7m CONSTITUTIONAL LAW OF INDIA ICHAP. 7 ‘The Government, its agencies and instrumentalities, it have thus become the biggest employers in the country. There is no reason why, if government is bound to observe the equality clauses of the Constitution in the matter of employment, should not be equally bound. It is therefore right and the independence and integrity of those employed in the public sector should be serured as much as the “independence and integrity of civil servants”! In Ajay Hasia v. Khalid Mujib,? it has been held that a Society registered under the Societies Registration Act, 1898, is an agency or “instrumentality of the State” and hence a “State” within the meaning of Article 12. Its composition is determined by the representatives of the Government. The expenses of society are entirely provided by the Contral Government, The rules made by the society require prior approval of the State and Central Governments. The society is to comply with all directions of the Government. Tt is completely controlled by the Government. The Government has power to appoint and Temove the members of the society. Thus, the State and the Central Government have full control of the working of the society. In view of these elements the society is. an instrumentality of the State or the Central Government and itis therefore an “authority” within the meaning of Article 12. The test is not as to how the juristic person is created but why it has been brought into existence. A corporation may be statutory corporation created by a statute or a government company formed under the Companies Act, 1956, or a Society registered under the Societies Registration Act, 1860, or any other similar statute. It would be an ‘authority’ within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the case in the light of the relevant factors. In BS. Minhas v. Indian Statistical Institute,? it has been held that the Indian Statistical Society, a society Registered under the Societies Registration Act, 1860 being under the compiete control of the Government of India is an instrumentality of the Central Government and therefore, an “authority” within the meaning of Article 12 of the Constitution. Accordingly, a writ-petition under Article 32 against the Institute for violation of fundamental rights is maintainable, Similarly, the Court held that the /ndian Council of Agricultural Research a society registered under the Societies Registration Act, is an instrumentality of Central Government, and an “authority” within the meaning of Article 12 and, therefore, amenable to writ jurisdiction under Article 32 of the Constitution.4 In Manmohan Singh Jaitla y. Commissioner, Union Territory of Chandigari,5 the Court following Ajai Hasia’s case held that an aided school which received a Government grant of 90 per cent was an “authority” within the meaning of Article 12. Similarly, it has been held that the Food Corporation of India® the Steel Authority of India,? Bihar State Electricity Board,’ Indian Oil Corporation,® are the ‘State’ within the meaning of ‘other authorities’ under Article 12 as they are instrumentalities of the State, In AISSF Association v. Defence Minister-cum-Chairman, biggest trader in the country. corporation set by it or owned by |. AIR 1980 SC 480 at p. 489. AIR 1981 SC 487. (1983) 4 SCC 582 following Ajay Hasia ¥. Khalid Mujib, AIR 1981 SC 487. P.K. Ramchandra Ayer v. Union of India, (1984) 2 SCC 142, 5, (1984) Supp. SCC $40. 6. Workmen, Food Corporation of India v, M/s. Food Corporation of India, AIR 1985 SC 670 : (19! SCC 136. 7. Bihar State Harijan Kalyan Parishad v. Union of India, (1985) 2 SCC 644. 8. Surya Narain Yadav y. B.S.E, Board, AIR 1985 SC 941, 9, Mahabir Auto Stores ¥. Indian Oil Corporation, (1990) 3 SCC 752. . 85) 2CHAP. 7] FUNDAMENTAL RIGHTS 1 B.0.G.8.S. Society, it has been held that Sainik Schoo! Society is the “State” and amenable to writ jurisdiction of the Court. The entire fund is given by the State Government and the Central Government. The overall control vests in the Governmental authority. In SM, Ilyas~v. ICAR? it has been held that the Indian Council of Agricultural Research is a State within the meaning of Article 12 of the Constitution In Central Inland Water Transport Corporation v. Brojo Nath Ganguly,3 the Court applied the above test and held that the Central Inland Water Transport Corporation, a Government company which was wholly owned by the Central Government and managed by Chairman and Board of Directors, appointed and removable by Central Government, was “the State” within the meaning of Article 12 and therefore an instrumentality or agency of the State, It is nothing but the Government operating behind a corporate veil, carrying out a Governmental activity and Governmental functions of vital public importance through the instrumentality of a Government Company. If there is an instrumentality or agency of the State which has assumed the garb of a Government Company as defined in Section 617 of the Companies Act, it does not follow that it thereby ceases to be an instrumentality or agency of the State. In Sheela Barse v. Secretary, Children's Aid Sociery,* the Court held that the Children’s Aid Society, Bombay registered under the Societies Registration Act, 1860 was an instrumentality of the State and fell within the expression ‘the State” within the meaning of Article 12. It is a Public Trust under the Bombay Public Trusts Act of 1950. The Chief Minister of the State is its ex-officio President. The Society receives grants from the State. In M.C. Mehta v. Union of India.) the important question which was raised before the Court was whether a private corporation fell within the ambit of Article 12. Although the question whether a private corporation fell within the ambit of Article 12 was not finally decided by the Court; but it stressed the need to do so in future. In Tekraj Vasandi_v. Union of India,S it has been held that the “Instinte of Constitutional and Parliamentary Studies”, a society registered under the Societies Registration Act, 1860, is not a State within the meaning of Article 12. The Institute of Constitutional and Parliamentary Studies is neither an agency nor an instrumentality of the State. It is a voluntary organisation. The object of the society is not related to government business. In the functioning of the society, the Government does not have deep and pervasive control. Though the Minister exercises his authority as the controlling, department of Government in the matter of making the grant but that itself may not be a conclusive feature. In a welfare State government's control is very pervasive and, in fact touches all aspects of social existence. A society registered under the Societies Registration Act may be treated, as ‘State’ if either the government business is undertaken by the society or the public obligation of the State is undertaken by the society. Since such a position is not present in the present case the Institute of Constitutional and Parliamentary Studies does not come within the purview of ‘other authorities’ in Article AIR 1989 SC 88 (1993) 1 SCC 182. (1986) 3 SCC 156. (4987) 3 SCC 50. (1987) 1 SCC 395. (4988) 1 SCC 236.CONSTITUTIONAL LAW OF INDIA Icha. 7 te Central Bank Ltd. v.N. Sectharama Raju, red under the A.D. Co-oper 12. In Sri Kona Seema Co-oper " fe been held that the Co-operative Bank registe h operative Societies Avs je nat 'State™ within the meaning of Article 12 as the functions of the Bank were not of public importance and not closely related to govemmmental function. The Bank's main Dbiect was to raise funds to finance its members. Following Tekraj Vasanji_v, Court in Chandra Mohan Khanna v. NCERT,* has held th; |v. Union of National Councit India. E i of Edu Researoh and Training, is not a *State’ within the meaning of Article 12 gp the Constitution, It is a society registered under the Societies Registration Act, The hiest of the NCERT is to assist and advise the Ministry of Education and Social Welfare Jementation of the governmental policies and major programmes in the field of particularly: schoat education. These activities are not wholly related to a] fonctions, The governmental control is confined only to proper utilization fs an autonomous body. Article 12 should not be stretched so as to brin, somous body which has some nexus with the government within the sweep inthe im education in every ai n ofthe expression, "State". In the modem concept of welfare State, independent institution, corporation and agency are generally subject to State control. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, a seven Judge Rench of the Supreme Court by a majority of 5 : 2 has overruled the decision in Sabhajiy Temar's case! and held—The Council of Scientific and Industrial Research (CSIR) i an instrumentality of the State within the meaning of Art. 12 of the Constitution. The jmajority held that even though it was formed under the Registration of Societies Act, TS60, set it is a “state” because the government had overriding control over the organisation, The object incorporated in Memorandum of Association of CSIR “manifestly demonstrates that CSIR was set up in the national interest to further the economic welfare of the society by fostering planned development in the country.” The Government of India has a dominant role in the governing body of the CSIR. All the members of the governing body, except ex-officio members, are nominated by the President and their membership can also be terminated by him. The Prime Minister is the President. The governing body also has the powers to make rules, amend or .-laws of CSIR but only with the sanction of Government of India. ex-officio repeal th In G. Bassi Reddy v. International Crops Research Instt.® it has been held that the Imemnational Crop Research Institute is an intemational organization and has been set up 2s non profit research and training centre to help developing countries to alleviate rural poverty and hunger in various ways is therefore, not a ‘State’ within the meaning of Anicle 12 of the Constitution. Consequently, no writ petition can be allowed by its employees challenging their removal from service as being violative of Articles 14 and 16 of the Constitution. it is not set up by the Government and gives service to a large number of countries voluntarily. It is not controlled by nor is accountable to the Government. Likewise, in General Manager, Kisan Sahkari Chini Mills Ltd., Sulranpur, U.P. v. Satrughan Nishad,” it has been held that the Co-operative Sugar Mill was neither instrumentality nor agency of Government and, therefore, not ‘State’ within the meaning of Art 12 of the Constitution. The Government of Lttar Pradesh held only 50% share in the mill and the expenditure of mill was not met by the State but it operated on the basis 1. AIR 1990 AP 171. 2. (1986) 1 $00 236, " 3. AIR 1992.SC 76. 4. (2002) SSCC INI. 5. Sabhajt Tewari v. Union of India, AIR 1975 SC 1329. 6. AIR 2003 SC 1764. 7. AIR 2003 SC 4531CHAP, 7] FUNDAMENTAL RIGHTS 3 of self generated finances, The nominees of State Government in the committee of management of mill was only 1/3 and it was dominated by 2/3 non-government members. Under its bye-laws State Government could neither issue any direction to mill nor determine its policy, The State has no deep and pervasive contro} over mill In V. K. Srivastava v. U.P. Rajya Karmachari Kalyan Nigam,’ following the decision in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology,” it has been held that the U.P. Rajya Karmachari Kalyan Nigamn is an agency and instrumentality of State and, therefore, is a State within the meaning of Art. 12 of the Constitution. The control of State on Corporation (Nigam) is not only regulatory but deep and pervasive. It is formed with the object of catering to needs of Government employees as supplement to their salaries and perks. Top executives o1 the Government cepartn..nt, are ex-officio members and office bearers of Corporation. The Corporation is fully supported financially and administratively by State and its authorities. Even in day to day functioning the Corporation is supervised and controtied by various departmental authorities of State particularly of Food and Civil Supplies. In Assam Small Scale Industries Development Corporation Ltd. v. J.D. Pharma- ceuticals.3 the Supreme Court has held that the Assam Small Scale Industries Development Corporation Ltd. is a statutory body and is State within the meaning of Article 12 of the Constitution. The Assam Preferential Stores Purchase Act, 1989 was enacted for encouraging growth of small scale industries in the State of Assam. The Corporation has power to place orders for supplies to the Government and has power to dvance. The petitioner small scale unit entered into make 90% of purchase price in ac agreement with the Corporation wherein the S.S.1. unit was termed as a principal and corporation as agent and supply was made by $,S.1. to Corporation and the Corporation \vas bound to release the payment upto 90%. The Corporation cannot withhold payment oon the ground that it had not received payment from the purchasing authority. In Punjab Water Supply and Sewerage Board v. Ranjodh Singh,* it has been held that an autonomous body is a ‘State’ within the meaning of Art. 12 of the Constitution. ‘The statutory bodies are bound to apply the rules of recruitment laid down under statutory rules, They are bound to the scheme of equality. The State Government cannot issue directions contrary to statutory rules governing such conditions. Even a scheme under Art. 362 would not prevail over statutory rules. Regularisation of service on contractual basis, in Punjab Water Supply and Sewerage Board can be terminated. Reguiarisation cannot be ordered by the High Court, The order is, therefore, liable to be set aside. In Lt. Governor of Delhi v. K. Sodhi® the Supreme Court held that the State of Council of Educational Research and Training (SCERT) is not a “State within the meaning of Art. 12 of the Constitution. The Court discussed the Bench decision of Pradeep Kumar Biswas, where it had held that each case would be decided in the light of cumulative facts to determine if a body is financially, functionally and administratively dominated by or under the control of the Government. The Supreme Court observed that the SCERT was fully funded by the Government and is an autonomous in its administration and had control over finances and, therefore, held that it was not covered by Art. 12 of the Constitution. Mandamus cannot sued to SCERT to compel them to extend to its employees. AIR 2005 SC 411. (2002) 5 SCC 111, ‘AIR 2006 SC 131. AIR 2007 SC 1082. AIR 2007 SC 2885.4 CONSTITUTIONAL LAW OF INDIA ro HAD. (d) Authorities under the control of the Government of India 7 ‘authorities under control of the Government of India’, it is meant to brine’, Words definition of State all areas outside Indian territory but which are under or may gS; it"® the the control of the Government of India, sich as, mandatory of trustee terrignge Seer ne under India’s control by international agreement. Thus even sich mt to Part II] and the inhabitants of such areas may also claim the bees efit territory may corr will be the subj i of Fundamental Rights guaranteed in Part I. In State of Assam v. Barak Upatyaka D.V. Karmehari Sansthan,’ the gy Court has held thatthe financial assistance provided by the State Government in ghee" of grant in aid to Assam Cooperative Society continuously for some years does fot for the society a within the definition of State under Article 12 of the Constitution therefore, the State would not be responsible to bear and pay salaries and allowances. and employees by extending aid forever. of its Unaided minority School—Unaided minority schools over which yy contol due to their authority under Article 39 (1) ¢¢ the Constitution are not "State” within the meaning of Article 12 of the Constitugse The right to equality which is available against the State cannot be claimed aga, unaided minority schools and in the absence of any statutory provision or administrating instruction requiring private unaided schools to pay their teachers the same salary ang allowances as are being paid to the teachers of private recognized aided schools as bein, paid in the goverment institutions, unaided minority institutions are under no obligation to pay equal pay for equal work to their teachers. Government has‘no administrativ Private University.—S.R.M. University Madras, declared "Deemed University" by the Central Government under Section 3 of the UGC Act, the Management of which was in the private trust was held to be an authority provided under Article 12 of the Constitution and amenable to the writ jurisdiction because :— (2). it imparted education in higher studies to the students at large. (2) itdischarged public functions by way of imparting education (3) it was notified as a deemed university under Section 3 of the UGC Act. (4) being 2 deemed university by the Central Government under Section 3 of the UGC Act, all the provisions of the UGC Act were made applicable to it which, inter alia, provided for effective discharge of public function, namely, education for benefit of public. (5) Once it was declared as “deemed university" whose all functions and activities were governed by the UGC Act, like other universities, it was “other authority” within the meaning of Article 12 of the Constitution. (©) Once it was held tp be an authority as provided in Article 12 then as @ necessary consequence, it was amenable to writ jurisdiction of High Court under Article 226 of the Constitution.3 Board of Cricket for Control in India. India,’ the question involved was whether the Board of Cricket for Contro! ee ‘AIR 2009 SC 2249, Satimbla Sharma v. St, Paul's Senior Secondary School, AIR 2011 SC 2926. Janet Jeyepaul (Dr.) v. SRM University, AIR 2016 SC 73 at p. 79. AIR 2005 SC 2677, 1. v. Union of In Zee Telefilms ae Tndia Was Avepe | | | iCHAP, 7] FUNDAMENTAL RIGHTS 15 “State! within the meaning of Article 12. The Board was not ereated by any statute, nor ‘was a part of the share capital held by the Government. There was practically no financial sistance given to the Board by the Government and even then the Board did enjoy a monopoly status in the field of cricket, The control, if any, was only regulatory in nature as applicable to other similar bodies, All functions of the Board were not public functions hor were they closely related to governmental functions. The Board was not created by transfer of a Government owned Corporation and was an autonomous body. The Board was not financially, functionally or administratively dominated by or under the control of Government so as to bring it within the expression ‘State’ in Article 12. The Supreme Court did not accept the argument that since the Board was discharging functions of public nature, it was ‘State’ within the meaninz of A.tic!s 12. The Conc» sId—The Board selects a team to represent India in internauunal matches. “i Guar govern the activities of the cricket players, umpires and other persons involved in the activities of cricket. Even if the above-mentioned functions of the Board do amount to public duties or State functions, the Board is not discharging State functions. The State/Union has not chosen the Board to perform these duties nor has it legally authorized the Board to carry out these functions under any Jaw or agreement. it has left the activities of the cricket to be controlled by private bodies’ out of such bodies own volition (self- arrogated). In the absence of any authorization. if a private body chooses to discharge any such function which is not prohibited by law then it would be incorrect to hold that such action of the body would make it an instrumentality of the State. Is Judiciary included in the word “State”?—In America it is well-settled that the judiciary is within the prohibition of the 14th Amendment.! The judiciary, it is said, though not expressly mentioned in Article 12 it should be included within the expression ‘other authorities’ since courts are set up by statute and exercise power conferred by law? It is suggested that discrimination may be brought about....even (by) judiciary and the inhibition of Article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of any one of the three limbs of the State. The question whether the judiciary was included within the definition of ‘the State’ in Article 12 arose for consideration of the Supreme Court in Naresh v. State of Maharashtra. It was held that even if a Court is the State a writ under Article 32 cannot be issued to a High Court of competent jurisdiction against its judicial orders, because such orders cannot be said to violate the fundamental rights. Mr. HM. Seervai is of opinion that the judiciary should be included in the definition of ‘the State’ and a judge acting as a judge is subject to the writ-jurisdiction of the Supreme Court.4 The courts, like any other organ of the State, are limited by the mandatory provisions of the Constitution and they can hardly be allowed to override the fundamental rights under the shield that they have within their jurisdiction, the right to make an erroneous & ion In view of the judgment of 7 Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak,® where it has been held that the court cannot pass an order or issue a direction which would be violative of fundamental rights of citizens, it can be said that the expression “State” as defined in Article 12 of the Constitution includes judiciary also. 1. Virina v, Rives, (1980) 100 US 313, 318, 25 L Ed. 667. 2. VN, Shukla—Constitution of India p. 20 (Sth ed.) 3, AIR 1967 SC 1. 4, H.M, Seervai—Constitutional Lav of India, p 155 (Ist ed). 5, D.D, Bast—Commentary on the Constitution of India, p. 145 (Sthed.). 6, AIR 1988 SC 1531,A F INDIA 16 CONSTITUTIONAL LAW © loop, 9 Fundamental Rights (Article 13)—Article 13 in the territory of India immediately before - ceeiarencement of this Constitution shall be void to the extent to which they we sora ent with the provisions of Part IIL of the Constitution, Clause (2) of this antiehe rovides that the State shall not make any aw which takes away or abridges the Predamental rights conferred by Part IIL of the Constitution; and any law made in cantarention of fundamental rights shall. to the extent of contravention, be void. Clause (3) of this article gives the term “law” a very broad connotation which includes any cclinance, order, by-law. rule. regulation, notification, custom or usage having the force Sf law, Thus not only the legislative enactment, but anything mentioned here can be challenged as infringing a fundamental right Objective of Article 13 (2).—The main objective of Article 13 is to secure the paramountcy of the Constitution especially with regard to fundamental rights. Laws inconsistent wi declares that all laws in fore Power of Judicial Review.—Article 13 in fact provides for the ‘judicial review of all legislations in India, past as well as future. This power has been conferred on the High Courts and the Supreme Court of India (Article 226, Article 32) which can declare a law unconstitutional if it is inconsistent with any of the provisions of Part III of the Constitution Pre-Constitution Laws.—According to clause (1) of Article 13 all pre- Constitution or existing laws, ie, 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. Article 13 not retrospective in effect—Article 13 (1) is prospective in nature. All pre-Constitution laws inconsistent with Fundamental Rights will become void only after the commencement of the Constitution. They are not void ab initio. Such inconsistent law is not wiped out so far as the past Acis are concerned. A declaration of invalidity by the Courts will, however, be necessary to make the laws invalid. The Supreme Coun in Keshava Madhav Menon v. State of Bombay,? observed : “There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past Acts are concerned the law exists notwithstanding that it does not exist with respect to the future exercise of the Fundamental Rights. In that case, 2 prosecution proceeding was started against the pe! Press (Emergency Powers) Act, 1931 in respect of a pamphlet publis| present Constitution came into force during the pendency of the procee ‘The appellant contended that the Act was inconsistent with the funda conferred by Article 19 (1)(a) of the Constitution hence void, and the procee iim could not be continued. The Supreme Coun 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 proceedings started against him in 1949 were not affected. The Supreme Court held that : “As the Fundamental Rights became operative only on and from the dave of the Constitution, the question of the inconsistency of the existing laws with thet rights must arise from the date those rights came into being........The voidness of We existing law is limited to the future exercise of fundamental rights. Article 13 (1) a" titioner under the hed in 1949. The ding in the Court. mental rights ding against 1. Renu v. District and Session Judge, Tis Hazari, AIR 2014 SC 2175. 2. AIR 1951 SC 128: Rabindra Nath v. Union of India, AIR 1970 SC 470.cHAP. 7] FUNDAMENTAL RIGHTS: 7 be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess.” This does not mean that a discriminatory procedure laid down by a pre-Constitution Act is 10 be followed in respect of pending proceedings or in respect of new proceedings started in respect of pre-Constitution rights or liabilities. Though the substantive rights and liabilitics acquired or accrued before the date of the Constitution rernain enforceable, no body can claim his rights and liabilities to be enforced under a particular procedure which becomes inconsistent with fundamental rights.! Doctrine of Severability.—When a part of the statute is declared unconstitutional then a question arises whether the whole of the statute is to be declared void or only that part which is unconstitutional should be declared as such. To resolve this problem, the upreme Court has devised the doctrine of severability or separability. This doctrine means that if an offending provision can be separated from that which is constitutiorial then only that part which is offending is to be declared as void and not the entire statute Article 13 of the Constitution uses the words “to the extent of such inconsistency be void” which means that when some provision of the law is held to be unconstitutional then only the repugnant provisions of the law in question shall be treated by courts as void and not the whole statute. InA.K. Gopalan v. State of Madras,> the Supreme Court while declaring Section 14 of the Preventive Detention Act, 1950, as ultra vires, observed : “The impugned Act minus this section can remain unaffected. The omission of the section will not change the nature or the structure of the subject of the legislation. Therefore, the decision that Section 14 is ultra vires does not affect the validity of the rest of the Act. Similarly, in Stare of Bombay v. Balsara.+ a case under Bombay Prohibition Act. 1949. it was observed that the provisions which have been declared as void do not affect the entire statute, therefore. there is no necessity for declaring the statute as invalid.” This is. however, subject to one exception. If the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an incomplete or more or less mingled remainder, then the courts will hold the entire Act, void. The primary test is whether what remains is so inextricably mixed with the part declared invalid that what remains cannot survive independently. The Supreme Court observed in Romesh Thappar v. State of Madras’ that : “Where a law purports to authorise the imposition of restrictions on a Fundamental Right in language wide enough to cover restrictions. both. within and without the limits provided by the Constitution and where it is not possible to separate the two, the whole law is to be struck down, So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly. void.” The doctrine of severability was elaborately considered in R.M.D.C. v. Union of India.® In that case, Section 2 (d) of the Prize Competition Act, which was broad enough to include competitions of a gambling nature as well as competitions involving skill, was involved. The Supreme Court held that the provisions of the Act were severable and 1. Lachmandas . State of Bombay, AIR 1952 SC 235. 2. Motor General Traders v. State of 8 3. AIR 1950 SC 27: 1950 SCJ 17478 (CHAP. 7 CONSTITUTIONAL LAW OF INDIA eRe those provisions which related to competition Nt involving il The Court Seb Ge Weld that where after removing whe favalid PRT CH what remains stitutes a complete Code there is:20 aecessity 10 declare ME whole Act invalid. In such cases, whether the valid parts of a statute are separable INT the invalid, the intention of the Legislature is the determining factor. The te 0) Ire applied is whether the Legislature would have enacted the vatid part if it bad know? that the rest of the aun was invalid, But if what remains on the statute book cannot De arforced without making alteration the shat the satu OT te question of substance and not ¢ Whole Act should be declared as vor, Severstilt) it is legitimate to take laa vera form, and in determining the intention of the Legistaniny Mane title and Preambh account the history of the legislation ‘and the object aS well as a ‘amble. In history of the leg! jects which are divisible in nature and some are imposed on si from taxation the (Xa h regard to those sul ri atatute will not be Wholly void, Ip taxation laws where taxes jects to Which @ constitutional of the subjects are exempt can be declared void only wit exemption is attracted." The view that the strict rule enjoined by the Smriti writers as a result of which Sudras were considered to be incapable of entering the orders of Yati or Sanyasi, has ceased to be valid because of the fundamental rights guaranteed under Part III is not correct. Part III does not touch upon the personal laws of parties. “Laws in force’ denote all prior and existing laws passed by the Legislature or other competent authority which have not been repealed notwithstanding the fact that are not in operation wholly or in part throughout India or part thereof. The term “existing law" includes a wider range, such as, ordinance, orders, bye-laws, rules or regulations by Legislature or other authorised body or person. Thus an ordinance issued by the President under Article 123 or by the Governors under Article 213, a Goverment notification” a bye-law of a municipal body are all laws in force. The term ‘having the force of law’ means rule of conduct should be called a law it must be established that it has a force of law. Amending Act if struck down.—Old law will revive—When an amending Act is struck down for want of legislative competence or for being violative of any of the ‘State of Tamil Nadu v, R, Shyam Sunder, AIR 2011 SC 3470, Jeshingbhai », Emperor, AIR 1950 Bom 363: D. Elayunni_v. State, AIR 1961 Ker 5: Nath v, State of Bihar, AIR 1959 SC 249; Vasudeo v, State of Mysore, AIR 1966 Mys 92. Siote of West Bengal v, Anwar Ali, AIR 1952 SC 75. D.BM. Patnaik v. State of AP., AIR 1974 SC 2092. Bhan Ram ¥, Baijnath, AIR 1962 SC 1476, Krishna Singh v. Mathur Ahir, AIR 1980 SC 707. Rumkrishna Dalmia ¥, Justice Tendotkar, AIR 1958 SC 538, Yasin v, Town Area Committee, AIR 1952:$C 115.JAW OF INDIA CONSTITUTIONAL U Ions x ceable in view of the provisions uy nforcea : na al gh it would 6 OO circumstanees, the old Act Worl fundamen Consittion nd 7a Fe not applicable to subordinate legis 132) 0 gsition of law is jee, This POPS ent a Taw’ wonder Article 13 Q).—thy 9 tutional amendment of Article 19 also includes a «Cope tttion avheiher the word AN ime considered by the a ee did: hank asad ersiment” was for the TMT Neg that the word "kaw" in clause V4 Not include arene fia! The COU S. The word “aw iv Article 13 must hg i hwy Se Ps in exercise of ordinary legislative powes "Ken ty made if jn exercise of Constitutional power a Constr andments made under Article 368. This inte elation 2) did not alent jlowed by the majority in Sajjan Singh Ve soe of SN ey. State of Punjab,’ the Supreme Court overruigs by a ae and held that the word ‘law” in Article 13, 2) includes Stony” Constitutional, etc. and hence, if an amendme.™ to th ed fundamental right of citizens, the amendment woula ACE Arg Kt revive byte ation,! Not itt hankari pyO%Al nd, therofaret Conetttion took away oF abridg be declared void. 4 ted by the Supreme Court's decision in Gey, ath rsa clase (2) was add toAtele 13 f the Constitution which makes it a indments passed under Article 368 shall not be considereq ag Ci co tai 13 and, hereto, cannot be challenged as infringis ‘sw’ with Ill ofthe Constitution. The validity of the Constitngon gk fee a 1 considered by the Supreme Court in Kesavananda Bharai Sop cout ane the Golak Nath case and upheld the validity of the sai case The Court ov eeeee ee 41. State of Tamil Nadu v, R. Shyam Sunder, AIR 2011 SC 3470, 2. AIR 1951 SC488, 3. AIR 1965SC 845, 4. AIR 1967SC 1643, 5. Kesavanand Bharati v. State of Kerala, AIR 1973 SC 1461,' 8 RIGHT TO EQUALITY (ARTICLES 14-18) Introduction.—Articles 14 to 18 of the Constitution guarantee the right to equality to every citizen of India. Article 14 embodies the general principles of equality before law and prohibits unreasonable discrimination between persons. Article 14 embodies the idea of equality expressed in the Preamble. The succeeding Articles 15, 16, 17 and 18 lay down specific application of the general rules laid down in Article 14. Article 15 relates to prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 guarantees equality of opportunity in matters of public employment. Article 17 abolishes ‘Untouchability’. Article 18 abolishes title. Principle of equality is fundamental in formulation of any policy by the State and the glimpse of it can be seen in Articles 38, 39, 39-A, 43 and 46 of the Constitution embedded in Part IV of the Constizution.! Equality Before Law (Article 14) Article 14 declares that ‘the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’. Thus Article 14 uses tivo expressions “equality before the law” and “equal protection of the law”. The phrase “equality before the law” finds a place in almost all written Constitutions that guarantees fundamental rights.? Both these expressions have, however, been used in the Universal Declaration of Human Rights.> The first expression ‘equality before law’ is of English origin and the second expression has been taken from the American Constitution. Both these expressions aim at establishing what is called “equality of status” in the Preamble of the Constitution. While both the expressions may seem to be identical, they do not convey the same meaning. While ‘equality before the law’ is a somewhat negative concept implying the absence of any special privilege in favour of individuals and the equal subject of all classes to the ordinary law. “Equal protection of the law" is a more positive concept implying equality of treatment in equal circumstances.* However, one dominant idea common to both the expressions is that of equal justices In Stare of State of Punjab v. Senior Vocational Staff Masters Association, AIR 2017 SC 4072 p. 4082. 2. US.A-—Section 1 of 14th Amendment says, “No State shall deny to any person within its jurisdiction the equal protection of the law". Burma—Section 13 “All citizens irrespective of birth, religion, sex or race are equal before law; that 4s to say, there shall not be any arbitrary discrimination between one citizen or class of citizens and another" Bire—Section 40 (1) “All citizens shall, as human persons be held equal before law" Chile—Anticle 10 “All inhabitants of the Republic are assured equality before the law". 3. Atlicle 7 of ‘the Universal Declaration of Human Rights says; “All are equal before the law and are ¢mttled without any discrimination to equal protection ofthe law”. 4. Dicey—Law of the Constitution, p. 49 (10th ed). 5. Sheoshanker v, State of M.P., AIR 1951 Nagpur $3 (FB). See also Dicey, Law of the Constitution, p. 47 (1939), y (83)