in the nature of interim or temporary legislation and
their continuance is subject to parliamentary approval. Ordinances remain valid for no more
than six weeks from the date the Parliament is convened unless approved by it earlier.

Article 53: executive powers

The Constitution vests in the President of India all the executive powers of the Central
Government. The President appoints the Prime Minister the person most likely to command
the support of the majority in the Lok Sabha (usually the leader of the majority party or
coalition). The President then appoints the other members of the Council of Ministers,
distributing portfolios to them on the advice of the Prime Minister.

The Council of Ministers remains in power during the 'pleasure' of the President. In practice,
however, the Council of Ministers must retain the support of the Lok Sabha. If a President were
to dismiss the Council of Ministers on his or her own initiative, it might trigger a constitutional
crisis.

The President is responsible for making a wide variety of appointments. These include:
 Governors of States
 The Chief Justice, other judges of the Supreme Court and High Courts of India.
 The Attorney General
 The Comptroller and Auditor General
 The Chief Election Commissioner and other Election Commissioners
 The Chairman and other Members of the Union Public Service Commission
 Ambassadors and High Commissioners to other countries.

Vice president
The Vice-President of India (Hindi: भारत के उपराष्ट्रपतत) is the second-highest ranking
government official in the executive branch of the Government of India, after the President.
The Vice-President also has the legislative function of acting as the Chairman of the Rajya
Sabha.

The current Vice-President of India is Hamid Ansari, who was elected on 10 August 2007.
Article 63 of the Constitution of India provides for a Vice-President: "There shall be a Vice-
President of India". While the Indian Vice-President could be elected for any number of terms,
the Constitution requires that the Vice-President must be a citizen of India.

Powers and duties

The Vice-President acts as President in the event of death, resignation, or removal of the
President until a new President is chosen by the electoral college for maximum 6 months.
During this period, the Vice President shall not perform the duties of the office of the Chairman
of Rajya Sabha.

He is also the ex-officio chairman of Rajya Sabha. All bills, resolution, motion can be taken in
Rajya Sabha after his consent. However since he is not a member of Rajya Sabha, he has no
right to vote.

The Vice President is the second highest dignitary of India, next to the President of India.

Qualifications
 Citizen of India.
 More than 35 yrs of age.
 Possess the qualification for membership of Rajya Sabha.
 Not hold any office of profit under union, state or local authority.

Election
The vice-president is elected by electoral college in accordance with the system of proportional
representation by means of single transferable vote and the vote being secret. Nominated
members can also participate in his election.

Term
The Vice-President holds office for five years. He/she can be re-elected any number of times.
However the term will be cut short if the Vice-President resigns, dies, or is impeached.

Council of Ministers
Council of Ministers forms an important organ of the Executive. The Council of Ministers is
headed by the Prime Minister. And it is the prime duty of the Council of Ministers to advise
the President in exercise of his functions. The Prime Minister is appointed by the President,
who also appoints other ministers on the advice of Prime Minister. The Council is collectively
responsible to the Lok Sabha. It is the duty of the Prime Minister to communicate to the
President all decisions of Council of Ministers relating to administration of affairs of the Union
and proposals for legislation and information relating to them.

The Council of Ministers comprises Ministers who are members of Cabinet, Ministers of State
(independent charge), Ministers of State and Deputy Minister.
 OUR PARLIAMENT

Parliament is the supreme legislative body of a country. Our Parliament comprises of the
President and the two Houses—Lok Sabha (House of the People) and Rajya Sabha (Council of
States). The President has the power to summon and prorogue either House of Parliament or to
dissolve Lok Sabha.

The Constitution of India came into force on January 26, 1950. The first general elections under
the new Constitution were held during the year 1951-52 and the first elected Parliament came
into being in April, 1952, the Second Lok Sabha in April, 1957, the Third Lok Sabha in April,
1962, the Fourth Lok Sabha in March, 1967, the Fifth Lok Sabha in March, 1971, the Sixth
Lok Sabha in March, 1977, the Seventh Lok Sabha in January, 1980, the Eighth Lok Sabha in
December, 1984, the Ninth Lok Sabha in December, 1989, the Tenth Lok Sabha in June, 1991,
the Eleventh Lok Sabha in May, 1996, the Twelfth Lok Sabha in March, 1998 and Thirteenth
Lok Sabha in October, 1999.

Lok Sabha

Lok Sabha, as the name itself signifies, is the body of representatives of the people. Its members
are directly elected, normally once in every five years by the adult population who are eligible
to vote. The minimum qualifying age for membership of the House is 25 years. The present
membership of Lok Sabha is 545. The number is divided among the different States and Union
Territories .

Rajya Sabha

Rajya Sabha is the Upper House of Parliament. It has not more than 250 members. Members
of Rajya Sabha are not elected by the people directly but indirectly by the Legislative
Assemblies of the various States. Every State is allotted a certain number of members. No
member of Rajya Sabha can be under 30 years of age.

Twelve of Rajya Sabha members are nominated by the President from persons who have earned
distinction in the fields of literature, art, science and social service.

Rajya Sabha is a permanent body. It is not subject to dissolution but one-third of its members
retire every two years. Rajya Sabha was duly constituted for the first time on April 3, 1952 and
it held its first sitting on May 13, that year.

There are at present 245 members in Rajya Sabha, distributed among different States and Union
Territories.

Presiding Officers
Lok Sabha elects one of its own members as its Presiding Officer and he is called the Speaker.
He is assisted by the Deputy Speaker who is also elected by Lok Sabha. The conduct of
business in Lok Sabha is the responsibility of the Speaker.

The Vice-President of India is the ex-officio Chairman of Rajya Sabha. He is elected by the
members of an electoral college consisting of members of both Houses of Parliament. Rajya
Sabha also elects one of its members to be the Deputy Chairman.

Functions of Lok Sabha and Rajya Sabha

The main function of both the Houses is to pass laws. Every Bill has to be passed by both the
Houses and assented to by the President before it becomes law. The subjects over which
Parliament can legislate are the subjects mentioned under the Union List in the Seventh
Schedule to the Constitution of India. Broadly speaking, Union subjects are those important
subjects which for reasons of convenience, efficiency and security are administered on all-
India basis. The principal Union subjects are Defence, Foreign Affairs, Railways, Transport
and Communications, Currency and Coinage, Banking, Customs and Excise Duties. There are
numerous other subjects on which both Parliament and State Legislatures can legislate.

Under this category mention may be made of economic and social planning, social security
and insurance, labour welfare, price control and vital statistics.

Besides passing laws, Parliament can by means of resolutions, motions for adjournment,
discussions and questions addressed by members to Ministers exercise control over the
administration of the country and safeguard people’s liberties.

Difference between Lok Sabha and Rajya Sabha

(1) Members of Lok Sabha are directly elected by the eligible voters. Members of Rajya Sabha
are elected by the elected members of State Legislative Assemblies in accordance with the
system of proportional representation by means of single transferable vote.
(2) The normal life of every Lok Sabha is 5 years only while Rajya Sabha is a permanent body.
(3) Lok Sabha is the House to which the Council of Ministers is responsible under the
Constitution. Money Bills can only be introduced in Lok Sabha. Also it is Lok Sabha which
grants the money for running the administration of the country.
(4) Rajya Sabha has special powers to declare that it is necessary and expedient in the national
interest that Parliament may make laws with respect to a matter in the State List or to create
by law one or more all-India services common to the Union and the States.

SUPREME COURT OF INDIA

Established 26 January 1950

Jurisdiction India
 Composition method Executive selection (Qualifications imposed)
Authorized by Constitution of India

Number of positions 31 (30+1)

REPUBLIC OF INDIA

The Supreme Court of India is the highest judicial forum and SWfinal court of appeal as
established by Part V, Chapter IV of the Constitution of India. According to the Constitution
of India, the role of the Supreme Court is that of a federal court and guardian of the
Constitution.

Articles 124 to 147 of the Constitution of India lay down the composition and jurisdiction of
the Supreme Court of India. The Supreme Court is meant to be the last resort and highest
appellate court which takes up appeals against judgments of the High Courts of the states and
territories. Also, disputes between states or petitions involving a serious infringement of
fundamental and human rights are usually brought directly to the Supreme Court. The Supreme
Court of India held its inaugural sitting on 28 January 1950, and since then has delivered more
than 24,000 reported judgments.

Constitution of the court

On 28 January 1950, two days after India became a sovereign democratic republic, the Supreme
Court came into being. The inauguration took place in the Chamber of Princes in the Parliament
building. The Chamber of Princes had earlier been the seat of the Federal Court of India for 12
years, between 1937 and 1950, and was the seat of the Supreme Court until the Supreme Court
acquired its present premises in 1958.

The Supreme Court of India replaced both the Federal Court of India and the Judicial
Committee of the Privy Council at the apex of the Indian court system.

After its inauguration on 28 January 1950, the Supreme Court commenced its sittings in the
Chamber of Princes in the Parliament House. The Court moved into the present building in
1958. The Supreme Court Bar Association is the bar of the highest court. The current president
of the SCBA is Mr. Pravin Parekh. Mr. Sanjay Bansal is the present Honorary Secretary of
SCBA.

The Supreme Court Building and its Architecture

The main block of the Supreme Court building was built on a square plot of 22 acres and the
building was designed by chief architect Ganesh Bhikaji Deolalikar who was the first Indian
to head CPWD and designed the Supreme Court Building in an Indo – British architectural
style. He was succeeded by Shridher Krishna Joglekar. The Court moved into the present
building in 1958. The building is shaped to project the image of scales of justice with the
Central Wing of the building corresponding to the centre beam of the Scales. In 1979, two new
wings—the East Wing and the West Wing—were added to the complex. In all there are 15
court rooms in the various wings of the building. The Chief Justice's Court is the largest of the
courtroom located in the centre of the Central Wing. It has a large dome with a high ceiling.

Composition

As originally enacted, the Constitution of India provided for a Supreme Court with a Chief
Justice and seven lower-ranking Judges—leaving it to Parliament to increase this number. In
the early years, a full bench of the Supreme Court sat together to hear the cases presented before
them. As the work of the Court increased and cases began to accumulate, Parliament increased
the number of Judges from the original eight in 1950 to eleven in 1956, fourteen in 1960,
eighteen in 1978, twenty-six in 1986 and thirty-one in 2008. As the number of the Judges has
increased, they have sat in smaller Benches of two or three (referred to as a Division Bench)—
coming together in larger Benches of five or more (referred to as a Constitutional Bench) only
when required to settle fundamental questions of law. Any bench may refer the case under
consideration up to a larger bench if the need to do so arises.

The Supreme Court of India comprises the Chief Justice of India and not more than thirty other
Judges appointed by the President of India. However, the President must appoint judges in
consultation with the Supreme Court, and appointments are generally made on the basis of
seniority and not political preference. Supreme Court Judges retire at the age of 65.

In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India
and must have been, for at least five years, a Judge of a High Court or of two or more such
Courts in succession, or an Advocate of a High Court or of two or more such Courts in
succession for at least ten years, or the person must be, in the opinion of the President, a
distinguished jurist. Provisions exist for the appointment of a Judge of a High Court as an ad-
hoc Judge of the Supreme Court and for retired Judges of the Supreme Court or High Courts
to sit and act as Judges of that Court.

The Supreme Court has always maintained a wide regional representation. It also has had a
good share of Judges belonging to religious and ethnic minorities. The first woman to be
appointed to the Supreme Court was Justice Fatima Beevi in 1987. She was later followed by
Justices Sujata Manohar, Ruma Pal and Gyan Sudha Mishra. Justice Ranjana Desai, who was
elevated from the Bombay High Court is the most recent woman judge in the Supreme Court,
so that for the first time there were two women (Mishra and Desai) simultaneously in the
Supreme Court.

In 2000 Justice K. G. Balakrishnan became the first judge from the dalit community. In 2007
he also became the first dalit Chief Justice of India. Justices B. P. Jeevan Reddy and A. R.
Lakshmanan were appointed Chairmen of the Law Commission of India, unusually because
neither of them had served as Chief Justice. Justice J. S. Kehar is slated to become the first
Sikh Chief Justice of India in 2017.

Jurisdiction

The Supreme Court has original, appellate and advisory jurisdiction under Articles 32, 131-
144 of the Constitution.

ORIGINAL JURISDICTION

The court has exclusive original jurisdiction over any dispute between the Government of India
and one or more States or between the Government of India and any State or States on one side
and one or more States on the other or between two or more States, if and insofar as the dispute
involves any question (whether of law or of fact) on which the existence or extent of a legal
right depends. In addition, Article 32 of the Constitution grants an extensive original
jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is
empowered to issue directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari to enforce them.

APPELLATE JURISDICTION

The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the
High Court concerned under Articles 132(1), 133(1) or 134 of the Constitution in respect of
any judgment, decree or final order of a High Court in both civil and criminal cases, involving
substantial questions of law as to the interpretation of the Constitution. The Supreme Court can
also grant special leave under article 136(1) to appeal from a judgment or order of any non-
military Indian court. Parliament has the power to enlarge the appellate jurisdiction of the
Supreme Court and has exercised this power in case of criminal appeals by enacting the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

Appeals also lie to the Supreme Court in civil matters if the High Court concerned certifies :
(a) that the case involves a substantial question of law of general importance, and (b) that, in
the opinion of the High Court, the said question needs to be decided by the Supreme Court. In
criminal cases, an appeal lies to the Supreme Court if the High Court (a) has on appeal reversed
an order of acquittal of an accused person and sentenced him to death or to imprisonment for
life or for a period of not less than 10 years, or (b) has withdrawn for trial before itself any case
from any Court subordinate to its authority and has in such trial convicted the accused and
sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or
(c) certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised
to confer on the Supreme Court any further powers to entertain and hear appeals from any
judgment, final order or sentence in a criminal proceeding of a High Court.

ADVISORY JURISDICTION
The Supreme Court has special advisory jurisdiction in matters which may specifically be
referred to it by the President of India under Article 143 of the Constitution.There are
provisions for reference or appeal to this Court under Article 317(1) of the Constitution,
Section 257 of the Income Tax Act, 1961, Section 7(2) of the Monopolies and Restrictive Trade
Practices Act, 1969, Section 130-A of the Customs Act, 1962, Section 35-H of the Central
Excises and Salt Act, 1944 and Section 82C of the Gold (Control) Act, 1968. Appeals also lie
to the Supreme Court under the Representation of the People Act, 1951, Monopolies and
Restrictive Trade Practices Act, 1969, Advocates Act, 1961, Contempt of Courts Act, 1971,
Customs Act, 1962, Central Excises and Salt Act, 1944, Enlargement of Criminal Appellate
Jurisdiction Act, 1970, Trial of Offences Relating to Transactions in Securities Act, 1992,
Terrorist and Disruptive Activities (Prevention) Act, 1987 and Consumer Protection Act, 1986.
Election Petitions under Part III of the Presidential and Vice Presidential Elections Act, 1952
are also filed directly in the Supreme Court. Under Order XL of the Supreme Court Rules the
Supreme Court may review its judgment or order but no application for review is to be
entertained in a civil proceeding except on the grounds mentioned in Order XLVII, Rule 1 of
the Code of Civil Procedure and in a criminal proceeding except on the ground of an error
apparent on the face of the record.

The Supreme Court has the power to transfer the cases from one High Court to another and
even from one District Court of a particular state to another District Court of the other state. In
such transfer cases the Hon'ble Supreme Court transfer only those cases if they really lack
appropriate territorial jurisdiction and those cases which were otherwise supposed to be filed
under the

JUDICIAL INDEPENDENCE

The Constitution seeks to ensure the independence of Supreme Court Judges in various ways.
Judges are generally appointed on the basis of seniority and not on political preference. A Judge
of the Supreme Court cannot be removed from office except by an order of the President passed
after an address in each House of Parliament supported by a majority of the total membership
of that House and by a majority of not less than two-thirds of members present and voting, and
presented to the President in the same Session for such removal on the ground of proved
misbehaviour or incapacity. The salary and allowances of a judge of the Supreme Court cannot
be reduced after appointment. A person who has been a Judge of the Supreme Court is debarred
from practising in any court of law or before any other authority in India.

POWERS TO PUNISH CONTEMPT

Under Articles 129 and 142 of the Constitution the Supreme Court has been vested with power
to punish anyone for contempt of any law court in India including itself. The Supreme Court
performed an unprecedented action when it directed a sitting Minister of the state of
Maharashtra, Swaroop Singh Naik, to be jailed for 1 month on a charge of contempt of court
on 12 May 2006. This was the first time that a serving Minister was ever jailed.

EMERGENCY AND GOVERNMENT OF INDIA

The independence of judiciary was severely curtailed on account of powerful central
government ruled by Indian National Congress.This was during the Indian Emergency (1975-
1977) of Indira Gandhi. The constitutional rights of imprisoned persons were restricted under
Preventive detention laws passed by the parliament. In the case of Shiva Kant Shukla
Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas
Corpus case, a bench of five seniormost judges of Supreme court ruled in favour of state's right
for unrestricted powers of detention during emergency. Justices A.N. Ray, P. N. Bhagwati, Y.
V. Chandrachud, and M.H. Beg, stated in the majority decision. (under the declaration of
emergency) no person has any locus to move any writ petition under Art. 226 before a High
Court for habeas corpus or any other writ or order or direction to challenge the legality of an
order of detention.

The stated: detention without trial is an anathema to all those who love personal liberty... A
dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a
later decision may possibly correct the error into which the dissenting Judge believes the court
to have been betrayed.

It is believed that before delivering his dissenting opinion, Justice Khanna had mentioned to
his sister: I have prepared my judgment, which is going to cost me the Chief Justice-ship of
India." When the central Government is to recommend one of Supreme court Judges for the
post of Chief Justice in January 1977,Justice Khanna was superseded despite being the most
senior judge at the time and thereby Government broke the convention of appointing only the
senior most judge to the position of Chief Justice of India. In fact, it was felt that the other
judges may have gone along for this very reason. Justice Khanna remains a legendary figure
among the legal fraternity in India for this decision.

The New York Times, wrote of this opinion: "The submission of an independent judiciary to
absolutist government is virtually the last step in the destruction of a democratic society; and
the Indian Supreme Court's decision appears close to utter surrender."

During the emergency period, the government also passed the 39th amendment, which sought
to limit judicial review for the election of the Prime Minister; only a body constituted by
Parliament could review this election.[10] The court tamely agreed with this curtailment (1975),
despite the earlier Keshavanand decision. Subsequently, the parliament, with most opposition
members in jail during the emergency, passed the 42nd Amendment which prevented any court
from reviewing any amendment to the constitution with the exception of procedural issues
concerning ratification. A few years after the emergency, however, the Supreme court rejected
the absoluteness of the 42nd amendment and reaffirmed its power of judicial review in the
Minerva Mills case (1980).

As a final act during the emergency, in what Justice V. R. Krishna Iyer has called "a stab on
the independence of the High Court", judges were moved helter-skelter across the country, in
concurrence with Chief Justice Beg.
POST-1980: AN ASSERTIVE SUPREME COURT

Fortunately for Indian jurisprudence, the "brooding spirit of the law" referred to by Justice
Khanna was to correct the excesses of the emergency soon enough.

After Indira Gandhi lost elections in 1977, the new government of Morarji Desai, and
especially law minister Shanti Bhushan (who had earlier argued for the detenues in the Habeas
Corpus case), introduced a number of amendments making it more difficult to declare and
sustain an emergency, and reinstated much of the power to the Supreme Court. It is said that
the Basic Structure doctrine, created in Kesavananda, was strengthened in Indira Gandhi's case
and set in stone in Minerva Mills.

The Supreme Court's creative and expansive interpretations of Article 21 (Life and Personal
Liberty), primarily after the Emergency period, have given rise to a new jurisprudence of public
interest litigation that has vigorously promoted many important economic and social rights
(constitutionally protected but not enforceable) including, but not restricted to, the rights to
free education, livelihood, a clean environment, food and many others. Civil and political rights
(traditionally protected in the Fundamental Rights chapter of the Indian Constitution) have also
been expanded and more fiercely protected. These new interpretations have opened the avenue
for litigation on a number of important issues. It is interesting to note that the pioneer of the
expanded interpretation of Article 21, Chief Justice P N Bhagwati, was also one of the judges
who heard the ADM Jabalpur case, and held that the Right to Life could not be claimed in
Emergency

RECENT IMPORTANT CASES

Among the important pronouncements of the Supreme Court post 2000 is the Coelho case (I.R.
Coelho v. State of Tamil Nadu (Judgment of 11the January, 2007). A unanimous Bench of 9
judges reaffirmed the basic structure doctrine. An authority on the Indian Constitution, former
Attorney-General Soli Sorabjee commented on the judgment, "The judgment in I.R. Coelho
vigorously reaffirms the doctrine of basic structure. Indeed it has gone further and held that a
constitutional amendment which entails violation of any fundamental rights which the Court
regards as forming part of the basic structure of the Constitution then the same can be struck
down depending upon its impact and consequences. The judgment clearly imposes further
limitations on the constituent power of Parliament with respect to the principles underlying
certain fundamental rights. The judgment in Coelho has in effect restored the decision in Golak
Nath regarding non-amendability of the Constitution on account of infraction of fundamental
rights, contrary to the judgment in Kesavananda Bharati’s case.

Another important decision was of the five-judge Bench in Ashoka Kumara Thakur v. Union
of India; where the constitutional validity of Central Educational Institutions (Reservations in
Admissions) Act, 2006 was upheld, subject to the "creamy layer" criteria. Importantly, the
Court refused to follow the 'strict scrutiny' standards of review followed by the United States
Supreme Court. At the same time, the Court has applied the strict scrutiny standards in Anuj
Garg v. Hotel Association of India (2007)

In Aravalli Golf Course and other cases, the Supreme Court (particularly Justice Markandey
Katju) has expressed reservations about taking on an increasingly activst role.

In extraordinary situations where corruption in allotment of mobile licenses has caused an

estimated astronomical loss of Rs 1,76,000 crores, a Bench comprising Justices G S Singhvi
and A K Ganguly told CBI to inform who the beneficiaries and conspirators in parking funds
in foreign bank accounts were. The government refused to disclose details of about 18 Indians
holding accounts in LGT Bank, Liechtenstein, evoking a sharp response from a Bench
comprising Justices B Sudershan Reddy and S S Nijjar to “Make up your mind whether you
can make the disclosure.” The Solicitor General of India replied that it will be done “at the
appropriate stage.”

CORRUPTION AND MISCONDUCT OF JUDGES

The year 2008 has seen the Supreme Court in one controversy after another, from serious
allegations of corruption at the highest level of the judiciary, expensive private holidays at the
tax payers expense, refusal to divulge details of judges' assets to the public, secrecy in the
appointments of judges', to even refusal to make information public under the Right to
Information Act. The Chief Justice of India K.G.Balakrishnan invited a lot of criticism for his
comments on his post not being that of a public servant, but that of a constitutional authority.
He later went back on this stand. The judiciary has come in for serious criticisms from both the
current President of India Pratibha Patil and the former President APJ Abdul Kalam for failure
in handling its duties. The Prime Minister, Dr.Manmohan Singh, has stated that corruption is
one of the major challenges facing the judiciary, and suggested that there is an urgent need to
eradicate this menace.

The Cabinet Secretary of the Indian Government has recently introduced the Judges Inquiry
(Amendment) Bill 2008 in Parliament for setting up of a panel called the National Judicial
Council, headed by the Chief Justice of India, that will probe into allegations of corruption and
misconduct by High Court and Supreme Court judges. However, even this bill is allegedly a
farce, just meant to silence and suppress the public. As per this Bill, a panel of judges
themselves will be judging the judges,this inquiry can be initiated against the Chief Justice of
India or against retired judges by the order of President,Cabinet Secretary and Parliament then
they are suspended.

SENIOR JUDGES
 Supreme Court Bench, Justice B N Agrawal, Justice V S Sirpurkar and Justice G S
Singhvi :"We are not giving the certificate that no judge is corrupt. Black sheep are
everywhere. It's only a question of degree."
 Supreme Court Judge, Justice Agarwal:"What about the character of politicians,
lawyers and the society? We come from the same corrupt society and do not descend
 from heaven. But it seems you have descended from heaven and are, therefore, accusing
us."
 Supreme Court Bench, Justice Arijit Pasayat, Justice V S Sirpurkar and Justice G S
Singhvi :"The time has come because people have started categorising some judges as
very honest despite it being the foremost qualification of any judge. It is the system.
We have to find the mechanism to stem the rot"
 "Has the existing mechanism become outdated? Should with some minor modification,
the mechanism could still be effective?"
 Supreme Court Bench, Justice Justice G S Singhvi :"The rot has set in." The judges
appeared to be in agreement with senior advocate Anil Devan and Solicitor GeneralG.
E. Vahanvati who, citing the falling standards, questioned the desirability of keeping
the immunity judges have from prosecution.

ANTI-DEFECTION LAW

The anti-defection law was passed by parliament in 1985. Twenty-five years down the road, it
is pertinent to trace the several modifications and to evaluate how well the law has worked.

The 52nd amendment to the Constitution added the Tenth Schedule which laid down the
process by which legislators may be disqualified on grounds of defection. A member of
parliament or state legislature was deemed to have defected if he either voluntarily resigned
from his party or disobeyed the directives of the party leadership on a vote. That is, they may
not vote on any issue in contravention to the party’s whip. Independent members would be
disqualified if they joined a political party. Nominated members who were not members of a
party could choose to join a party within six months; after that period, they were treated as a
party member or independent member.

The law also made a few exceptions. Any person elected as speaker or chairman could resign
from his party, and rejoin the party if he demitted that post. A party could be merged into
another if at least two-thirds of its party legislators voted for the merger. The law initially
permitted splitting of parties, but that has now been outlawed.

Experience so far
In the 24 years of this law, complaints have been made against 62 Lok Sabha MPs. Of these,
26 were disqualified. It is pertinent to note that ten of these disqualifications were after the trust
vote of July 2008 (over India-US civil nuclear co-operation). Four cases were made against
Rajya Sabha MPs (two in 1989 and two in 2008) and all were upheld. In state legislatures, up
to 2004, out of 268 complaints, 113 were upheld.
Challenges and Interpretations
The anti-defection law raises a number of questions, several of which have been addressed by
the courts and the presiding officers.

Does the law impinge on the right of free speech of the legislators? This issue was addressed
by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs
Zachilhu and others). The court said that “the anti-defection law seeks to recognise the
practical need to place the proprieties of political and personal conduct…above certain
theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the
basic structure of parliamentary democracy.

What constitutes “voluntarily” resigning from a party? Various judgements and orders indicate
that a member who publicly opposes the party or states his support for another party would be
deemed to have resigned from his party. News reports may be used as evidence for this
purpose.

Can the decision of the presiding officer be challenged in the courts? The law states that the
decision is final and not subject to judicial review. The Supreme Court struck down part of this
condition. It held that there may not be any judicial intervention until the presiding officer gives
his order. However, the final decision is subject to appeal in the High Courts and Supreme
Court.

Issues for consideration

Should the law be valid for all votes or only for those that determine the stability of the
government (such as the confidence and no-confidence motions)? The main intent of the law
was to deter “the evil of political defections” by legislators motivated by lure of office or other
similar considerations. However, loss of membership is hardly a penalty in cases ahead of the
scheduled time of general elections—as seen last year. It also loses significance if the House
is likely to be dissolved. On the other hand, the voting behaviour may be affected even on
issues not related to the stability of the government. A member may be unable to express his
actual belief or the interests of his constituents. Therefore, a case may be made for restricting
the law to confidence and no-confidence motions. The Dinesh Goswami Committee on
electoral reforms (1990) recommended this change, while the Law Commission (170th report,
1999) suggested that political parties issue whips only when the government was in danger.
Should the law apply only to pre-poll alliances? The rationale that a representative is elected
on the basis of the party’s programme can be extended to pre-poll alliances. The Law
Commission proposed this change with the condition that partners of such alliances inform the
Election Commission before the elections.

Should the judgement be made by the presiding officers? Several MPs had raised this issue at
the time of passage of the law. The Supreme Court upheld the law in the Kihoto Hollohon
judgment. The Goswami Committee, the Election Commission and the Venkatachaliah
Commission to Review the Constitution (2002) have recommended that the decision should be
made by the president or the governor on the advice of the Election Commission. This would
be similar to the process for disqualification on grounds of office of profit.

Should there be any additional penalties on defectors? The Venkatachaliah Commission

recommended that defectors should be barred from holding any ministerial or remunerative
political office for the remaining term of the House. It also said that the vote of any defector
should not be counted in a confidence or no-confidence motion.

There is no ambiguity in the legality of current provisions related to these issues. Any change
would require legislative action. There is, however, need for public debate on the working of
the anti-defection law.

LOKPAL AND LOKAYUKTA

Years ago, Mahatma Gandhi said that “Corruption and hypocrisy ought not to be inevitable
products of democracy, as they undoubtedly are today.” Now days Corruption has its deep
roots in Indian Society. People who work on right principles are unrecognized and considered
to be foolish in the modern society. Earlier, bribes were paid for getting wrong things done,
but now bribe is paid for getting right things done at right time. In today’s scenario, if a person
wants a government job he has to pay lakhs of rupees to the higher officials irrespective of
satisfying all the eligibility criteria. In every office one has either to give money to the
employee concerned or arrange for some sources to get work done. There is not a single forum
or organizations of the citizens of India unaffected from Corruption.

A 2005 study conducted by Transparency International in India found that more than 62% of
Indians had first-hand experience of paying bribes or influence peddling to get jobs done in
public offices successfully.[1] [2] In its 2008 study, Transparency International reports about
40% of Indians had first-hand experience of paying bribes or using a contact to get a job done
in public office. In 2012 India was ranked 94th out of 176 countries in Transparency
International’s Corruption Perceptions Index.
The basic idea of the Lok Pal is borrowed from the office of ombudsman, which has played an
effective role in checking corruption and wrong-doing in Scandinavian and other nations. A
Lokpal is a proposed ombudsman (Legal Representative) in India. The word is derived from
the Sanskrit word “lok” (people) and “pala” (protector/caretaker), or “caretaker of people.”

Ombudsman: Meaning and Importance

Ombudsman offices are form of watchdog on government, investigating and resolving citizen’s
complaints. Ombudsman means “a public official who acts as an impartial intermediary
between the public and government or bureaucracy, or an employee of an organization who
mediates disputes between employees and management”. An indigenous Danish, Norwegian
and Swedish term, Ombudsman is etymologically rooted in the Old Norse word umboðsmaðr,
essentially meaning “representative”. In its most frequent modern usage, an ombudsman is an
official, usually appointed by the government or by parliament but with a significant degree of
independence, who is charged with representing the interests of the public by investigating and
addressing complaints reported by individuals.

The institution of ombudsman originated in Scandinavian countries. The institution of

‘Ombudsman’ first came into being in Sweden in 1713 when a ‘Chancellor of Justice’ was
appointed by the King to act as invigilator to look into the functioning of war-time government.
Thereafter, a new beginning was made in 1809, when it was laid down that the Ombudsman
would be made thereafter by the legislature.[8] Other Scandinavian countries followed the
model of Sweden almost after a century. Amongst other countries, New Zealand was the first
country outside Scandinavian to institute an Ombudsman in 1962.[9] It has been adopted in a
number of countries, such as Finland, 1919; Denmark, 1954; Norway, 1960; Mauritius, 1966;
Guyana, 1966; United Kingdom, 1967; Australia, 1976. Today there are Ombudsman offices
in over 80 countries at the national provincial and local level.Office of Ombudsman was
established under the provisions of constitutional law in Austria, Burkina Faso, Denmark,
Finland, the Netherlands, Poland, Portugal, Spain and Sweden. While in other countries[12]
belonging to Anglo-Saxon legal traditions, the office is generally regulated under ordinary
statute law.

Ombudsman in India

In a welfare State like India, citizens have a variety of interactions with the Government in its
myriad forms – as a service provider, a regulator, as a provider of social and physical
infrastructure etc. Meeting the expectations of the citizens is a challenging task for any
Government. In India, the Ombudsman is known as the Lokpal or Lokayukta. The concept of
a constitutional ombudsman was first proposed by the Law Minister Ashoke Kumar Sen in
parliament in the early 1960s. The term ‘Lokpal’ and ‘Lokayukta’ were coined by Dr. L. M.
Singhvi as the Indian model of Ombudsman for redressal of public grievances.[16] The office
of the LokPal is the Indian version of the office of an Ombudsman who is appointed to inquire
into complaints made by citizens against public officials. The Lok Pal is a forum where the
citizen can send a complaint against a public official, which would then be inquired into and
the citizen would be provided some redressal. Lokpal is an officer who investigates complaints
of citizens of unfair treatment meted out to them by Government Departments and suggests
remedy thereof, if he finds that a complaint is justified.

Historical Aspect

After independence when increasing practice of corruption, maladministration and misuse of

authority and resource couldn’t be curbed by existing measures under the Indian Penal Code,
1860 and the Prevention of Corruption Act, 1988, need for an agency independent of the
executive, legislative and judiciary, to look into citizens’ grievances and cases of corruption
have been widely feltThe LokPal Bill provides for constitution of the LokPal as an independent
body to enquire into cases of corruption against public functionaries, with a mechanism for
filing complaints and conducting inquiries etc.[19] Dr. L.M. Singhvi moved a resolution in
the Lok Sabha on 3 April 1964, reiterating his demand for setting up an officer of Parliament
known as People’s Procurator. The resolution was discussed in detail by all sections of the
House but was withdrawn on the assurance of the Government that it would look into the
matter. In pursuance of this assurance, the Government constituted a Special Consultative
Group of Members of Parliament on administrative reforms, in early 1965, which favoured a
high powered inquiry commission on administrative reforms. Accordingly, an Administrative
Reforms Commission (ARC) was appointed in January 1966, for making recommendations on
the reorganization of the administrative system of the country.[20] First Administrative
Reforms Commission in its report submitted in 1966 suggested that:

“The special circumstances relating to our country can be fully met by providing for two special
institutions for the redress of citizens’ grievances. There should be one authority dealing with
complaints against the administrative acts of Ministers or Secretaries to the government at the
center and in the states. There should be another authority in each state and at the centre for
dealing with complaints against the administrative acts of other officials…… The setting up of
these authorities should not, however, be taken to be a complete answer to the problem of
redress of citizens’ grievances. They only provide the ultimate set-up for such redress as has
not been available through the normal departmental or governmental machinery and do not
absolve the department from fulfilling its obligations to the citizen for administering its affairs
without generating, as far as possible, any legitimate sense of grievance. Thus, the
administration itself must play the major role in reducing the area of grievances and providing
remedies wherever necessary and feasible…… When this machinery (in-built departmental
machinery) functions effectively, the number of cases which will have to go to an authority
outside the Ministry or the Department should be comparatively small in number” The ARC
while preparing its report had three ends in view:
i. Evolution of a suitable grievance procedure for the individuals to invoke in complaints
of maladministration;
ii. Creation of a mechanism which would reduce corruption in the administrative services;
and
 iii. Setting up a mechanism which would take cognizance of complaints of favoritism and
nepotism against Central and State Ministers.

Lokpal:

The Lokpal Bill was for the first time presented by Mr Shanti Bhushan during the fourth Lok
Sabha in 1968, and was passed there in 1969. However while it was pending in the Rajya
Sabha, the Lok Sabha was dissolved, and so the bill was not passed at that time. Subsequently,
lokpal bills were introduced in 1971, 1977, 1985 (again by Ashoke Kumar Sen when serving
as Law Minister in the Rajiv Gandhi cabinet), 1989, 1996, 1998, 2001, 2005 and in 2008, yet
they were never passed.[23] Each time, after the bill was introduced to the house, it was referred
to some committee for improvements — a joint committee of parliament, or a departmental
standing committee of the Home Ministry and before the government could take a final stand
on the issue, the house was dissolved again.[24]

In 2002, the report of the National Commission to Review the Working of the Constitution
urged that the Constitution should provide for the appointment of the Lok Pal and Lokayuktas
in the states but suggested that the Prime Minister should be kept out of the purview of the
authority. In 2004, the UPA government’s National Common Minimum Programme promised
that the Lok Pal Bill would be enacted.] The Second Administrative Commission, formed in
2005, also recommended that the office of the Lok Pal be established without delay.

In January 2011, the government formed a Group of Ministers, chaired by Shri Pranab
Mukherjee to suggest measures to tackle corruption, including examination of the proposal of
a Lok Pal Bill.

Government’s Lokpal Bill : Salient features

Lokpal and its role

The bill proposes to establish autonomous and independent institutions called Lokpal at the
central level and and Lokayukta for states. These shall have powers of superintendence and
direction for holding a preliminary inquiry, causing an investigation to be made and
prosecution of offences in respect of complaints under any law for the prevention of corruption.

Structure
 The Lokpal will consist of a chairperson and a maximum of eight members of which fifty
percent shall be judicial members.
 Fifty percent of members shall be from amongst Scheduled Caste (SC), Scheduled Tribe
(ST) and Other Backward Classes (OBC), minorities and women.
 It has an inquiry wing for conducting the preliminary inquiry and a separate independent
prosecution wing. Officers of the Lokpal will include the secretary, director of prosecution,
director of inquiry and other officers.
Process of selection
The selection of chairperson and members of Lokpal shall be through a selection committee
The Selection Committee shall comprise of the Prime Minister, Speaker of the Lok Sabha,
Leaders of the Opposition in both houses, a Union Cabinet Minister nominated by the Prime
Minister, one sitting judge of the Supreme Court, and one sitting Chief Justice of the High
Court’s both nominated by the Chief Justice of India, an eminent jurist nominated by the central
government and a person of eminence in public life with knowledge of public administration,
policy making, anti-corruption policy, vigilance and finance.

Jurisdiction:
Prime minister has been brought under the purview of the Lokpal with specific exclusions.
Lokpal cannot hold any inquiry against the prime minister if allegations relate to international
relations, external and internal security of the country, public order, atomic energy and space.
Any decision of Lokpal to initiate preliminary inquiry or investigation against prime minister
shall be taken only by the full bench with a 3/4th majority. Such proceedings shall be held in
camera. Its jurisdiction to include all categories of public servants including Group ‘A’, ‘B’,
‘C’ and ‘D’ officers and employees of government. On complaints referred by Lokpal, the
Central Vigilance Commission (CVC) will send its report in respect of Group ‘A’ and ‘B’
officers back to Lokpal for further decision. With respect to Group ‘C’ and ‘D’ employees, the
CVC will proceed further in exercise of its own powers under the CVC act subject to reporting
and review by Lokpal. All entities receiving donations from foreign sources in the context of
the Foreign Contribution Regulation Act (FCRA) in excess of Rs.10 lakh per year are brought
under the jurisdiction of the Lokpal. Lokpal will not be able to initiate suo moto inquiries.

Other significant features of the Bill:

No prior sanction shall be required for launching prosecution in cases enquired by Lokpal or
initiated on the direction and with the approval of Lokpal. There are Provisions for confiscation
of property acquired by corrupt means, even while prosecution is pending. Lokpal to be final
appellate authority on all decisions by public authorities relating to provision of public services
and redressal of grievances containing findings of corruption. Lokpal to have power of
superintendence and direction over any investigation agency including Central Bureau of
Investigation (CBI) for cases referred to them.

Some of points that are different from what were raised in the Jan Lokpal Bill:

What the Nation asked and what the leaders have approved
 What Jan Lokpal Bill had demanded
The "Whistleblower" should be protected.
Hence the Lokpal should have the power to
take necessary action to provide protection
to a whistleblower as per various provisions
of the Act.
Merger of anti-corruption branch of CBI
into Lokpal and the Central Government
should not have any control over the
transferred part.
What Lokpal And Lokayuktas Bill,2011 gives
No Whistleblower protection. Instead, a
whistlerblower may face imprisonment up to one year
and a fine up to Rs. 1 lakh,if it is established he has
made false and frivolous complaints.
Director of CBI will be appointed by a collegium
comprising of the Prime Minister, Leader of
Opposition in Lok Sabha and Chief Justice of India.
Also the CBI officers investigating cases referred by
Lokpal can be transferred without its approval.

The bill must have provision for a Citizen's The government now wants to bring a separate bill for
Charter
The Chairperson and members shall be
appointed by the President on the
recommendation of a seven-member
committee, consisting of two Supreme
Court judges, two High Court judges, one
nominee of Comptroller And Auditor
General,Central Vigilance
Commissioner,Central Election
Commissioner, Prime Minister and Leader
of Opposition.
Citizen's Charter but no time frame has been
announced.
The Chairperson and Members shall be appointed by
the President after obtaining the recommendations of
a Selection Committee consisting of (a) the Prime
Minister -chairperson;(b) the Speaker of the House of
the People - member;(c) the Leader of Opposition in
the House of the People -member;(d) the Chief Justice
of India or a Judge of the Supreme Court nominated
by him - member; (e) one eminent jurist nominated by
the President as recommended by the chairperson and
members referred to in clauses (a) to (d).

Conclusion:
The main objective behind the institution of Lokpal is to give strength to citizens so that they
can raise their voice against corruption without any fear. The existing devices like CVC and
CBI for checks on elected and administrative officials have not been effective, as the growing
instances of corruption cases suggest. All these have necessitated the creation of Lokpal with
its own investigating team.

Therefore, there is a need for a mechanism that would adopt very simple, independent, speedy
and cheaper means of delivering justice by redressing the grievances of the people. But our
Country is famous for its beautiful numerous laws and its poor execution. Most of the laws
have been proved fail to achieve its goal. No law or institution would have been helped to
remove deep roots of corruption from our country without its proper execution.

It is rightly said by Publius Comelius Tecitus that “the more corrupt the state, the more laws”.

UNIT-III
 The Consumer Protection Act, 1986

The moment a person comes into this would, he starts consuming. He needs clothes, milk, oil,
soap, water, and many more things and these needs keep taking one form or the other all along
his life. Thus we all are consumers in the literal sense of the term. When we approach the
market as a consumer, we expect value for money, i.e., right quality, right quantity, right prices,
information about the mode of use, etc. But there may be instances where a consumer is
harassed or cheated.

The Government understood the need to protect consumers from unscrupulous suppliers, and
several laws have been made for this purpose. We have the Indian Contract Act, the Sale of
Goods Act, the Dangerous Drugs Act, the Agricultural Produce (Grading and Marketing) Act,
the Indian Standards Institution (Certification Marks) Act, the Prevention of Food Adulteration
Act, the Standards of Weights and Measures Act, etc. which to some extent protect consumer
interests. However, these laws require the consumer to initiate action by way of a civil suit
involving lengthy legal process which is very expensive and time consuming.

The Consumer Protection Act, 1986 was enacted to provide a simpler and quicker access to
redressal of consumer grievances. The Act for the first time introduced the concept of
‘consumer’ and conferred express additional rights on him. It is interesting to note that the Act
doesn’t seek to protect every consumer within the literal meaning of the term. The protection
is meant for the person who fits in the definition of ‘consumer’ given by the Act.

Now we understand that the Consumer Protection Act provides means to protect consumers
from getting cheated or harassed by suppliers. The question arises how a consumer will seek
protection ? The answer is the Act has provided a machinery whereby consumers can file their
complaints which will be entertained by the Consumer Forums with special powers so that
action can be taken against erring suppliers and the possible compensation may be awarded to
consumer for the hardships he has undergone. No court fee is required to be paid to these
forums and there is no need to engage a lawyer to present the case.

Following chapter entails a discussion on who is a consumer under the Act, what are the things
which can be complained against, when and by whom a complaint can be made and what are
the relief available to consumers.

Who is a consumer

1.2 Section 2(d) of the Consumer Protection Act says that consumer means any person who
i. buys any goods for a consideration which has been paid or promised or partly paid and
partly promised, or under any system of deferred payment, and includes any user of such
goods other than the person who buys such goods for consideration paid or promised or
partly paid or partly promised, or under any system of deferred payment when such use is
made with the approval of such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
ii. hires or avails of any services for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment, and includes
any beneficiary of such services other than the person who hires or avails of the services
for consideration paid or promised, or partly paid and partly promised, or under any
system of deferred payment, when such services are availed of with the approval of the
first mentioned person;

Explanation. For the purposes of the sub-clause

(i), commercial purpose does not include use by a consumer of goods bought and used by him
exclusively for the purpose of earning his livelihood, by means of self-employment.
1.2-1 Consumer of goods - The provision reveals that a person claiming himself as a consumer
of goods should satisfy that

1-2-1a The Goods Are Bought For Consideration - There must be a sale transaction between
a seller and a buyer; the sale must be of goods; the buying of goods must be for consideration.
The terms sale, goods, and consideration have not been defined in the Consumer Protection
Act. The meaning of the terms ‘sale’, and ‘goods’ is to be construed according to the Sale of
Goods Act, and the meaning of the term ‘consideration’ is to be construed according to the
Indian Contract Act.

1-2-1b Any Person Who Use The Goods With The Approval Of The Buyer Is A Consumer
- When a person buys goods, they may be used by his family members, relatives and friends.
Any person who is making actual use of the goods may come across the defects in goods. Thus
the law construe users of the goods as consumers although they may not be buyers at the same
time. The words....with the approval of the buyer” in the definition denotes that the user of the
goods should be a rightful user.

Example : A purchased a scooter which was in B’s possession from the date of purchase. B
was using it and taking it to the seller for repairs and service from time to time. Later on B had
a complaint regarding the scooter. He sued the seller. The seller pleaded that since B did not
buy the scooter, he was not a consumer under the Act. The Delhi State Commission held that
B, the complainant was using it with the approval of A, the buyer, and therefore he was
consumer under the Act. [Dinesh Bhagat v. Bajaj Auto Ltd. (1992) III CPJ 272]
Note : This is an exception to the general rule of law that a stranger to a contract cannot sue.

1-2-1c Any Person Who Obtains The Goods For ‘Resale’ Or Commercial Purposes’ Is
Not A Consumer- The term ‘for resale’ implies that the goods are brought for the purpose of
selling them, and the expression ‘for commercial purpose’ is intended to cover cases other than
those of resale of goods. When goods are bought to resell or commercially exploit them, such
buyer or user is not a consumer under the Act.

Examples :
1. A jeep was purchased to run it as a taxi. The question was whether the buyer of the jeep was
a consumer under the Act. The Rajasthan State Commission held that to use the jeep as a taxi
with the object to earn profits was a commercial purpose, and therefore, the buyer/user was not
a consumer within the meaning of the Act. [Smt. Pushpa Meena v. Shah Enterprises
(Rajasthan) Ltd. (1991) 1 CPR 229].

2. L Ltd. purchased a computer system from Z. The computer system was giving constant
trouble and Z was not attending it properly. L Ltd. filed a complaint against Z with the National
Commission. Z contended that L Ltd. was not a consumer under the Act because computer
system was used for commercial purposes. L Ltd. argued that computer system was not directly
used of commercial purposes rather it was used to facilitate the work of the company. The
Commission rejected the argument on the grounds that the system made part of the assets of
the company, and its expenses were met by it out of business income. Thus the said purchase
was a purchase for commercial purposes and L Ltd. was held not to be a consumer under the
Act.

One thing is plain and clear from the decided cases that what is important to decide is - Whether
a particular good is used for commercial purposes. If it is the buyer/user is not a consumer, and
if it is not - the buyer/user is a consumer.

1.2-1d Person Buying Goods For Self Employment Is A Consumer - When goods are
bought for commercial purposes and such purchase satisfy the following criteria :
- the goods are used by the buyer himself;
- exclusively for the purpose of earning his livelihood;
- by means of self-employment,
then such use would not be termed as use for commercial purposes under the Act, and the
user is recognised as a consumer.

Examples :
1. A buys a truck for plying it as a public carrier by himself, A is a consumer.
2. A buys a truck and hires a driver to ply it, A is not a consumer.
3. A has one cloth shop. He starts another business of a photocopier and buys a photocopy
machine therefor. He hasn’t bought this machine exclusively for the purpose of earning
livelihood. He is not a consumer under the Act.

Note : That this is an exception to the rule that a buyer of commercial goods is not a consumer
under the Act.

The intention of the legislature is to exclude big business houses carrying on business with
profit motive from the purview of the Act. At the same time it is pertinent to save the interests
of small consumers who buy goods for self employment to earn their livelihood, like a rickshaw
puller buying rickshaw for self employment, or a farmer purchasing fertilizer for his crops, or
a taxi driver buying a car to run it as a taxi, etc.

Example : A was running a small type institute to earn his livelihood. He purchased a
photocopy machine-canon NP 150. It proved defective. He sued the seller who contended that
A is not a consumer under the Act as he purchased the photocopier for commercial use. The
Commission held that by no stretch of imagination it can be said that the photocopier would
bring large scale profits to A. It was a part of his small scale enterprise. He was construed as
consumer under the Act.

However, if such a buyer takes assistance of two or more persons to help him in operating the
vehicle or machine, etc., he does not cease to be a consumer.

Examples :

1. A buys a truck, ply it himself and hires a cleaner who accompany him all the time and at
times drives also when A is busy otherwise, A is a consumer.

2. P, an eye surgeon, purchased a machine from R for the hospital run by him. The machine
was found to be a defective one. R contended that P was not a consumer under the Act as the
machine was bought for commercial purposes. The National Commission rejected this
contention and held that P is a medical practitioner, a professional working by way of self
employment by using his knowledge and skill to earn his livelihood. It was not proved by any
evidence that P is running a huge hospital. Thus the purchase of machinery is in the nature of
self employment. [Rampion Pharmaceuticals v. Dr. Preetam Shah (1997) I CPJ 23 (NCDRC)].

1.2-2 Consumer of services - A person is a consumer of services if he satisfy the following

criteria :
1.2-2a Services Are Hired Or Availed Of - The term ‘hired’ has not been defined under the
Act. Its Dictionary meaning is - to procure the use of services at a price. Thus the term ‘hire’
has also been used in the sense of ‘avail’ or ‘use’. Accordingly it may be understood that
consumer means any person who avails or uses any service.

Example : A goes to a doctor to get himself treated for a fracture. Here A is hiring the services
of the doctor. Thus he is a consumer.
What constitutes hiring has been an issue to be dealt with in many consumer disputes. If it is
established that a particular act constitutes hiring of service, the transaction falls within the net
of the Consumer Protection Act, and vice-versa.

Examples :
1. A passenger getting railway reservation after payment is hiring service for consideration.
2. A landlord neglected and refused to provide the agreed amenities to his tenant. He filed a
complaint against the landlord under the Consumer

Protection Act. The National Commission dismissed the complaint saying that it was a case
of lease of immovable property and not of hiring services of the landlord. [Smt. Laxmiben
Laxmichand Shah v. Smt. Sakerben Kanji Chandan [1992] 1 Comp. LJ 177 (NCDRC)].

3. A presented before the Sub-Registrar a document claiming it to be a will for registration

who sent it to the Collector of Stamps for action. The matter remain pending for about six
years. In the meantime A filed a complaint under the Consumer Protection Act alleging
harassment by the Sub-Registrar and Collector and prayed for compensation. The National
Commission held the view that A was not a consumer under the CPA. Because there was
no hiring of services by the complainant for consideration and because a Government
official doing his duty as functionary of the State under law could not be said to be
rendering a service to the complainant. [S.P. Goel v. Collector of Stamps (1995) III CPR
684 (SC)].

1.2-2b Consideration Must Be Paid Or Payable - Consideration is regarded necessary

for hiring or availing of services. However, its payment need not necessarily be immediate.
It can be in installments. For the services provided without charging anything in return, the
person availing the services is not a consumer under the Act.

Examples :
1. A hires an advocate to file a suit for recovery of money from his employer. He promises to
pay fee to the advocate after settlement of the suit. A is a consumer under the Act.
2. A goes to a Doctor to get himself treated for a fracture. The Doctor being his friend charged
him nothing for the treatment. A is not a consumer under the Act.
3. B issued an advertisement that a person could enter the contest by booking a Premier
Padmini car. S purchased the car and thus entered the contest. He was declared as winner
of the draw and was thus entitled to the two tickets from New Delhi to New York and back.
S filed a complaint alleging that the ticket was not delivered to him. The National
Commission held that S was not a consumer in this context. He paid for the car and got it.
B was not liable so far as the contract of winning a lottery was concerned. [Byford v. S.S.
Srivastava (1993) II CPR 83 (NCDRC)].

The Direct and Indirect taxes paid to the State by a citizen is not payment for the services
rendered.

Example : T was paying property tax for his house to the local corporation. This corporation
was responsible for proper water supply to the premises under its work area. T raised a
consumer dispute over the inadequacy of water supply by the corporation. The National
Commission held that it was not a consumer dispute as water supply was made by the
corporation out of its statutory duty and not by virtue of payment of taxes by T. - Mayor,
Calcutta Municipal Corporation v. Tarapada Chatterjee (1994) 1 CPR 87 (NCDRC).

1.2-2c Beneficiary Of Services Is Also A Consumer- When a person hires services, he may
hire it for himself or for any other person. In such cases the beneficiary (or user) of these
services is also a consumer.

Example : A takes his son B to a doctor for his treatment. Here A is hirer of services of the
doctor and B is beneficiary of these services. For the purpose of the Act, both A and B are
consumers.

Note : This is an exception to the rule of privity to the contract.

Note that in case of goods, buyer of goods for commercial purpose ceases to be a consumer
under the Act. On the other hand, a consumer of service for commercial purpose remains a
consumer under the Act.

Example : S applied to Electricity Board for electricity connection for a flour mill. There was
a delay in releasing the connection. S made a complaint for deficiency in service. He was held
a consumer under the Act. - Shamsher Khan v. Rajasthan State Electricity Board (1993) II CPR
6 (Raj.).
Complaint
1.3 An aggrieved consumer seeks redressal under the Act through the instrumentality of
complaint. It does not mean that the consumer can complain against his each and every
problem. The Act has provided certain grounds on which complaint can be made. Similarly,
relief against these complaints can be granted within the set pattern.

1.3-1 What constitutes a complaint [Section 2(1)(c)] - Complaint is a statement made in writing
to the National Commission, the State Commission or the District Forum by a person
competent to file it, containing the allegations in detail, and with a view to obtain relief
provided under the Act.

1.3-2 Who can file a complaint [Sections 2(b) & 12] - At the outset it is clear that a person who
can be termed as a consumer under the Act can make a complaint. To be specific on this
account, following are the persons who can file a complaint under the Act:
a. a consumer; or
b. any voluntary consumer association registered under the Companies Act, 1956 or under
any other law for the time being in force, or
c. the Central Government or any State Government,
d. one or more consumers, where there are numerious consumers having the same interest.
e.

In addition to the above following are also considered as a consumer and hence they may file
a complaint :

Beneficiary of the goods/services : The definition of consumer itself includes beneficiary of

goods and services - K.B. Jayalaxmi v. Government of Tamil Nadu 1994(1) CPR 114.

Where a young child is taken to the hospital by his parents and the child is treated by the doctor,
the parents of such a minor child can file a complaint under the Act - Spring Meadows Hospital
v. Harjot Ahluwalia JT 1998(2) SC 620. Legal representative of the deceased consumer : The
Act does not expressly indicate that the LR of a consumer are also included in its scope. But
by operation of law, the legal representatives get clothed with the rights, status and personality
of the deceased. Thus the expression consumer would include legal representative of the
deceased consumer and he can exercise his right for the purpose of enforcing the cause of
action which has devolved on him - Cosmopolitan Hospital v. Smt. Vasantha P. Nair (1) 1992
CPJ NC 302.

Legal heirs of the deceased consumer : A legal heir of the deceased consumer can well maintain
a complaint under the Act - Joseph Alias Animon v. Dr. Elizabeth Zachariah (1) 1997 CPJ 96.
Husband of the consumer : In the Indian conditions, women may be illiterate, educated women
may be unaware of their legal rights, thus a husband can file and prosecute complaint under
the Consumer Protection Act on behalf of his spouse - Punjab National Bank, Bombay v. K.B.
Shetty 1991 (2) CPR 633.

A relative of consumer : When a consumer signs the original complaint, it can be initiated by
his/her relative - Motibai Dalvi Hospital v. M.I. Govilkar 1992 (1) CPR 408.

Insurance company : Where Insurance company pays and settles the claim of the insured and
the insured person transfers his rights in the insured goods to the company, it can file a
complaint for the loss caused to the insured goods by negligence of goods/service providers.
For example, when loss is caused to such goods because of negligence of transport company,
the insurance company can file a claim against the transport company - New India Assurance
Company Ltd. v. Green Transport Co. II 1991 CPJ (1) Delhi.

1.3-3 What a complaint must contain [Section 2(1)(c)] - A complaint must contain any of
the following allegations :
1. An unfair trade practice or a restrictive trade practice has been adopted by any trader;
Example : A sold a six months old car to B representing it to be a new one. Here B can
make a complaint against A for following an unfair trade practice.

2. The goods bought by him or agreed to be bought by him suffer from one or more defects;
Example : A bought a computer from B. It was not working properly since day one. A can
make a complaint against B for supplying him a defective computer.

3. The services hired or availed of or agreed to be hired or availed of by him suffer from
deficiency in any respect. Example : A hired services of an advocate to defend himself
against his landlord. The advocate did not appear every time the case was scheduled. A can
make a complaint against the advocate.

4. A trader has charged for the goods mentioned in the complaint a price in excess of the price
fixed by or under any law for the time being in force or displayed on the goods or any
package containing such goods.
Example : A bought a sack of cement from B who charged him Rs. 100 over and above
the reserve price of the cement declared by the Government. Here A can make a complaint
against B.

5. Goods which will be hazardous to life and safety when used, are being offered for sale to
the public in contravention of the provisions of any law for the time being in force requiring
 traders to display information in regard to the contents, manner and effect of use of such
goods.
Example : A bought a tin of disinfectant powder. It had lid which was to be opened in a
specific manner. Trader did not inform. A about this. While opening the lid in ordinary
way, some powder flew in the eyes of A which affected his vision. Here A can make a
complaint against the trader.

Note : The terms ‘unfair trade practice’, ‘restrictive trade practice’, ‘Goods’, ‘Defect’,
‘service’, ‘Deficiency’, ‘trader’, ‘Excess price’, and ‘Hazardous goods’ have been
discussed in detail in the chapter separately.

1.3-4 Time frame within which a complaint can be filed - Section 24A of the Act provides
that a consumer dispute can be filed within two years from the date on which the cause of
action arises.

Since this provision was inserted in the Act in 1993, before that the Consumer Forums were
following the Limitation Act, 1963, which says that a suit can be filed within three years after
the cause of action arises.

The point of time when cause of action arises is an important factor in determining the time
period available to file a complaint. There are no set rules to decide such time. It depends on
the facts and circumstances of each case.
Examples :
1. A got his eye operated by B in 1989. He got a certificate of blindness on 18th December,
1989. He was still in hope of gaining his sight and went from second operation in 1992 and
was discharged on 21-1-1992. He filed a complaint against B on 11-1-1994. B opposed on
the ground that more than 2 years were over after 18-12-1989, thus the complaint is not
maintainable. The Commission held that here the cause of action for filing the complaint
would arose after the second operation when A lost entire hope of recovery. Thus the suit
is maintainable - Mukund Lal Ganguly v. Dr. Abhijit Ghosh III 1995 CPJ 64.

2. A house was allotted on 1-1-1999. Defects appeared in the house on 10-1-1999. Here the
cause of action will arise on 10-1-1999.

It may be noted that these time frames are not absolute limitations. If the Consumer Forum
is satisfied that there was sufficient cause for not filing the complaint within the prescribed
period, it can entertain a complaint beyond limitation time. However the Forum must record
the reasons for condonation of delay.

Example : A deposited some jewellery with a bank. Bank lost it. Bank kept giving her false
sense of hope to retrieve the jewellery, and thus A was put in a state of inaction. Later on
 when A filed a suit on the Bank, it claimed that the suit was not maintainable as the
limitation time after the cause of action arose has lapsed. The Commission reprimanded the
bank and admitted the case - Agnes D’Mello v. Canara Bank [1992] I CPJ 335 (NCDRC).

1.3-5 Relief available against complaint [Sections 14 and 22] - A complainant can seek any
one or more of the following relief under the Act:
a. to remove the defect pointed out by the appropriate laboratory from the goods in question;
b. to replace the goods with new goods of similar description which shall be free from any
defect;
c. to return to the complainant the price, or, as the case may be, the charges paid by the
complainant;
d. to pay such amount as may be awarded by it as compensation to the consumer for any loss
or injury suffered by the consumer due to the negligence of the opposite party;
e. to remove the defects or deficiencies in the services in question;
f. to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it;
g. not to offer the hazardous goods for sale;
h. to withdraw the hazardous goods from being offered for sale;
i. to provide from adequate costs to complainant.

1.3-6 When a complaint cannot be filed - A complaint on behalf of the public which consists
of unidentifiable consumers cannot be filed under the Act.

Example : A complaint was filed on the basis of a newspaper report that passengers travelling
by flight No. 1C-401 from Calcutta to Delhi on May 13, 1989 were made to stay at the airport
and the flight was delayed by 90 minutes causing great inconvenience to the passengers. It was
held that such a general complaint cannot be entertained. No passenger who boarded that plane
came forward or authorised the complainant to make the complaint - Consumer Education and
Research Society, Ahmedabad v. Indian Airlines Corporation, New Delhi (1992) 1 CPJ 38 NC.

A complaint by an individual on behalf of general public is not permitted - Commissioner of

Transport v. Y.R. Grover 1994 (1) CPJ 199 NC.

An unregistered association cannot file a complaint under the Act.

Example : The complainant was an association formed in the Gulf and was unregistered in
India. It was held that since the petitioner was not a voluntary organization registered under
any law in force in India, cannot come within clause (d) of section 2(1) of the Act and hence
can’t file a complaint - Gulf Trivendrum air Fare Forum v. Chairman & Managing Director,
Air India 1991 (2) CPR 129.
A complaint after expiry of limitation period is not permitted. A complaint cannot be filed after
the lapse of two years from the date on which the cause of action arise unless the Forum is
satisfied about the genuineness of the reason for not filing complaint within the prescribed
time.

Example : A supplied defective machinery to B on 12-1-1998. B filed a suit against A on 10-

3-2001. It was not admitted before the Forum for the reason that the time available to make
complaint lapsed.

1.3-7 Dismissal of frivolous and vexatious complaints - Since the Act provides for an
inexpensive procedure (Court fees is not charged in consumer

complaints under the Act) for filing complaints, there is a possibility that the Act is misused
by people for filing vexations claims. To discourage frivolous and vexatious claims, the Act
has provided that such complaints will be dismissed and the complainant can be charged with
the costs not exceeding Rs. 10,000.

Example : A filed a complaint against B to recover compensation of Rs. 55,99,000 with the
motive of indulging in speculative litigation taking undue advantage of the fact that no court
fee was payable under the Consumer Protection Act. The National Commission held that the
complainant has totally failed to make a case against B, and dismissed the complaint as
frivolous and vexatious imposing Rs. 10,000 as costs to A - Brij Mohan Kher v. Dr. N.H. Banka
I 1995 CPJ 99 NC.
Unfair Trade Practice and Restrictive Trade Practice [Section 2(1)(r) and (nn)].
1.4 We have discussed that a consumer can make a complaint when an unfair or a restrictive
trade practice is followed by a trader. What can be termed as an unfair or a restrictive trade
practice is another question of law.

1.4-1 What is an Unfair Trade Practice - The Act says that, unfair trade practice means a
trade practice which, for the purpose of promoting the sale, use or supply of any goods or for
the provison of any service, adopts any unfair method or unfair or deceptive practice including
any of the following practices, namely

1. The practice of making any statement, whether orally or in writing or by visible

representation which
i. falsely represents that the goods are of particular standard, quality, quantity, grade,
composition, style or model;
ii. falsely represents that the services are of a particular standard, quality or grade;
iii. falsely represents any re-built, second-hand, renovated, reconditioned or old goods as
new goods;
 iv. represents that the goods or services have sponsorship, approval performance,
characteristics, accessories, uses or benefits which such goods or services do not have;
v. represents that the seller or the supplier has a sponsorship or approval or affiliation
which such seller or supplier does not have;
vi. makes false or misleading statement concerning the need for, or the usefulness of, any
goods or services;
vii. gives to the public any warranty or guarantee of the performance, efficacy or length of
life of a product or of any goods that is not based on an adequate or proper test thereof;
viii. makes to the public a representation in a form that purports to be a warranty or
guarantee of a product or of any goods or services; or a promise to replace, maintain or
repair an article or any part thereof or to repeat or continue a service until it has achieved
a specified result, if such perported warranty or guarantee or promise is materially
misleading or

if there is no reasonable prospect that such warranty, guarantee or promise will

be carried out;
ix. materially misleads the public concerning the price at which a product or like products
or goods or services, have been or are, ordinarily sold or provided, and, for this purpose,
a representation as to price shall be deemed to refer to the price at which the product or
goods or services has or have been sold by sellers or provided by suppliers generally in
the relevant market unless it is clearly specified to be the price at which the product has
been sold or services have been provided by the person by whom or on whose behalf
other representation is made;
x. gives false or misleading facts disparaging the goods, services or trade of another
person.

Note : A statement is said to be made to public when it is

a. expressed on an article offered or displayed for sale, or on its wrapper or container; or

b. expressed on anything attached to, inserted in, or accompanying, an article offered or
displayed for sale, or on anything on which the article is mounted for display or sale;
or
c. contained in or on anything that is sold, sent, delivered, transmitted or in any other
manner whatsoever made available to a member of the public, by the person who had
caused the statement to be so expressed, made or contained.

2. Permits the publication of any advertisement whether in any newspaper or otherwise, for
the sale or supply at a bargain price, of goods or services that are not intended to be offered
for sale or supply at the bargain price, or for a period that is, and in quantities that are,
reasonable, having regard to the nature of the market in which the business is carried on,
the nature and size of business, and the nature of the advertisement.
Note : Bargain price means
 a. a price that is stated in any advertisement to be a bargain price, by reference to an
ordinary price or otherwise, or
b. a price that a person who reads, hears or sees the advertisement, would reasonably
understand to be bargain price having regard to the prices at which the product
advertised or like products are ordinarily sold.
3. Permits the offering of gifts, prizes or other items with the intention of not providing them
as offered or creating impression that something is being given or offered free of charge
when it is fully or partly covered by the amount charged in the transaction as a whole; or
the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting,
directly or indirectly, the sale, use or supply of any product or any business interest;

4. Permits the sale or supply of goods intended to be used, or are of a kind likely to be used,
by consumers, knowing or having reason to believe that the goods do not comply with the
standards prescribed by competent authority relating to performance, composition,
contents, design, constructions, finishing or packaging as are necessary to prevent or reduce
the risk of injury to the person using the goods;

5. Permits the hoarding or destruction of goods, or refuses to sell the goods or to make them
available for sale or to provide any service, if such hoarding or destruction or refusal raises
or tends to raise or is intended to raise, the cost of those or other similar goods or services.

1.4-2 What is a Restrictive Trade Practice - Section 2(1)(nn) of the Act provides that,
restrictive trade practice” means any trade practice which requires a consumer to buy, hire or
avail of any goods or, as the case may be, services as a condition precedent for buying, hiring
or availing of other goods or services
An analysis of above definition reveals that where sale or purchase of a product or service is
made conditional on the sale or purchase of one or more other products and services, it amounts
to restrictive trade practice.

Technically, this type of arrangement is called ‘tie-up sales’ or ‘tying arrangement’. The effect
of such an arrangement is that a purchaser is forced to buy some goods or services which he
may not require alongwith the goods or services which he wants to buy. Thus where a buyer
agrees to purchase product ‘X’ upon a condition that he will also purchase product ‘Y’ from
the seller, the sale of product ‘Y’ (tied product) is tied to the sale of product ‘X’ (tying product).

The buyer has to forego his free choice between competing products. This results in
neutralizing healthy competition in the ‘tied’ market.

Example : A, a gas distributor instead his customers to buy gas stove as a condition to give
gas connection. It was held that it was a restrictive trade practice - Re. Anand Gas RTPE
43/1983 (MRTPC).
However, where there is no such precondition and the buyer is free to take either product, no
tying arrangement could be alleged even though the seller may offer both the products as a
single unit at a composite price.

Example : A is a furniture dealer. He is selling Sofa at Rs. 20,000 and Bed at Rs. 15,000. He
has an offer that whoever will buy Sofa and Bed both, he will charge Rs. 30,000 only. Here the
choice is open to the customer to buy the products single or composite. This is not a restrictive
trade practice.

Note : The term ‘restrictive trade practice’ has a very wide meaning when read in context of
the MRTP Act, 1969. However under Consumer Protection Act, 1986, it has been used in a
narrower sense.

Goods and Defect [Section 2(1)(i) and (f)]

1.5 A consumer can make complaint when he come across defective goods. Here it is required
to understand what are the items which can be considered as ‘goods’ and what constitutes
‘defect’ under the Act.

1.5-1 Goods - The Consumer Protection Act does not define the term ‘Goods’ It says that -
goods” means goods as defined in the Sale of Goods Act, 1930.

Section 2(7) of the Sale of Goods Act, 1930, defines ‘goods’ as - Goods means every kind of
movable property other than actionable claims and money; and includes stock and shares,
growing crops, grass, and things attached to or forming part of the land which are agreed to be
severed before sale or under the contract of sale. The definition reveals that
a. Goods must be movable;
b. Things attached to or forming part of land which can be severed satisfy the movability
criteria;
c. Actionable claim and Money have been specifically excluded from definition of goods.

Note : For elaboration on the term ‘goods’, refer para 15-2-1d.

1.5-2 Defect - Section 2(1)(f) of the Act provides that, defect” means any fault, imperfection
or shortcoming in the quality, quantity, potency, purity or standard which is required to be
maintained by or under any law of the time being in force under any contract, express or
implied or as is claimed by the trader in any manner whatsoever in relation to any goods.
This is an exhaustive definition. It means that the Act recognises only those defects which are
covered by the definition. Any type of defect not mentioned here will not be entertained by
Consumer Forums. Moreover the defect has to be in relation to goods only, i.e., if an item does
not fall within the definition of ‘Goods’, no defect can be complained therein. However, the
coverage of this definition is very wide.

Examples:
1. A Pressure Cooker burst and caused injury to the user. It was held to be a manufacturing
defect - T.T. (P.) Ltd. v. Akhil Bhartiya Grahak Panchayat II [1996] CPJ 239 NC.
2. Failure to handover registration book along with jeep purchased by complainant is a
defect. [Ramesh Chandra v. Commercial Tax Officer [1993] 3 CPR 182 (Ori.).
3. Where laboratory test report showed that soft drink was not fit for human consumption,
it was held defective - Narayanan Vyankatkrishnan Iyengar v. Shakti Foods [1994] 2
CPJ 652 (Mah.).
4. Rape seed oil adulterated with toxic substances, which led to paralysis of limbs and
other disabilities, has been considered as defective - Barsad Ali v. MD West Bengal
Essential Commodities Supply Corporation Ltd. (1993) 1 CPR 217 WB.
5. Electric household appliances which are not in accordance with the standards
prescribed by ISI, being unsafe are defective - Farooq Hazi Ismail Saya v. Gavabhai
Bhesania (1991) 2 CPJ 452 (Guj.).
6. Gas Cylinder with excessive gas is defective goods - Dayanand A Avasare v. Bharat
Petroleum Corporation Ltd. (1993) 1 CPR 278 (Mah.).
7. Development of cracks of half inch to three and a half inch in walls and mosaic floor
in a flat after taking possession from a Housing Board - R. Shanmugasundaram v. Tamil
Nadu Housing Board (1998) 1 CPJ 96 NC.
8. A supplied white marble to B. Later on the colour of the marble changed. B sued a
alleging supply of defective marble. It was held that A should have expressly told B
that the marble would not retain its colour when polished. In the absence of such
assertion, it is deemed that A made B to understand that the marble would retain its
white colour and when the colour changed, it comes within the scope of ‘defect’ in
goods under the Act - Chitranjan Sahu v. N.C. Jain II (1993) CPJ 1127 (Ori.).
9. A sold a stolen car to B. B wanted to sue A for defect in the title of the car. Here B
cannot sue A under the Consumer Protection Act as the defect in title of goods would
not constitute defective goods as defined under the Act.
Service and Deficiency [Section 2(1)(o) and (g)]

1.6 When a service is found deficient by a consumer, he can make a complaint under the Act.
Thus the prime requirement is that the matter must fall within the definition of service, and it
must entail a deficiency as per the norms given by the Act.

1.6-1 What can be termed as a service - Section 2(1)(o) of the Act provides that service”
means service of any description which is made available to potential users and includes the
provision of facilities in connection with banking, financing, insurance, transport, processing,
supply of electrical or other energy, board or loading or both, housing construction,
entertainment, amusement or the purveying of news or other information, but does not include
the rendering of any service free of charge or under a contract of personal service.
The definition provides a list of eleven sectors to which service may pertain in order to come
under the purview of the Act. The list of these sectors is not an exhaustive one. Service may be
of any description and pertain to any sector if it satisfy the following criteria:

1. service is made available to the potential users, i.e., service not only to the actual users
but also to those who are capable of using it.
2. it should not be free of charge, e.g., the medical service rendered free of charge in
Government hospital is not a service under the Act;
3. it should not be under a contract of personal service.

When we talk about ‘service’ under the Consumer Protection Act, we take it as a regular
commercial transaction. Thus the services rendered under the contract of personal service are
specifically excluded from the definition.

The expression ‘contract of personal service’ is not defined under the Act. In common parlance,
it means - a contract to render service in a private capacity to an individual. For example, where
a servant enters into an agreement with a master for employment, or where a landlord agrees
to supply water to his tenant, these are the contracts of personal service. The idea is that under
a personal service relationship, a person can discontinue the service at any time according to
his will, he need not approach Consumer Forum to complaint about deficiency in service.

There is a difference between ‘contract of personal service’ and ‘contract for personal service’.
In case of ‘contract of personal service’, the service seeker can order or require what is to be
done and how it should be done. Like a master can tell his servant to bring goods from a
particular place. But in a ‘contract for personal service’, the service seeker can tell only what
is to be done. How the work will be done is at the wish of the performer. Like when a person
gives a suit to the tailor for stitching, he does not tell him which method he should use to stitch
it.

Note : That it is ‘contract of personal service’ is excluded from the definition of service,
‘contract for personal service’ is recognised as service under the Act.

It does not make a difference whether the service provider is a Government body or a Private
body. Thus even if a statutory corporation provides a deficient service, it can be made liable
under the Act.

Example : A applied for electricity connection for his flour mill to Rajasthan State Electricity
Board. The Board delayed in releasing the connection. It was held deficient in performing
service.
Some other sectors/professionals/services which are not specified in the definition of service
but which have been considered by the Consumer Forums as service sectors from time to time
are listed below:

Advocates, Airlines, Chartered Accountants, Courier, Chit Fund, Education, Gas

Cylinder/LPG, Medical services, Postal services, Railways, Investment related services, and
Telephone services.

Thus, the test is - whether the person against whom the complaint is made performs a service
for consideration which is sought by a potential user.

1.6-2 What is meant by deficiency in service - Section 2(1)(g) of the Act provides that,
deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be maintained by or under any law for the
time being in force or has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service.

Reading the above definition by breaking it into elements, we get

a. deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance
Examples :

1. A boarded a train. The compartment in which he and his wife travelled was in a bad shape-
fans not working, shutters of windows were not working, rexin of the upper berth was badly
torn and there were rusty nails which caused some injuries to the wife of A. A made a complaint
against the railway department. It was held that the complaint constituted ‘deficiency in
service’ and the compensation of Rs. 1500 was awarded to A - General Manager, South Eastern
Railway v. Anand Prasad Sinha I [1991] CPJ 10 (12) NC.

2. Dr. A treated P under Allopathic system, though he himself was a Homoeopathic

practitioner. Later on P allegated A for wrong treatment. The Commission held it as deficiency
in service - Poonam Verma v. Ashwin Patel [1996] II CPJ 1 SC.

3. A booked a car for B and promised to deliver it within one month of booking. The car was
not delivered even after four months. Here A could be held liable for deficiency in service.

One interesting aspect is that deficiency in service should occur during the happening of
performance. Thus it is crucial to determine when the performance of a service commenced.
Example : A contracted with B to supply, erect and commission cold rolling mill. A supplied
the mill, but failed to erect and commission the mill. B filed a suit alleging deficiency of service
on A’s failure to elect and commission the mill. The National Commission observed that the
deficiency must pertain to performance of service. Since A never started erecting and
commissioning the mill, the question of performance did not arise. Thus the case is not that of
deficiency of service - Jaipur Metals & Electricals Ltd. v. Laxmi Inds. [1991] II CPJ 602 (NC).

(b) Such quality and manner of performance of service should have been required to be
maintained by or under any law for the time being in force or undertaken to be performed by a
person in pursuance of a contract or otherwise.

Example : A, the builder, promised under written agreement to provide a flat to B.

Subsequently he expressed his inability to give possession of the flat and entered into a fresh
agreement to pay Rs. 9,51,000 to B in place of flat. A didn’t even pay this money. B sued A.
The Commission held that since A had not even paid the money as per subsequent contract,
the rights of earlier contract can be involved by B. And that there was a deficiency of service
on the part of builders - Lata Construction v. Dr. Rameshchandra Ramniklal Shah AIR 2000
SC 380 (384).

(c) The deficiency must be in relation to a service - The words ‘....in relation to any service’ in
the definition signifies that the deficiency is always in terms of service. Thus if the grievance
pertains to a matter which does not fall in the definition of service, the concept of deficiency
would not apply.

Example : A deposited Rs. 100 with B as application fee and executed bond for the purpose
of drilling tubewell. B did not drill the tubewell because it was not feasible. A alleged
deficiency in service. It was held that depositing Rs. 100 as application fee and executing a
bond does not amount to hiring of services, thus the deficiency of service cannot be complained
of in the matter - Mangilal v. Chairman District Rural Development Agency [1991] 1 CPJ 474
(Raj.).

Deficiency in service due to circumstances beyond control

In normal course, if the service is found deficient as per the above criteria, it is held deficient
and the compensation is awarded. However there may be abnormal circumstances beyond the
control of the person performing service. If such circumstances prevent a person from
rendering service of the desired quality, nature and the manner, such person should not be
penalised for the same.
Example : A undertook to supply water to B for irrigation of crops. Due to power grid failure
of the State, A could not get sufficient power to perform the service. Here A cannot be held
liable for deficiency in service.

However, negligence on the part of performer may not be excused under the cover of
circumstances beyond control.

Example : A agreed to supply water to B for irrigation of crops. He failed to do so because of

a power breakdown due to burning of transformer. As a result crops damaged. B sued A for
providing deficient service. The National Commission held that it was duty of A to get the
transformer repaired immediately. Since he was negligent in doing so, he is liable for the
deficiency in service - Orissa Lift Irrigation Corpn. Ltd. v. Birakishore Raut [1991] 2 CPJ 213
(NC).

Trader and Manufacturer [Section 2(1)(q) and (j)]

1.7 When a person finds any defect in the goods, be it manufacturing defect, or excessive price,
or lack of information about hazardous nature, or restrictive or unfair trade practice, he can
make a complaint against the trader. Thus it is very important to know who can be termed as a
trader under the Act.

1.7-1 Trader - Section 2(1)(q) of the Act says that ‘trader’ means any person who sells or
distributes any goods for sale and includes the manufacturer thereof, and where such goods are
sold or distributed in package form, includes the packer thereof.

Generally speaking ‘trader’ means any person who carries on a trade. Under the Consumer
Protection Act, even a packer has been included in the definition of trader. Packer means one
who packs the goods.

Examples :
1. A got an agency of ‘Indana’ products. He sells and distributes these products in North India.
He is a trader under the Act.
2. A manufactures combs. He is a trader under the Act.
3. A provide bottles to pack the perfume manufactured by B. Here A is also a trader under the
Act.
 Note : Trader is a wider term which includes a manufacturer also.

1.7-2 Manufacturer - In terms if clause (j) of section 2(1) of the Act, manufacturer” means a
person who
i. makes or manufactures any goods or parts thereof; or
ii. does not make or manufacture any goods but assembles parts thereof made or
manufactured by others and claims the end-product to be goods manufactured by
himself; or
iii. puts or causes to be put his own mark on any goods made or manufactured by any other
manufacturer and claims such goods to be goods made or manufactured by himself.

Thus manufacturer is a person who either himself manufactures goods, or assemble any
goods manufactured by others, or puts his own mark or trade mark on the goods
manufactured by others.

Examples :
1. A Ltd. were into manufacturing of Pressure Cookers. B bought a Cooker which burst out
while using. B sued A Ltd. for compensation. Here A Ltd. being manufacturer of the
Cooker is liable for the loss.

2. A Ltd. used to buy components and assemble computers therefrom. They were selling
them under the brand name ‘Rotal’. B bought a Rotal computer which turned out to be
defective. Here B can hold A Ltd. Liable for the loss as they will be considered
manufacturer of Rotal computer under the Act.

3. N bought H-4 Cotton seeds from the market which were labelled as produced and
marketed by the Hindustan Levers Ltd. N established that the seeds were defective. He
sued HLL. HLL contended that it did not manufactured the seeds but had only marketed
them, and that some company based in Gujarat produced the same. The Commission held
that in this case HLL comes under the third limb of the definition of manufacturer under
the Act. Thus it is liable for the loss suffered by N - Namdeo Baijrao Raut v. Hindustan
Lever Ltd. [1993] 3 CPR 346 (Mah. CDRC).

It may be noted that where a manufacturer despatches any goods or part thereof to any
branch office maintained by him, such branch office shall not be deemed to be the
manufacturer even though the parts so despatched to it are assembled at such branch office
and are sold or distributed from such branch office.

Example : A Ltd. based in Delhi was having a branch office in Chennai. It used to sent
components of computers to its Chennai branch which was assembling and selling them. B
 purchased a computer from Chennai branch which turned out to be defective. Here A Ltd.
is responsible for the loss, and not the Chennai branch.

1.7-3 Who should be sued by a consumer - manufacturer or seller - Generally when a

consumer finds defect in the goods, he sues the person from whom he bought the goods.
Reason being privity of contract.

If the defect is a manufacturing defect, the consumer may sue the manufacturer also along
with the seller. This is an option with the consumer. Thus the manufacturer is a possible
party, and not a necessary party.

Example : A was manufacturer of X” brand cars and B was a dealer for them. C bought a
car from B and found it defective. Here he may sue B alone, or A and B both.

Charging Excessive Price

1.8 A complaint may be made against a trader who has charged a price in excess of the
price :

(a) fixed by or under any law for the time being in force, or
(b) displayed on the goods, or
(c) displayed on any package containing the goods.

Examples :
1. Government fixed control rate of milk at Rs. 15 per litre in the month of June 2001. A sold
it at the rate of Rs. 18 per litre in the same period. Price charged by A are excessive.

2. The price displayed on a one Kg. packet of salt was Rs. 4. Suddenly there was paucity of
salt in the market. A started selling the same @ Rs. 6 per kg. The price charged by A is
excessive.

It may be noted that when price of an article is not fixed by law, or when the same is not
displayed on goods or on the package containing goods, no complaint can be made under
the Act for excess pricing.

Example : Mahaboobnagar Milk Chilling Centre charged 15 paise extra per half litre of
milk supplied in sachets in comparison to the other varieties of milk. The National
Commission held that in the absence of any law requiring an article to be sold at or below
a particular price fixed thereunder, and when there was no declaration of the price on the
packet containing the goods, a case for excessive pricing may not be construed.
Hazardous Goods

1.9 The term Hazardous goods’ has not been defined in the Act. The dictionary meaning of
the term is - dangerous or risky. However, the term is used in context of ‘goods’ only, i.e.,
a person can make a complaint if he is not informed about the hazardous nature of the goods
but the same is not true in case of hazardous services.

The rationale behind this provision is to ensure physical safety of the consumers. The law
seeks to ensure that those responsible for bringing goods to the market, in particular,
suppliers, exporters, importers, retailers and the like should ensure that while in their care
these goods are not rendered unsafe through improper handling or storage.

Consumers should be instructed in the proper use of goods and should be informed of the
risks involved in intended or normally foreseeable use. Vital safety information should be
conveyed to consumers.

Example : A bought an insecticide from B. B did not inform A that touching this insecticide
with bare hands can create skin problem. A, while using the insecticide came in contact
with it and suffered from skin problem consequently. Here B can be held liable under the
Act.

Consumer Protection Councils.

2.1 Ram, an engineer by profession shifted to Delhi. He bought a computer from Shyam, a
dealer who gave him all guarantees and warranties. The moment he plugged in the
computer, some noise came and the computer was shut down. He called up Shyam, but got
no response from him. After making many calls to him, he understood that he was cheated
of his money.

Ram could have gone to courts, but knowing the lengthy and expensive procedures
involved, he preferred not to initiate any action against Shyam. One day while watching
television he came across a programme on consumer protection. Ram got interested in it
and noted the address of consumer council which was sponsoring the programme.
Thereafter he contacted the Council and talked about his computer affair. The Council
made him aware that there is a speedy and inexpensive way to assert his right as a
consumer, and that where and how a complaint can be filed for that, and that he need not
hire an advocate for the suit, and assured him of any assistance he may need for the same.
The Consumer Councils are created to advise and assist the consumers in seeking and
enforcing their rights. We have Consumer Protection Councils both at Centre level and
State level, that is one Central Council and many State Councils.

These councils work towards the promotion and protection of consumers. They make
investigations and give publicity to the matters concerning consumer interests, take steps
towards furthering consumer education and protecting consumer from exploitation, advice
the Government in the matter of policy formulation keeping consumer interest as pivotal
concern, etc. Although their suggestions are recommendatory in nature, but they have
significant impact in policy making.
While deciding about the composition of these councils, the State keeps in mind that it
should have proper representation from all the possible areas affecting consumer interests.
Again the rules as to when should these councils meet, what should they aim at, how they
conduct their business are framed by the Government with a view to balance the efficacy
and practicability of its business.

Objects of the Councils [Sections 6 and 8]

2.2 There is one basic thought that ‘consumer need to be protected’. Another thought is -
how he can be protected ? Definitely, there has to be some agency to work towards this
protection. The Act has provided for constitution of Consumer Councils for this purpose.

Now, when we say that these councils are there to protect the consumers, a question arises
- consumers are protected against what ? Thus the Act has detailed some rights of
consumers which need to be protected by the councils. These are :
Right to safety - It is right to be protected against the marketing of goods and services
which are hazardous to life and property.

Unsafe goods may cause death or serious injury to the user due to defective ingredients,
defective design, poor workmanship, or any other reason. At times safety hazards are found
due to absence of proper instructions to use the product. Thus it is to be ensured that
Manufacturers and traders ensure that the goods are safe for the users, in case of hazardous
goods, they give clear instructions as to mode of use, consumer is informed of the risk
involved in improper use of goods, vital safety information is conveyed to consumers.

Manufacturers or distributors who become aware of the unforeseen hazards after the goods
are supplied must inform the authorities and the public in order to forewarn consumers
about such hazards.

Where a product is found such as is likely to be hazardous even when properly used, traders
should either recall it and modify the same, or replace it with a new product, or adequately
compensate for it.

Right to information - It is right to be informed about the quality, quantity, potency, purity,
standard and price of goods or services, with a view to protect the consumer against unfair
trade practices.

Adequate information is very important in order to make a right choice. In our country,
however, consumers do not get adequate comparative information about the quality,
quantity, potency, purity, standard and price of different kinds of goods or services which
are available. As a result buying decisions become difficult. Therefore consumers need to
be given maximum information about the wide variety of competing goods available in the
market.
Right to choose - The right to choose can be made meaningful by ensuring access to a
variety of goods and services at competitive prices.

Fair and effective competition must be encouraged so as to provide consumers with the
widest range of products and services at the lowest cost.

Right to represent - It is right to be heard and to be assured that consumer’s interests will
receive due consideration at appropriate forums.

The Consumer Protection Act, 1986 has well taken care of this right by making available
the instrumentality of Redressal Forums. Every consumer has a right to file complaint and
be heard in that context.

Right to redressal - It is a right to seek redressal against unfair trade practices or restrictive
trade practices or unserpulous exploitation of consumers.

When consumers are wronged in a market place transaction, appropriate and adequate
redress must be available. The Act has ensured this right by establishing Consumer Forums
and recognising restrictive and unfair trade practices as a ground to make a complaint.

Right to education - The right to consumer education is a right which ensures that
consumers are informed about the practices prevalent in the market and the remedies
available to them.

For spreading this education, media, or school curriculum, or cultural activities, etc. may
be used as a medium.
 Note that the Central Council’s object is to ensure these rights of the consumers throughout
the country while the State Councils look to ensure these rights to consumers within their
territories.

Central Council
2.3-1 Composition [Section 2 and rule 3] Members of the councils are selected from various
areas of consumer interest, who are, when possible, leading members of statewide
organisations representing segments of the consumer public so as to establish a broadly
based and representative consumer council.

The Consumer Protection Act has authorised the Central Government to make rules as to
the composition of the Central Council. Accordingly, the Central Government has provided
that the Central Council shall consist of the following members not exceeding 150, namely :

1. the Minister in-charge of Consumer Affairs in the Central Government who shall be the
Chairman of the Central Council;
2. the Minister of State (where he is not holding independent charge) or Deputy Minister in-
charge of Consumer Affairs in the Central Government who shall be the Vice-Chairman of
the Central Council;
3. the Secretary in-charge of Consumer Affairs in the Central Government who shall be the
member-secretary of the Central Council;
4. the Minister in-charge of Consumer Affairs in States;
5. eight Members of Parliamentfive from the Lok Sabha and three from the Rajya Sabha;
6. the Secretary of the National Commission for Scheduled Castes and Scheduled Tribes;
7. representatives of the Central Government Departments and autonomous organizations
concerned with consumer interestsnot exceeding twenty;
8. representatives of the Consumer Organisations or consumersnot less than thirty-five;
9. representatives of womennot less than ten;
10. representatives of farmers, trade and industriesnot exceeding twenty;
11. persons capable of representing consumer interest not specified abovenot exceeding fifteen;

2.3-2 Vacancy - Any member may, by writing under his hand to the Chairman of the Central
Council, resign from the Council. The vacancies, so caused or otherwise, are filled from the
same category by the Central Government and such person shall hold office so long as the
member whose place he fills would have been entitled to hold office, if the vacancy had not
occurred.

2.3-3 Term - The term of the Council is three years.

2.3-4 Meetings of the Central Council [Section 5 and rule 4] - Central Council is required to
organise at least one meeting every year. In addition, it may meet as and when necessary. Time
and place of the meeting is decided by the Chairman of the council.
Each meeting of the Central Council shall be called by giving, not less than ten days from the
date of issue, notice in writing to every member.

Every notice of a meeting of the Central Council shall specify the place and the day and hour
of the meeting and shall contain statement of business to be transacted thereat.

The meeting of the Central Council shall be presided over by the Chairman. In the absence of
the Chairman, the Vice-Chairman shall preside over the meeting of the Central Council. In the
absence of the Chairman and the Vice-Chairman, the Central Council shall elect a member to
preside over that meeting of the Council.

The resolutions passed by the Central Council are recommendatory in nature.

No proceedings of the Central Council shall be invalid merely by reasons of existence of any
vacancy in or any defect in the constitution of the Council.

State Consumer Protection Councils (State Councils) [Section 7]

2.4-1 Composition - The power to establish State Councils is with the States. The Act provides
that the Minister incharge of consumer affairs in the State Government shall be the Chairman
of the State Council. About the number and qualifications of the rest of the members, State is
the deciding authority.

2.4-2 Meetings - The State Council meet at least twice a year. In addition, it may meet as and
when necessary. The council may meet at such time and place as the Chairman may think fit.

Procedure in regard to the transaction of its business is prescribed by the State Government.

Working Groups [Rule 3]

2.5 For the purpose of monitoring the implementation of the recommendations of the Central
Council and to suggest the working of the Council, the Central Government may constitute
from amongst the members of the Council, a Standing Working Group, under the chairmanship
of the Member Secretary of the Council. The Standing Working Group shall consist of not
exceeding 30 members and shall meet as and when considered necessary by the Central
Government.
Consumer Forums.

3.1 Ram, a resident of Panipat district, took his son Shyam to a doctor for eye treatment. Due
to negligence of the doctor, Shyam lost sight of his left eye. Ram filed a suit against the doctor
in District Forum claiming Rs. 4 lakh as compensation. The District Forum dismissed his
complaint on the ground that negligence of the doctor could not be proved.

Ram appealed to Haryana State Commission against this order. State Commission also upheld
the decision of District Forum. Now Ram approached the National Commission and made an
appeal therein. Ram knew that after National Commission also, he is still left with an option to
approach the Supreme Court against the order of the Commission. However, the National
Commission decided in favour of Ram.

The Consumer Protection Act provides for a 3 tier approach in resolving consumer disputes.
There are three levels of consumer courts

First, there is the district court, called District Consumer Disputes Rederessal Forum (District
Forum),

Next comes the State Consumer Disputes Redressal Commission (State Commission),

At the national level, there is National Consumer Disputes Redressal Commission (National
Commission).
District Forum and State Commission are formed by States with the permission of the Central
Government while the National Commission is formed by the Central Government. These
forums have not taken away the jurisdiction of the civil courts but have provided an alternative
remedy.

The Consumer Protection Act, 1986 has given powers to the Central and State Governments
to make rules with regard to various aspects of the consumer protection machinery. In our
discussion, we have included the Consumer Protection Rules, 1987 made by the Central
Government, wherever required.

Constitution of the Forums.

3.2 The composition of the District Forum and the State Commission has been detailed out by
the Consumer Protection Act, 1986. As for the National Commission, the Consumer Protection
Rules, 1987, elaborates upon its composition.
3.2-1 District Forum [Section 10]

3.2-1a COMPOSITION - District Forum consist of one president and two other members (one
of whom is to be a woman).

The president of the Forum is a person who is, or has been qualified to be a District Judge, and
other members are persons of ability, integrity and standing, and have adequate knowledge or
experience of, or have shown capacity in dealing with, problems relating to economics, law,
commerce, accountancy, industry, public affairs or administration.

The object underlying the inclusion of non-judicial members appears to be to impart a balance
to the functioning of the District Forum by ensuring that the members are able to understand
the economic and social impact of the matters. Further inclusion of one female members
ensures that the matters are viewed from a woman’s angle also.

3.2-1b APPOINTING AUTHORITY - Every appointment of the president and members of the
District Forum is made by the State Government on the recommendation of a selection
committee consisting of the following, namely
i. the President of the State Commission Chairman.
ii. Secretary, Law Department of the State Member.
iii. Secretary in charge of the Department dealing with consumer affairs in the
State Member.
3.2-1c TERM OF OFFICE [SECTION 10(2)] - Every member of the District Forum is to hold
office for a term of five years or up to the age of 65 years, whichever is earlier. However, he/she
shall not be eligible for re-appointment.

3.2-1d VACANCY - A vacancy in the office of president or a member may occur after the
expiry of his term, or by his death, resignation, or removal.
In terms of proviso to section 10(2), a member may resign his office in writing under his hand
addressed to the State Government and on such resignation being accepted, his office shall
become vacant and may be filled by the appointment of a person possessing the requisite
qualifications in relation to the category of the member who has resigned.

The Consumer Protection Act does not have any specific provision for removal of the president
and members of the District Forum. But the consumer protection rules made by various States
provide for such removal. Accordingly, a president or member of a District Forum may be
removed by the State Government, who
a. has been adjudged an insolvent, or
b. has been convicted of an offence involving moral turpitude, or
 c. has become physically or mentally incapable of performing his duties, or
d. has acquired such financial interest in the matter as would prejudicially affect his
functions as president or member, or
e. has abused his position so as to render his continuance to office prejudicial to public
interest.
3.2-1e TERMS AND CONDITIONS OF SERVICE [SECTION 10(3)] - The salary or
honorarium and other allowances payable to, and the other terms and conditions of service of
the members of the District Forum shall be such as may be prescribed by the State Government.
Different States have made different rules in this regard.

3.2-2 State Commission [Section 16] - After the District Forum, State Commission is next in
the hierarchy of Consumer Rederessal Forums under the Act.

3.2-2a COMPOSITION - State Commission consists of a president and two members one of
whom is to be a woman.

President is a person who is or has been a Judge of a High Court, and the members, are persons
of ability, integrity and standing and have adequate knowledge or experience of, or have shown
capacity in dealing with, problems relating to economics, law, commerce, accountancy,
industry, public affairs or administration.

3.2-2b APPOINTING AUTHORITY - President of a State Commission is appointed by the

State Government after consultation with the Chief Justice of the High Court.

Other members of the Commission are made by the State Government on the recommendation
of a selection committee consisting of the following, namely
(i) President of the State Commission Chairman.
(ii) Secretary of the Law Department of the State Member.
(iii) Secretary, incharge of Department dealing with consumer affairs in the State Member.

3.2-2c TERM OF OFFICE [SECTION 16(3)] - Every member of the State Commission shall
hold office for five years or upto the age of 67 years whichever is earlier and he shall not be
eligible for re-appointment.

3.2-2d VACANCY - Rules as to the vacancy related in the office of the president or any
member are similar to those discussed in context of the members of the District Forum. Refer
para 33.2-1d for the details.

3.2-1e TERMS AND CONDITIONS OF SERVICE [SECTION 16(2)] - The salary or

honorarium and other allowances payable to, and the other terms and conditions of service of,
the members of the State Commission shall be such as may be prescribed by the State
Government.

3.2-3 National Commission [Section 20] - The National Commission is the top most layer in
the three level hierarchy of the Consumer Forums.

3.2-3a COMPOSITION - The National Commission consists of a president, and four other
members (one of whom is to be a woman).

The president should be the one who is or has been a Judge of the Supreme Court, and the
members should be the persons of ability, integrity and standing and have adequate knowledge
or experience of, or have shown capacity in dealing with, problems relating to economics, law,
commerce, accountancy, industry, public affairs or administration.

3.2-3b APPOINTING AUTHORITY - The President is appointed by the Central Government

after consultation with the Chief Justice of India;

The appointment of other members of the Commission is made by the Central Government on
the recommendation of a selection committee.

This selection committee consists of, namely:

a. a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of
IndiaChairman.
b. the Secretary in the Department of Legal Affairs in the Government of IndiaMember.
c. Secretary of the Department dealing with consumer affairs in the Government of
India Member.

Note that before appointment, the president and member(s) of the National Commission have
to take an undertaking that he does not and will not have any such financial or other interest as
is likely to affect prejudicially his functions as such member.

3.2-3c TERM OF OFFICE [SECTION 20(3)] - Every member of the National Commission is
to hold office for a term of five years or upto the age of seventy years, whichever is earlier and
is not eligible for re-appointment.
3.2-3d VACANCY - A vacancy in the office of president or a member may occur after the
expiry of his term, or by his death, resignation, or removal.

In terms of proviso to rule 12(3), the president or a member may resign his office in writing
under his hand addressed to the Central Government, or he can be removed from his office in
accordance with the provisions of rule 13.

Removal of the president and members in certain circumstances: In terms of Rule 13 of the
Consumer Protection Rules, 1987, the Central Government may remove from office, the
President or any member, who
a. has been adjudged as an insolvent; or
b. has been convicted of an offence which, in the opinion of the Central Government,
involves moral turpitude; or
c. has become physically or mentally incapable of acting as the President or the member;
or
d. has acquired such financial or other interest as is likely to affect prejudicially his
functions as the President or a member; or
e. has so abused his position as to render his continuance in office prejudicial to the public
interest; or
f. remain absent in three consecutive sittings except for reasons beyond his control.
Note that the President or any member shall not be removed from his office on the
grounds specified in clauses (d), (e) and (f) above except on an inquiry held by Central
Government in accordance with such procedure as it may specify in this behalf and
finds the President or a member to be guilty of such ground.

Note :
1. A casual vacancy caused by resignation or removal of the President or any other member
of the National Commission is filled by fresh appointment.
2. When the President of the National Commission is unable to discharge the functions owing
to absence, illness or any other cause, the senior most member of the National Commission
with judicial background, if authorised so to do by the President in writing, shall discharge
the functions of the President until the day on which the President resumes the charge of
his functions.

3.2-3e TERMS AND CONDITIONS OF SERVICE [SECTION 20(2)] - In terms of the rules
11 and 12 made by the Central Government in pursuance of the powers given under the Act,
the terms and conditions of service of the president and the members of the Commission are as
follows:
a. The President of the National Commission is entitled to salary, allowances and other
perquisites as are available to a sitting Judge of the Supreme Court.
b. The members, if sitting on whole-time basis, are entitled to a consolidated honorarium
of ten thousand rupees per month or if sitting on part-time basis, a consolidated
honorarium of five hundred rupees per day of sitting.
c. The President and the members are entitled to travelling and daily allowances on
official tours at the same rates as are admissible to group ‘A’ Officers of the Central
Government.
 d. The President and the members of the National Commission are entitled to conveyance
allowance of one hundred fifty rupees per day of its sitting or a sum of one thousand
and five hundred rupees per month, as may be opted by them.

Notes : 1. The terms and conditions of service of the President and the members should not be
varied to their disadvantage during their tenure of office.

2. The money payable to these members and the president shall be defrayed out of the
Consolidated Fund of India.

Further it is worth noting that in case any defect lies in the constitution of the District Forum,
or State Commission or National Commission, or any vacancy remains therein while
proceedings are made for any dispute, such defect or vacancy shall not affect the validity of
the order of the Forum. [Section 29A].

Jurisdiction.

3.3 The term jurisdiction may be defined as authority or legal power to hear and decide the
cases. Thus a court may adjudicate only those matters which fall under its jurisdiction. The
question of jurisdiction has to be considered with reference to the value, place, and nature of
the subject matter.

Example : A and B reside in Bombay. They have some dispute. Here the dispute may be
subjected to the jurisdiction of the Bombay courts (except matters pertaining to Supreme
Court). Courts of Delhi, or Chennai, or any other place for that matter cannot adjudicate the
issue.

The general rule is that if the court rendering the judgment suffers from want of jurisdiction,
its judgment is nullity and may be ignored.

Jurisdiction of Consumer Forums (i.e., consumer courts) differ in terms of monetary value of
claims, geographical area, and appellate powers.

3.3-1 District Forum

3.3-1a PECUNIARY JURISDICTION - District Forum entertains the cases where the value of
claim is upto Rs. 20 Lakh. Where a claim exceed this limit, the matter is beyond the jurisdiction
of the Forum.
This limit of Rs. 20 lakh is as to the value of claim filed by the party. Value of goods or services
in question or value of relief granted is not relevant for this purpose.

Example : A purchased machinery for Rs. 22 lakhs. After working for some time, the machine
broke down due to some manufacturing defect. A filed a claim for compensation worth Rs.
18.5 lakh. Since the value of claim is less than Rs. 20 Lakh, it will fall under the jurisdiction
of District Forum.

The complainant has a right to reduce value of his claim in order to bring his claim within the
jurisdiction of a junior forum.

Example : A filed a complaint with a District Forum claiming Rs. 21,00,000 as against a
supplier of machinery. The complaint was rejected on the ground that it was beyond the
jurisdiction of the District Forum. A revised his claim to Rs. 19,99,999 and filed the plaint
again with the same District Forum. The plaint was accepted and tried.

3.3-1b TERRITORIAL JURISDICTION - Every District Forum has definite geographical

limits within which it can exercise its jurisdiction. A case is supposed to fall within such
territory when at the time of the institution of the complaint

(a) The party against whom the claim is made actually and voluntarily resides or carries on
business or has a branch office or personally works for gain in that area, or
(b) Where there are more than one opposite party, each such party actually and voluntarily
resides or carries on business or has a branch office or personally works for gain in that area,
or
(c) Where there are more than one opposite party, and any such party actually and voluntarily
resides or carries on business or has a branch office or personally works for gain in that area,
provided the other parties not so residing or working agrees, or the District Forum gives
permission in this regard,
(d) The cause of action, wholly or in part, arises in that area.

3.3-1c APPELLATE JURISDICTION - District Forum is the lowest rung of the ladder of the
consumer courts. Thus this is not an appellate court, i.e., no appeal lies in this court.

3.3-2 State Commission

3.3-2a PECUNIARY JURISDICTION - State Commission entertains the cases where value of
claim is upto Rs. 1 crore. But where value of a claim exceed Rs. 1 crore, the matter is beyond
the jurisdiction of the Commission.

Example : A of Delhi bought a house from housing board for Rs. 10 lakh. Due to defect in the
house, its wall fell down on the daughter of A and she dies. A sue the Housing Board claiming
Rs. 50 lakh as compensation. This matter will lie with the State Commission of Delhi.

Note : That although the value of house is less than 20 lakh, the decisive factor regarding
jurisdiction is the value of claim.

3.3-2b TERRITORIAL JURISDICTION - The Consumer Protection Act does not specifically
provides for the territorial jurisdiction of the State Commission. Thus it is governed by the
general principle of the law which are contained in section 20 of the Civil Procedure Code.

Broadly these principles are on the similar lines on which the territorial jurisdiction of District
Forum is based. Thus a suit can be instituted in the State Commission within whose local limits

(a) the party against whom the claim is made actually and voluntarily resides or carries on
business or personally works for gain, or
(b) where there are more than one opposite party, each such party actually and voluntarily
resides or carries on business or personally works for gain, or
(c) where there are more than one opposite party, and any such party actually and voluntarily
resides or carries on business or has a branch office or personally works for gain, provided the
other parties not so residing or working agrees, or the State Commission gives permission in
this regard, or
(d) the cause of action, wholly or in part, arises.

3.3-2c APPELLATE JURISDICTION [SECTION 17(a)(ii)] - State Commission has power to

adjudicate upon the appeals made against the order of the District Forums. Any person
aggrieved by an order made by the District Forum may prefer an appeal against such order
within 30 days from the date of order. However, the State Commission may entertain an appeal
after the expiry of 30 days if it is satisfied that there was sufficient cause for delay.

Note : 30 days are counted not from the date of order but from the date when the order is
communicated to the appellant.

3.3-2d REVISIONAL JURISDICTION [SECTION 17(b)] - State Commission may call for
the records and pass appropriate orders in any consumer dispute which is pending before or
has been decided by any District Forum within the State, where State Commission is of the
view that the District Forum
- has exercised jurisdiction which it was not entitled to, or
- has failed to exercise such jurisdiction which it was entitled to, or
- has exercised its jurisdiction illegally or with material irregularity.
Such revisional jurisdiction may be exercised by the Commission on its own or on the
application of a party.

3.3-3 National Commission

3.3-3a PECUNIARY JURISDICTION - Since National Commission is the highest level of

Consumer Forums, it may entertain all the matters where the value of claim exceeds Rs. 1
crore.

3.3-3b TERRITORIAL JURISDICTION - The territorial jurisdiction of the National

Commission is whole of India except the State of Jammu & Kashmir.

However, the Consumer Protection Act is applicable only if the cause of action arise in India.
If the cause of action arises out of India, National Commission has no jurisdiction over the
matter as it cannot be tried in India under the Act.

Example: The complainant alleged that they were not properly treated by the Egyptian Airlines
authorities at Barcelona. It was held that the cause of action arose at Barcelona, so the
complaint under the Act is not maintainable in India - Gulab Hotchand Bhagchandaney v.
Egyptian Airlines III 1994 CPJ 172 (NC).

3.3-3c APPELLATE JURISDICTION - The National Commission has jurisdiction to entertain

appeals against the order of any State Commission. The appeal may be made within 30 days
from the date of the order of the State Commission. However the National Commission may
entertain an appeal filed after the expiry of 30 days if it is satisfied that there was sufficient
cause for not filing the appeal within the given time.

3.3-3d REVISIONAL JURISDICTION [SECTION 21(b)] - National Commission can call for
the records and pass the appropriate orders in any consumer dispute which is pending before
or has been decided by any State Commission it is of the view that the State Commission
- has exercised jurisdiction which it was not entitled to, or
- has failed to exercise such jurisdiction which it was entitled to, or
- has exercised its jurisdiction illegally or with material irregularity.
Note that the revisional jurisdiction is available to the National Commission only in the cases
where there has been wrongful, illegal, and improper exercise of jurisdiction or failure to
exercise jurisdiction on the part of State Commission.
Example: K made an appeal to the National Commission against the order of the State
Commission whereby the State Commission had made an order against him although he was
not a made a party to the dispute by the complainant. The National Commission observed that
the order of the State Commission was vitiated by illegal exercise of jurisdiction resulting
immaterial irregularity and accordingly, the same was liable to be set aside - Kinetic
Engineering Ltd. v. Samasi Saunand [1993] II CPR 409 (NC).

Procedures
3.4 We understand that the Consumer Forums are the bodies who function like courts in order
to settle the consumer disputes. Their composition is so made as to best represent the interests
of the consumers, and they have specified jurisdictions. The next question is - what procedure
these Forums adopt in order to deal with the consumer disputes.

Section 13 of the Act has detailed the procedure in context of District Forum only. For State
Commission, section 18 says that it will follow the same procedure as followed by District
Forum with such modifications as necessary, and for the National Commission, section 22
gives power to the Central Government to make rules in this regard. These rules in turn have
included therein the procedure given by section 13. In addition, these rules have prescribed
some procedures to be followed by the parties to the complaint.

A complaint may be made with respect to the goods or services. When complaint relates to
goods, the criteria for the decision is - whether the goods are defective or not. Now the question
is - how to hold that the goods are defective. The most logical way is to get the goods tested to
determine the defect. However, in certain cases defect can be determined without technical
support or it may happen that the test is not feasible. These are
- The opposite party admits the defect.
- The defect is obvious and is visible to naked eyes, like in a complaint about contamination of
water, the sample of water given was so dirty that the Forum did not consider it necessary to
send it for test.
- When the complainant is not in possession of the subject matter of the complaint, e.g., in a
matter the complainant had given to the dealer the tyre and tube which had burst, the dealer
sent the same to the manufacturer. Thus the complainant was not in possession of the same.
- When subject matter of the complaint gets destroyed, like in case a pressure cooker burst, its
remains can’t be send to the laboratory for testing.
- In case of complaint regarding deficiency in service there is no question of testing or analysis.
Thus the procedure to be followed by the Forums can be discussed under the two heads

1. where laboratory test is required to determine the defect in goods.

2. where no laboratory test is required to determine the defect in goods or the complaint relates
to services.
3.4-1 Procedure to be followed by the District Forum [Section 13] - The following procedure
is equally applicable to the District Forum, State Commission with required modifications, and
National Commission with additional procedures required by the rules.
3.4-1a WHERE LABORATORY TEST IS REQUIRED TO DETERMINE THE DEFECT IN
GOODS - A consumer is supposed to file as many copies of the complaint as there are number
of judges, with all essential information, supporting papers like correspondence, and specifying
the compensation demanded.

On receipt of such complaint

(a) The District Forum should refer a copy of the complaint to the opposite party directing him
to give his version of the case within a period of thirty days which can be extended to forty five
days.
Where the opposite party on receipt of a complaint referred to him denies or disputes the
allegations contained in the complaint, or omits or fails to take any action to represent his case
within the time given by the District Forum, the District Forum would take the following steps
to settle the dispute :

(b) The District Forum may require the complainant to deposit specified fees for payment to
the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods
in question.

(c) The District Forum will obtain a sample of the goods, seal it, authenticate it and refer the
sample so sealed to the *appropriate laboratory for an analysis or test, whichever may be
necessary, with a view to finding out whether such goods suffer from any defect.

The District Forum will remit the fees to the appropriate laboratory to enable it to carry out
required analysis or test.
The laboratories supposed to report its findings to the District Forum within a period of fifty-
five days. This period is extendible by the District Forum.

(d) Upon receiving laboratory’s report, its copy will be forwarded by the District Forum to the
opposite party alongwith its own remarks.
(e) In the event of any party disputing the correctness of the findings, or the methods of analysis
or test adopted by the appropriate laboratory, the District Forum shall require the objecting
party to submit his objections in writing.
(f) The District Forum will give an opportunity of hearing to the objecting party.
(g) The District Forum shall issue appropriate order after hearing the parties.

3.4-1b WHERE NO LABORATORY TEST IS REQUIRED TO DETERMINE THE DEFECT

IN GOODS OR THE COMPLAINT RELATES TO SERVICES
(a) On receiving the complaint, the District Forum should refer a copy of the complaint to the
opposite party directing him to give his version of the case within a period of thirty days which
can be extended to forty five days.
(b) The opposite party on receipt of a complaint referred to him may
(i) admit the complaint
(ii) deny or dispute the allegations contained in the complaint, or
(iii) omits or fails to respond within the time given by the District Forum.
(c) Where the opposite party admits the allegation, the District Forum should decide the matter
on the basis of the merits of the case and the documents before it.
Where the opposite party denies or disputes the allegations made in the complaint, the District
Forum will proceed to settle the dispute on the basis of evidence brought to its notice by both
the parties.
Where the opposite party omits or fails to respond within the time given by the Forum, the
District Forum will proceed to settle the dispute on the basis of evidence brought to its notice
by the complainant.
(d) The District Forum shall issue an appropriate order after hearing the parties and taking into
account available evidence.

Note : Although this procedure may be followed by all - the District Forum, State Commission,
and National Commission, we have used the name of ‘District Forum’ while describing the
procedure.
*What is an appropriate laboratory under the Act
Section 2(1)(a) of the Act defines an appropriate laboratory as a laboratory or organisation
(i) recognised by the Central Government;
(ii) recognised by a State Government, subject to such guidelines as may be prescribed by the
Central Government in this behalf; or
(iii) any such laboratory or organisation established by or under any law for the time being in
force, which is maintained, financed or aided by the Central Government or a State
Government for carrying out analysis or test of any goods with a view to determining whether
such goods suffer from any defect.
Note : Rule 2A of the Consumer Protection Rules, 1987 provides the procedure to be followed
by the laboratories in order to get recognition from the States. We have not discussed this
procedure here since it is beyond purview of our study.

3.4-2 Procedure to be followed by the National Commission [Section 22] - Section 22 of the
Act provides that the National Commission shall follow such procedure as prescribed by the
Central Government. The Consumer Protection Rules, 1987 framed by the Central Government
lay down the procedure which is as follows :
(1) A complaint containing the following particulars shall be presented by the complainant in
person or by his agent to the National Commission or be sent by registered post, addressed to
the National Commission :
(a) the name, description and the address of the complainant;
(b) the name, description and address of the opposite party or parties, as the case may be, so
far as they can be ascertained;
(c) the facts relating to the complaint and when and where it arose;
(d) documents in support of the allegations contained in the complaint;
(e) the relief which the complainant claims.
(2) The National Commission shall, in disposal of any complaint before it, as far as possible,
follow the procedures laid down section 13 of the Act. (discussed in para 33.4-1)
(3) On the date of hearing, it shall be obligatory on the parties or their agents to appear before
the National Commission. Where the complainant or his agent fails to appear, the National
Commission may either dismiss the complaint for default or decide it on merits. Where the
opposite party or its agent fails to appear on the date of hearing the National Commission may
decide the complaint ex parte.
(4) The complaint shall be decided as far as possible within a period of three months from the
date of notice received by opposite party where complaint does not require analysis or testing
of commodities and within five months if it requires analysis or testing of commodities.
(5) After the proceedings, the National Commission shall issue the orders accordingly. (Refer
para 33.5-3)

Powers of the Consumer Forums [Sections 13(4), 14(1) and Rule 10]
3.5 For the purpose of adjudicating a consumer dispute, section 13(4) has vested the Consumer
Forums with certain powers of a civil court. Apart from these powers, the Central Government
has provided some additional powers to them under Rule 10 of the Consumer Protection Rules,
1987. Finally section 14 of the Act has provided them with the power to issues orders.

3.5-1 Powers akin to those of civil court [Section 13(4)] - The Forums are vested with the Civil
Court powers with respect to the following :
(a) summoning and enforcing the attendance of any defendant or witness and examining the
witness on oath;
(b) discovery and production of any document or other material object producible as evidence;
(c) receiving of evidence on affidavits;
(d) requisitioning of the report of the concerned analysis or test from the appropriate laboratory
or from any other relevant source;
(e) issuing of any commission for the examination of any witness; and
(f) any other matter which may be prescribed.
3.5-2 Additional powers of the consumer forums [Rule 10] - The National Commission, the
State Commission and the District Forum have following additional powers :
(a) Requiring production of any books, accounts, documents, or commodities from any person,
examining and retaining them.
(b) Obtaining information required for the purpose of the proceedings from any person.
(c) enter and search any premises and seize from such premises books, papers, documents,
commodities required for the purpose of proceedings under the Act.

3.5-3 Power to issue order [Section 14(1)] - If, after the proceedings, the Forum is satisfied that
the complainant suffer from any defect in goods or deficiency in service, it may issue an order
to the opposite party directing him to do one or more of the following things, namely :
(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any
defect;
(c) to return to the complainant the price, or, as the case may be, the charges paid by the
complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss
or injury suffered by the consumer due to the negligence of the opposite party;
(e) to remove the defects or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
(i) to provide for adequate costs to complainant.

Sitting of the Forums

3.6 The law has provided certain norms as to the number of judges who will handle a dispute.
The rationale must have been to make the decisive body as broad as possible.

3.6-1 Sitting of the District Forum - For conducting any proceedings to resolve a consumer
dispute, at least two members of the Forum must be there one of whom should be the president.

Where the member, for any reason, is unable to conduct the proceeding till it is completed, the
President and the other member shall conduct such proceeding de novo i.e. from the beginning.

Example - A District Forum has three members, P the president, and X and Y, the other two
members. P and X started dealing with a particular case. In the meantime, X fell ill and dropped
out. Now the proceedings in the given case will be started afresh by P and Y (or any other
member appointed in place of X).

3.6-2 Sitting of the State Commission - Every proceeding is required to be conducted by the
president of the State Commission and at least one member thereof sitting together.

However, if for any reason the member is unable to conduct the proceeding till it is completed,
the president and the other member shall conduct such proceeding afresh.

3.6-3 Sitting of the National Commission - The disputes must be disposed of by at least three
members of the National Commission, one of whom must be the president (or the senior most
member authorised to work as president).
Where the member(s) for any reason are unable to conduct the proceeding till it is completed,
the president (or the senior most member acting as president) shall conduct the proceeding
afresh.
Note that the rules regarding sitting are mandatory. Any failure to comply with the same may
invalidate the order.
Orders of the Forums

3.7 The orders of the Consumers Forums are like orders of the Civil Court and are enforceable
like a decree of the court. The order of a junior Forum is appealable with the senior Forum, and
when no appeal is instituted, the order is final. However, the law has prescribed certain norms
as to the signing of orders without complying which the orders cannot be made.

3.7-1 District Forum - Signing requirement - Section 14(2A) provides that every order made
by the District Forum shall be signed by its President and the member or members who
conducted the proceeding.

Example : A complaint was dismissed by the President of a District Forum where other
members of the Forum were not parties to it. On appeal, the State Commission held that section
14(2) of the Act makes it abundantly clear that for the decision on a complaint, one member of
the Forum is must besides the President. Thus in the present case, the President of the Forum
alone is not competent to dismiss the claim - Pankaj v. Chairman Central Secondary Education
Board [1991] 1 CPR 711 Delhi (CDRC).

If there is difference of opinion between any two members, matter should be referred to the
third member for a decision. And the decision of the majority would be final. Thus any order
passed by a single member of the District Forum is not warranted.

3.7-2 State Commission - Signing requirement - Every order made by the State Commission
shall be signed by its President and the member or members who conducted the proceeding.

If there is difference of opinion between any two members, matter should be referred to the
third member for a decision. And the decision of the majority would be final.

3.7-3 National Commission - Signing requirement - Every order made by the National
Commission must be signed by the president (or the senior most member acting as president),
and at least two members who conducted the proceeding, and in case of any difference of
opinion, the opinion of the majority shall be the order of the Commission.

3.7-4 Appeals against orders - ‘Appeal’ is a legal instrumentality whereby a person not
satisfied with the findings of a court has an option to go to a higher court to present his case
and seek justice. In the context of Consumer Forums -
1. An appeal can be made with the State Commission against the order of the District Forum
within 30 days of the order which is extendable for further 15 days. [Section 15]
2. An appeal can be made with the National Commission against the order of the State
Commission within 30 days of the order or within such time as the National Commission
allows. [Section 19]
3. An appeal can be made with the Supreme Court against the order of the National
Commission within 30 days of the order or within such time as the Supreme Court allows.
[Section 23]

3.7-5 Finality of orders - Where no appeal has been preferred against the order made by the
District Forum, or State Commission, or the National Commission, such order shall be final.
[Section 24]

3.7-6 Penalties for non-compliance - Every order made by the District Forum or State
Commission, or the National Commission may be enforced in the same manner as if it were a
decree of the court. [Section 25]

All the persons - the trader, or complainant, or the opposite party, are supposed to comply
with the orders. When any such person fails or omits to comply with the order, the District
Forum, or State Commission, or the National Commission, as the case may be, may punish
him with
- imprisonment for a term ranging between one month and three years, or
- with fine ranging between Rs. 2,000 and Rs. 10,000, or
- with both.
 UNIT- IV

Labour Legislations

Definition:
Industrial legalizations are the laws enacted by the Government to provide economic
and social justice to the workers in industries. Generally these laws provide guidelines
to the employers/industrialists in dealing with the matters of wages, wage incentives,
facilitates for workers and the working conditions of labour.
According to Mr. V.V. Giri industrial legislation is “a provision for equitable
distribution of profits and benefits emerging from industry, between industrialists and
workers and affording protection to the workers against harmful effects to their health
safety and morality.”
Necessity and Importance of Labour Law:
(1) Improves industrial relation i.e. employee-employer relations and minimizes
industrial disputes.
(2) Prospects workers form exploitation by the employers or management
(3) Helps workers in getting fair wages
(4) Minimizes labour unrest
(5) Reduces conflicts and strikes etc.
(6) Ensures job security for workers

(7) Promotes welcome environment conditions in the industrial system

(8) Fixes rest pauses and work hours etc.
(9) Provides compensation to workers, who are victims of accidents.
Principles of Industrial Legislation:
Industrial legislations based upon the following principles:
(1) Social Justice
(2) Social Equality/ Welfare
(3) National Economy
(4) International Uniformity
(1) Social justice:
The first step in establishing social justice is to protect those who can’t protect
themselves. Industrial laws provide social justice to the workers by ensuring suitable
distribution of profits and benefits among the employer and employees. It also provides
better working conditions in industry.
(2) Social equality/welfare:
Another objective of labour law is to ensure social welfare of workers. These laws help
the employees to improve their social status i.e. material and morale of the workers by
providing adequate wages and safety measures, ensuring appropriate working hours
and health facilities.
(3) National economy:
National economy is another guiding principle of labour legislation. It ensures normal
growth of industry for the development of nation. It increases the efficiency of workers
and satisfies their needs. Thus efficient industry finally contributes a lot to improve
national economy.
(4) International uniformity:
In attaining international uniformity International Labour Organization (I.L.O.) has
played an important part. It aims at securing minimum standard on uniform basis in
respect of all labour matters. Uniformity of standards can be maintained only by
enforcing various industrial laws.

Labour in India
Labour in India refers to employment in the economy of India. In 2012, there were around 487
million workers, the second largest after China.[1] Of these over 94 percent work in
unincorporated, unorganised enterprises ranging from pushcart vendors to home-based diamond
and gem polishing operations.[2][3] The organised sector includes workers employed by the
government, state-owned enterprises and private sector enterprises. In 2008, the organised sector
employed 27.5 million workers, of which 17.3 million worked for government or government
owned entities
Labour structure in India
A majority of labour in India is employed by unorganised sector (unincorporated). These include
family owned shops and street vendors. Above is a self-employed child labourer in the
unorganised retail sector of India.

Over 94 percent of India's working population is part of the unorganised sectorIn local terms,
organised sector or formal sector in India refers to licensed organisations, that is, those who are
registered and pay sales tax, income tax, etc. These include the publicly traded companies,
incorporated or formally registered entities, corporations, factories, shopping malls, hotels, and
large businesses. Unorganised sector, also known as informal sector or own account enterprises,
refers to all unlicensed, self-employed or unregistered economic activity such as owner manned
general stores, handicrafts and handloom workers, rural traders, farmers, etcIndia's Ministry of
Labour, in its 2008 report, classified the unorganised labour in India into four groups. This
classification categorized India's unorganised labour force by occupation, nature of employment,
specially distressed categories and service categories. The unorganised occupational groups
include small and marginal farmers, landless agricultural labourers, share croppers, fishermen,
those engaged in animal husbandry, beedi rolling, labeling and packing, building and construction
workers, leather workers, weavers, artisans, salt workers, workers in brick kilns and stone
quarries, workers in saw mills, and workers in oil mills. A separate category based on nature of
employment includes attached agricultural labourers, bonded labourers, migrant workers, contract
and casual labourers. Another separate category dedicated to distressed unorganised sector
includes toddy tappers, scavengers, carriers of head loads, drivers of animal driven vehicles,
loaders and unloaders. The last unorganised labour category includes service workers such as
midwives, domestic workers, barbers, vegetable and fruit vendors, newspaper vendors, pavement
vendors, hand cart operators, and the unorganised retail.
The unorganised sector has low productivity and offers lower wages. Even though it accounted
for over 94 percent of workers, India's unorganised sector created just 57 percent of India's
national domestic product in 2006, or about 9 fold less per worker than the organised sector
According to Bhalla, the productivity gap sharply worsens when rural unorganised sector is
compared to urban unorganised sector, with gross value added productivity gap spiking an
additional 2 to 4 fold depending on occupation. Some of lowest income jobs are in the rural
unorganised sectors. Poverty rates are reported to be significantly higher in families where all
working age members have only worked the unorganised sector throughout their lives.
Agriculture, dairy, horticulture and related occupations alone employ 52 percent of labour in
India.
About 30 million workers are migrant workers, most in agriculture, and local stable employment
is unavailable for them.
India's National Sample Survey Office in its 67th report found that unorganised manufacturing,
unorganised trading/retail and unorganised services employed about 10 percent each of all
workers nationwide, as of 2010. It also reported that India had about 58 million unincorporated
non-Agriculture enterprises in 2010.
In the organised private sector with more than 10 employees per company, the biggest employers
in 2008 were manufacturing at 5 million; social services at 2.2 million, which includes private
schools and hospitals; finance at 1.1 million which includes bank, insurance and real estate; and
agriculture at 1 million. India had more central and state government employees in 2008, than
employees in all private sector companies combined. If state-owned companies and municipal
government employees were included, India had a 1.8:1 ratio between public sector employees
and private sector employees. In terms of gender equality in employment, male to female ratio
was 5:1 in government and government owned enterprises; private sector fared better at 3:1 ratio.
Combined, counting only companies with more than 10 employees per company, the organised
public and private sector employed 5.5 million women and 22 million men. Given its natural rate
of population growth and aging characteristics, India is adding about 13 million new workers
every year to its labour pool. India's economy has been adding about 8 million new jobs every
year predominantly in low paying, unorganised sector. The remaining 5 million youth joining the
ranks of poorly paid partial employment, casual labour pool for temporary infrastructure and real
estate construction jobs, or in many cases, being unemployed.
Labour relations
About 7 per cent of the 400 million-strong workforce were employed in the formal sector
(comprising government and corporates) in 2000[14] contributing 60 per cent of the nominal GDP
of the nation. The Trade Unions Act 1926 provided recognition and protection for a nascent
Indian labour union movement. The number of unions grew considerably after independence, but
most unions are small and usually active in only one firm
In 1997, India had about 59,000 trade unions registered with the government of India.[15] Of these
only 9,900 unions filed income and expenditure reports and claimed to represent 7.4 million
workers. The state of Kerala at 9,800 trade unions had the highest number of registered unions,
but only few filed income and expenditure reports with the government of India. The state of
Karnataka had the fastest growth in number of unions between the 1950s to 1990s.
In 1995, India had 10 central federations of trade unions, namely (arranged by number of member
unions in 1980): INTUC, CITU, BMS, AITUC, HMS, NLO, UTUC, AIUTUC, NFITU and
TUCC. Each federation had numerous local trade union affiliates, with the smallest TUCC with
65 and INTUC with 1604 affiliated unions. By 1989, BMS had become India's largest federation
of unions with 3,117 affiliated unions, while INTUC remained the largest federation by combined
number of members at 2.2 million.[15] The largest federation of trade unions, INTUC, represents
about 0.5% of India's labour force in organised sector and unorganised sector. In 2010, over 98%
of Indian workers did not belong to any trade unions and were not covered by any collective
bargaining agreements.
Labour relations during 1950-1990
A number of economists (e.g.: Fallon and Lucas, 1989; Besley and Burgess, 2004) have studied
the industrial relations climate in India, with a large number of studies focusing on state-level
differences in India's Industrial Disputes Act. Some studies (e.g.: Besley and Burges, 2004)
purport to show that pro-worker amendments to the Industrial Disputes Act have had a negative
impact on industrial output and employment - as well as on poverty. [16] However these studies
have faced serious criticism on the grounds that the data used are misinterpreted, [17] and that the
results are not robust with respect to standard econometric tests.[18]
Between 1950 and 1970, labour disputes nearly tripled in India, from an average of 1000 labour
disputes per year, to an average of 3000 labour disputes per year. The number of labour relations
issues within a year peaked in 1973 at 3,370 labour disputes. The number of workers who joined
labour disputes within the same year, and stopped work, peaked in 1979, at 2.9 million workers.
The number of lost man-days from labour relation issues peaked in 1982 at 74.6 million lost man-
days, or about 2.7% of total man-days in organised sector.[15] While the 1970s experienced a spike
in labour unions and disputes, an sudden reduction in labour disputes was observed during 1975-
1977, when Indira Gandhi, then prime minister, declared an emergency and amongst other things
suspended many civil rights including the worker's right to strike.[19]
This is a table showing trend of organised Labour Force.[20]
Year Public Sector
(in millions) Private Sector
(in millions) Live (Unemployment) Register
(in millions)
1975 13.63 6.79 9.78
1980 15.48 7.40 17.84
1985 17.68 7.37 30.13
1990 19.06 7.68 36.30
1995 19.43 8.51 37.43
2000 19.14 8.65 42.00
2005 18.19 8.77 41.47
2010 17.55 11.45 40.17
Labour relations during 1990-2000
Union membership is concentrated in the organised sector, and in the early 1990s total
membership was about 9 million. Many unions are affiliated with regional or national federations,
the most important of which are the Indian National Trade Union Congress, the All India Trade
Union Congress, the Centre of Indian Trade Unions, the Hind Mazdoor Sabha, and the Bharatiya
Mazdoor Sangh. Politicians have often been union leaders, and some analysts believe that strikes
and other labour protests are called primarily to further the interests of political parties rather than
to promote the interests of the work force.
The government recorded 1,825 strikes and lockouts in 1990. As a result, 24.1 million workdays
were lost, 10.6 million to strikes and 13.5 million to lockouts. More than 1.3 million workers were
involved in these labour disputes. The number and seriousness of strikes and lockouts have varied
from year to year. However, the figures for 1990 and preliminary data from 1991 indicate declines
from levels reached in the 1980s, when between 33 to 75 million workdays per year were lost
because of labour disputes. In 1999, the government of India recorded about 927 strikes and
lockouts, or about half of those for 1990. The number of lost man-days were about the same for
1999 and 1991, even though Indian economic output and number of workers had grown
significantly over the 1990s
Unorganised labour issues
Many issues plague unorganised labour. India's Ministry of Labour has identified significant
issues with migrant, home or bondage labourers and child labour.
Migrant workeR

Migrant skilled and unskilled labourers of India constitute about 40 to 85 percent of low wage
working population in many parts of the Middle East. They are credited to having built many of
the notable buildings in the Arab countries, including the Burj Khalifa in Dubai (above). Various
claims of poor living conditions and labour abuse have been reported.[22]
India has two broad groups of migrant labourers - one that migrates to temporarily work overseas,
and another that migrates domestically on a seasonal and work available basis.
About 4 million Indian-origin labourers are migrant workers in the middle east alone. They are
credited to have been the majority of workers who built many of Dubai, Bahrain, Qatar and
Persian Gulf modern architecture, including the Burj Khalifa, the tallest building in world's
history which opened in January 2010. These migrant workers are attracted by better salaries
(typically US$2 to 5 per hour), possibility of earning overtime pay, and opportunity to remit funds
to support their families in India. The Middle East-based migrant workers from India remitted
about US$20 billion in 2009. Once the projects are over, they are required to return at their own
expenses, with no unemployment or social security benefits. In some cases, labour abuses such as
unpaid salaries, unsafe work conditions and poor living conditions have been claimed.[22][23]
Domestic migrant workers have been estimated to be about 4.2 million. These workers range from
full-time to part-time workers, temporary or permanent workers. They are typically employed for
remuneration in cash or kind, in any household through any agency or directly, to do the
household work, but do not include any member of the family of an employer. Some of these
work exclusively for a single employer, while others work for more than one employer. Some are
live-in workers, while some are seasonal. The employment of these migrant workers is typically
at the will of the employer and the worker, and compensation varies.[24][25]
Labour laws in India
The labour laws of India originated and express the socio-political views of leaders such as Nehru
from pre-1947 independence movement struggle. These laws were expanded in part after debates
in Constituent Assemblies and in part from international conventions and recommendations such
as of International Labour Organisation. The current mosaic of Indian laws on employment are
thus a combination of India's history during its colonial heritage, India's experiments with
socialism, important human rights and the conventions and standards that have emerged from the
United Nations. The laws cover the right to work of one's choice, right against discrimination,
prohibition of child labour, fair and humane conditions of work, social security, protection of
wages, redress of grievances, right to organise and form trade unions, collective bargaining and
participation in management.[2]
India has numerous labour laws such as those prohibiting discrimination and Child labour, those
that aim to guarantee fair and humane conditions of work, those that provide social security,
minimum wage, right to organise, form trade unions and enforce collective bargaining. India also
has numerous rigid regulations such as maximum number of employees per company in certain
sectors of economy, and limitations on employers on retrenchment and layoffs, requirement of
paperwork, bureaucratic process and government approval for change in labour in companies
even if these are because of economic conditions.[2][42][43]
Indian labour laws are considered to be very highly regulated and rigid as compared to those of
other countries in the world. The intensity of these laws have been criticised as the cause of low
employment growth, large unorganised sectors, underground economy and low per capita
income.[44][45][46] These have led many to demand reforms for Labour market flexibility in
India.[47][48][49] India has over 50 major Acts and numerous laws that regulate employers in matters
relating to industrial relations, employee unions as well as who, how and when enterprises can
employ or terminate employment. Many of these laws survive from British colonial times, while
some have been enacted after India's independence from Britain.[50][51]
India is a federal form of government. Labour is a subject in the concurrent list of the Indian
Constitution and therefore labour matters are in the jurisdiction of both central and state
governments. Both central and state governments have enacted laws on labour relations and
employment issues. Some of the major laws relevant to India are:
Workmen's Compensation Act of 1923
The Workmen's Compensation Act compensates a workman for any injury suffered during the
course of his employment or to his dependents in the case of his death. The Act provides for the
rate at which compensation shall be paid to an employee. This is one of many social security laws
in India.[53]
Trade Unions Act of 1926[54]
This Act enacted the rules and protections granted to Trade Unions in India. This law was
amended in 2001.
Payment of Wages Act of 1936[55]
The Payment of Wages Act regulates by when wages shall be distributed to employees by the
employers. The law also provides the tax withholdings the employer must deduct and pay to the
central or state government before distributing the wages.
Industrial Employment (Standing orders) Act of 1946
This Act requires employers in industrial establishments to define and post the conditions of
employment by issuing so-called standing orders. These standing orders must be approved by the
government and duly certified. These orders aim to remove flexibility from the employer in terms
of job, hours, timing, leave grant, productivity measures and other matters. The standing orders
mandate that the employer classify its employees, state the shifts, payment of wages, rules for
vacation, rules for sick leave, holidays, rules for termination amongst others.
Industrial Disputes Act of 1947
The Industrial Disputes act 1947 regulates how employers may address industrial disputes such as
lockouts, layoffs, retrenchment etc. It controls the lawful processes for reconciliation, adjudication
of labour disputes.
The Act also regulates what rules and conditions employers must comply before the termination
or layoff of a workman who has been in continuous service for more than one year with the
employer. The employer is required to give notice of termination to the employee with a copy of
the notice to appropriate government office seeking government's permission, explain valid
reasons for termination, and wait for one month before the employment can be lawfully
terminated. The employer may pay full compensation for one month in lieu of the notice.
Furthermore, employer must pay an equivalent to 15 days average pay for each completed year of
employees continuous service. Thus, an employee who has worked for 4 years in addition to
various notices and due process, must be paid a minimum of the employee's wage equivalent to
60 days before retrenchment, if the government grants the employer a permission to lay off.
Minimum Wages Act of 1948
The Minimum Wages Act prescribes minimum wages in all enterprises, and in some cases those
working at home per the schedule of the Act. Central and State Governments can and do revise
minimum wages at their discretion. The minimum wage is further classified by nature of work,
location and numerous other factors at the discretion of the government. The minimum wage
ranges between ₹ 143 to 1120 per day for work in the so-called central sphere. State governments
have their own minimum wage schedules.
Industries (Regulation and Development) Act of 1951
This law declared numerous key manufacturing industries under its so-called[dubious – discuss] First
Schedule. It placed many industries under common central government regulations in addition to
whatever laws state government enact. It also reserved over 600 products that can only be
manufactured in small scale enterprises, thereby regulating who can enter in these businesses, and
above all placing a limit on the number of employees per company for the listed products. The list
included all key technology and industrial products in the early 1950s, including products ranging
from certain iron and steel products, fuel derivatives, motors, certain machinery, machine tools, to
ceramics and scientific equipment.
Employees Provident Fund and Miscellaneous Provisions Act of 1952
This Act seeks to ensure the financial security of the employees in an establishment by providing
for a system of compulsory savings. The Act provides for establishments of a contributory
Provident Fund in which employees' contribution shall be at least equal to the contribution
payable by the employer. Minimum contribution by the employees shall be 10-12% of the wages.
This amount is payable to the employee after retirement and could also be withdrawn partly for
certain specified purposes.
Maternity Benefit Act of 1961
The Maternity Benefit Act regulates the employment of the women and maternity benefits
mandated by law. Any woman employee who worked in any establishment for a period of at least
80 days during the 12 months immediately preceding the date of her expected delivery, is entitled
to receive maternity benefits under the Act. The employer is required to pay maternity benefits,
medical allowance, maternity leave and nursing breaks.
Payment of Bonus Act of 1965
This Act, applies to an enterprise employing 20 or more persons. The Act requires employer to
pay a bonus to persons on the basis of profits or on the basis of production or productivity. The
Act was modified to require companies to pay a minimum bonus, even if the employer suffers
losses during the accounting year. This minimum is currently 8.33 percent of the salary.
Payment of Gratuity Act of 1972
This law applies to all establishments employing 10 or more workers. Gratuity is payable to the
employee if he or she resigns or retires. The Indian government mandates that this payment be at
the rate of 15 days salary of the employee for each completed year of service subject to a
maximum of ₹ 1000000.

FACTORIES ACT 1948

The object of the Factories Act is to regulate the conditions of work in manufacturing
establishments coming within the definition of the term "factory" as used in the Act.
The first Act, in India, relating to the subject was passed in 1881. This was followed
by new Acts in 1891, 1911, 1922, 1934 and 1948. The Act of 1948 is more comprehensive
than the previous Acts. It contains detailed provisions regarding the health, safety and
welfare
of workers inside factories, the hours of work, the minimum age 6f, workers, leave with
pay etc. The Act has been amended several times.
The Act is based on the .provisions of the Factories Act of Great
Britain passed in 1937.
In 1976 the Act was amended extensively. The provisions of the Amendment have
been quoted and summarised at the appropriate .places in this chapter.
APPLICATION OF THE ACT
The Factories Act of 1948 came into force on 1st April 1949; It applies to factories,
as defined in. the Act, all over India, including the State of Jammu and Kashmir.
Unless 'otherwise provided, the Factories Act applies to factories belonging to the
Central or any State Government.--Sec. 116.
DEFINITIONS UNDER THE FACTORIES ACT
.Factory. The term Factory is defined in Section 2 (m) of the Act as follows: "Factory
means any premises including the precincts thereof- .
(i). whereon ten or more workers are working, or were working on any day of the
preceding twelve months, and in
any part of which a manufacturing process is being carried on with the aid
of power or is ordinarily so
carried on, or
(ii) whereon twenty or more workers are working, or were working on any day of
the preceding twelve months, and in any part of which a manufacturing process is
being carried on without the aid of power, or is ordinarily so carried on,___
but does not include a mine subject to the operation of the Indian Mines Act, 1952 (Act
XXXV of 1952), or a mobile unit belonging to the armed forces of the Union, a railway
running shed or a hotel, restaurant or eating place.
Explanation.-For computing the number of workers for the purposes of this clause
all the workers in different relays in a day shall. be taken into account.
 [Clause 2(m) as amended in 1976.]
Under Section 85, the State Government is empowered to declare any
establishment carrying on a manufacturing process to be a factory for the purposes of
the Act even though it employs less than the prescribed minimum number of workers,
provided that the manufacturing process is not being carried on by the owner only with
the aid of his family.
Summary: From Sec. 2(m) of the Act it follows that m establishment comes within
the definition of a Factory if the conditions stated below are satisfied :
1. It is a place where a "manufacturing process" is carried on.
2. It employs the prescribed minimum number of "workers"
viz., ten if "'power" is used, and twenty if no "power" is used. It is sufficient if the
prescribed number of workers were employed on any day of the preceding twelve
months.
3. . It is not a mine coming within the purview of the Indian Mines Act of 1952, a railway
running shed, mobile unit belonging to the armed forces of the Union, a hotel, restaurant
or eating place.
Manufacturing Process. This term is defined in Section 2(k) in a very wide sense. It
iIicludes :
(i) making, altering, ornamenting, finishing, packing, oiling, washing, cleaning,
breaking up, demolishing, or otherwise treating or adopting any article or substance
with a view to its use, sale, transport, delivery or disposal; or
(ii) pumping oil, water, sewage or any other substance; or (Hi) generating,
transforming or transmitting power; or
(iii) (iv) composing types for printing, printing by letter press, lithography,
photogravure or other similar processes or book binding ; or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships
or vessels ; or
(vi) preserving or storing any article in cold storage.
For the corresponding section of the English Act, it was held that the different
processes enumerated in the clauses are merely illustrative so that laundries, ,carpet
beating, or bottle washing works come within the Act, if mechanical power is used.
Patterson v. Hune
The following undertakings have been held to be manufacturing processes-bidi-
making; conversion of raw-films into finished products; the preparation of eatables in
the kitchen of a restaurant ; use of a refrigerator for adapting any article with a view
to its sale.
The scraping out of salt and grading them, even though done by, manual labour, is
a manufacturing process.
Worker. "Worker means a person employed, directly or by or through any agency
(including a contractor) with or without the knowledge of the principal employer,
whether for remuneration or not in any manufacturing process, or in cleaning any part
of the machinery or premises used for a manufacturing process, or in any other kind
of work incidental to, or connected 'with, the manufacturing process" or the subject of
the manufacturing process but does not include any member of the armed forces of
the Union."-Sec. 2(1), as amended in 1976.
Explanation: Worker means any person engaged in any work connected with or
incidental to a manufacturing .process. Thus the definition is wide. The term includes
persons engaged directly and, also those who are engaged through an agency
(including a contractor with or without the knowledge of the principal employer). The
term includes clerical workers and persons paid by piece rates in a factory.
The term 'worker' does not include any member of the armed forces of Union. .
,,
, In case of a factory worker there must be a relationship between
the employer and the employed. "
Apprentices, whether remunerated or not, are workers within the meaning of the
Act.
Power. "Power means electrical energy, or any other form of energy which is
mechanically transmitted and is not generated by human or animal agency."--Sec. 2(g).
Prime mover. "Prime mover means any engine, motor or other appliance which
generates or otherwise provides power."--Sec. 2(h).
Transmission machinery. "Transmission machinery means any shaft, wheel, drum
pulley, system of pulleys, coupling, clutch,'driving belt or other appliance or device by
which the motion of a prime mover is transmitted to or received by any machinery or
appliance".--Sec. 2(i).
Machinery. "Machinery includes prime movers, transmission machinery and all other
appliances whereby power is generated, transformed, transmitted or applied."--Sec. 2(j).
Adult. "Adult means a person who has completed his eighteenth year of age".--Sec.
2(a). °
Adolescent. "Adolescent means a person who ha$ completed his fifteenth year of
age °but has not completed his eighteenth year."Sec. 2(b).
Child. ''Child means a person who has net completed his fifteenth year of age." --Sec. 2
( c) .
Young Person. "Young Person means a person who is either a child or an adolescent."--
Sec. 2(d).
Calendar Year. "Calendar Year means the period of twelve months beginning with the
first day of January in any year."
Sec. 2(dd). °
Day. "Day means a period of twenty four hours beginning at midnight." --Sec. 2 ( e) .
References to the time of the day in the ° Act are to the Indian Standard Time. In areas
where the I.S.T. is not observed, the State Government can by rules define the local mean
time.--Sec. 3.
Week. "Week means a period of seven days beginning 'at midnight on Saturday night or
such other night as may be approved in writing Jar a particular area by the Chief Inspector
of Factories." --Sec. 2(f).
Shift and Relay. Where work of the same kind is carried out by two or more sets of workers
working during different periods of the day, each of such sets is called a "relay" and each
of such periods is called a "shift."-Sec. 2(r).
Occupier. "Occupier" of a factory means the person who has ultimate control over the
affairs of the factory, and where the said affairs are entrusted to a managing agent, such
agent shall be deemed to be the occupier of the factory.--Sec. 2(n).
In case of a ship, which is being repaired or on maintenance work is being carried
out in dry dock which is available for hire, the following persons for certain section of the
Act will be deemed to be occupier (i) the owner of the dock, and (ii) the owner of the ship
or his agent or master or other officers-in-charge in the ship or any person who contracts
with such owner, agent or master or other officers-in-charge to carry out the repair or
maintenance work.-Sec. 2(n) added by The Factories (Amendment) Act, 1976.
The Act imposes several duties and responsibilities on the occupier of the factory.
(See below).
An occupier of factory may be an owner, a lessee or a mere licensee but he must
have the right to occupy the property. He should also control the management.
APPROVAL, LICENCING AND REGISTRATION
It is necessary to obtain a" licence before a factory is started. Section 6 provides that
the State Government may make rules requiring, for the purposes of this Act, the
submission of. plans or any class or description of factories to the Chief Inspector or the
State Government, and the plans and specifications of a factory and its location.
The Amendment of 1976 provides that any replacement and addition to the factory will not
be allowed if it does not reduce the I minimum clear space required for safe working around
the plant or machinery or adversely affect the environmental conditions from the evolution
or emission of steam, heat or dust or fumes injurious to health.
Notice by occupier. Section 7 provides that the occupier of a factory must, at least
15 days before he begins to occupy or use any premises as a factory; send to the Chief
Inspector of Factories a written notice containing the following particulars:
( 1 ) the name and situation of factory ;
(2) the name and address of the occupier ;
(3) the name and address of the owner of the premises or building (including the
precincts thereof) ;
( 4) the address to which communications relating to factory may be sent ;
(5) the nature of the manufacturing process to be carried on in the factory during the next
twelve months ;
( 6) the total rated horse power installed or to be installed in the factory, which shall not
include the rated – horse power or any separate stand-by plant;
(7) the name of the manager of the factory for the purposes of this Act ;
(8) the number of workers likely to be employed in the factory ;
(9) such other particulars as may be prescribed.
The rules stated above are enforced . because the plans and specifications of the
factory must insure proper measures of health, safety and welfare of the . workers.
THE INSPECTI0N STAFF
The Factories Act empowers the State Government to appoint Inspectors, Chief
Inspectors of Factories, Additional Chief Inspectors, Joint Chief Inspectors and Deputy
Chief Inspectors. Every District
Magistrate is an Inspector for his district. No person can act as an Inspector if .he is or
becomes directly or indirectly interested in a factory or in any process or business carried
on therein or in any patent or machinery connected therewith. .
Powers of Inspectors. Section 9 provides that subject to any rules made in this
behalf, an Inspector may exercise the following powers within the local limits for which
he is appointed :
(a) enter, with such assistants, being persons in the service of the Government or any
local or other public authority, as
he thinks fit, and place which is used, or which he has reason to believe is used, as
a. factory ;
(b) make examination of the premises, plant and machinery;
(c) require the production of any prescribed register and any other document relating to
the factory, and take on the spot or otherwise statements of any person which he may
consider necessary for carrying out the purposes of the Act; and .(d) exercise such
other powers as may be prescribed for carry ing out the purposes of this Act.
No person shall be compelled under this section to answer any question or give
any evidence tending to incriminate himself.
Under Section 91, an Inspector may take a sample of any substance, used or
intended to be used in a factory, for the purpose of finding out whether the substance is
injurious and if the factory is violating any of the provisions of the Act.
Obstructing an Inspector. Whoever wilfully obstructs an Inspector in the exercise of any
power conferred on him by or under this Act, or fails to produce on demand by an Inspector
any registers Of other documents in his custody kept in pursuance of this Act or of any
ru.!es made thereunder, or conceals or prevents any worker in a factory from appearing
before, or being examined by, an Inspector, shall be punishable ~with imprisonment for a
term which may extend to three months or with fine which may extend to Rs. 300 or with
both.-Sec. 95. .
The onus is on the prosecution to show that a person has obstructed an inspector.
Duties of Inspector. It is the duty of factory inspectors to enforce the provisions of
the Factories Act and other industrial laws. For this purpose they inspect factories
periodically. If any rule is violated they take steps like prosecuting the guilty persons etc.
CERTIFYING SURGEONS
Section 10 provides that the State Government may appoint qualified medical
practitioners to .be certifying surgeons for the purposes of the Act for specified local areas
or for specified factories or class of factories.
No person can be a certifying surgeon for a factory or industry in which he is
interested .directly or indirectly.-Sec. 10(3).
The State Government may by order in writing and subject to specified conditions,
exempt any person or class of persons from the provisions of this sub-section in respect
of any factory or class or description of factories.

Duties. The certifying surgeon has the following duties under the Act and the rules framed
under it.
1. The examination and certification .of young persons.
2. The examination of persons engaged in factories in dangerous
occupations or processes. .
3. Medical supervision of factories in cases where such supervision had been
prescribed owing to the dangerous nature of the work carried on or for any other reason,
viz.,
(i) cases of illness have occurred which it is reasonable to believe are due to the nature of
the manufacturing process carried on,. or other conditions of work prevailing therein;
(ii) by reason of any change in the manufacturing process carried on or in the
substances used therein there is a likelihood of injury to the health of workers employed
in that manufacturing process ;
(iii) young persons are, or about to be employed in any work which is likely to cause
injury to their health.
(iv)
PROVISIONS REGARDING THE HEALTH OF WORKERS
Sections 11 to 20 of the Act contain certain provisions intended to ensure that the
conditions under .which work is carried on in factories do not affect the health of the
workers injuriously. The summary of the provisions are explained below :
Summary of the provisions of the Factories Act. relating -to the health of workers
are stated below.
1. Cleanliness. Every factory shall be kept clean and free from dirt, and the outflow of
drains etc. The floors must be cleaned. Drainage shall be provided. Inside walls,
partitions and ceilings must be repainted at least once in five years. When washable
water paint is used they must be painted once every three years and washed at least
every period of six months.-Sec. 11,' as amended in 1976.
2. Disposal of wastes and effluents. The waste materials produced from the
manufacturing process must be effectively disposed off-Sec. 12.
3. Ventilation 'and Temperature. There must be provision for adequate ventilation by
the circulation of fresh air: The temperature
must be kept at a comfortable level. Hot parts of machines must be
'separated and insulated.-Sec. 13.
4. Dust and Fume. If the .manufacturing process used. gives off injurious or offensive
dust and fume steps must be taken so that they are not inhaled or accumulated. The
exhaust fumes of internal combustion engines must be conducted outside the factory.--
Sec. 14.
5. Artificial humidification. The water used for this purpose must be pure. It must be.
taken from some source of drinking water supply. The State Government can frame
rules .regarding the process of humidification etc.-8ec. 15. .
6. OverCrowding. There must be no overcrowding in a factory. In factories existing
before the commencement of the Act there must be at least 350 c.ft. (~r 55 cubic
metres) of space per worker. For factories built afterwards, there must be at least 500
c.ft. (or 75 cubic metres) of space. In calculating the space, an account is to be taken
of space above 14 ft. (or 5 metres) from the floor.-Sec. 16.
7. Lighting. Factories must be well lighted. Effective measures must be adopted to
prevent glare or formation of shadows which might cause eyestrain.-sec. 17.
8. Drinking water. Arrangements must be made to provide a sufficient supply of
wholesome drinking water. All supply' points of such water must be marked "drinking
water". No such points shall be within 20 ft. (or 7.5 metres) of any latrine, washing place
etc. Factories employing more than 250 workers must cool the water during the hot
weather.-Sec. 18. .
9. Latrines and Urinals. Every factory must provide' sufficient number of latrines and
urinals. There must be separate provision for male and female workers. Latrine and
urinals must be kept in a clean and sanitary condition. In factories. employing more than
250 workers, they shall be of prescribed sanitary types.--sec. 19.
PROVISIONS REGARDING THE SAFETY OF WORKERS
Sections 21 to 40A, 40B and 41 of the Act lay down rules for the purpose of
securing the safety of workers. Summary of the provisions of the Factories Act regarding
the safety of the workers are stated below: (Sections 2l to 41) .
1. Fencing ot machinery. All dangerous machinery must be securely fenced e.g.,
moving .parts- of prime movers and flywheels connected to every prime mover. electric
generators. etc.-Sec. 2l.
2. Work on or near machinery in motion. Work on or near machinery in motion
must be carried out only by specially trained adult male workers wearing tightly fitting
c1othes.-Sec. 22.
3. Employment of young persons on dangerous machines. No young person
shall work at any danger()us machine' unless he has been specially instructed as to the
dangers and the precautions to be observed. has received sufficient training about th~
work. and is under the supervision of some person having thorough knowledge and
experience of the machine.-Sec. 23.
4. Striking gear and devices for cutting off power. In every factory suitable
devices for cutting off power in emergencies from running machinery shall be provided
and maintained in every workroom.~. 24.
5. Self-acting machines. Moving parts of a self-acting machine must not be allowed
to come within 45 cms. of any fixed structure which is not part of the machine.-Sec. 25.
6. Casing of new machinery. In all machinery installed after the commencement of
the Act. certain parts must be sunk, encased or otherwise effectively guarded e.g.. set
screw. bolt. toothed gearing etc. -sec. 26.
7. Women and children near cotton Openers. Women and children must not be
allowed to work near cot/On openers, except In certain cases.-Sec. 27
8. Hoists, lifts, chains etc, Every hoist and lift must be so constructed as to be safe.
There are detailed rules as to how such safety is to be secured. There are similar
provisions regarding lifting machines. chains, ropes and lifting tackle .Sec. 28. 29.
9. .Revolving machinery. Where grinding is . carried on the maximum safe working
speed of every revolving machinery connected therewith must be notified. Steps must be
taken to see that the safe speed is not exceeded.-Sec. 30.
 10. Pressure plant. Where any operation is carried on at a pressure higher than the
atmospheric pressure, steps must be taken to ensure that the safe working pressure is
not exceed~cL-.sec. 31.
. 11. Floors, stairs and means of access. All floors, steps, stairs, passage and
gangways shall be of sound construction and properly maintained. Handrails shall be
provided where necessary. Safe means of access shall be provided to the place where
the worker will carry on any work.-Sec. 32.
12. Pits, sumps. openings in floors etc. Pits. sumps. openings in floors etc.
must be securely covered or fenced.-Sec. 33.
13. Excessive weights. No worker shall be made to carry a load so heavy as to
cause him injury.-8ec. 34.
14. Protection of eyes. Effective screen or suitable goggles shall be provided to
protect the eyes of the worker from fragments thrown off in course of any manufacturing
process and from excessive light if any.-Sec. 35.
15. Precautions against dangerous fumes. No person shall be allowed to enter any
chamber. tank etc. where dangerous fumes are likely to ,be present. unless it is equipped
with a manhole or other means of going out. In such space no portable electric light of
more than 24 ,volts shall be used. Only a lamp or light of flame proof construction can be
used in such space. For people entering such space suitable breathing apparatus, reviving
apparatus etc. shall be provided. Such places shall be cooled by ventilation before any
person is allowed to enter.-8ecs. 36 and 36A.
16. Explosive or inflammable gas etc. where a manufacturing process produces
inflammable gas. dust. fume. etc. steps must be taken to enclose the machine concerned,
prevent the accumulation of substances and exclude all possible sources of ignition. Extra
precautionary measures are to be taken where such substances are worked at greater
than the atmospheric. pressure.-Sec. 37.
17. Precaution in case of fire. Fire escapes shall be provided. Windows and doors
shall be constructed to open outwards. The means of exit in case of the fire shall be
clearly marked in red letters. Arrangements must be made to give warning in case or fire
-sec. 38
18. Specifications of defectives etc. and safety of buildings and machinery. If
any building or machine is in a defective or dangerous condition, the inspector of factories
can ask fer the holding of tests to determine how they can be made safe. He can also
direct the adoption of the measure necessary to make them safe. In case of immediate
danger, the use of the building or machine can be prohibited.-Secs. 39. 40.
19. Maintenance of Buildings. If the Inspector of Factories thinks that any building
in a factory, or any. part of it. is in such a state of disrepair that it is likely to affect the health
and welfare of the workers. he may serve on the occupier or manager or both in writing
specifying the measures to be done before the specified date. Sec. 4OA.
20. Safety Officers. The State Government may notify to the occupier to employ a
number of Safety Officers in a factory (i) wherein one thousand or more workers are
ordinarily employed. or (ii) wherein any manufacturing process or operation which involves
the risk of bodily injury, poisoning. disease or any other hazard to health of the persons
employed in the factory .-Sec. 40B.
21. Rules. The State Government may make rules providing for the use of such further
devices for safety as may be necessary. Sec. 41.

PROVISIONS REGARDING THE WELFARE OF WORKERS

Summary of the provisions of the Factories Act regarding the welfare of workers are
stated below :
1.. Washing. In every factory adequate and suitable facilities for washing shall be
provided and maintained. They shatI be conveniently accessible and shall be kept clean.
There must be separate provisions for male and female workers.-Sec. 42.
2. Storing and drying. The State Government may make rules requiring the
provision of suitable facilities for storing and drying clothing.-Sec. 43.
3. Sitting. Sitting facilities must be provided for workers who have to work in a
standing position. so that they may take rest when possible. When work can be done in a
sitting position efficiently the Chief Inspector may direct the provision of sitting
arrangements. Sec. 44.
4. First aid. Every factory must provide first aid boxes or cupboard. They must contain
the prescribed materials and they must be in charge of persons trained in first aid
treatment. Factories employing more than 500 persons must maintain an ambulance
roam containing the prescribed equipment and in charge of the prescribed medical and
nursing staff-Sec. 45.
5. Canteens. Where more than 250 workers are employed. the state Government
may require the opening of canteen or canteens for workers. Rules may be framed
regarding the food served. its management etc.,..-Sec. 46.
6. Shelters. In every factory where more than 150 workers are employed there must
be provided adequate and suitable shelters or rest. rooms and a lunch room (with drinking
water supply) where workers may eat meals brought by them. Such rooms must be
sufficiently lighted and ventilated and must be maintained in a cool and clean condition~.
The standards may be fixed by the State Government. -Sec. 47,
7. Creches. In every factory where more than 30 women a employed, a room shall
be provided for the use of the children (below 6 years) of such women. The room shall
be adequate size. well lighted and ventilated, maintained in a clean and sanitary condition
and shall be in charge of a woman trained in the care of children and infants. The
standards shall be laid down by the State Government.Sec. 48.
8. Welfare officers. Welfare officers must be appointed in every factory where 500
or more workers are employed. The State Government may prescribe the duties,
qualifications etc. of such officers. Sec. 49.
9.. Rules. The State Government may make rules regarding the welfare of workers.-
Sec. 50.
THE WORKING HOURS OF ADULTS

Weekly Hours. No adult worker shall .be required or allowed . to-work in a factory for
more than forty-eight hours in any week. Sec. 51.
 Daily Hours. No adult worker shall be required or allowed to work in a factory for
more than nine hours in any working day. The daily maximum may be exceeded with the
previous approval of the Chief Inspector, to facilitate change of shifts.-Sec. 54.
Intervals for Rest. The periods of work of adult workers in a factory each day shall
be so fixed that no period shall exceed five hours arid that no worker shall work for more
than five hours before he has had an interval for rest of at least half an hour. The State
Government or the Chief Inspector may, by order in writing, and for reasons stated therein,
increase the work period to six.-Sec. 55.
Spreadover. The periods of work of an adult worker in a factory shall be arranged
that inclusive of his intervals for rest under section 55, they shall not spread-over more
than ten and half hours in any day. The Chief Inspector may for specified reasons increase
the spreadover up to twelve hours.-Sec. 56.
RULES REGARDING EMPLOYMENT OF ADULTS
Night Shifts. Where a worker in a factory works on a. shift which extends beyond
midnight, (a) his weekly holiday and compensatory holiday means a period of holiday for
24 consecutive hours beginning when his shift ends, and (b) the following day for him
shall be deemed to be the period. of 24 hours beginning when such shift ends and the
hours he has worked after midnight shall be counted in he previous day.-sec. 57
Overlapping Shifts. Work shall not be carried on in any factory by means of a
system of shifts so arranged. that more than one relay of workers is engaged in work of
the same kind at the same time. The State Government or the Chief Inspector may grant
exemption from this rule.-See. 58.
Double Employment. No adult worker shall be required or allowed to work in any
factory on any day on which he has already been working in any other factory, save In
such circumstances as may be prescribed.-Sec. 60.
Notice of Periods of Work. There must be displayed in every factory a notice
showing periods of work of adults, classification of workers in groups according to nature
of their work, shifts and relays etc. Change made in the system of work must be notified
to the Inspector before change. The manager of every factory must maintain a Register
of Adult Workers showing the name of each worker, the nature of his work, the group in
which he is included, the relay in which he is allotted etc. The hours of work of an adult
worker- must correspond with the notice referred to above and the Register.- Sections
61, 62, 63.
No adult worker shall be required or allowed to work in any factory unless his name
and other particulars have been entered' in the register of adult workers.-Sec. 62 (1A)
added by the Factories (Amendment) Act, 1976.
Exemptions. By sections 64 and 65, the State Government has been given power
to exempt for limited periods certain factories from compliance with some of the
provisions relating to hours of work and employment.
Such exemptions are necessary in
special cases, for example in the case of workers engaged in urgent repairs or in
preparatory and complementary work. In some industries work if of an intermittent
character and the enforcement of all the rules stated above will create hardship. The nature
of the work in certain industries requires exceptional treatment, e.g., workers. engaged in
engine rooms and boilers or in the printing of newspapers. The State Government may
exempt persons holding positions of supervision and management or in confidential
positions in a factory from the operation of the rules regarding working hours (except the
rule against the employment of women at night). .
Confidential Position. The State Government may empower the Chief Inspector
to declare a person other than any person defined by such rules, as a person holding
position of supervision or management or employed in .a. confidential position in a factory,
if, -the Chief Inspector is of opinion that he can be employed.
If any such person does not get more than Rs. 750 p.m. as wages. he will be entitled
to extra wages for overtime work.-Sec. 64(1). add~d by The Factories (Amendment)
Act, 1976.
Hours and Spreadover. Any exemption granted under Sec. 65 (2)
shall be subject to the following conditions, namely :
(i) the total Lumber of hours of work in any day shall not exceed twelve ;
(ii) the spread over. inclusive of intervals for rest, shall not exceed thirteen hours in any
one day ;
(iii) the total number of hours of work in any week. including overtime, shall not exceed
sixty ;
(iv) no worker shall be allowed to work overtime, for more than seven days at a stretch
and the total number of hours of overtime work in any quarter shall not exceed seventy
five-Sec. 65(3), Factories (Amendment) Act, 1976.
Quarter. This is a period of three consecutive months beginning on the 1st January,
the 1st of April, the 1st of July or the 1st of October.-Sec. 64.
RESTRICTIONS ON THE EMPLOYMENT OF WOMEN
By section 66 the following restrictions have been imposed to
women workers :
(a) Maximum daily work is 9 hours: No exemption from the provisions of Section
54 (which lays down that the maximum daily hours of work shall be nine hours) can be
granted in respect of any women.
(b) prohibition of night work: No women shall be required or allowed to work in any
factory except between the hours of 6 a.m. and 7 p.m. The State Government may by
notification in the official Gazette vary the limits for any factory or group or class or
description of factories. But such variation must not authorise the employ -ment of women
between the hours 10 p.m. and 5 a.m. .
(c) Change of shift only after holiday:There shall be no change of shifts for
women except after a weekly holiday or any other holiday.
Exception: There is an exceptional case. The State Government may make rules
providing for the exemption from the afore~aid restrictions (wholly or partially or
conditionally) of women working in fish-curing or fish-canning factories. In factories,
mentioned above, the employment of women beyond the hours specified is necessary
to prevent damage to or deterioration in any raw material. But such rules shall remain in
force for not more than three years at a time.
 Other restrictions: There are other restrictions on the employ ment of women
workers :
1. Work on or near machinery in motion. No woman or young person shall be
allowed to clean, lubricate or adjust any part of the machinery while the prime mover or
transmission machinery is in motion or to work between moving parts, or between fixed
and moving parts of any machinery which is in motion.-Sec. 22(2}. (See p. 16.)
2. Cotton openers. No woman or child shall be employed in any part of a factory for
pressing cotton in which a cotton opener is at work. If the feed-end of a cotton opener is
in a room separated from the delivery-end by a partition extending to the roof or to such
height as the Inspector may in a particular case specify in writing , women and children
may be employed on the side of the partition where the feed-end is situated.-Sec. 27.
(See p. 18.)
3. Excessive weights. The State Government may make rules prescribing the
maximum weights .which may be lifted, carried. or moved by adult men, adult women,
adolescents and children employed in factories or in any class or description of factories
or in carrying on any specified process.-Sec. 34. (See p. 21.)
4. Creches. In every factory wherein more than thirty women workers are ordinarily
employed there shall be provided and main tained a suitable room or rooms for the use
of children under the age of six years of such women.-Sec. 48. (See p. 30.)
5. Dangerous operations. The State Government is empowered to make special rules for
the purpose of controlling and regulating factories which carry on operations exposing
women, young persons and other workers to a serious risk of bodily injury, poisoning or
disease.-Sec. 87 (b). (See p. 43.)

EMPLOYMENT OF YOUNG PERSONS

Employment of ChiIdren . No child who has not completed his fourteenth year shall
be required or allowed to work in any factory.--sec. 67.
Certificate of Fitness and Token. A child who has completed his fourteenth year or
an adolescent shall not be required or allowed to work in any factory unless (a) he has
been granted a certificate of fitness. which is. in the custody of the manager, and (b)
such child or adolescent carries a token giving a reference to such certificate-Sec. 68.
The Certificate of Fitness is a certificate granted to a child or adolescent by a
Certifying Surgeon after. examination: The certificate is. given to a child if the
surgeon is satisfied that he has completed his fourteenth year and has attained the
prescribed physical standards. The certificate is granted to an adolescent if the
surgeon is satisfied that he has completed his fifteenth year and is fit for a full day's
we in a factory. The certifying surgeon must have personal knowledge of the
intended place of work and of the manufacturing process involved. The certificate is
valid only for a period of 12 months. It may be granted subject to conditions (e.g.,
that of periodical re-examination). The
certificate may be renewed and, if necessary, revoked. Any fee pa: able for the
certificate must be paid by the occupier of the factory all must not be recovered from
the young person or his parents c guardian.-Sec. 69.
An adolescent who has been granted a certificate of fitness ant who carries a
token is deemed to be an adult for the purposes of Chs. VI and VIII of the Act. (Ch. VI
deals with the hours of work of an adult and Ch. VIII deals with "annual leave). But no
adolescent who has not attained the age of seventeen years shall be employed or
permitted to work in any factory during night. "Night" means a period of at least 12
consecutive hours which shall include an interval of at least seven consecutive hours
falling between 10 p.m. and 7 a.m. An adolescent who has not been granted a
certificate of fitness, shall be deemed to be a child ~or the purposes of the Act,-Sec. 70.
Working hours for Children. The law regarding working hours for children are
stated below.-Sec. 71 :
1. No child shall be employed or. permitted to work in any factory- '
(a) for more than four and a half hours in any day;
(b) during the night, .
Explanation: For the purpose of this sub-section "night" shall mean a period of at
least twelve consecutive hours which shall include the interval between 10 p.m. and 6
a.m.
2. The period of work of all children employed in a factory shall be limited to two shifts
which shall not overlap or spread-over more than five hours each, and each child shall
be. employed in only one of the relays which shall not, except with the previous permission
in writing of the Chief Inspector, be changed more frequently than once in a period of
thirty days.
3. The provisions of section 52 shaIl apply also to child workers, and in respect of any
child. (Sec. 52 relates to weekly holidays. See next ' Section).
4. No child shall be required or allowed to work in any factory on any day on which he
has already been working in another factory.
Notice and Register. A notice must be displayed showing clearly the periods of
work of children.-,-Sec. 72.
The manager of every factory must maintain a Register of child workers showing the
name of. each child worker, the nature of his work. the group (if any) in which he is
included. the relay to which he is allotted and the number of his certificate of fitness.-Sec.
73.
No child worker shall be required or allowed to work in any factory unless his name
and other particulars have been entered in the register of child workers.-Sec. 73 (IA).
Factories (Amendment) Act, 1976.
The hours of work of a child must correspond with the Notice and the Register.-
Sec. 74.
Medical Examination. Where an Inspector is of opinion that a person working as
an adult is a young person, or that a young person is not fit to work, he may direct the
manager of the factory to. have the person medically examined by a certifying surgeon.--
Sec. 75.
Other rules regarding the employment of young persons. No young person shall
work at any dangerous machine unless he has been fully instructed as to. the dangers
 arising in connection with the machine and the precautions to be observed, and (a) has
received sufficient training in work at the machine or (b) is under adequate supervision
by a person who has a thorough knowledge and experience of the machine. The State
Government is to. prescribe what machines are dangerous far the purpose of this
section.-5ec. 23.
Certain restrictions an adolescents and children are stated in Sections 22(2), 27,
34 and' 87 (b). (See pp. 34-5).
The State Government may make rules regarding the farms of the Certificate of
Fitness, the procedure relating to. their issue, and the physical standards to. be attained
by children and adolescents. Sec. 76.
The provisions relating to. the employment of young persons shall be in addition to and
not in derogation of, the provisions of the Children Act of 193~., 1960 and 1978.-Sec. 77.
CHILD-LABOUR
Rules regarding child-Iabour are contained in the Factories Act, Mines Act etc. There
are also. two. general Acts an the subject. The Children (Pledging of Labour) Act (Act 11
of 1933) prohibits the making of agreements to. pledge the labour of children and the
employment of children whose labour has been pledged. The Children Act of 1938, 1960
and 1978 prohibit the employment of a child who. has not completed his fifteenth year of
age in any occupation connected with the transport of passengers, goods or mails by
railway or con -nected with a part authority Within the limits of any part. The Act also
prohibits the employment of a child, who. has not completed his fourteenth year of age, in
the processes set forth in the schedule to the Act. Children between 15 and 17 can be
employed subject to certain restrictions as regards their periods of rest etc

HOLIDAYS AND LEAVE

The Factories Act provides for the following holidays, viz.,Weekly holidays,
Compensatory holidays and Annual leave with wages according to certain rules.
The provisions are explained below.
Weekly Holidays. Section 52 provides that an adult workers shall have a holiday on
the first day of the week. But the manager of the factory may fix the holiday on any
other day which is with three days before or after the first day of the week in case of
such substitution, notice must be given to the Inspector of Factories an displayed in
the factory. No substitution can be made which will result in any worker working for
more than ten days consecutively without a holiday for a whole day. The State
Government may make rules providing for exemption from the above section in certain
cases, e.g., for urgent repairs.
The Weekly Holidays Act (Act XVIII of 1942) provides for the grant of weekly
holidays to persons employed in shops, restaurants and theatres. The Act ,can be
applied to a State by notification of the State Government.
Compensatory Holidays. Where as a result of the exemption of factory from the
operation of the role regarding weekly holidays, a worker is deprived from any weekly
holiday he shall be allowed within the month in which the holidays were due, or within
two months immediately following that month, compensatory holidays of equal number
 to the holidays lost.--Sec. 53.
Annual Leave with Wages. Sections 78 to 84 provide for the grant of a certain
period of leave with wages to workmen.
Every worker who has worked for a period of 240 days or more in a factory during
a calendar year shall be allowed during the subsequent calendar year, leave with
wages for a number of days calculated at the rate of
(i) if an adult, one day for every twenty days of work performed by him during
the previous calendar year;
(ii) if a child, one day for every fifteen days of work performed by him during
the previous calendar year.
Rules. Rules regarding the Annual Leave are summarised below :
1. When counting the number of days of work performed by a worker, the following
are to be included: (a) days of lay-oft, (b) maternity leave to a female worker, not
exceeding twelve weeks, and (c) the leave earned in the previous year. But the worker
shall not earn leave for. these days.
2. The leave admissible under the aforesaid rule shall be exclusive of all holidays
whether occurring during or at either end of the period of leave.
3. A worker whose service commences otherwise than on the first day of January shall be
entitled to leave ,with wages at the rate laid down above if he has worked for two-thirds of
the total number of days in the remainder ?f the calendar year.
4, If a worker is discharged or dismissed from service of quits his employment or is
superannuated or dies while in service, during the course of the calendar year, he or his
heir or nominee, as the case may be, shall be entitled, to wages in lieu of the quantum of
leave to which he was entitled Immediately before his discharge, dismissal,quitting of
employment, ,superannuation or death calculated at therates specified in sub-section
(1)even If he had not. worked for the entire period specified In sub-section (J) or sub-
section (2) making him eligible to avail of such leave. Such payment shall be made
(i) where the worker is discharged or dismissed or quits
employment-before the expiry of the second working day from the date of such
discharge, dismiss~l or quitting; and
(ii) where the worker is superannuated or dies while in service -before the expiry
of two months from the date of such superannuation or death. (Amended
by the Act of 1976).
5, In calculating the leave period, fraction of leave for half a day or more shall be treated
as one day and fractions of less amount shall be omitted.
6. Leave earned, but not taken, can be carried forward to a succeeding year subject to a
limit of thirty days in the case of an adult and forty days in the case of a child. But earned
leave not allowed because of any. scheme for leave in operation, can be carried forward
without limit.
7. Application for leave must be submitted to the manager not less than 15 days before
the date of commencement of leave. In the case of public utility service it must be
made not less than 30 days before such date. If a worker becomes ill and wants to
avail himself of the annual leave during the period of illness, he shall be granted leave
 even though the application is not made before the period specified above.
8. The application for leave may be for the whole of the leave due or part of it. But
earned leave cannot be taken more than three times during the same year. .
9. For the purpose of ensuring the continuity of work, the occupier or manager of the
factory may draw up a Scheme for regulating the grant of leave. The Scheme must be
agreed to by the 'Works Committee, if any, or the representatives 6f workers. It must
be lodged with the Chief Inspector and displayed in the factory. .
10. An application for leave submitted in proper time shall not
Be refused unless the refusal is in accordance with any leave scheme in operation.
11. The un availed leave of a worker shall not be taken into consideration in
computing the period of any notice required to be given before discharge or
dismissal
12. The State Government may exempt a factory from the operation of the above rules
if it is satisfied that its own leave rules provide benefits (the totality - of benefits) which
are not less favourable to the workers than the statutory leave rules.
13. Where by virtue of any award, agreement (including settlement) or contract of
service the worker is entitled to a longer period of leave than that provided by the
aforesaid rules, he will be entitled such longer leave.
14. The rules contained in these sections do not apply to railway Factory
administered by the Government which are governed by leave rules approved by the
Central Government.
15. If an award, agreement (including settlement) or contract of Service provides for a
longer annual leave with wages than provided in this chapter, the quantum of leave,
which the worker shall be entitled to, shall be in accordance with such award, agreement
or contract of service, but in relation to matters not provided for in such .award,
agreement or contract of service or matters which are provided for less favourably
therein, the provisions of sections 79 to 82, so far , as may be, shall apply. (Added by the
Amendment of 1976).t

Wages during Leave Period. For the period of leave allowed to a worker according to
rules, he shall be paid at a rate equal to the daily average of his total full-time earnings
for the days on which he actually worked during the month immediately preceding his
leave~The average rate is to be calculated, exclusive of any overtime and bonus, but
inclusive of dearness allowance and the cash equivalent of the advantage accruing
through the concessional sale to the worker of food-grains and other articles. The cash
equivalent, referred to above, is to be computed according to the method used when
calculating the extra wages payable -for overtime work. (See. post)-Sec. 80.
lf the employment of a worker who is entitled to leave is terminated by the occupier of
the factory before he has taken the entire leave to which he is entitled, he must be paid
wages for the leave period not taken and such wages must be paid before the expiry of
the second working day after such termination. Similarly, if the worker quits his service
after having applied for and obtained leave, he must be paid wages (or the leave period
and such wages must be paid on or before the next pay day. '!be amount of wages
payable is to be calculated according to the provisions of Section 80.-Sec. 79(11) .
A worker who has been. allowed leave for not less than four days in the case of an
adult and five days in the case of a child, shall before his leave begins, be paid the
wages due for the period of leave allowed.-Sec. 81.
Wages -for the leave period, if not paid by an employer, shall be recoverable as delayed
wages under the provisions oo the Payment of Wages .Act, 1936.-Sec. 82.
EXTRA WAGES FOR OVERTIME
( 1 ) Where a worker works in a factory for more than nine hours in any day or for
more than 48 hours in any week, he shall in respect of overtime work, be entitled to wages
at the rate of twice his ordinary rate of wages.-Sec 59(1)
(2) For the purpose of sub-section (1), "ordinary rate of wages means the basic wages
plus such allowances, including the cash equivalent of the advantage accruing through
the concessional sale to workers of foodgrains and other articles, as the worker is for the
time being entitled to, but does not include a bonus and wages for overtime work.-Sec.
59(2).
(3) Where any workers in factory are paid on a piece rate basis, the time rate of their
work will include the following rules:
(i) if the workers bad been paid on the same or identical job during a month
immediately preceding a month during which overtime work was done, the
time rate shall be deemed to be equivalent to the daily average of their
fulltime earnings for the days of the overtime work. Also such time rates shall
be deemed to be the ordinary rates of wages of those workers.
(ii) In the case of a worker who had not worked in the immediately preceding
calendar month on the same or identical job, the time rate shall be deemed
to be equivalent to the daily average of the earning of the worker for the days
on which he actually worked in the week in which the overtime work was
done.
Explanation.-For the purposes of this sub-section in computing the earnings for the days
on which the workers actually worked, the allowance include the cash equivalent in order
to buy food grains and other articles through concessional sale as the worker is for the
time being entitled to.
Exception.-But any bonus or wages for overtime work payable in relation to the.
period with reference. to which the earnings are being computed shall not be included.-
Sec. 59(3).
[Clauses (2) and (3) were substituted from the old Act by the Amendment of 1976].
'.
(4 )The cash equivalent of the advantage accruing through the concessional sale to a
worker of foodgrains and other articles shall be computed as often as may be
prescribed on the basis of the maxi mum quantity of foodgrains and other articles
admissible to a standard family.
Explanation 1.-"Standard family" means a family consisting of the worker, his or her
spouse and two children below the age of fourteen years requiring in all three adult
consumption units.
 Explanation 2.- "Adult consumption unit" means the consumption unit of a male
above the age of fourteen years; and the consumption unit of a female above the age of
fourteen years and that or a child below the age of fourteen years shall be calculated at
the rates of 0.8 and 0.6 respectively of one adult consumption unit. Sec. 59(4).
(5) The State Government may make rules prescribing
(a) the manner in which the cash equivalent of the advantage
accruing through the concessional sale to a worker of food grains and other
articles shall be computed; and
(b) the register~ that shall be maintained in a factory for the purpose of securing
compliance with the provisions of this section.-Sec. 59(5).
WAGES AND SALARY
Both these terms are used to denote payment made for service. In Stroud's ludicial
Dictionary, the following comments are made; "Where the engagement is for a period, is
permanent or substantially permanent in character, and is for other than. manual or
relative unskilled labour, the remuneration is generally called a salary." "... in general, the.
word 'salary' 'is used for payment of services of a higher class,and 'wages' is confined to
the earnings of labourers and artisans.
The High Court of Madras was of opinion that if the remuneration is to be paid daily or
weekly it can be called Wages; but where there is monthly payment and is fairly high,
considering the general standard of payment, it is to be called Salary. According to the
Payment of Wages Act any amount over Rs. 200 (now Rs. 1000) may be considered as
Salary for the purposes of Factories Act. Re Gemini Studio.1 (See ch. 7).
"Conceptually there is no difference between salary -and wages both being a
recompense for work done or services rendered, though ordinarily the former expression
is used in connection with services of non-manual type while the latter is used in
connection with manual services." Gestetner Duplicators Pvt Ltd. v. The Commissioner
of Income Tax W B . In this judgment the following cases were cited and approved,
MohmeddIli v. Union of India; Gordon v. Jennings.
In the cases mentioned above, and .also in Stroud's dictionary, iwas held that there
is no basic difference between salary and wages.
OBLIGATIONS OF WORKERS
Section 111 lays down that no worker in a factory
(a) shall wilfully interfere with or misuse any appliance, convenience or
other things provided in a factory for the purpose of securing the health,
safety or welfare of the workers therein,
(b) shall wilfully and without reasonable cause do anything likely to
endanger himself or others; and
(c) shall wilfully neglect to make use of any appliance or other thing
provided in the factory for the purposes of securing the health or .
safety of the workers therein.
If any worker contravenes any of the previsions of this section or of any rule or order
made there under he shall be punishable with imprisonment which may extend to 3 mcnths
or with fine which may extend to Rs. 100 or 'with both.
Notice of certain dangerous occurrences. Where in a factory any dangerous
occurrence of such nature as may be pr€scribed occurs, whether causing any -bodily injury
or disability or not, the manager of the factory shall send notice thereof to such authorities,
and in such form and within such time, as may be prescribed.--Sec. 88A, Factories
(Amendment) Act, 1976.
Notifiable Diseases. The manager of a factory must send notice to the authorities _
whenever a worker contacts any -of the diseases mentioned in the Schedule to the Act.
(These are known as Occupational Diseases. Examples: poisoning by lead, mercury,
phosphorus etc.; anthrax; silicosis; cancer of the skin; toxic anaemia or jaundice; etc.).
The medical practitioner attending the person, if any, shall without delay send a report to
the Chief Inspector in writing, stating "the name of the person affected and other
particulars.--Sec. 89.
Enquiry into Accidents and Diseases. The State Government may appoint a competent
person to enquire into the causes of any 'accident occurring in a factory or of a notifiable
disease, and may also appoint one or more persons possessing legal or special knowledge
to. act as assessors in such enquiry. The person appointed to enquire can call witnesses
like a Civil Court and exercise any of the powers of an Inspector. He must submit a report
to the State Government, together with his observations. The report or extracts therefrom
may be published.-Sec. 90.
Safety and Occupational Health Survey. The State Government or the Director General
of Factory Advice Service and Labour Institutes etc., can employ the Chief Inspector and
certain other persons to undertake safety and occupational health surveys. The occupier
and manager and all other persons shall afford all facilities for such survey, including
examination, testing of plant and machinery, collection of samples, other data, medical
examination of persons calculation of wages and extra wages for overtime work.-Sec. 91A,
added by The Factories (Amendment) Act, 1976.
Penalties and Procedures. Sections 92 to 1.06 lay down the rules regarding penalties for
offences against the Act.
Owner: The owner of any premises, let out for use as different factories, is
responsible for the provision and maintenance of common facilities and
'Services, e.g., approach roads, drainage, water supply, latrines etc.
Occupier : In most cases the occupier of the factory is responsible for offences
committed against the Act. But the occupier is exempted from liability if he can
show that he has used due diligence to enforce the execution of the Act and that
some other person committed the offence without his knowledge, consent or
connivance.

Penalties: The penalties for some of the offences are mentioned below

Offences Imprisonment Fine

Obstructing Inspector Up to 3 months and/or Up to Rs 500/-
Wrongfully disclosing result
of analysis of sample --do
Contravention of any duty
or liability by a worker nil Rs 20/-
Using false certificate of
fitness Up to 1 month. Rs 50/-
Permitting double
em -ployment of child nil -do-
Cases not otherwise
provided for .. Up to 3 months " " Rs. 2000
Second offence for above" 6 months ." " Rs. 5000

Where contravention of any of the provisions of Chapter IV or any rule made

thereunder or under Section 87 has resulted in an accident causing death or serious bodily
injury, the fine shall not be less than one thousand rupees in the case of an accident
causing death, and five hundred rupees in the case of an accident causing serious bodily
injury.
Explanation.-In this section and in section 94 "Serious bodily injury" means an injury which
involves, or in all probability will involve, the permanent loss of the use of, or permanent
injury to, any limb or the permanent loss of, or injury to sight or hearing, or the fracture of
any bone, but shall not include, the fracture of bone or joint (not being fracture of more
than one bone or joint) of any phalanges. of the hand or foot.-Sec. 92 added in the
Amendment of 1976.
Cognizance: No court can take cognizance of an offence under the Act except on a
complaint. by or with the previous sanction of an Inspector in writing. Only a Presidency
Magistrate or a Magistrate of the first class can try offences under the Act. The. complaint
must be filed within 3 months of the date when the commission of the offence came to the
knowledge of an Inspector. For disobeying a written order of an Inspector, complaint may
be filed within 6 months of the date when the offence was committed.
Presumption: A person found in the factory when the factory . is going on or the
machinery is in motion, except during the time of meal or rest, is presumed to be
employed in the factory until the contrary is proved.
When in the opinion of the' Court a person is prima facie underage, the burden
shall be on the accused to show that such person is not under-age.
Appeals. The manager or the occupier of a factory on whom an order in writing has
been served by an Inspector can appeal against it to the prescribed 'authority within
thirty days.-Sec. 107.
Notice. In certain cases (prescribed by the rules) abstracts of the Act and the rules
are required to be displayed in the factory. All notices under the Act must be displayed
in English and in a language understood by the majority of the workers employed
therein. They must be displayed in a conspicuous and convenient place at or near the
main entrance of the factory and must be maintained in a clean and legible condition.
The Chief Inspector may require the display of posters relating to the health, safety and
welfare of workers. -Sec. 108.
 Returns. The owners, managers and occupiers of factories are required by
rules to submit various returns and reports.-Sec. 110.
Power of the Central Government. The Central Government may' give
directions to a State Government as to the carrying into execution of the provisions of
the Act.-Sec. 113.
Abolition of Contract Labour. The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in the Contract Labour
(Regulation and Abolition) Act, 1970.Sec. 119, added by the Factories (Amendment) Act,
1976.

INDUSTRIAL DISPUTE ACT 1947

1. What are Industrial Disputes?

Industrial Dispute means any dispute or differences between employers and

employers or between employers and workmen or between workmen and
workmen, which is connected with the employment or non-employment or
the terms of employment or with the conditions of labour of any person.

2. What are the different categories of Industrial Disputes?

The Second Schedule of the I.D. Act deals with matters within the jurisdiction
of Labour Courts, which fall under the category of Rights Disputes. Such
disputes are as follows:

1. The propriety or legality of an order passed by an employer under the

standing orders;
2. The application and interpretation of standing orders, which regulate
conditions of employment.
3. Discharge or dismissal of workmen including reinstatement of, or grant of
relief to, workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;
5. Illegality or otherwise of a strike or lock-out; and
6. All matters other than those specified in the Third Schedule.

The Third Schedule of the I.D. Act deals with matters within the jurisdiction of
Industrial Tribunals which could be classified as Interest Disputes. These are
as follows: -

1. Wages, including the period and mode of payment;

2. Compensatory and other allowances;
3. Hours of work and rest intervals;
4. Leave with wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity;
6. Shift working otherwise than in accordance with standing orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalization;
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed.

3. Who can raise an Industrial Dispute?

Any person who is a workman employed in an industry can raise an industrial

dispute. A workman includes any person (including an apprentice) employed
in an industry to do manual, unskilled, skilled, technical, operational, clerical
or supervisory work for hire or reward. It excludes those employed in the
Army, Navy, Air Force and in the police service, in managerial or
administrative capacity. Industry means any business, trade, undertaking,
manufacture or calling of employers and includes any calling, service,
employment, handicraft, or industrial occupation or avocation of workmen.

4. How to raise an Industrial Dispute?

A workman can raise a dispute directly before a Conciliation Officer in the

case of discharge, dismissal, retrenchment or any form of termination of
service. In all other cases listed at 2 above, the dispute has to be raised by a
Union / Management.

5. Who are Conciliation Officers and what do they do?

The Organization of the Chief Labour Commissioner (Central) acts as the

primary conciliatory agency in the Central Government for industrial disputes.
There are the Regional Labour Commissioners (Central) and Assistant
Labour Commissioners (Central) who on behalf of the Chief Labour
Commissioner (Central) act as Conciliatory Officers in different parts of the
country.
The Conciliation Officer makes efforts to resolve the dispute through
settlement between the workmen and the management. The duties of
Conciliation Officers have been laid down under Section 12 of the Industrial
Disputes Act.

6. What happens if conciliation fails?

In case of failure of conciliation (FOC) a report is sent to Government (IR

Desks in Ministry of Labour). The Ministry of Labour after considering the
FOC Report exercises the powers available to it under Section 10 of the
Industrial Disputes Act and either refers the dispute for adjudication or
refuses to do so. Details of functions of IR Desks and reasons for declining
may be seen above.
There are at present 17 Central Government Industrial Tribunals-cum-Labour
Courts in different parts of the country to whom industrial disputes could be
referred for adjudication. These CGITs -cum-Labour Courts are at New Delhi,
Mumbai (2 CGITs), Bangalore, Kolkata, Asansol, Dhanbad (2 CGITs),
Jabalpur, Chandigarh, Kanpur, Jaipur, Lucknow, Nagpur, Hyderabad,
Chennai and Bhubaneshwar. Out of these CGITs, 2 CGITs namely Mumbai-I
and Kolkata have been declared as National Industrial Tribunals.

7. What happens when the dispute is referred to Labour Court?

After the matter is referred to any of the CGIT-cum-Labour Court, the

adjudication process begins. At the end of the proceedings an Award is given
by the Presiding Officer.
The Ministry of Labour under Section 17 of the I.D. Act publishes the Award
in the Official Gazette within a period of 30 days from the date of receipt of
the Award.

8. How is the Award implemented?

An Award becomes enforceable on the expiry of 30 days from the date of its
publication in the Official Gazette. The Regional Labour Commissioner is the
implementing authority of the Awards.

9. What are the provisions for General Prohibition of Strikes and Lockouts?

No workman who is employed in any industrial establishment shall go on

strike in breach of contract and no employer of any such workman shall
declare a lockout:
(a) During the pendency of conciliation proceedings before a Board and
seven days after the conclusion of such proceedings,
(b) During the pendency of such proceedings before a Labour Court, Tribunal
or National Tribunal and 2 months after the conclusion of such proceedings.
(c) During the pendency of arbitration proceedings before an Arbitrator and 2
months after the conclusion of such proceedings, where a notification has
been issued.
(d) During any period in which a settlement or Award is in operation in
respect of any of the matters covered by the settlement of Award.

10. Does the workman have the Right to go on strike with proper notice in
Public Utility Services?

No person employed in a Public Utility Service can go on strike without giving

to the employer notice of strike;
(a) Within 6 weeks before striking.
(b) Within 14 days of giving such notice.
(c) Before the expiry of the date of strike specified in such notice.
(d) During the pendency of any conciliation proceedings before a Conciliation
Officer and 7 days after the conclusion of such proceedings.

11. Does the Employer have the right to lock out any Public Utility Service?

No employer carrying on any Public Utility service can lockout any of his
workman:
(i) Without giving to them notice of lockout provided within 6 weeks before
locking out.
(ii) Within 14 days of giving such notice.
(iii) Before expiry of the date of lockout specified in any such notice.
(iv) During the pendency of any conciliation proceedings before a
Conciliation Officer and 7 days after the conclusion of such proceedings.

12. What compensation will a workman get when laid off?

Whenever a workman (other than a badli workman or a casual workman)
whose name is borne on the muster rolls of an industrial establishment
employing 50 or more workmen on an average working day and who has
completed not less than one year of continuous service under an employer
laid off, whether continuously or intermittently, he is to be paid by the
employer for all days during which he is so laid off, except for such weekly
holidays as may intervene, compensation which shall be equal to fifty per
cent of the total of the basic wages and dearness allowance that would have
been payable to him had he not been so laid-off.

13. What are the conditions precedent to retrenchment of workmen?

No workmen employed in any industry who has been in continuous service

for not less than one year under an employer can be retrenched by that
employer until:
(a) The workman has to be given one month’s notice in writing indicating the
reasons for retrenchment or the workman has to be paid in lieu of such
notice, wages for the period of the notice.
(b) The workman has to be paid, at the time of retrenchment, compensation
which is equivalent to fifteen days’ average pay (for every completed year of
continuous service) or any part thereof in excess of six months; and
(c) Notice in the prescribed manner is to be served on the appropriate
Government (or such authority as may be specified by the appropriate
Government by notification in the Official Gazette).

14. What compensation will the workman get when an undertaking closes
down?

Where an undertaking is closed down for any reason whatsoever, every

workman who has been in continuous service for not less than one year in
that undertaking immediately before such closure is entitled to notice and
compensation in accordance with the provisions as if the workman had been
retrenched.
 Provided that where the undertaking is closed down on account of
unavoidable circumstances beyond the control of the employer, the
compensation to be paid to the workman is not to exceed his average pay for
three months.

Reference of Disputes to Boards, Courts or Tribunals

The main purpose of the Industrial Disputes Act, 1947 is to ensure fair terms between employers
and employees, workmen and workmen as well as workmen and employers. It helps not only in
preventing disputes between employers and employees but also help in finding the measures to
settle such disputes so that the production of the organization is not hampered. In this unit, we are
going to discuss the Industrial Disputes Act, 1947 and its importance. This unit encompasses the
different authorities and their duties in the settlement of disputes. It also discuss about the
reference of disputes. Through this unit, you will be able to know about the different award given
by the different authorities under the Act. Thus, you will able to understand through this unit, the
procedures of settlement of the disputes as well as the duties of different authorities as well as the
way of reference of dispute

HISTORY OF THE LAW OF INDUSTRIAL DISPUTES

The World War I (1914-1919) brought a new awakening among the working class people who
were dominated by the employers regarding the terms and conditions of service and wages. The
workers resorted to strikes to fulfill their demands and the employers retaliated by declaring
lockouts. During the period 1928-29 the numerous strikes and lock-outs forced the Government to
enact the Trade Disputes Act, 1929.

The Trade Dispute Act, 1929 was introduced for the settlement of industrial disputes. This Trade
Union Act gave the trade unions a legal status. The main object of the Act was to make provision
for the establishment of Courts of Enquiry and Boards of Conciliation with a view to investigating
and settling trade disputes. But, this Act failed to create favorable atmosphere in the industry and
settle the disputes. The main defect of the Act was that no provision was has been made to render
the proceedings institutable under the Act while restraint had been imposed on the right of strike
and lock-out in the public utility services. But, later this defect was overcome by empowering
under Rule 81-A, of the Defense of Indian Rules to refer industrial disputes to adjudicator for
settlement during the Second World War (1938-1945). The rule provide speedy remedies for
industrial disputes by compulsory reference of disputes to conciliation or adjudication, by making
the awards of adjudicators legally binding on the parties, by prohibiting strikes and lock-outs
during the pendency of conciliation or arbitration proceeding.

With the termination of the Second World War, Rule 81-A was about to lapse on 1st October,
1946, but it was kept alive by recourse to Government’s Emergency Powers. The main provision
was retained in the Industrial Disputes Act, 1947.

AUTHORITIES UNDER THE ACT AND THEIR DUTIES

The Industrial Dispute Act, 1947 makes provision for the investigation and settlement of disputes
that may hamper the peace of the industry. It ensures harmony and cordial relationship between
the employers and employees. The Act provides self-contained code to compel the parties to
resort to industrial arbitration for the resolution of disputes. It also provides statutory norms
besides helping in the maintaining of cordial relation among the employers and
employees ,reflecting socio-economic justice.
The act provides for the following authorities for Investigation and Settlement of industrial
disputes:
(i) Works Committee
(ii) Conciliation Officer
(iii) Boards of Conciliation
(iv) Court of Inquiry
(v) Labour Court
(vi) Labour Tribunals
(vii) National Tribunals
Let us discuss these authorities in detail:

WORKS COMMITTEE (Section 3):

The works committee is a committee consisting of representatives of employers and workmen

(section3). The works committee is a forum for explaining the difficulties of all the parties.The
main objective of the works committee is to solve the problems arising in the day-to-day working
of a concern and to secure industrial harmony. The function of the working committee is to
ascertain the grievances of the employees and to arrive at some agreement. The committee is
formed by general or special order by the appropriate Government in an industrial establishment
in which 100 or more workmen are employed or have been employed on any day in the preceding
12 months. It consists of the representatives of employers and workmen engaged in the
establishment.

It shall be the duty of the working committee to promote measures for securing and preserving
amity and good relations between the employers and workmen and, to that end, to comment upon
matters of their common interest or concern and to endeavour to compose any material difference
of opinion in respect of such matters and decision of the works committees are not binding.

CONCILIATION OFFICER (Section 4):

For promoting and settlement of industrial disputes the appropriate Government may by
notification in the Official Gazette, appoint such number of conciliation officer as it thinks fit.
The main objective of appointing conciliation officer is to create congenial atmosphere within the
industry and reconcile the disputes of the workers and the employers. He may be appointed for a
specified area or for specified industries in a specified area or for one or more specified industries
and either permanently or for a limited period.
The duty of the conciliation officer is not judicial but administrative. He has to hold conciliation
proceedings, investigate the disputes and do all such things as he thinks fit for the purpose of
inducing the parties to arrive at a fair settlement of the disputes. The conciliation officer is entitled
to enter an establishment to which the dispute relates, after reasonable notice and also to call for
and inspect any document which he consider relevant. He has to send a report and memorandum
of settlement to appropriate Government. The report by the conciliation officer has to be
submitted within 14 days of the commencement of the conciliation proceeding or shorter period
as may be prescribed by the appropriate Government. The conciliation officer has the power to
enter the premises as well can call for and inspect documents.

BOARDS OF CONCILIATION (Section 5):

The appropriate Government may by notification in the Official Gazette, constitute a Board of
Conciliation for the settlement of industrial disputes. The Board shall consist of a chairman and 2
or 4 other members in equal numbers representing the parties to the disputes as the appropriate
Government thinks fit. The Chairman shall be an independent person. A person is “independent”
for the purpose of appointment to a Board, Court or Tribunal if he is uncommitted with the
dispute or with any industry directly affected by such dispute. He may be a shareholder of a
company connected with or likely to be affected by such disputes. But in such a case he must
disclose to the Government the nature and intent of his share [Section 2(i)]. Where the appropriate
Government is of the opinion that any industrial disputes exist in an industry, it may refer by
order in writing to the Board of Conciliation for settling industrial disputes.

The Board of Conciliation has to bring about a settlement of the dispute. He has to send a report
and memorandum of settlement to appropriate Government. He has to send a full report to the
Appropriate Government setting for the steps taken by the Board in case no settlement is arrived
at. The Board of Conciliation has to communicate the reasons to the parties if no further reference
is made. The Board has to submit its report within 2 months of the date on which the dispute was
referred to it within the period what the appropriate Government may think fit. The report of the
Board shall be in writing and shall be signed by all the members of the Board.

COURT OF INQUIRY (Section 6):

 The appropriate Government may by notification in the Official Gazette, constitute a court of
inquiry into any matter appearing to be connected with or relevant to settlement of industrial
disputes having an independent person or of such independent persons as the appropriate
Government may think fit. The court consists of two or more members one of whom shall be
appointed by the Chairman. Within a period of 6 months, the court has to send a report thereon to
the appropriate Government from the commencement of its any inquiry. This period is not
mandatory and it may be extend.
It has the same powers as are vested in a Civil Court under the Code of Civil Procedure 1908, in
the following matters—
a. enforcing the attendance of any person and examining him on oath,
b. compelling the production of documents and material objects,
c. issuing commissions for the examination of witnesses,

d. in respect of such other matters as may be prescribed.

The report of the Court must be signed by all the members. A member can submit a note of
dissent. The Report together with the dissenting note must be published by the appropriate
Government within 30 days from its report. A court of enquiry has no power to improve any
settlement upon the parties.

LABOUR COURT (Section 7):

The appropriate Government may by notification in the Official Gazette, constitute one or more
labour court for adjudication of industrial disputes relating to any matters specified in the Second
Schedule. A labour court consists of one person only to be appointed by the appropriate
Government.
The main function of the labour court is to hold its proceedings expeditiously and submit its
award as the proceeding concludes.
A person shall be presiding officer of a labour court unless—
a. he is or has been, a Judge of the High court,
b. he has for a period of not less than three years, been a District Judge or an Additional District
Judge or
c. he has held any judicial office in India for not less than seven years; or
d. he has been the presiding officer of a Labour Court constituted under any provincial Act or
State Act for not less than five years.
e. He must be an “ independent “ person and must not have attained the age of 65 years.

LABOUR TRIBUNALS (Section 7- A):

The appropriate Government may by notification in the Official Gazette, constitute one or more
Industrial Tribunals for adjudication of industrial disputes. A Tribunal shall consist of one person
to be appointed by the appropriate Government. The Appropriate Government may appoint two
persons as assessors to advise the Tribunel. The person shall be not qualified unless—
a. he is, a Judge of the High court,
 b.. he has for a period of not less than three years, been a District Judge or an Additional District
Judge.
c. The appropriate Government may, if it so thinks fit, may appoint two persons as assessors to
advise the Tribunal in the proceeding before it.
The functions of the Tribunals are very much like those of a body discharging judicial functions,
although it is not a Court. Its power is different from that of a Civil Court. The proceedings before
an Industrial Tribunal are quasi-judicial in nature with all the attributes of a Court of Justice. The
Government is empowered under Section 7-A of the Act to constitute for a limited time which
comes to an end automatically on the expiry of the said period for any particular case. The duties
of Industrial Tribunal are identical with the duties of Labour Court, i.e. on reference of any
industrial disputes; the Tribunal shall hold its proceedings expeditiously and submit its award to
the appropriate Government.

NATIONAL TRIBUNALS ( Section 7 B)

The Central Government may, by notification in the Official Gazette, constitute one or more
National Industrial Tribunals for the adjudication of industrial disputes. National Industrial
Tribunals are involve only incase of the questions of national importance or if they are of such a
nature that industrial establishments situated in more than one State are likely to be interested in,
or affected by, such industrial disputes. It consists of one person only to be appointed by the
Central Government.The person shall not be qualified for appointment as the presiding officer
unless he is, or has been, a Judge of a High Court. Beside these, the Central Government may, if it
thinks fit, appoint two persons as assessors to advise the National Tribunal in the proceedings
before it.

REFERENCE OF DISPUTES

Any industrial disputes should have to referred by the Appropriate Government under section 10
for adjudication, to the Conciliation Board, Labour Court, Court of Inquiry or Industrial Tribunal
or National Tribunal.
A. Reference of disputes to various Authorities:
A matter is referred to the Conciliation Board for promoting the settlement of the disputes. The
Conciliation Board is to promote settlement and not to adjudicate.
But if the purpose of reference of the matter is investigatory instead of conciliatory or
adjudicatory, it should be referred to Court of Inquiry. Again, if the matter is related to the Second
Schedule or Third Schedule, it is referred to the Labour court. On the other hand, any matter of
the industrial disputes which may relate to the Second Schedule or Third Schedule may refer to
the Industrial Tribunal.
Where the disputes relate to a public utility service and a notice of the same is given, it becomes
mandatory of the Appropriate Government or the Central Government to refer the matter for
adjudication. But the power of the Appropriate Government to make a reference is discretionary
and it is open to judicial review.
B. Reference of disputes to National Tribunal involving question of importance, etc:
 When industrial disputes are of national importance or they are likely to be affect the industrial
establishments situated in more than one State then they are referred to the National Tribunal by
the Appropriate Government for adjudication. Again if any matter referred to National Tribunal is
pending in a proceeding before a Labour Court or Tribunal,
the proceeding before Labour Court or Tribunal becomes invalid. On the other hand, it is not
lawful to refer any matters which are under adjudication before the National Tribunal to Labour
Court or Tribunal.
C. Reference on application of parities:
If a person individually or jointly applies any matter in a prescribed manner to the Conciliation
Board, Labour Court, and Court of Inquiry, Industrial Tribunal or National Tribunal for
adjudication and the Appropriate Government on being satisfied on the same specifies such time
limit as it these proper to submit the award.
D. Time limit for submission of awards:
Section 10 (2A) of the Act specifies the time period for submitting award by the Appropriate
Government, when any reference is made to the Labour Court, Industrial Tribunal or National
Tribunal for adjudication.

VOLUNTARY REFERENCE OF DISPUTES TO ARBITRATION:

The settlement of industrial disputes may be done through voluntary reference under section 10-
A.
i) When an industrial dispute is not referred to Conciliation Board, Labour Court, and Court of
Inquiry, Industrial Tribunal or National Tribunal for adjudication, the employer and the workmen
through a written agreement forward the matter for arbitration specifying the names of the
arbitrator.
ii) The arbitration agreement should be made in prescribed form and should be signed by the
parties.
iii) Within one month from the receipt of the arbitration agreement which should be forwarded to
Appropriate Government and the Conciliation Officer, a copy of the same has to be published in
the Official Gazette.
iv) The arbitrator or arbitrators shall have to investigate the disputes and submit to the
Appropriate Government the award.
v) The award should be signed by the arbitrator or the arbitrators.
vi) The strike or lock-out in connection with the disputes should be prohibited by an order of the
Appropriate Government.

PROCEDURE AND POWERS OF AUTHORITIES

Section 11 provides that every Conciliation Officer or member of a Board or Court or Presiding
Officer of a Labour Court, Industrial Tribunal or National Tribunal after giving notice can enter
the premises occupied by any establishment to which the disputes relate and follow such
procedure as the arbitrator or other authority concerned may think fit. They have the same power
as are vested in the Civil Court under the Code of Civil Procedure, 1908 while trying a suit in
matters like,
a. enforcing the attendance of any person and examining him on oath,
 b. compelling the production of documents and material objects,
c. issuing commissions for the examination of witnesses,
d. in respect of other such other matters as may be prescribed.
An assessor or assessors may be appointed by the Conciliation Board, Labour Court, and Court
of Inquiry, Industrial Tribunal or National Tribunal for advice having special knowledge on that
matter. The Conciliation Officer may enforce the attendance of any person for the purpose of
examination of such person or call for and inspect the documents. The Conciliation Board, Labour
Court, and Court of Inquiry, Industrial Tribunal or National Tribunal has the full power to
determine to what extent, by whom and subject to what conditions costs are to be paid.
Thus, it is seen that section 11 (1) has given wide power to the Conciliation Board, Labour Court,
and Court of Inquiry, Industrial Tribunal or National Tribunal in the settlement of industrial
disputes.

AWARD AND SETTLEMENT

Award means an interim or a final determination of any industrial disputes or of any question
relating thereto by any Labour Court, Tribunal or National Tribunal and includes an arbitration
award made under section 10A Section 2 (b).The report of the Board of Conciliation or the Court
of Inquiry shall be in writing and shall be signed by all the members and the award of a Labour
Court and Industrial Tribunal shall be in writing and shall be signed by the Presiding Officer.
Section 21 requires certain matters to be kept confidential and it is further provided by the section
that certain matters are not disclosed without the written consent of the secretary of the trade
union or firm or company in question as the case may be of any information obtained by
Conciliation Board, Labour Court, and Court of Inquiry, Industrial Tribunal or National Tribunal.
An award usually is enforceable on the expiry of 30 days from the date of its publication except
when the Appropriate Government declares that the award given by the Labour Court and
Industrial Tribunal shall not be enforceable on the expiry of 30 days from the date of its
publication. Again, it may not be enforceable on the expiry of 30 days from the date of its
publication, if the Central Government get the opinion regarding the award given by the National
Tribunal. In such case, the Appropriate Government or the Central Government may within 90
days from the date of publication of the award under section 17 make an order rejecting or
modifying the award. But, if it appears that the award given by the Industrial Tribunal is fair and
just, it is authorised to issue direction that the award takes effect retrospectively.

Persons on whom settlements and awards are binding (Section 18):

1. Settlement and awards are binding on all the parties under the agreement arrived at between
the employers and workers in the course of conciliation proceedings.
2. An arbitration award is binding on the concerned parties of the agreement who referred the
disputes to arbitration.
3. An arbitration award or settlement award or award of Labour Court, and Industrial Tribunal or
National Tribunal is binding on—
a. All the parties to the disputes,
 b. On all other parties who are summoned to appear in the proceeding as parties to the disputes,
unless the Board, Arbitrator, Labour Court, Industrial Tribunal or National Tribunal in the
settlement of industrial disputes as the case may be, records the opinion that they were so
summoned without proper cause.

c. Where a party referred to Clause (a) and Clause (b) is an employer, his heirs, successors
assigned in respect of the establishment to which the dispute relates.
d. But if the parties referred to in Clause (a) or Clause (b) is of workmen, all person who were
employed in the establishment or part of the establishment, as the case may be, to which the
disputes relates on the date of the dispute and all persons who subsequently become employed in
that establishment or part.
A settlement arrived at in the course of conciliation proceedings before a Conciliation Officer
shall come into operation on such date as is agreed upon by the parties to the disputes and on the
date on which the memorandum of the settlement is signed by the parties to the disputes when no
date is agreed. But, if a person breaches any term of any settlement or award which is binding on
him he shall be punishable with imprisonment for a term which may extend to 6 months or with
fine Or both.