Professional Documents
Culture Documents
The Govt. & Parliament of India i.e., Executive & Legislature of the Union.
The Govt. & Legislature of each State i.e., Executive & Legislature of States.
All local or other authorities within the territory of India. All local or other
authorities under the control of the Govt. of India. The term STATE includes
Executive as well as the Legislative organs of the Union and States. So, the
action of these bodies that can be challenged before the courts as violating
Fundamental Rights.
Madras High Court held that other authorities could only indicate authorities
of like nature i.e., E JUSDEM GENERIS. It could only mean authorities
exercising Governmental or Sovereign function. It can not include persons,
natural or Juristic, such as University unless it is maintained by the State.
The President when making order under Article 359 comes within the ambit of
the expression “Other Authorities”. In effect the Rajasthan Electricity Board
decision has overruled the decision of the Madras High Court in Santa Bai’s case.
The court held laid down the following test to determine whether a body is an
Agency or Instrumentality of the Govt.
• Financial resources of the state is the chief funding source i.e., if the
entire share capital of the corporation is held by the Govt.
• Existence of deep and pervasive state control.
• Functional character being Govt. is essence i.e., if the functions of the
corporation are of public importance and closely related to Govt.
functions.
• If a dept. of Govt. is transferred to corporation.
Whether the corporation enjoys monopoly status.
However, these tests are not conclusive but illustrative only and will have to be
used with care and caution.
The chief Justice of High Court shall have function in dual role:
As the Chief Justice of High Court As the chief Administrator of the High Court.
If any citizen aggrieved by the Act of the Chief Justice as the Chief Justice, he has
no remedy. If the Fundamental Right of citizen are violated by the Chief Justice
while he was functioning as chief Administrator of the High Court, then that
Chief Justice shall be treated as State within the meaning and definition of the
Article 12 and citizen shall make have the remedy against the State.
In fact, Article 13 provides for the judicial review of all Legislations in India, past
as well as future.
This power has been conferred on the High Courts (U/a 226) and the Supreme
Court (U/a 32) which can declare a Law un-Constitutional if it is inconsistent
with any of the provision of part-III of the Constitution.
The Court held that judicial review is the basic feature of Indian Constitution
and therefore it cannot be damaged or destroyed by amending the Constitution
U/A 368.
Article 13 (1) all Pre-Constitution or existing Laws i.e., Laws which were in
force immediately before the commencement of the Constitution shall be void
to the extent to which they are inconsistent with Fundamental Rights from the
date of the commencement of the Constitution.
Observed that there is no Fundamental Rights that a person shall not be prosecuted
and punished for an offence committed before the Constitution came into force, so
as far as the past Acts are concerned the Laws exists not withstanding that it does
not exist with respect to the future exercise of Fundamental Rights.
It was held that Article 13 (1) could not apply to his case as the offence was
committed before the present Constitution came into force and therefore the
proceeding started against him in 1949 was not affected. The Supreme Court held
that “the Fundamental Rights became operative only on and from the date of the
Constitution”.
When a part of the statute is declared inconsistent with part III, then a question
arises whether the whole of the statute or only that part which is
unconstitutional should be declared as void.
To resolve this problem, the Supreme Court has devised the doctrine of
Severability.
Article 13 contains the word “to the extent of such inconsistency to void”. It
means when some provision of Law is held to be unconstitutional then only
repugnant provisions of the Law in question shall be treated as void and not the
whole statute.
Exception: if the valid portion is so closely mixed up with invalid portion that it
cannot be separated, then the Court will hold the entire Act void.
It is based on the principle that a law which violates Fundamental Rights is not
nullity or void ab initio but becomes only unenforceable i.e., it remains in a
moribund condition. It is overshadowed by the Fundamental Rights and remains
dormant, but it is not dead.
Such laws are not wiped out entirely from the statute book. They exist for all past
transactions and for the enforcement of rights acquired and liabilities incurred
before the present Constitution came into force and for determination of Right of
person who have not been given Fundamental Right by the Constitution.
• Article 13 (2) prohibits state to make any law which takes away or abridges
rights conferred by part III of the Constitution.
• If state makes such a law, then it will be ultra-virus and void to the extent of
the Constitution.
• It is still born law and cannot be revived by removal of the Constitutional
prohibition by subsequent amendment of the Constitution.
• Though Post Constitutional law inconsistent with Fundamental Rights is void
from. their very inception yet a declaration by the court of their invalidity will
be necessary.
• As distinguished from clause (1), clause (2) makes the inconsistent laws void
ab initio and even conviction made such unconditional laws shall have to be
set aside.
It does not permit any citizen to Waive any Fundamental Right because they are
conferred by the Constitution.
• Article 15, 16, 17 and 18 lay down specific application of general rules laid
down in Article 14.
Article 14 declares that “State shall not deny to any person equality before the law
or equal protection of Laws within the territory of India". Article 14 consists of
two expressions. The first expression “Equality before the Law” is of English
origin. The second expression “Equal protection of Law” has been taken from the
American Constitution. Both these expression aims at establishing “Equality of
status”. Both expressions seem to be identical; they do not convey the same
meaning. The Equality before the Law is a negative concept. It implies the
absence of any special privilege in favour of individuals and the equal subject of
all classes to the ordinary law.
Equal protection of the Law is more positive concept. It implies the equality of
treatment in equal circumstances.
The concept of equality does not mean absolute equality among human beings
which is physically not possible to achieve. It implies the absence of any special
privilege by reason of birth, creed or in favour of any individual and also the
equal subject of all individuals and classes to the ordinary law of the land.
According to Dr. Jennings, Equality before the Law means that among equals
the law should be equal and should be administered. Like should be treated
alike. The right to sue and be sued, to prosecute and be prosecuted for the same
kind of action should be same for all citizens of full age without distinction of
race, religion, wealth, social status etc.
The protection under Article 14 extends to both citizens and non-citizens and to
natural persons as well as legal persons. Corporations being Juristic persons are also
entitled to the benefit under Article 14.
The Equality before the Law is called as RULE OF LAW in ENGLAND. It means
no man is above the Law and every person is subject to the Jurisdiction of ordinary
Courts. Every official from Prime Minister down to constable or a Collector of taxes
is under the same responsibility for every act done without legal justification as any
other citizen. A person shall not be subjected to harsh, uncivilized or discriminatory
treatment even when the object is the securing of the paramount exigencies of Law
and Order. According to Prof. DICEY, the Rule of Law has three meanings they are
as follows:
1. Absence of arbitrary power or Supremacy of the Law: A man may be
punished for a breach of Law, but he can be punished for nothing else.
2. Equality before Law: No one is above the Law.
3. Constitution is the result of the ordinary Law of Land: It means source of
right of individuals is not the written Constitution, but the rules as defined and
enforced by the courts.
Article 15 (2) declares that “no citizen shall be subjected to any disability, liability,
restriction or condition on ground only of religion, race, caste, place of birth or any
of them with regard to access to shops, public restaurants, hotels and places of
public entertainment (or) the use of wells, tanks, bathing ghats, roads and place of
public resort maintained wholly or partly out of the state funds or dedicated to the
use of the general public.
Article 15 (2) prohibits citizen as well as the states from making such
discrimination with regard to access to shops, hotels etc. it prohibits both state and
the private individuals whosoever is in the control of the above-mentioned places.
• Article 15 (3) is one exception to general rule laid down in clause (1) and (2)
of Article 15.
• Article 15 (3): “Nothing in Article 15 shall prevent the State from making
any special provision for women and children”.
Women and children require special treatment on account of their very nature.
Article 15 (3) empowers the State to make special provision for them. The
reason is women’s physical structure and performance of maternal functions
places her at a disadvantage in the struggle for subsistence and her physical well
being becomes an object of public interest and care in order to preserve the
strength and of the race.
Article 16 (1) & (2) lay down the general rule that no citizen can be discriminated
against or be ineligible for any employment or office under the state on grounds
only of religion, race, caste, sex, descent, place of birth or residence.
Article (3), (4), (4a), (4b) and (5) are the five exceptions to this general rule of
equality.
Article 16 (1): “There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State”.
Article 15 doesn’t contain the words “descent & residence”. This is just to assure
that parochialism (interested in a limited area only) and nepotism (favoritism) is
eliminated in the matters of appointment in Govt. securities.
This is the second exception to article 16 (1) & (2). It empowers the state to
make a special provision for the reservation of appointments of posts in favour
of any backward class which in the opinion of the State are not adequately
represented in the services under the state.
1. These six freedoms are not absolute. Absolute individual rights cannot be
guaranteed by any modern State. Article 19 clauses (2) to (6) empowers
the State to put reasonable restrictions on the grounds mentioned under
that Article.
4. The court should consider the circumstances under which and the manner in
which that imposition has been authorized.
5. Restriction which is imposed for securing the objectives laid down in DPSP
may be regarded as reasonable restriction.
The right guaranteed under Art 19 is available only to the citizens but not to
foreigners. A corporation or a company cannot claim a right under Art 19
because they are not natural persons.
In Vishaka Vs State of Rajasthan The Supreme Court laid down the following
guidelines :
(1) All employers' persons incharge of workplace whether in the public or
private sector, should take appropriate steps to prevent sexual harassment
without prejudice to the generality of his obligation he should take the
following steps.
(2) Where such conduct amounts to specific offences under the Indian Penal
Code or under any other law, the employer shall initiate appropriate action in
accordance with law by making a complaint with the appropriate authority.
(3) The victims of sexual harassment should have the option to seek transfer of
the perpetrator or their own transfer.
1. Ethical rules
2. Rituals
3. Observances
4. Ceremonies
5. Modes of worship.
• Consequently, Articles 19 (1) (f) and 31 were omitted from Part III of the
Constitution.
• However, it has taken care that the removal of property from the list of
fundamental rights would not affect the right of minorities to establish and
administer educational institutions of their choice.
• For this purpose, the Amendment has inserted a new clause (1-A) in Article
30 of the Constitution.