LTNIT.

II

FUNDAil{ENTAL RIGHTS
TNTRODUCTION:

}IEANING OF FUNDAN{ENTAL RTGHTS

iEundarnental Rights are those basic rights without u.hich a human life becornes meaninglcss. By
lundamental rights rvc mean lhose rights rvhich fonn the esscntial conditions of good life and which
constitute the cssential of human progrcss. In the absence of thesc rights the qrou.th and development
of human personality is irnpossible. Hence fundamental rights are very much required for the overall
development of human personalitv.

'Part iII - Fundamental Righs' is a charrgr of rights coniained in rhe Constiruiion of India. Ir
guarantees civilliberties such that 3!! In(ians can.lead theii lives inpeaccandharmoiry,as citizens of
India. These include individual rights common to most liberal democricies, such as equality bifore
_larv. freedorn oi specch and expression, freedonr. of association and peaicful assemblv, freedom to
practice religion, and the right to ccinstitutional remedies for the protection ofcivil rights by nieans of
u'rits such as habcas cgrpus. Violations of these rights,resirlt-in punishments as prcsciibed in'the.
indian Pcnal Code, subiect to discretion of the judician/.
[he FundamentalRights are defined as basic
human freedoms rvhich evcry Indian citizen has the right to enjoy for a proper and harmonious
deveiopment of personality. These rights universally apply to all citizens, irrespective olracc, ploce of
birth. lcligion, caste. creed. color or Gender. They are enforccable by the.courts, subjcct to ce(ain
.restrictions. Thc Rights havc thcir origins r1l many sources, including England's Biil of Rights, the
United States Bill of fughs and France's Declaration of the'Rigirts of NIan.\

GENER.{L PROYISIONS REGARDING FUNDAi\IENTAL RIGHTS (Arts-12& l3)

l. Dr:linc Statc. Explain thc tcsts to tlctcrminc n'hir:h othcr authoritics carr be includetl in
the definitiorr. Junc 2010.15
2. Explairr statc as providctl undcr article l2 of the Constitution ryith refe.rence to decided
cAsrs. Deccmller J013, .

Dcfinition of State (Art.12) Article 12 makes it clear that the lundamenial rights guarantced by part
III of the Constitution shall be enforceable against an individual or authority only if it is coures within
the definition in article 12. Under lhe concept unlike the other legal rights, rvhich are 1he creation of
the State, the fundaurental rights are claimed against the State. Therefore, *'herher a Constitution says
it or not. it is generally assumcd that the fundamintal rights givcn in it are available only against the
State. i.e. against the actions of the State and its officials.

In P.D. Shamdasani v. Central Bank of Intlia Ltd., the Suprerne Court confined this position. In
that case the petitioner souglrt the protection of thc court to enlorce his rights in Articles l9(l) (l) and
3l against the Ccntral Bank of India Ltd, The court dismissed the petition and said: "The language
atrd structure of articlc I 9 and its setting in part Iil o f thc Constitution clearly show that the afiicle was
intended to protect those freedoms against the state action other than in thelegitirnate exercise of its
power to regulate private rights in the public interest. Violation of rights of property by individuals is
not u'ithin the purvierv of the articlc." In another case State of Wcst Bengal v. Subodh Gopal Bose.
(AIR 1954 SC 92) Patanjali Sastri, C.J. said: "The whole object of part III of the Constitution is to
providc protectiou for the freedoms and rights mcntioncd lhcrcin against arbitrary invasion by the
Statc."
r
"Dcfinitiorr ol'"thcStatc": -Article l2of thcConsritutiondcfincsthcStateas:Thcdcfinirionof thc
tcrrn "thc Statc" spccifics thc authoritics and instrurpcutaliLigs functioning rvithin or rvithout rhc
territory of lnclia. u,hich shall 6E?eemed to b'e "thc State" for the purpose of part III of the

30
Constitution.l fn. definition isinclusive and not exhaustive. Therefore, authorities and
instrumcntali/tics not spccilled in it may also fall rvithin it if they otherwise satisfy the characteristics
of "the Statc" as dcfincd in this articlc
r
i ..fn. State" includes .the Govemment and Parliamenl of India and the Government and the
YegislarrLre of each of the States and all local or other author ilics u,ithin the territory of India or utrder

the control of thc Government of India.

The authorities and instrumentalities specified in articlc l2 are -

i. Thc Covernment and Parliament of India:
ii. The Govermnent and the legislature of cach of the states;
t;
iX. tli,:::1,i:t'},]:ffiffi1t. territorl. or l,dia or under the control orthe government or India.

The firsr tq,o cntcgories include the legislative. and exe cutive rvings of the union and the states. in all
their possible varieties. They are quite specific and self- explanatory

;iocrt authoritics:- Thc cxprcssion "local authorities' rclers to authorities like municipaiities, district
panchayats, irlprovernent trusts, port trusts. ninitrg scttlement boards, etc.,i ,
Ydr .

In il,I6hammetl Yasin V/s Torvn Area contmittcr:(AiR 1952 SC 115) the Supretne Court held that
thc b1.-e-larvs of a lv{uniiipal cornmittcc cliarging a prcscribcd lcc on the rvholesale dcaler u'as an order
by a state autl'rority contravencd Article t9(aXg). thcsc bye-larvs in effect and in substancc havc
brogght about a rotal stoppagc of the u,hoiesale cleaicr's tjusincss in the commercial sense. In Sri
Rarn vis The Notihctl Area Committte (AIR 19-52 SC 1tS) a lee leried under Sec.294-of the
U.P.Ir4unicipalities Act, 1.919. was held to be invalid-

But in U.iianrmbai V/s Statr of U.P.(AIR 1962SC 162l) the court reicctcd this restrictive
interpretation of the expression 'other authorities' given by the Maclras High court and held ihat the
.iuri"* gencris rulc could not be resortecl to in interpreting this expression.

ln Electricity Board, rajasthan ry's l\{ohan Lal (AIR 1967 SC 1857, follou,ed in Umesh V/s V.N.
Singh (AIR 1968 Pat.3) the Supreme Court held that the expression'other authorities' is r.r'ide
enough to include all authorities creatcd by thc constitution or statute onwhompowcrs are confcrred
by ]a,,r,. It is not necessaly that the statutor-y authority should be engaged inperfomring govemmental
or sovereign function. On this intelprctation the expression 'other authoritics' u'ill include
Rajasthan Elcctricity Boartt, Cochin Devasom board. Co-Operative Society, rvhich have poser to
make bye-lar.vs under co-Operative Societies Act. 1911. The Chief Justice of a High Court is also
included in the expression 'other authorities' as he has power to appoint offcials of the
Court-(Parnratma Saran v/s Chict Justicc(A[R I964 Raj, 13). The president when making orde
.under Article 359 of the'constitution comcs rvithin thc arnbit of the expression 'other
authorities(tlarroobhiti V/s State (AIR 1964 Guj 2291

In elfect, rhe Rajasthan Electricity Board's dccision has ovcrruled the decision of the N4adras High
Court i1 Sapra Bai's Casc. holding a University not to be "the State". And finally. the Patna High
Court, follou,ing the decisionof the Supreme Court. has held that the PatnaUniversity is "a State".
(Umesh V/s Y.N. Singh (AIR 1968 Pat.3)

Rashirl Ahnrctl v. N{.B.kairana, is one of thc earlicst illstances rvhcre a municipal board rvas held to
be a local authority rrndcr rniclel2.

31
 Corporation of Nagpur \''4. N.E.L.&P.CO, A local authorities having legal grievance
may be able
to take out v/rit- Thus ,rvrit rvas issued on the petition of local aurhority against
fublic utilit concern.
for latter's failure to fulfill its statutory obligation to suppiy power ro iocit autllrty.
a consumer .

Other authorities: - Article 12 rvinds up the list of authorities falling *.'it6in the definition
of the State
by refening to 'other authorities' within the territory of India o, unJ", the control
of th" _eo'e'rment
of India- \\rhatarethese'otherauthorities"l in Universifi of tr{adras ry's. Shantlra nai,l.+lR
tlsa
l'Iad 67) some high cottrts held that since the expression ;other authorities' is used after
mentioning a
ferv of thern' namely, the govemtnent and Parliament of India. the governrnent
and the legislature of
each of thc states, and local authorities, it rvould be reasonable ro ionrt*"
this expressiJn e.f,sdem
generis with goiernment or lggislature. So construed. it could onl-y mean
authorities exercising.
governnlental or sovereign po\t'ers and functions. In Electricitv Board.
Rajasthan vls. Illohan Lal
case, the Supreme Court held that 'other authorities' would include all authorities
created by the
Constinrtion'or statute on tvhich. powers are conferred by law. It was not necessary
that the statutory
authority should be engaged
In'performjag go\.ernment or sovereign rrir.tior..'-I,{
cited, articles l9(l) (g) and 298'rvhich contemplate engagemenr of"ihe Snre
;;;;;;
rhe courr
in rrade oibusiness and
article 46. rvhich rcquircs the Srate'to promote educational and econor.pic interests
of rhe rveaker
s-ections .of the ggople. In thc instant .casc thc Rajasthan.
Electr:icity Boarcl had po*er to give
directions' ttre dilobedience of which rvas punishablc as an offence, This decision
in-.il.r-or=-..ii.j ,

earlier decisions holding 'university' not 1o bc "the State" rvirhin rlre meaning
of arricle tZ. t, Umesfr
v/s' \'.N..Singh, (AIR 1968) the Court has hcld that the Patna.universiry has been held
to be..the
Statc",

Public settor urtdct'rrlilgl anri public corporations: - In Sukhrlev Sirrgh r/s. Blragatranr
Sartlar
Singh Raghuvanshi.-(I975 (l) SCC 421) thc court had ro dcal rvith ihe question
arosc ,wLrether
stat-r-ltoi'1,/ corporalions such rs.thi ONGC, IFC and LIC created.rcspcctivcl,y
by.the oil and Natural
Gas Comntission Act. l9-s9. the Industrial Finance Act, 1948, and the Life Insuran."
e.i.lcsa, carne
rvithin the definition of "&e State" under article 12. By a majority of 4 to l, the court held
that the
three corporations'rvere "the State". Follorving the Electricit_v Boartl, Rajasthan
r,/.s. llohan Lal
(AIR I961 SC 1857) case, majorit-v led by Ray. C.J.. held that rhc rhrce corporations
were created by
s{ituics. had the statutorv powcr to n'iake binding rules and regulaiions. and rvcrc subicct
to penasive.
govcrnrncnt coltl.rol. Thcv rvcre, thcreforc, 'othciauthor-itics' wliLhin thc rncaninq
f Zl
"iri,i.fc
Doctrine of Instrument4litr andAgslcy; - lVlathcw J.'s approach in Sukhtlcv Singh
v/s. Bhagat
Ram Sardarj Singh Raghuvanshi(1975 (l) SCC 421.) case, *'hether a body is an insrrumentality-or
agency of thc governmcnt was rcitcrated with approval in Ramani.Dayaram
Shetfy ly's.
Intt'tnational Airports Authorit-v of India (AIR 1979 sc 1628.) for coming tL the conclusion
that
the International Airports Authoriry of India was state. Bhagvati, J., speakin! for thc
court. poinfed
out that the corporations acting as iustrumentalitv or agcnc-y of govemrnent wouid obviously be
subject to the same limitations in *re field of constitutional or adrninistrative la*, as the government
itscll, through in the eyes of law they rvould bc distinct and indcpcndent legal entiiies. If
the
goYernlnent acting through its officers is sub.iect to iertain constiturional
and pub'iic lau, lirnitations.
\\:ithout being exhaustive, he discussed in detail various factors relevant for detennining rvhether
a
body is an instrumentalitv or agency of the Statc. Thcse factors, as rhey rvere finally
sumnrarizcd by
him in Ajay Hasia v/s. Khatir Nrujib sehravarai (AIR lggl SC 487.;. are.

i- If the entire share capital of the corporation is held by the governmcnt. it w'ould go a long
way
towards indicating that the corporation is an instrumenrality or authority of the government.
ii. Where the financial assistance of the state is so much as to rleet almoit entire ixpenditure of
the corporation it would afford some indication of the corporation being impregnatcd rvith
governntent character.
iii- Whe*rer the corporation enjoys monopoly'stanrs, rvhich is srate conferred or state protected.
iv. Existcnce of dccp and pen'isirrc statc control rnav allord in indication that thc colporation is
a
statc agency or instrumentality.

32
 =

ffii
ffi, ,
v. If the fgnctions of the corporation are of public importance and closely rclated to goYernment
functions it rvould be relevant factor in classiling a corporation as an instrtunentality or
agency of govemment-
ffi r.i. If a department of government is transferred to corporation it u'ould be a strong factor
s supporting the inference of the corporation being an instrumentality or agenc!' of government.
ffi
If on a consideration of these factors it is found that the corporation is an insfrumentality or agcncY of
gor;ernment, it rvould be an authority and therefore, state rvithin the meaning of article 12-

Som prakash ry's union of Inrlia, (AlR 19{11 S.C.212 (1981)l SCC 449.):-In this case the
question
rvas whether they bharat petroleur corpoiation ltd .,a Gol'ernment company registercd under the
companies act, l9-s6.is state as dehned in ART.l2. The company was not crealed by statute but rvas

an agcncy is instrumentality of the state.

Chandra N{ohan Khanna V/s NCERT (AIR 1992 SC 76) has held.that National.Council.of
Educational Research and Training(NCERT), ii nqt a:State'rvithin the meanihg of Article l2 of the
Consiitution. It is a society registered under the Societies Registration Act. The object of tlte NCERT
is to assisr and adyise the lllinisrry ol Education and Social Welfare in the implenlentatiod of the
govcrnmentai policics and nrajor pro-sranrmes in the fieid of education pdnieularly. school cducation.

Mysore Papcrs NIills Ltd. v/s. il{ysorc Pape rs mills Officcr's AsSociation (2002) 2 SCC 167:-Is an
examplc of a governnlent company falling within the definitiqn of "the State". The cotnpany u'as
subiect to penasive govcrnllent itrtolveurent and control. Thc Governrllcnt held 97'% ol\its shares
.nd itt cliiectors ncither nominatecl nor concurred in their election. Thirs the colnpany was an
insrurncntaliry of "The Statc':.

pradeclr Kumar Bisrvas v/s. Indian Institute of Chemical Biology {(2002) 5 SCC 111.}:-Is an
important clecision on rhc dehnition of "The State" in futicle 12. A Seven Judge Bench of the Court
by a majorit.v of 5:2 ovcrruled Sahbajit Tervary case and held that Council of scitntific and
fnOustriit Rrscarch (CSIR) is an instrumcntality of '1he State" failing u'ithin the scope of Article

;
(To detelr-rine rvhether a body is ttate. the Supreme eoirt per rnaiority. in
__
Ai
Tele Films I 'ttl v/s.
tfniorr gf Ilrlia (2005) 4 SCC 649., held that tire Board of Control for Crickct in Intlia (BCCI)'r.r'as
not State for Purpose of Article 12 because it was not shown to bc financially. functionally or
a&ninistrativcly donrinatcd by or undcr thc control of thc Govcmnlent and control exercised by the
GoYemment \\,3s nol pcn'asive but lllerely regttlatory in nature- )
-/
/
itr .tUOtCtlRY induded in thc rvortl "State"?:- as held in Virina V/s Rives {(1980) 100 US 313,
5S l.EJ-OL7l tn America it is well-seuled that theiudiciary is u'ithin the prohibition of the l4'i'
A^menclment'it. ludi"iory, it is said, though not expressly mentioned in Article 12 it should be
includcd rvi&in the expression 'othe-r autllorities' since courts are set up b-,1' statue and exercise poser
confen-cd by larv. It is suggested that discriminatiott may be brouglit about. evcu byjudiciary and thc
intrifiiilon oi,qr-iiCtc t+ cxtends to all actions olthe Statc denying cqual protection olthe larvs v'hethcr
it be the action olany onc of the tkee limbs of the State.)

i In Naresh V/s Statc of Nlaharashtra ( AIR 19(r7 SC i) 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 iudicial
orders. Because such orders cannot be said to violate the ftlndamental rights.

In A.R.ANTULAy \'/s R.S.NAYAK lAIR l9lJ8 SC l53l):- Whcrc it has bccn hcld thrr thc court
olcitizens. It
cannot ptss an order or issue a dtrection u,hich r.rould be violatil.-e of fundarnental rights
can be said thpt the expression '-state" as defined in Article 12 of thc Constitution inclutles
Judiciarl' ulso. \

55

ii;,
;,!l
::i.
 Larv inconsistcnt rvith or in tlerogation of the funttamentat righls :( Valirlilv of pre-
i' Egl+
Constitutional and Post-Constitutional Laws):- The rnain object of articlc tj is to secure the
parl1lg!1,,,,,,,,,,,,,,,r1! of the Constitution in regard to
fundamental rights. The first clause relatcs to tlrc laws
already existing in force and declares that pre{onstitution laws are void to the exlent
to rvhich they
are inconsistent rvith the fundamental rights. The Sccond clause relates Lo Post-Constitution
la*s and
prohibits the State from making a law w'hich either takes arvay totally or abrogatcs
in part a
fundanrcntal right.

Article 13, thus, has no rerrospectivc 9t&c1.. In Kcshavan l\{adhava il.Ienon }r/s State of
Bombay(,{.IR l95l SC 128) &e riitffier n'a secuted in I949 under rhe Indian press(Emergency
Powers) Act, 193 l. During the pendency of the criminal proccedings,' rhe constilution
of lndia carne
into force and the petitioner challenged the validity of 0lq_Act on the ground that it was
inconsistent
rvith the Fundamental rights under Article l9(l)(a) and pleaded thai rhe proceedings
coinmenced
against him belore the comdencement of the co-nstitution could not be contiiued
after the
conimencement of the constitution. The Srpr.*...o,,rt held that Aiticle r:1r) fras
no retrospecti'e
eflecl and it is rvholly prospcctivc in its operation.(follorved in Luchmantlas v/s State
' Bonrbay(AlR 195-2 sc 235, Rabintlra Nath va union of India, of
op cit;. \

PoN'cr of jutlicial Revicn - .{rticle li

in fact provicles to, in" iudicial rc'ierv of all legislaiions in
'i1,"
I,dia,'pasi'as. *ell
as futurc, this power has becn confcrrcd o" ,ir"-ttigrr';;;;;r";;i ,ror.n.
court of India (article 72(t,anicle 32)rvhichcan declare a larv unconsriruriorral if
it is inconiistrnt
u'ith any of thc llror:isions ol parr lll
of the constitulion.
Mtaning and basis of judicial revierv-iudicial rcvicrv is the pou.cr of courts to pronounce
upon the constitutionalitl'' of [ca.islative acts u,hich fall rvithin their porntal . jurisdiction.
to
cnforcc and thc power to. re luse to enforce and the po\vcr to rcfusc ts cnforcc such as
thev
find to'be unconsritutional and hchce r,oid.

The power of judicial revieu'u'as, hou'ever. assunred by the Supreme Court of America
in thc
historic casc of N[arbury v/s il'{adison. The fcderalists h;d lost tirc elcction of ttOo, but
before
leaving the office they had succeeded in creating several neu,.iudicial posts. Arnong these
were 42.
iustices of pcace, (o rvhich thc retiring fcderalistipresidenr.Iohn Adams appointed42 federalists.
Thc appointmcnt of comrnissiorts wcrcconi'irmcdby thc scnarcand. rhcy, ivcrcsignedonJr.ul"J,
bul Adarns sccrctary ol statc, john marshal, failed lo deliver certain of thein. -When the nerv
prcsident. Thonras Jelrerson .assurned, o{fice, he instructed his secretary of state.
James
I{adison tlot to dcliver 17 of these commissions including one for Wiliiam lv{arbury. N1arbury.
filed a petition in the supreme court for the issue of a u,rit of mandamus to secretary
Iv{adison ordering hirn to dcliver the commissions. He relied on sec 3l of the judiciary
act
of 1789 rvhich provided; "the supreme court shall have the power to issue.......rvrits of
mandamus. in cases wan'anted by the principles and usages of larv, to"...-... persons holding
officc. under the authority of thc United States"

The definition in article l3 is to ensurc lhat instruments emanating fronr anv sourcc of larr,-permanent
or telllporary , legislative or: judgmcnt or any other source- will pay homagc to the colstitutional
provision relating to lundamcntal rights. At the sarne time, Clause(4; seeks to ensure
that a
constitutional amendmcnt does not fall within the definition of larv in article 13, and its validity
cannot be challenged on the ground that it violates a fundamental right. But it should be noted
rhat
fundamcntal rights as sr.rch, whilc not immune from constitutional amendment, may, in some
cases,
from part of the theory of basic structure, enunciated in ccfiain decisions by the Supremc Court-
The
chronology of important Suprcme cou( decisions on the subject is as under:

1. Golak nath V/s State of Punjab. (AIR 1967 SC i643) .t:-- .

7. Keshavananda Bharati Vr's StateofKerala (AIR 1973 SC l4(rl )
3. Mincrva ]r'1ills Ltd V;'s Union of India(AIR t980 SC l7g9)
1. Waman Rao V/s Union of India (AIR t98l SC 271)
I
+

34 $
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5_ Bhim Singhji Vis Union of India (AIR l98l SC 23.1)

6. S.P.Gupta V/s union of India (AIR l9S2 SC 149)

1. Golaknath Vis. State Of Punjatr

In the fqrnous case of Golaknath V. State Of Punjab, in the year 1967 the Court ruled that parliament
could not curtail anyof the Fundamcntal Rights in the Constirurion.

Beginning with rts mling in GOLAKNATH. the Court developed jurisprudence around u.'hat rvas
knourn as +e "basic structure doctrine." According- 1o this doctrine. the Court r.vas in charge of
"preventing tlte erosion of those enduring values that constitute the essence of constinrlionalism".

2. Keshavananda Bharati V/s State of Kerala

Thc Suprcrnc Court of India in tlrc landinark cascof Kesavananda Bharari a,r,. of Kcraia hcld thar
the Parliament lnder the Indian Constitution is not 3upreme, in that it".cannot change the basic
siructure of thc constitution. It
also declared that in cefiain circumstances, the amendment of
fundamental. rights rvoulcl affect the basic structure -and therefore, rvodld be void. .lt also overruled
Golaknath and thus. all thc previotis amendnients which rvere hcld valid aie norv open lo be reyieq.ed.
They ca4. also bc sustaitrcd on thc ground that they do not aflcct the basic structLrrc of thc constitution
or on the fact that they are reasorable restrictions on the fundamentrl rights in pubtrc inlcrest.

3. N{incrya il.{ills Ltd Y/s Union of India

In this case the Court Struck dor.vn clauses (-1) and (5) of the Article 3(;8 inserted by 42'dArnendment.
on the ground'that thesc clauses destro-ved lhe essential feature of the basic structure of the
constitution. It rvas nrled by Court that a limitid amending po*tr itself is a basic feature ol fhe
Constitution.

L. Chandra Kurnar case "that the porver ofiudicial revierv over Legislative action vested in High
Courts under Articlc 226 and in the Suprcrne Court under Ar-ticle 32 of the consdtution is an intesral
artd essential le ature of thc conslitution, constjtuting part of its basic structurc''-

J. Bhinr Singhji \'/s Union of India

In this case, it tvas c.rplaincd by Krishna lycr.J. that w-hat is a betrayal of basic feature is not mere
violation of Arriclc l4 but a shocking, unconscionable and un-scrrpuiou. travesty of the quintcssencc
of equal justice.

5. S.P.Gugrfa \//s union of Inrlia

Both being clecisions which, rvlrile upholcling the validity of a parricular auendmenr. impliedly
proceed ott thc proposition that a constitutional amendmcnt cannot ovcrride a basic feature.

Nolr' we cax say, there is no hard and fast rule for basic fcature of rhe Constitution. Different judge
keep different views rcgarding to theory of basic structure. No laq, can be enactcd or arnended
in a
mamer that violalcs the spirit of the preamble.

We can discuss thc Validit-v oI Pre-Constitutional and Post-Constiturional Laws by applying

Doctrines of Severability, Doctrine of Eclipse and Doctrine of Waiver as follorvs;

DocTRINES OF SEVER"\BILITY
t- \i.
td(

Art l3 providcs that Act is roid which is inconsistcnt with the Part Ijl of thc constitution. Art 13 is
having a flcrible nalurc, it docs not rnake thc u'holc Act inopcraiii,c. L nrakcs inoperative only
such

35
proyisions of it as are inconsistent with or yiolative of frrndamental right. Sometimes valid and invalid
portion of the Act are so intertwiued that they cannot be separated from one another. -,

The rule of Severability applics to Article 13(1)&(2)

A.K.Gopalan V/s State of l{adras: (AIR 1950. SC 174) The Supreme Court while declaring Sec-14
of Preventivc DetentionAct, 1950 as ultravires observed': the impugned act minus this Scction can
:\
remain unaffected The omission of thc section will not change the structurc of subject of legislation". .T

Jia Lal v/s Dclhi Administration: (AIR .1962) The appellant rvas prosecuted for an office u/s i9 (0
of the Arm Act 1878. In fact, section 29 of this Act'providcs that in ccrtain arca'irr rvhich rhe
petitioner did not obtain any license in rvhich the petitioner was residing. it u,as not necessar.v to
obtain the said license'for possession firc arm- Section 29 was challenged as ultra-virus and
unconstitutional as offending fut I4 and also section 19($ of the Arms Act 1878 on the ground that
two sections wcrc not severa'ble, on thc question of severability the SC held that the scction 29. of the
Arms Act I878 rvas ultra-r,irus.

In thc case of R.N{.D.C. V/s Union of Inrlia(AlR 1957 SC 628) the Supreme Court.has surnmed.up
the rulcs relating to seveiability::
l. Li determirring ri.'hether the valid parts of thc statute are separable frorn the invalid
parts thereof, it is tlie intention of.the legislature that is the determining factor. Thc
test io be applied is rvhcthcr the Legislature rvould have enactcd the valid part if ir.
had knoun that the rest bf the statute r.vas invalid.

2. If the valid and invalid Drovisions are.so inextricably mixed up that they cannot be
separated from one another, then the invalidity of a portion must result in the
inralidity of the act in its cntirety. On the other hand. if they arc so distinct and
separalc that aftcr striking out what is invalid. what remaiis is in itsclf a complcte
code independenl of tire rest, then it rvrll bc upheldnotu,ithstanding that the rest has
bccome unenlorceable.

3. Even rvhen'thc provisions u,hicir arc valid arc distine t and separate fi:orr those which
are invalid, -if they all fornr parts of a singlc scherne which is intended to be
operative as a *'hole, thin also the invalidity of a part rvillresirlt in the failure of the
whole.

4. Likervise. when the valid and invalid parts of a statute are indepcndcnt and do not
form part of schemc but rvhat is left after omitting the invalid portion is so thin and
truncated as to be in substance different Ilom what it was rv'hen iI emerged out of the
legislature, then also it u,ill be re"lected in its entrety.

5. The separability of the valid and invalid provision of a statute does not depend on
whether the law is enacted in same section or different sections, it is not the frnn,
but the substance of the matter that is material, and that has to be ascertained on an
examination of thc Act as a uholc and of thc setting of the rclcvant provision
thcrein.

(). Ifafter the invalid portion is expunged lrom the statute u,hat reurains cannot be
enforced without making alterations and modifications therein, then the w'hole of it
must be struck dou,n as void. as othenvise it u,ill amount to judicial legislation.

7 " In determining the legislative intent on thc question of separability, it r.viil be

legitimate to takc into accounr thc history of lc-cislarion, irs object. the title and the
preamblc to it.

35
 In Kihoto Hollohon Y/s Zachilhu(AlR I993 SC 412) The Supremc Courr has held that rhe doctrine
of severability can bc applicd lo a composite amendment t'hich conrains amendments in the
provisions u.'hich do not require ratification by thc Slatc and amendments rvhich require such
ratification.

\Yrite a note on DOCTRINE OF ECLIPSE. December 2014, il.Iarks: 10

t,!
&it DOCTRINE OF ECLIPSE: -Some laws are held unconstitutional by the courrs. Norv in this
scenario. the legal position that remains is that though thc larv exists in statute books. bccause ofa
courl decision itr_e1i;qq-rgqp.9rable. There fore in larv there is an eclipse cast upon their.
implementaiion. Doctriiie-iif iclipse dcals with pre constiturional larv Art l3(l)

Art 13 providcs thatany lalv rvhich made before the cornurerlcement of constitution must be
consistent rvith thc part III of the constitution. if anlr stalue is.inconsisteuce u;ith thc p1oyisions of part
III of the constitution such statue shailtccorne roid. At ihe same time such statue shall iot bc treat as
Dead irnless it is abolish by'Parliarneni. It rvill be triated as dormant or remains eclipsed to rhe extent
it comes under tlrc shadow of thd fundamental rights.

Rcgarding thc doctrirrc oI cclipse fcw poirus nccd to bc consiclcrcd- it is to be applied only
thc Prc Constitutional Lat's, and not to bc post constitutional Iaws.

Bhikeji r'ls Statc of NIP: (AIR 1955) The MP Government passed an Acr in rhe year 1950 for
-nationalizing the tttotor lrarlsport bcfore conimenccmcnt. ol thc constitution. The rtat . ivo. challcnge
by thc petitiotrcr under Art l9(lXg). Thc Centcr Govt. Anrcndcd Act 1955 on 21.-4-1955 enabling the
state to natiottalizc the motor transport. That SC hcld that thc statue of Ir,{P sate Srate nationalizing the
motor tran5port 1950 rvas curcd by the 4th Arnendmeut Act 19-55 and lherefore rhe Doctrine of
Eclipsc has becn applicd ahd such Acr is valid.

h Keshaian i\'{atlhava l\{cnon V-/s Statr: of ilIaharashtra (AIR 1951 SC 128) Ihe Doctr1ne of t:
::
l.
eclipsc envisages tirat a prc-coilstitution law inconsistcnt rvith a Fundamental Right u,as not 1r,iped out
altogether {iom the statute book after the commencement of the cons.titution as if continued to exist in
respcct olrights and liabilities t'hich hrd accnred bcforc thc datc olilre consritution. h purshottam
v/S Desai (AIR 1956 SC 20) court has held that the lau, r,i,oulcl then cease to be unconstinrtional and
bccourc rcviv i'fi ccl and cnforccablc.

DOCTRINE OF W,{I\/ER:

The Fundarnental rights (FR) under Part III Art 12 to 35 of the constitution are conferred to every
citizen of India by the constitution. These constitutional riglts are not absolute. There are reasonable
restriction impose by the constitution- The primary objective of these fundamental rights is based on
public policy. Thcrefore no individual can waive olf such FR righrs.

The doctrirte of u'aiver of right is based on the prernise that a person is his best judge and
that he has
the liberty to \.vaive thc enloynent of such right as are conferred on him by the state. Horvever
the
person must have the knorvledge of his rights and
that the tvaiver should be voluntary.
: In Basheshr Nath v/s lncome Taxcommissioner: (AIR 1959 SC 149), Held:-In
pctitioncr u'hosc matl.cr had bcen rcfcrrcd to thc Invcstigation -;i
this case rhe
comrnissioncr ;,,, lilJ
the Taxation of Income Act 1947 rvas found to have
concealed a iettlement u,js 8 A to pay Rs 3 Lakhs
in monthiy installuents, by u'ay of arrears of tax and penalty. In
the rneanrvhile the SC in another
case held that scction 5(1) is ultra-virus the constitution.
as ir rvas inconsistcnce rvith Art -l4. So the
appcllanr cannol his rvair.c off his FR.

3l
 In vierv of the majority tlecision in Basheslrar, it is not an established proposition rhat
an individual
caxnot waive any of his Fundatnetrtal Rights. This propositron has becn appficd
in a lurlbcr olcases.
According to the Bombay High Court decision in Yousuf ali Abtlulla Fazalbhoy
v/s il{.S.Kasbekar
"
(AIR 1982 Bom. 135 at 143) the state cannot arogate to iself a right
to corn,lit breach of the
Fundamental Rights of an,v person by resorting to principles of u,airrer or estoppel
principles. or
--'-rr-'-'v(r other similar

h olga Tellis \A Bombay lrunicipal corporation (AIR 1986 SC 180) rhe courr asserrcd
that..rhe
high purpose which 'the constitulion seeks to achieve by conferment
of fundamental rights is not only
to benefit the individual but to secure the larger interesti of the community.

conclusion-' It means "a person from dc,ying or asserting anything to

in contemplation of law, been csrabrished as
ih9
officers, or by his ou,n deed, acts. or representations,
the contrary oI that rvhich has,
truttr, eirtrer blitrl" ,.ts ;i;l;l;i"i'o*.'r"gi.rrtir..
--r -' -
eitherexpr.ri o, implied, '

1' prineilllc of cquality as laid rton'n untler Article 14 of Inrlian

Discuss the
ionstitution.
20lJ, iVlarks :15
Junc
1 Discuss thc PrintiPlc of cqu:rlit3' as Iaid tlorvn undcr Articlc
I4 of lnrlian Corrstitutiorr.
Rcfcr thc decidctl cascs. Junc 20l3.llarks;15
J. Explain the princiPlc tlf tquality as laid tlown untler Article
14 of Indian Constit'tion.
December, 2013, Nlarks ;15
4. Explain the concept of equalifv- as enshrinctl undrr
Articlc 14 0f Indian Constitution.
Januarv 2012. I\:Iarks ; 1 6
Everv cxcrtisc of arbitratJ polycr is ncgation of equality is consirtcrctl
to bc a ncly
doctrinc 0f equalifv in contltarison rvith traditional judi.ioifornrula
ol'classifir:ation tist
of equalit-v .Elucidate. June 2013,Marks :16

Art 14 Declares "the Statc shall not rknl' to any pcrson cquality
-'----- bcfore! thc
!'r! r"" or thc equal
lap, \''.
protection of the latvs within the territoryof India.'.,
Article l4 of the Constitution ol India guarantces the right to equality as a fundamental
right for all its ig
citizens- Articlc l4 providcs that the State shall not deriy ro rry p".ro.,
equality before the lay. or the $
t
equal protection of lhe laws within the territory of india. This ls similai
to tire concept of equality g
cnshrincd in Article l7 of the Univcrsal Declaration Human Rights, 1948. which f
declares Lhat all are €
*
equal before the lau'and are entitled to cqual protection of laws t.'ittror, any
discriminatiop. E

*e
This hrst erpression-equality llefore' the larv, is a somewhat negative concept rvhich I
is said to be E
have takcn tiorn English conlmon larv. is a dcclaration oflcquatity of all pcrson i
rvirhin thc tcrritory of
lrrdia, implying there by thc absence of any spccial privilege in iavor of any individqal. F
Every person ,
*
whatever be his rank or position is subject to the jurisdiition of the ordinary
cour1. prof. Dicey, 't E
explain the concept of equality as it operated in England said "rvith us every q
official from the pM !
t
down to a constable or collector of taxes is under the same responsibiliry- for every
act clone u,ithout E

any legaljustification as any other citizen. "1 ,f

}
E

.t!
lThe second exprcssiotl the equal 'r
lrrotection of the larv $,hich is rathcr a corollary of thc first and is to g
ire taken from US, it is a more positive concept implying equaliry or treatment tT (
in equal circumstances.
j
These two expressions under this article to nrake the concept of equal E
*
treatment a bincling principle of *
State action. The u'ord Larv in tlte formcr expression is used in ageneric scnse philosfrhical
a iense,
$'hereas the rvord Laws in the lattcr cxprcssion denotes specific lar.vs. It has not
ciplaiped this
siatcnlerlt anv further, but it ntcans thar cquality for all is *e 61; iii'itandard nonn
of thc land.

x
38 E
,g
,E 8,.
$
$
&
I
E
3
 Equal protection of the-laws-is nou, being read as a positive obligation on the
State to ensure eoual
protection of the Laws by bringing in necessary social and changes ro trrut"r.r.il;";r;
J - -"-)
enjoy equal protection of the lavr.s and nobody is denied such ""oooirri.
protections.
Underh'ing Princinle:-As no httman being is equal in all respect the same treaunent
to them in
respect would result in unequal treatment. For example, the same treatment to a "r"ry
child as to an adult or
to a physically challente or hcalthy person, will result in unequal featrnenr. Thcrcfore
thc underlying
principle of equality is: not the uniformily of treatrnent to a[ ln all respect,
but rather equat nrust 5e
treatcd cqually rvhilc uncqual must be freatctl differently.

But this does not mean the unequal treatmcnt for all, rvhile rhe later Article
of this part (parr III)
especiall-vfut l5 and l6- equality not onl-v prohibited unequal treatment but it also dlrnands
equal
treatment' Thereforc slatc must not.onlv trbat people ,r.quully but it urust
.rcrnove existing inequalitics. also takc positive steps to
espccially those inequalitieiu.hich treat humar u"i,rg [.r'i6an
human
bcing.

Lcgislative Classifi cation :

' This leads us to tlie important oue;t]on of Iegislative classificaiion or distincrious

betrvcen persons and
things made bv Iarv. It is xg..rl.d that persJn. ,no), b;;;;;;il;;; groups and such groups may be
-treated differently if there is a reasonable
basii for such difference. Article t+ "fortrids ctass
Icgislation, but tloes not forbid classilication or differcntiation
rvhich rest upilrr rcasonable
. grounds o{ dlstinction

There'musl' be and the ob.icctof an ncxus bchvccn the basis of classilicafion the Act u,hich makes
the classification. In Ketlar Nath Bajoria
v/s state of \yB (AIR 1q5: sc 104,106)it said-rhe equal
protection of lhe Larvs guarantecd by the Article 14
of thc Constitution does not rnean that ail the
Laws inust be general in character and universal in application
and that rhe State is no lons-er to harre
the porver of distinguisrring ancr crassifyi,g pcrsons o"it ing, 6.rh;;;;;r"
"ii"*,r*r"r.'=
Tcst of Valid Clasrific:rtion

This articJc forbids thc lcgislarurc classification,

but it docs not lorbid reasonablc classificlrion of
pcrson' oblects and transactions by the lcgislature
for the purposc of achier,,ing specifi"-ends. arrO
diffcrentia niust have a rarional reration to the object sougi.,t
to u'e actteyca by the Act.

A classification to llc valid must be reasonable. It must

allays rest upon some real and substantial
distinction bearing reasonable and just relation to the needs
in respect of which the classitication is
made' In order to pass the tcst tbr pernrissible classification
trvo contlitions must be fuifillcd,
namely.

a) The classification tnttst be founded on an.intelligi!-le.di{ftrqn1ja

rvhich distinguishes persons
or things rhat are grouped rogether frorn otheE i.rt oui oitt group;
and
"
b) The difierentia must have a rational re,.l1!91to thc object
sought [o be achicvcd b-r, rhe srar,c
in quesrion. In (statc of lyesi Bengat \jis'.dinvar Ati
sarhar)1AIR 1952 SC Ls;

GROTJNDS OF REASONAB LE CLASSI FICATION:

There are 9 reasonablc classifications
they are as follols;
1. Agr,
2. Sex
3. Grographical or Trr.ritorial basis
,1. Naturc of busincss or profrssion
 5. Nature of source of authoritr
6. Nature of offenccs antl offeniers
7. Basis untler tax larvs
8. State of governmcnt
9. Singlc individual or trotly as a class.
1' Agc:- Age may be tlie ground of classificarion, i.e., classification
on rhe basis of age ruay be
reasonable classificatiort' For example. Sec.ll of a
the lndian Conrract e.ip.oriidmrt
major can enter into a contract but a ininor camot enter
into a contract. "
Section l1 of the Indian contract AcL 1872 persohs
rvho have not atraifled the majority cannor
enter into a contract' The-t$'o classcs of persons are
adults and minors. The basis of classification-
is the age' Age ob'iousl-v, has a relation to rhe cap-aciry
to into conrract. The section,
classification."rt".
therefore' satisfics both the rcquirementof a valid
i.e it groupsminors and.adults
separately 4nd such grouping has a rational relation-.ivitr,
tir"cufu.ity to make a.contficl.But -
stppose thc basis of classification is the colour of the.hair,
contracl This classification rvould fail because the differenii"urlon
,rip..ro^ rr""rgiiii[}|:, may
",g.,
t o, no relation rvith the object
of the legislatio.n-thc capacity of contract.

?- Sc-r:- in Yusuf \//s. Sratc of Bombal,(ArR 195:r SC

321): Horvcvcr. Rlicle r5(3; makcs ir
clear that the pror,ision of Ar-ticle t-S itatt not.preuent
provisions lor wolrcn and children. sex,
rt" rror" from naking any special
thus *uy u. a basis of reasonable classificauon.
example, Sec'19? of IPC rvhich provides that aauttery For
provides punishurcnt onry ror uren and not lor \vomcn
.?, ;" conrmitted only by men a.nd
irr. rr""n hc]d to be valid-

'l' Geograllltical or Tcrritorial hasis:- thismay bc a blsis

of reasonable cllssificarion. A law
nuy be made applicable to one state and not to ihe
other ,rot" o. states. A State may. bd
divided
into several regions and larv ma1' be made applicobl.
to one region and not to the
other rcgions' For exanrple. in a case riinan singn
v7s iiri. ,r Rajasthan(AlR 19_55 sc
759) IMarw'ar Land Re'cnue Act rvas challeugcd
Jn ,rr. sr"rra ilrar it was applied to other
regions of the State of R*r-iasthan. The courr held
it rhe ground rhat'i,e ro special
circrunstances pre'ailinu in lv{anvas region this Act'aliion
*,as enactej .r;-*;;;;;;jiable to
Manvar rcgion only.
.

In another case Gopichand v/s Delhi Administration

(i\IR I g5g sc 60g) a lawwas made to
provide a shortcr method or trial of offence committed
i, ,onareas declarea u, aorgi;rril
disturbed areas and the ordinary larv rlas applicable in "
other areas. The larv was held valid-

4' Naturc of busincss or profcssion:- Reasonable classification

rrray bc made o, the basis of
nafure of business, occupation or profcssion. In Amarchanclra
!7s Exisc Collector (AIR
1972 SC 1863) Larv may'bc passed to nationalize
cerlain busincss. Tlr; ;. ;; pL"a to
impose spccial resrriction on.trre business cf liquor
*r, rr"ia ,*iia
5' Nature of sourcc of authorifv:- source of authority may
be a basis of reasonablc
classificalio,. Held in State of nr.p. }'a G.c.Man,rrr"u.
. 1ei[
of dearness allo',r'ancc for Stare governmcnt servants and Union
r cs+ sc 493) differenr scale
Go'ernmgnts servan* is not
against Article 14 bccause classification of employees into
State Governnrenl Servants and
union Governlnents Scrvants based on natrrc of source of
authority is a reasonable
classification.
6' Nature of offences and offcndcrs:-Naturc of offences ol ofrenclers
may bc a basis of
reasonable classification, lbr cxaniple(Spccial Courts
Bill. 1978, hr re, AIi. 1979 SC 47g)
cstablishntcnt ol-special court lor the trial ol ccrlain offenccs
,n,r'oir'"na.r, f;;;; o"u"*o.",
of speedier trial and ri'ith the guiclelines for the crercise of the
cliscrerion of the exerutive
governntcnt is not asainsr Articlc 14.

40

!
 :

In the case of State of lYest Bcngal 1'A Anrvar Ali Sarker (AIR 1952 SC 7-5)
The state
Government was el't.lpo\,\'ered by t[e W.B. Special Courls Act to estabiish special criminal
courts. According to S-S1t) of thisActthe Special Court rvas to try such offences orcasesas
Anrvar Ali Sarkar and 49
the.state Government migtf Uy general or special order' direct,
other persons were u..r.'.d in Dum Dum factory Raid case' The
State Government made
under the aforesaid AcL
notification that they rvould be tried by a special Court established
The accused u,ere convicted by the Special coufi so establishcd' An*'ar Ali SaIkar challenged
issucd thereunder rvere against Article
the validity of Scc.5(1) of the iaid Ait and notihcation
rvas vested rvith unrestricted discretion
i4 rnd, therefore, voii because the State Govemment
thc Spccial Court constituted under the Act'
to direct an), case or class of cases to be tried by
discretion to select the cases to
The Srate Government rvas given unguided and uncontrolled
be tried by the SPecial Court-

7. Basis under tax larvs:-Ta{larvs are not imtrrune from Article l4

in I'T'O'!7s N'T'R 1976
in the matter of
Rymbai -(AIR 1976 SC 6701 ho*.u.r, the state has rvide .discretion
of Assam( AIR
classification for the pupose of ta"ation. In Khytrbri Tca co. Y/s State
1964SC925) heldthatiitheLegislatureiscompetenttoler-y-tax,'itisgivenftrllfreedomto
detcmine which articlc should be taxed in what manner and at what rate'

the
In \yestcrn Intlia Theatrc \./s Cantonmcnt Board (AIR 1959 SC 582) A higher tax on
cinerna-louses rvith large seating accommodation and situatcd in btrsy and. rich localities than
situated in poor localities
on smali clnema houseicontaining less seating accomtnodation and
Article l4 because the classification was tnade on the
has bectr hcld valid and not violative of
Uoriu of ,f-r" income of the cinetna horses'

class. Discrimination may

8. State Of governtneut: Statc of Government constitutes a separate
Thus creation of monopoly in favogr of
be made betrvecn the state and private individual.
Ahmed r'ls State of U.P.(AIR
state or srare Corporation is not violatiue olArticle.l4.(Sagir
I95.5 SC 728), Duruka &Co. V/s Union of tndia (AIR 1973 SC 271 I ).

IN Nlonna Ranr V/s collector, Jhahvar( AIR 1961 SC S2S) the Act rvhich enabled
the state
to the other
ro rccover its clues by the coercive rnethod but did not allor.v the
same rnethod
.9
can be legitirnately
g
E
.persons was helcl to be valid because the "Goverrunent. even as a banker,
f ili;;;,''cp",,i".r ^'r"'
* may constirutc a separatc
Singlc intliyitlual or [otly as a tlass: Single individual or body
E
,*-

individual or body and not

,&
class and in s,ch condition the larv which is applicable to the
larv made applicable to a single
-E
applicable others tvill not be violative of Article l4- Thus, a
separate class and not
individual or body rvhich, due to special circutnstances. constitute a
E
l-x applicablc to othcrs will be valid and not violative of Article
14' As held in tlic case of
itriran.lit Larv v/s The union of Intlia (AIR .1961 sc 4l) thc milis belonging to
'.ll the
ix
,s
of the
due to mismanagement
Sholapur spinning and weaving co. Ltd., *lere closed dou'n
* Directors. The Sholapur Spinni-ng and Weaving Co.(Emergency Provisions)Act was passed-
*ia Article the ground tlrat ol the fact
{T The Courr held that Act vatid und not violativc of 14 on
ru Co. Ltd.. corlstituted a class by iself-
and circumstances th; Sholapur Spinning and Weaving

*{ In Ravi Yashrvant Bhoir V/s District Collector. Raigad (AIR 2012 SC

1339) The Suprene
E q'ithout ill -will or malice
i{I Co,rt has obseryed that the state is under an obligation to act fairly
of penonal ill-
in fact or in larv. \\,'here malice is attributed to the state, it can never
:? be a case
i5
** 'legal
of malice' or
rvell or spite on part of the state. The court has explaincd thc
# tneaning
*
,* .malicc in lar.r,'. The Courthas opincdthat'legal malice'ormalice in lau" lllealls- sornething
donc r.vithout larvful cxcuse. It is delibcrate act in disr:egard
to rights of others. It is an act
done r'vrongfully and willfully
rvhich is taken r.vith an oblique or indirect object' It is an act
rvithour reasonable o. probaile cause and not necessarily an act done from ili-feeling and
spite. '

4L

i:
 Singlc pcrson larvs- [n Chiranjit Lal Chorvrlhury vs. {,'nion of India (AIR l95l
SC 4l):-The
pctitioner approached the Supreme Couft for thc prorccrion of his fundamental righrs
rurdcr Anicle l4
and 3l against the enforcement of a Ccntral Act. ilre Sholapur Spinning jr*"rg.n"y
and tvearling co.-Spinning
Provision) Act, 1950. The petitioner ltr.:rs an ordinary shareholder of th.
Sholaiur and
\veaving Co. Ltd. The company through its dircctors had been managing and
mnning a textile rnill of
the samc nanlc' Il I949. on account of mismanagement and neglcct oflhe
affairs o"f the company, a
sil.uation had arisen that brought about the closing dorm of the mill- The action
of the conrpany
pre.iudicially affected the production of an essential commodity, apart from
carsirg serious
unemploynent amongst ccrtain section of the communitv. The Central Govcrnment
thereupon issuecl
an ordinance u'hich rlas later replaced by the'above-mentioned ACT. B.v this
Act the rnanagement
and administration of the assets of the Cornpany rvere placcd under the control
of the directors
appointcd by the Covemmcnt- The old dircctors u'ere disinissed and the
assets of the compan-y,
'including thc textile nrill. t'erc handcd over to the custody of the ne\v management. As regards
rhe
shareholders' the Act declared that they could. neither appoitrt , ,.t
aii.oi. ,".t.."ra they rake
proceedings for the rvinding up of the cornpany'. The contcntion
of ttre petitioncr
"", *rr, tf,.
i
impugne( Act infringed-thd nrle of equal protection of the larls
enbodieO * arii"f" I;;;;';
single company and its shareholders u'crb becn subjectcd to disabilities vis-a-vis
other companics and

The Supreme Court dismissed tle petition ancl held the legislation valid. It laid
dorvn rhar g larv rnay.
be constitutional even though it applies to a singlc lndividual if, on account of
some spccial
circutnstanccs or reasons applicable to him and a;,plicabJe to othcrs. that
single individiral rnav bc
treatcd as a class by himself and that unless it was slror,r,, that there we.e
othe"r.or;un;;;;i,*iJ;
ciretrrnstanccd. the legislation musI be presumcd to bc constitutional. The Sholapur
a class
c;nrp";;'il;;;;
itself, because -the mismanagemcnt of thc cornpany's affairs preiridicially'airectea
.by ne
production of an essential cornmodit-v and had caused .r..iori unemployrnent
in a scctiol 'of the
comruunity.

Classilication rvithout a Differencc:-Therc are instances u.'hcre laws have been held
violative of
Article l4 because either thcre rvas a classification without a difference or the
basis of classification
tvas irrclevant to rhe purpos: of thc Act.

€
Suraj l\Iall rlohta & Co.'r's. A.\/. \/ish$anath Sastri (AIR 1954 SC 545.):- Is an insrancc
o[ €
attempt to segcgate persons who had no. uncomlnon propcrtics as conlpar.i
situated. In 1947 the Central Legislature passed an Act- the Taxation of Income
,r o,r,"r, similarly E
f
Act- the ob.f ect of
which- as stated in its preamble, was to ascertain whether the actual incidents of taxation $
of income in E

recent years had been in accordance rvith the provisions of lar.v and u.'hether s
the procedure for
assesslllent and recovery ltas adequate to prevent its evasion. Section 5 (l) of H
d
the Act empor"ered t6c E
central Governmcnt to refer to the Cornmission at any tirne beftrre thc first day of E
Septenrber 194g, for E
invesligation aird report any case or points in a case in which the Central Goi'ern.rent
proof that a person had to a zubstantial extent evaded payment of tar on income. , r'
had-' prinra lbcie

It rvas contended that Section 5('1) of thc Act r\ras repugnant to the.guarantee of equal protection
of the
lau's Under Article 14. The court first poinrcd oui tliat Scction ii+; ,r,0, ,ot ,""".iu.ily
limited to
profits made u'ithin anv particular pcriod. and it brought within itsiange allpersons
whetlier traders.
businessmen' professional people, whatever the-v might be. who had ai any iirne
evaded pal,rnent of
tax on incoure for whatever cause. The Section deali with the same class of persons rvho
fell rvithin
the arnbit of Section 34 of the Indian Income Tax Act and rvere dealt rvith in sub-sccrion (l)
of the
section and $'hose real incomc could bc detcrn:ined Uy pro"..Oing, under that section.

Assessees rvlio had failcd to disclosc fully and lml-v all material facts neccssary for thc assessrlrept
undcr Section 34, could be equated rrriih persons u,ho ,u".. aiscove,.i"lr',rr;'."*J of their
iui'cstication conducted urder Scction 5(l) olrhe Act oI tc+i. to rr^. .rra.a
;rr,,*r;;;; ;; ;;;;
incotttcs- Thc result would bc that at tlrc choicc ol'the Conrrnission some oIihosc cu-adcrs could
be

42
 Droceeded u.ith under the provisions ol Section 34 of the Indian Iacome Tax Act. It was not
possible.
of income tax and did not
ls the Court pointed out. to hold that such persons w'ho liad evadcd paYment

uuiy disclose all particulars or materials facts necessary lor the asscsslnent and against u'hom report
,ras made under sub-section (4) of Section -5 of the impugned Act by thcmseh'es forms a class distinct
from those rvho evaded payment of income tax and came u,il.hin the ambit of Section 34 of the Indian
Income Tar Act. There rvas nothing uncommon either in properties or in characteristics betrveen
. persons ,uyho were discovercd as evaders of inconie tax during an inr,cs{igation conducted
under
'section rvere discovcrcd bv the it,cotrtc Tax Officer to have evaded paYment of
5(4) and those rvho
income tar.

had similar
Accordingl-v, sub-scction (4) of Section 5 of the irnpugned Act dealt rvith all persons rvho
ch"racterisiics and similar propertics nailelv. they u,ere the pcrsons who had not trulv discloscd their
income and had cvaded paylnent of tax on incomc. Thc procedure prescribed under the impugrred Act
. rvas substantialiy preiudicial to tle assessees than'lhe procedure prescribed undbr thc Income Tax Act.
TherebeingnoOir;ttorclassification, Scction5(4);f Taxationof Iacome Act,194'/u'as hcldultra
vires so far as it affected the persons procecded against under that sub-section of the impugned Act.
l

Special Courts antl procetlural inequality:-ln a numbcr of cascs the constitutionality of legislation.
setting. or autliorizing thi executivc to sct up. special courts applying a specjal proccdure for trial ol .
crirniiral oflenccs has been challcnged. The I'irst arllong thctn is the

State of !V.B v/s. Anryar Ali sarkar ietn il-sZ SC 7-i.) In that case the Supremc Court by ma.ioriry
inv-alidated Scc,rion 5(l) if thc West Bengal-spccial Courts Act, l950because it-conferrcd arbitrarv
powers on ths governmcnt to classify offenccs or classes ofolfcnces or classes ofcases at its pleasurc
and the Act did not lay dorvn any policy or guidclincs lor ercrcisc by the governurctrt of its discretion
'speeclicr
to classily offcnces oi .rr.r. er i.g"rar thc refercncc in the Prcamble to the necessiLy lor
trial of offcnces. it rvas held that the expression 'speedicr trial' rvas too Yague; uncertain and illusive
to afford a basis for rational classification- Das, J., hou,o,er, held the section to bc partially void
insofar as it ernporvered the govcrnurcllt to direct 'cascs' as distinguishcd from'classes ofcases' to be
ried by a special court. According to hinl the provision fior 'spccdier trial' of cerlain offcnces was thc
object of tlic Act rvhich rvas a distir-rct thing frorn the intelligible differentia rvhich had to be the basis
lor the classificariol. The diflerentia and rhe obiect being differenl elernents, the obiect by itielfcould
not be the basis ibr classification ol offcnces or cascs. He referred to the circu.mstanccs :r'vhich might
lcgitirnately call for a specdicr trial and su,iii rctribution bv 'way of punishmcnl to check the
conunissiort oI suclt ollcnccs.

In Kathi Raning Rarvat v/s. State of Saurashtra.(AlR 1952 SC l2J).:-Scction of the Saurashtra
t1
State Putrlic Safety lvleasures (Third funendrnetru Ordinrnce. 1949, rvhich rvas similar to Section 5(l)
of the Wcst Bcngal Special Court Act, 1950. Was irnpugncd. It refened to four distinct catcgories,.
namely, offenccs, classes of offences, cases and classes of casss and empovrered tlie State i:
Governrnelt to direct any one or more of thesc categories to be tricd by the special corrt cotlstitutcd i:
!:
r.rnder the Ordinance. The rrajority held that the prearnblc to thc Ordinance rvhich relerred to the need ::
i.i
. to provide for public safety, maintenance of public order and the preservation of peace and tranquility i.
in the State of Saurashtra together rvith the aftjdavit filed by the state Govcrnment explain the
circumsranccs under rvhich thc intpugncd order r.vas passcd afforded a basis for distinguishing tliis
case from the Anlr.ar Ali Sarkar casc Since it ,,vas clear that the Govemment had sufficient guidancc
for classifi,ing offences. classes of oflences or classed of cases for being tried by the special
procedure. Therefore, according to the majority, Scction I I of the Ordinance insofar as it authorized
the state Government to direct offences. classes of olTcnces or classes of cascs to be tried by the
special court u,as not violative of Article 14.

procctlural Fairncss:- Aparr {iorn thc Gcucral principle that procedural discrimination Yiolatcs
Arlicle l4, the courts har,e also evolved solnc general principles of fair procedure from Article 14

43
 In Erusian Equipment & Chemical Ltrl., \r/s Stateof \Yesr Bengal i
i(1975) SCC 70: AIR I975
SC 266):- 'The Suprcme Court. quashed the order of blacklisring rhe petitioneiwhose
name appeared
on the approved Iist of D-G-S. & D' without giving any notice. as it had the
effect of ciepriving a
person of equality of opportunity in the matter of public contracl

In llencka Gandhi va' u^nlon of Intlia {(197s) AIR 1978 SC 597}:-The courr held
that Article 14
rcquires tlte obsenancc of the principles of naiural justice, including
the requirement of reasoned
dccisions. Since then it has reiterated and applied tf,oip.oposition
in a number of cases. But it is not
yet Yery clear u'hedter a larv rvould violatc Article r+ iriiexpressl-v
cxclucles tlr" ,ppli.rtions of the
Principles of natural justice. 'a{

Basis of Classillcation: +;
:6

t'
F]
*f.
The classification on-$'hich strtutory provision.may be founded
'consideratiop. may be rcferable to diffcrent'
A classification, for ,noy plop.ily be madc.on g"g.rprri*i J."iJroitor;at
&
s
if that is gennane to the purpoie of"ru,rp1",
the enactment. Thus a t"nun.y lriu-;;;;;;siry.onty
Uasis E
2
part of the Slate bccause thc conditions of tenants for a s
vary frorn locality ro locality, and, as such, tenants *E
in other areas lnav not challengc the validity- of. the law. valiJ r
classificarior.;y;ro be made tr

l.t:.':.1 the te,,art-y of residcn;iar ...,,i.;.i'jt;.;;.r.'il,r,,onr,

".aon the non-residcnt studcnts a rule is not viotdrive of $
Article l4 if it irnposes a capitation fee fl
the State has to contribute for the
upkecpandrttnningofitseclucationaIirtst,ittttions.

Casc Larv-: Statc 0f i\l.P'r1s. G.C. r\lantlarvar (AIR lgsd

SC 3J4):-[ u,ns rulcd
" -" rhat no law nray be
struck dorvn on thc gro.uncls that it rvas dil'fcrcrrt from thc tr,u
. in.noilr.,,,r".
Ilajasthan r'-is. Rao t\Ianohar singhji /\IR 1954 sc 297:-Certain jagirdars
in or-rc area of the state
tvere allotied to collect the rent bur.iagirdaru in oth.,
ur.;r;;;
srate were not allo'r,ed ro do so,
e'cn though there was no apparcnt dilferencc be{rveen then. The
as havin_rr no rarional basis for rhc diffcrcntiarion.
sup..,". Cor;iri*.i
doro, rt . tor"

Lakshr:rart r'ls. Stale of NI.P AIR 19sJ sc 656:-The Suprernc Courr inYalidated
a lvladlrya.pradesh
uotification'-r'r'hich irnposed charges on cattlc g-razers fromother
sr"r.t-irrr" Madhya
.

Pradesh. But exemption.from BJmbay Lotteriis

and prize co*p"tttio"
aurhorizcd b-v thc srarc oflN'raharashrra nrd nor ro or.rrcrs.
i;; ";;;r;;;r"
;;;;;;;"ro"cifica1y
:v*!'rLr
trs rpn.iJut;;h";;;;
Tax larvs and cqualitv'-

Khanatlige sham Bhat ry's. Agricultrrral I.T.o. (AIR t96J sc 591):-The porver
r'v"vr v.
of the state to
classify for purpose of taxation is of wide range and flexibilitv. r
E

E
E
Khyerbari Tea company Lttl. \'/s. state o[ Assam (AIR lg6,t z

il{uniciPal Boartl (AIR 1951 Ass 126.):-The Taxalion Acr rvas

sc g25), syamal j\.Iantlal v/s. &

t
E

artacked inteialia on rhe ground that E

the Act had singled our only rea and

$?

and said:
.iure as obiects of taxation. Th; ,d;*;;;.1il'il argumenr
E
I
$
s
E
"The legislature that is compelcnt to lev1, a tax
mlrsr. inevitably be given full freedom to detennine F
which article should be ta-red. in u'hat rnanner and at u,hat E;
time." lt rvould be idle to contend that the E
E
S.tate may tax every4hing in order ro tax sonlerhing. .F
In,r^,r.li".s' the Starc is allorictl to pick and F
choose districts, objects, persons, methods and er.len rates e
of taxation if it does so reasonably. A I
classification for purpose of taxation or fixation of rent r.
between private and rnunicipal building is not I
violativc of Articlc I4. k
E
E
g
E
Nnv Annroach to coualitv: E
I

44
-
48 t) the validity of Cinematography act 1952 rvas
K.A.Abbas \,/s Union of India :( A.I.R. l97l SC
classification of films. The Apex court clearly
challengea on the ground that it makes rur-reasonable
'U' and 'A' films is a reasonable classification-
i.ia rfri', classificaiion of fiims inro t'w,o categories as of speech
ii l, otro for rhis reason the motion picture must be regarded differently from other forms the effect of
unJ ."p..rrion. The effect of motion
picture on the minds of persons is deeper than
a book or a magazine- Therefore. the treatment of motion picture on a different
looting is a
reading
reasonable classifi cation

propounded a nerv approach to Article 14 in

In E.p. Royappa v/s State of TN (A.i.R.1974 SC 555)
many aspecls and dimensions and it is
,t. fotto*ing*'ords: Equality is a dynarnic concept withand doctrinairc limits. For a positive point
.onnor be crilbed.cabincd ani confirred rvithin traditional
of view equality is antithctic to arbitrariness'

Air India v/s Nargesh lleerza: (A.LR..1981 SC 1829) in this ca-se. the Air India and the
Indian
prov-ided that the
Xrtin.. Regulationi q&ere challenged before the Supreme Court. The iegulations
managementon her attainment of 35 years of
services of an Air hostess could be terminated by the
joining of
o, on hcr first pregnancy oi if her marriage rvas solemnized wirhin four years of
the
ug.
sJ.r,ice rvas hcld to be un-reasonable. The courl held that, tcrmination of sen'ice oll pregnancy was
;;i;ritr;-reasonable and arbitrary and-was therefore volatile of Article l4 of the Constitutidn.

Again in Delhi Transport Corpn. V/s. D.T.C Maztloor congress

(AIR 1991 SC 101.):-The Court
regulation. 1952 which provided lbr the
inialidated'Reguiation 91b; of-thc Delhi Road authority
one month's notice or pay in
terminationof the scrvices of apermanent and confimred ernployeeon
Iieu of it q,ithour assigning any re ason and rvithout
giving any opportunity of hearing to the erlployee
bcloreprssing thc ordcr of tennination.
landlord and its obligation as
AVcr1, interesting issue as to thc staruc of the-Bombay PortTrust as a
an inst.urr.,entalit,".' of the State arose in Jarnshetl llormusji Wadia v/s. Board of trtt-sfces, Port of
\vas w-hetler it was entitled to charge any rent from its
Mumbai (2001) 3 SCC 214. The cFrestion
lessees. in view of it being exempted frorn the operation of the rent control legislation or was it only
instrunlentality and hcncc an
to act in a fair and r.uro,Lbl" manner. It rvas held that BPT being an
..authority,' hithin thc rricaning of arriclc 12, it follows thrt all its action'must be governed Article 14.
lt caruiot act arbitrarily o. capliciorrsly. A11 its activities.including thosc irr thc f'reld of
conlract shorild
be just, fair and reasonable.

45