ADVANCED CERTIFICATE COURSE ON

ENFORCEMENT OF FUNDAMENTAL RIGHTS

OBJECTIVE OF THE COURSE
Everyone must be well aware of their basic rights. The most basic right of all are the
Fundamental Rights that have been provided by our Constitution. It thus becomes highly
significant to know what are they, what significance do they have, where did they come from,
what do they mean etc. Similarly, if we look at the practicality it is very much essential to
understand about their enforcement. The Constitution makers have given powers to enforce our
Fundamental Rights to the High Courts as well as Supreme Courts and we need to understand the
reality about the enforcement of these Rights like the real instances, statistics, reasons for non
enforcement and suggestive reforms. Upon Completion of the Course, you shall have the basic
knowledge of Fundamental Rights alongside their History. Further, you shall also be well
acquainted with the practical reality of Writ Petitions and their enforcement along with a
comprehensive analysis of the same.

We would now take this opportunity to begin the Course with Module 1 of the Course. All the
very best from our side. Take the Course seriously and study very well. Do the assignments on
time. Let us begin.

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1. ARTICLE 12
1.1. Words of the Article:
The State includes Government and Parliament of India and the Government and the Legislature
of each of the States and all local or other authorities within the territory of India or under the
Control of the Government of India.

1.2. Introduction
The Constitution of India had followed the U.S. precedent and enacted Fundamental Rights in
the Constitution itself. The United States Constitution has defined its legislative and executive
powersin two Articles, which makes it easier to define their correlation. However, the Indian
Constitution being an elaborative one, it is difficult to correlate the legislative and executive
powers because those powers are to be found in widely separated parts of our Constitution.

1.3. Meaning of State

The term “State” is defined under Article12 of Part III (Fundamental Rights) of the
Constitution of India.The definition in Article 12 is only for the purpose of application of the
provisions contained in Part III. Hence, even though a body of persons may not constitute
‘State’ within the instant definition, a writ under Article 226may lie against it on non-
constitutional grounds or on grounds of contravention of some provision of the Constitution
outside Part III, e.g., where such body has a public duty to perform or where its acts are
supported by the State or public officials.

 The concept of “State” is very important to understand because it’s a point of vitality that
the claim for the protection of one’s fundamental rights, by the way of Writ Petition, can only be
claimed against the Action of the State and not that of Private Individuals.

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 Article 12 of the Indian Constitution gives us an overview as to what elements of our
democracy can come under the terminology of the ‘State’.

In Ujjain Bai v. State of U.P the Supreme Court observed that Article 12winds up the list of
authorities falling within the definition by referring to “other authorities” within theterritory of
India which cannot, obviously, be read as ejusdem generiswith either the Government or the
Legislature or Local authorities. The word “State” is of wide amplitude and capable of
comprehending every authority created under the statute and functioning within the territory of
India.

There is no characterization of the nature of authority set up under a statute for the purpose of
administering laws enacted by the Parliament or by the State including those vested with the duty
to make decisions in order to implement those laws.

The preponderant considerations for pronouncing an entity as a State agency or instrumentality

are:

1. financial resources of the state being the Chief finding source;

2. the functional character being governmental in essence;

3. plenary control residing in government; prior history of the same activity having been
carried on by the government and made over to the new body;

4. some element of authority or command. Whether the legal person is a corporation created
by a statute, as distinguished from under a statute, is not an important criterion although it may
be an indicium.

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 The term ‘State’ has been used in various Articles under Part III of the Indian
constitution, which comprises of our fundamental rights.
 Under Article 12, State comprises of:
1) The Government at the centre and the Parliament of India
2) The Governments in State level and the respective State Legislatures.
3) All local or other authorities which are present in the territorial boundaries of India.
4) All local or other authorities which are controlled by the Central Government.

1.4. Scope of Article 12

When the body is financially, functionally and administratively dominated by or under the
control of the government and such control is particular to the body and is pervasive, then it will
be “State” within Article 12. If the control is merely regulatory, it will not be a State.

UNLESS THE CONTEXT OTHERWISE REQUIRES

The Context of a provision in Part III may exclude the meaning given by Article 12 to the word
‘State’. For instance, the expression ‘security of the State’ in Article 19(2) refers not to the
persons carrying on the administration of the State but to the State as an organized political
society.

 Analysing the broad categories under the purview of State, one can find that, the first two
categories include the organs of-
-Executive and
-Legislatures of the Central government and the respective State Governments.

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 The terminology ‘Government’ which has been used in the first two categories also
includes the various departments under the Control of the Government like the Income-Tax
Department1, Forest Research Institute2 etc. This category is comparatively easy to comprehend.
 The difficulty arises as to the inference of the third category as there is no inference in the
Article as to what ‘local authorities’ are.
 Section 3(31) of the General Clauses Act, 1897 states that authorities refers to
Municipalities, Panchayats, Improvement Trust, District Boards and Mining Settlement Boards.
 This dispute was referred to by the Honourable Supreme Court of India wherein
characteristics required by be a local authority were explained in the case Union of India v. R.C.
Jain3, as:
1) There should be separate legal existence as a corporate body for the authority.
2) It must perform the functions which are entrusted to it in a specific area, where the
people who have elected and composed such bodies reside.
3) The authority must enjoy autonomy either absolute or to a limited extent with respect
to its functioning, administration and the policies to be adopted by it.
4) Functions entrusted by it through a Statute must be in the category of functions which
are entrusted to municipal bodies.
5) The authority must also have power to raise funds for performing activities and
projects either by levy of taxes, charges or any kind of fees.

This levy must be in addition to amount given by the concerned State Governments, and the
authority must have control and management over the fund raised by it.

1
Bidi Supply Co. v. Union of India, AIR 1956 SC 479
2
PurushottamLal v. Union of India, AIR 1973 SC 1088
3
AIR 1981 SC 951
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 By applying the above principles, in P. Srinivastava v. Union of India4, the Court held
that Ramgarh Cantonment Board, created by the Cantonments Act is a local authority and is
therefore included in the term ‘State’.
 Now, the term ‘Other authorities’, mentioned in the fourth category has not been defined
in any Statute or even in the Constitution. However, the Courts have interpreted this term in
many precedents.
 In University of Madras v. Shantha Bai5, for the first time ‘other authorities’ were
interpreted by the Court. By applying the principle of ejusdem generis the Court held that the
Madras University was not funded by the State and did not come under the purview of Article
12.
 Nevertheless, this restricted interpretation of ‘other authorities’ was over ruled in the case
of Ujjambai v. State of U.P6, where Sales Tax officer was held to be ‘State’ as the authority
exercised functions vested to it by the Government and was one of the instruments working
under the Government.
 Further, in Rajasthan State Electricity Board v. Mohan Lal7, the court had arrived at a
conclusion that the term ‘other authorities’ was large enough to encompass all authorities
created by different Acts and working in India, or under the power of Government of India.
 By applying this principle, in many cases, different authorities like Oil and Natural Gas
Commission, Life Insurance Corporation, Industrial Finance Corporation8, International Airport
Authority9, Regional Engineering College 10, Food Corporation11, Mysore State Road Transport

4
AIR 1981 Patna 212
5
AIR 1954 Mad. 67
6
AIR 1962 SC 1621
7
AIR 1967 SC 1857
8
Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331
9
R.D.Shetty v. International Airport Authority, AIR 1979 SC 1628
10
Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487
11
State of Punjab v. Raja Ram, AIR 1981 SC 1694
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Corporation12, National Agricultural Co-operative Federation of India 13etc, have been interpreted
to be within the purview of State under Article 12.

1.5. Need and Importance of Article12

 When we as citizens or even persons, analyze our fundamental rights, we find that the
term ‘State’ has been used repeatedly.
 In order to avoid confusion as to what constitutes ‘State’ or not, our constitution framers
have incorporated this provision, called Article 12.
 There indeed had been various incidents where citizens have approached the Court
alleging the violation of their fundamental rights by different authorities, and in all such cases,
for the sake of a just decision, the court has considered as to whether the liability is vested upon
the Government or not, i.e. whether the said authority is within the purview of Article 12.

1.6. Whether the Judiciary is the state under article 12?

The definition of State under Article 12 of the Constitution does not explicitly mention the
Judiciary.

Hence, a significant amount of controversy surrounds its status vis-a-vis Part III of the
Constitution. Bringing the Judiciary within the scope of Article 12 would mean that it is deemed
capable of acting in contravention of Fundamental Rights. It is well established that in its non-
judicial functions, the Judiciary does come within the meaning of State. However, challenging a
judicial decision which has achieved finality, under the writ jurisdiction of superior courts on the
basis of a violation of fundamental rights, remains open to debate.

12
Mysore S.R.T.C v. DevrajUrs, AIR 1976 SC 1027
13
A.M.Ahamed and co v. Union of India, AIR 1982 Madras 247
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On the one hand, the Judiciary is the organ of the State that decides the contours of the
Fundamental Rights. Their determination, of whether an act violates the same, can be right or
wrong. If it is wrong, the judicial decision cannot ordinarily be said to be a violation of
fundamental rights.

If this were allowed, it would involve protracted and perhaps unnecessary litigation, for in every
case, there is necessarily an unsatisfied party. On the other hand, not allowing a decision to be
challenged could mean a grave miscarriage of justice, and go unheeded, merely because the
fallibility of the Judiciary is not recognized.

The erroneous judgment of the subordinate Court is subjected to judicial review by the superior
courts and to that effect, unreasonable decisions of the Courts are subjected to the tests of Article
14of the Constitution.

The Bombay High Court expressed the view that the Judgment of the Court cannot be challenged
for violation of Fundamental Rights.

❖ In the case of Naresh v. State of Maharashtra,The issue posed before the Supreme Court
for consideration whether the judiciary is covered by the expression ‘State’ in Article 12 of the
Constitution. The Court held that the fundamental right is not infringed by the order of the Court
and no writ can be issued to the High Court. However, in yet another case, it was held that a
High Court Judge is as much a part of the State as the executive.
❖ In Rati Lal v. State of Bombay , it was held that the Judiciary is not State for thepurpose
of Article 12.
❖ But the Supreme Court in the A.R. Antulay v. R.S. Nayak and N. S. Mirajkar v/sState of
Maharashtra, it has been observed that when rulemaking power ofJudiciary is concerned it is
State but when exercise of judicial power is concerned it is not State.

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❖ In Amir Abbas v. State of M.B.,the Court made the following observation: Denial of
equality before the law or the equal protection of the laws can be claimed against the executive
or legislative process but not against the decision of a competent tribunal.
The scope of challenging a judicial decision on the ground of contravention of the fundamental
right is much narrower in India, for several reasons:

1) There being no ‘Due Process’ clause, there is no scope for challenging a judicial decision on
a constitutional ground of unfairness
2) The decisions of the Supreme Court being binding upon all Courts within the territory of
India [Art. 141], there is no scope for a decision of the Supreme Court being challenged as
violative of a fundamental right. But there is no reason why the decision or order of a
subordinate court shall not be open to be questioned on the ground that it contravenes a
fundamental right.
In fact, so far as the guarantee of equal protection in Article 14 is concerned, our Supreme Court,
in the early case held that any State action, executive, legislative or judicial, which contravenes
Article 14,is void. But the Supreme Court limited the application of Article 14 to judicial
decisions by the qualification that they will hit by the Article only when they involved a ‘willful
andpurposeful discrimination’.

However, In the landmark case of

❖ Rupa Ashok Hurra v Ashok Huna,the Constitution Bench of five judges examined
Whether a writ petition can be maintained under Article 32 to question the validity of a
judgment of this Court after the review petition has been dismissed. Firstly, it was contended that
there would be a re-examination of the case only where the judicial order was passed without
jurisdiction, in violation of the principles of natural justice, in violation of fundamental rights or
where there had been a gross injustice, under the inherent jurisdiction of the Court. It was

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admitted that, in the rarest of rare cases, a petition under Article 32 could be entertained where
even a review petition had been rejected.

The “corrective jurisdiction” of the Court, it was argued, arose from those provisions of the
Constitution conferring power on the Supreme Court such as Article 32 and Articles129-40.
Secondly, the remedy for the above rare cases was, since no appeal lies fromthe order of the
Apex Court, an application under Article 32,if senior counsel were able to discern some
permissible ground for the same.

In this case, Justice Syed Shah Mohammed Quadri pointed out that Article 32 can be invoked
only for the purpose of enforcing the fundamental rights conferred in Part III and that no judicial
order passed by any superior court in judicial proceedings can be said to violate any of the
fundamental rights, since superior courts of justice do not fall within the ambit of State or other
authorities under Article 12of the Constitution.

The Court adopted an unusual unanimous approach by holding that even after exhausting the
remedy of review under Article 137 of the Constitution, an aggrieved person might be provided
with an opportunity to seek relief in cases of gross abuse of the process of the Court or gross
miscarriage of justice, because the judgment of the Supreme Court is final. It was held that the
duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of
judgment.

Several grounds were laid down whereby a “curative petition” could be entertained and a
petitioner is entitled to relief ex debitojustitiae.It could be used, for example, in cases of violation
of principles of natural justice, where the interested person is not a party to the lies and wherein
the proceedings a Judge failed to disclose his connection with the subject-matter or the parties
giving scope for apprehension of bias. The petitioner would have to specifically mention the
grounds on which he was filing the curative petition.

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1.7. Conclusion

The preponderant considerations for pronouncing an entity as State agency or instrumentality

are:

(1) financial resources of the state being the Chief finding source;
(2) functional character being governmental in essence;
(3) plenary control residing in government;
(4) prior history of the same activity having been carried on by government and made over to
the new body;
The definition of State under Article 12 of the Constitution does not explicitly mention the
Judiciary.Hence, a significant amount of controversy surrounds its status vis-à-vis Part III of the
Constitution.Bringing the Judiciary within the scope of Article 12 would mean that it is deemed
capable of acting in contravention of Fundamental Rights.

It is well established that in its non-judicial functions, the Judiciary does come within the
meaning of State. However, challenging a judicial decision which has achieved finality, under
the writ jurisdiction of superior courts on the basis of violation of fundamental rights, remains
open to debate.

1.8. Author’s note-Practical application and any suggested changes

 One of the difficulties with respect to Article 12 is that it is always upon the court to
interpret whether an authority is a State or not, as the bare reading of the Article does not provide
us a clear answer as to what authorities are State or not.
 The Author certainly in no way questions the diligence of the Honourable Courts in such
matters, however is only of the view that such lacuna is always apprehensive of possible
unwanted consequences.

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2. ARTICLE 13:

2.1. Words of the Article

(1) All laws in force in the territory of India immediately before the commencement of this Constitution,
in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency,
be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and
any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule,
regulation, notification, custom or usages having in the territory of India the force of law; laws in force
includes laws passed or made by Legislature or other competent authority in the territory of India before
the commencement of this Constitution and not previously repealed, notwithstanding that any such law or
any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right
of Equality.

Article 13(1) of the Indian Constitution declares that all laws in force in the territory of India
immediately before the commencement of this Constitution shall be void to the extent to which
they are inconsistent with the provisions of part III of the Constitution. Clause (2) of this Article
enshrines that the State shall not make any law which takes away or abridges the fundamental
rights conferred by part III of the Constitution and any law made in contravention of
fundamental rights shall, to the extent of contravention, be void.

2.2. Meaning and Explanation of Article 13

Article 13 deals with the laws that are inconsistent and in derogation with the Fundamental
Rights granted under Chapter III of the Constitution of India. As per clause (1), all pre-

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constitutional laws which are inconsistent with the fundamental rights shall be null and void once
the constitution of our country commences. Clause (2) deals with the post-constitutional laws,
whereby this Article mandates that the legislature shall not make any laws which is in violation
to the fundamental rights.

 Article 13 makes the fundamental rights enforceable through the court of law. This
provision secures the Supremacy of the Constitution especially with respect to fundamental
rights.
 This Article provides for the power of Judicial review upon the Courts whereby by virtue
of Article 32 and Article 226, the Supreme Court and the High Courts can declare any law void
and unlawful if such law infringes any fundamental right.
 Article 13 is observed by the Courts as charter for judicial review14. This feature of
judicial review is one of the basic and integral structures of our Constitution 15.
 When cases come before the Courts where the provisions of a particular act being
inconsistent with the provisions of constitution are separable from the valid portions, the Courts
applies the Doctrine of Severability to repeal away the inconsistent portion.
 In R.M.D.C v. Union of India16, the constitutionality of the Prize Competitions Act,
1955 was challenged as being violative of Article 19(1) (g). The court applied the Doctrine of
Severability and repealed away the competitions which were of gambling nature, and retained
the competitions where skill was involved.
 While in the case of A.K. Gopalan v.State of Madras17, when the Court repealed away
the Section 14 of Preventive Detention Act, 1950, the Court observed that the rest of the Statute
would remain constitutional.

14
S.S Bola v. B.D.Sardana, AIR 1997 SC 3127
15
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
16
AIR 1957 SC 628
17
AIR 1950 SC 27
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 But when cases come where the parts of Statute are inconsistent with the fundamental
rights, the doctrine of Eclipse will be applied by the Courts. As explained by the Court in
Bhikanji Narayan v. State of Madhya Pradesh18,when the provisions of a Statute is
inconsistent with the fundamental rights , those provisions are considered to be overshadowed
by the fundamental rights and remains dormant, but are not dead.
 This doctrine is only applicable to those statutes which were formulated and were in
existence before the commencement of the Constitution
 In Keshava MadhavaMenonv. State of Bombay19,Court observed that a law in force
before the commencement of constitution does not become null and void if it found to be
inconsistent with the fundamental rights. Such laws would only be void up to which it is invalid
to the fundamental rights, and such inconsistency can be rectified through amendments while
applying the Doctrine of Eclipse.
 Another Doctrine which is discussed with respect to Article 13 is the Doctrine of Waiver.
According to this doctrine, any person who is entitled to any kind of right can relinquish his/her
right voluntarily.
 Once he/she waives the individual right, they would not be able to claim it afterwards. In
Suraj Mall Mehto v. A.V. Visvanath Sastri20 and Muthiah v. Commissioner of Income-
Tax21, the court held that doctrine of waiver is not applicable to fundamental rights. No person
can waive any of his rights enshrined under Part III of the constitution.

2.2.1. Clause 1

Existing Laws

18
AIR 1955 SC 781
19
AIR 1951 SC 128
20
AIR 1954 SC 545
21
AIR 1956 SC 269
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Clause (1) of article 13 deals with pre constitution laws that are the laws which were in force at
the time of commencement of the constitution. Under this all laws in force shall become void
from the date of commencement of constitution to the extent in so far they are inconsistent with
the fundamental rights. These laws become void only after the court holds them inconsistent with
the fundamental rights.

For applying the rule clause (1) the following principles of interpretation should be noted:

1). No Retrospective Effect- The provisions of Indian Constitution related to the fundamental
rights have no retrospective effect. All inconsistent existing laws become void only from the
commencement of the constitution. Therefore acts done before the commencement of the
constitution in contravention of the provisions of any law, which after the commencement of the
Constitution become void because of the inconsistency with the fundamental rights, are not
affected.

2). Doctrine of Severability- According to this doctrine article 13 does not make an entire act or
legislation in operative, it makes in operative only such provisions of it which are inconsistent or
violative of the fundamental rights. In the case of State of Bombay v. F.N.Balsara(AIR 1951 SC
318),eight sections of the Bombay prohibition act 1949 were held ultra vires on the ground that
they infringed the fundamental rights of the citizen. But the act apart from the invalid provisions,
was held to be active or operative and not void as whole. The power of the court to strike out
invalid provisions of the act must not be exercised beyond the necessity of the case. Sometimes
valid and invalid portions of the act are so intertwined that they cannot be separated from one
another. In such cases, the invalidity of the portion must result in the invalidity of the act at the
whole.

3). Doctrine of Eclipse- An existing law although due to inconsistency with the fundamental
right comes in operative from the date of commencement of the constitution, is not dead
altogether.

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"It is overshadowed by the fundamental rights and remains dormant but it is not dead."[State of
Bihar V. Kameshwar Singh (AIR 1952 SC 252)].

According to this doctrine, the part of the act which gets overshadowed by some fundamental
rights or eclipsed becomes operative and effective again if the prohibition brought out by the
fundamental right is removed by an amendment of the constitution.

In the case of Bhikaji Narain Dhakras V. State of M.P. [ AIR 1955 SC 781] , some parts of an
existing state law related to motor vehicles became void on the commencement of the
Constitution as it infringed the provisions of Article 19(1)(g) of the Constitution. But later on,
after the addition of clause(6) under Article 19, the Supreme court held that after the amendment
of clause(6) of Article 19, the constitutional impediment of the act was removed and the act
ceased to be unconstitutional and became operative and enforceable from the date of decision.

In the State of Gujarat V. Ambica Mills Ltd.[AIR 1974 SCC 656], it was held that the doctrine
of eclipse which at one time was supposed to be applicable only to pre-constitutional laws only,
has now been extended to post constitutional laws also.

2.2.2. Clause 2

This provision secures protection of the Fundamental Rights and also it considers any law void if
that law is “inconsistent with or in derogation of the fundamental rights”.

The judicial review has been provided a constitutional basis through this Article by giving the
Supreme Court and the High Courts of India the power of interpretation of those laws which are
pre-constitutional and to decide if they are at par with the principles and values of the present
day Constitution. If the provisions are found to be either partly or wholly not at par with the legal
framework, those laws are then deemed to be ineffective until any amendment is made for the
same. Likewise, those laws which are made after the adoption of the Indian Constitution shall
have to prove their compatibility or else they will also be deemed as void.
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A. Debate on adoption of Article 13

Due to the lack of clarity in the word of the Article relating to States power to make customs
which was clarified as this was not the case. However, an amendment was then moved for
achieving greater clarity on that part.

Henceforth, The Constituent Assembly adopted Article 13 with the amendment.

B. What does the term ‘Law’ include under Article 13?

The term ‘law’ under the Article 13 of The Indian Constitution includes-

Any “Ordinance, order, bye-law, rule, regulation, notification, custom or usage” which are
having the forces of law in India.

The ‘laws in force’ includes any “laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not
previously repealed.” The reference of Article 13 as a legislative law has been observed by the
Supreme Court and does not include a law which is made to amend the Constitution.

C. Judicial Review under Article 13

Over the years, to uphold the principle of Natural Justice, the judicial review has evolved as a
norm. Both the Supreme Court and High Courts of India have given the authority to rule on the
constitutionality of administrative as well as legislative actions. The power of this judicial review
in several cases is exercised for the protection as well as enforcement of fundamental rights. The
scope of judicial review has been expanded by Article 13 of the Indian Constitution.

D. Doctrine of Severability EXPLAINED

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This ‘doctrine of severability’ is often called the doctrine of ‘separability’. The specific word “to
the extent of the inconsistency or contravention” clarifies that when in a statute, some of its
provisions become unconstitutional because of their inconsistency with fundamental rights, then,
the whole statute will not be treated as void but only the repugnant provisions of the law which
are in question.

The Doctrine of Severability basically means when any specific provision of a statute is
offending or is against a constitutional limitation. However, that provision is severable from the
rest of the statute. In that case, only that specific provision that is offending or is against the
constitutional limitation shall be treated as void by the Court but not the entire statute.

The doctrine of severability throws light on the point that if both the good as well as bad
provisions are connected together by using the words ‘and’ or ‘or’ and when the enforcement of
that good provision is not at all made dependent on the bad one’s enforcement, that is to say
good provisions can always be enforced even if the bad provisions cannot or had not existed.
Both the two provisions are severable and only the good one will be regarded as valid and will be
given effect to. On the contrary to, if another provision that can be used both for legal and illegal
purposes, that provision shall be invalid and not to be used even for the legal purposes too.

In this Doctrine of Severability, the whole act is not to be regarded as inconsistent with the Part
III of The Constitution of India which is given to Indian citizens but only those specific parts
which are inconsistent or which are violating any of the fundamental rights conferred under
Indian constitution. If in case any portion of law which is valid is combined with another portion
of the law which is inconsistent in such a manner that is impossible to separate, in that case the
Courts shall have the sole discretionary power to declare the whole Act void. This process is
known as ‘Doctrine of Severability’.

E. Case Laws
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In the case of A.K Gopalan vs. State of Madras22 the Hon’ble Supreme Court observed that
Section 14 should be valid by removing preventive detention and when it is removed, it will not
affect the whole act and it will remain valid as well as effective.

In the case of D.S Nakara vs. Union of India23 , the whole act remained valid and the specific
portion which was inconsistent with the fundamental rights was declared as invalid and this was
done because it was quite easy for the court to separate from the consistent part.

The doctrine of severability was also used in the matter of Minerva Mills vs. Union of
India24where the section 4 of 55 of the 42nd Amendment Act, 1976 was declared void as it was
beyond the Parliament’s amending power, the rest of the Act was then declared as valid.

In the case of Kihoto Hollohan vs. Zachillhu25 famously known as the defection case, the
paragraph 7 of the 10th Schedule that was first inserted by the 52nd Amendment Act of 1985was
declared unconstitutional because it was violating the provisions under Article 368(2).
Nonetheless, the whole part was not at all declared unconstitutional. Henceforth, the rest of the
10th Schedule was upheld by the Constitution excluding paragraph 7.

2.2.3. Conundrum over Personal Laws being in the ambit of Article 13

Any "law in force" at the time of commencement of the Constitution of India or enacted after
that which is in conflict with the fundamental rights will be void to that extent. In particular, if
personal laws are covered by Articles 13 and 372 of the Constitution, they will be void to the

22
1950 AIR 27
23
1983 AIR 130
24
1980 AIR 1789
25
1992 SCR (1) 686

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extent that they are in contravention of fundamental rights provided in the Constitution. Just like,
Article 14 guarantees equality before law and equal protection of laws. Article 15 prescribes that
no law can discriminate only on the grounds of sex, caste, etc. And Article 21 provides the
fundamental right of life and personal liberty.

Also, Any personal law which discriminates against women would by its very nature be unequal
and discriminatory and be on the face of it be in violation of Articles 14 and 15 of the
Constitution, would also be in violation of the expanded meaning of right to life and personal
liberty under Article 21 of the Constitution of India and to that extent be void.

Personal Laws and Customs are integral parts of societal behaviour and norms. Invalidating these
courses of Legal Fiction often results in interrupting the lives of citizens, thereby loosening their
faith in the system.

Certain customs seem to be ideal of professed inequality; however, they are not always harmful
or destructive, especially when the said inequality may be a derivation of a religious sanction or
historically accepted tradition.

Over the years, the Supreme Court has upheld different views while dealing with personal laws.

In a number of cases it has held that personal laws of parties are not consistent to Part III of the
Constitution dealing with fundamental rights. Therefore they cannot be challenged as they are in
violation of fundamental rights especially those guaranteed under Articles 14, 15 and 21 of the
Constitution of India.

On the other hand, in a number of other cases, the Supreme Court has tested personal laws and
read down them or interpreted them so as to make them consistent with fundamental rights.

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There is however, no uniformity of decisions in regards to whether personal laws can be
challenged on the criterion or yardstick of fundamental rights i.e. whether they are "laws" or
"laws in force" under Article 13 of the Indian Constitution.

In Narasu Appa Mali v. State of Bombay[A.I.R. 1952], the Bombay High Court held that
Personal Laws are not a part of Article 13, nor are they outside the ambit of Judicial Scrutiny.

Justice Chandrachud in the case of Indian Young Lawyers Association v. The State of
Kerala[AIR 2018 SC 1690] overruled, by implication, this celebrated judgement, and presented
disproving arguments on the same.

MP Jain emphasized that Personal Laws are not covered under Article 13. Courts deemed it
prudent not to interfere with these laws on the touchstone of fundamental rights.

In the case of Krishna Singh v. Mathura Ahir [AIR 1981 SCC 421], the Apex Court while
considering the question that whether a Sudra could be a Sanyasi or Yati held that Part III of the
Constitution is not applicable to Personal Laws, and if the constitutional validity of such
Personal Laws is to be verified, then the series of study, research and application must be carried
out with reference to all sources of the laws being considered.

The same was upheld by the Hon’ble Supreme Court in the case of MadhuKishwar&Ors v. State
Of Bihar &Ors[1996 SCC 125], on the issue of constitutional validity, Chief Justice Khehar and
Abdul Nazir J. held that Triple Talaq cannot be challenged as it had been in practice for over
1400 years, continues to be an accepted norm, and is also included in Sharia Law. They further
held that Triple Talaq is not open to challenge on the grounds of infringing on Fundamental
Rights as it was a Personal Law.

After knowing that personal laws can be included in “customs and usages,” we must check
whether personal laws have the “force of law.”

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According to Salmond, the law is the body of principles recognized and applied by the state in
the administration of justice. Therefore, any rule of conduct, although not statutory, still has the
force of law so long as it is enforced by the court.

Moreover, the power of the courts to apply Hindu law to Hindu people is derived from and
regulated by imperial and provincial legislations passed during the British rule. Unless they are
altered or repealed, those laws continue to be in force under Article 372 of the Indian
Constitution. The same test can automatically apply to personal law as well.

The apex court in Kripal Bhagat v. State of Bihar observed that the power to apply the law is to
bring into legal effect sections of an act as if the same had been enacted in its entirety.

Furthermore, in the case In the case of re Kahandas Narrandas, it was observed that the
specification of matters related to succession and contract as matters to be governed by native
laws and usages might be construed as an indication of a wider operation of those laws and
usages intended to be secured by the statute. In this regard, it may be construed that a Statute
gives the power of enforcement to personal laws and brings them into legal effect.

In fact, Section 2 of the Shariat Act directs that in all questions regarding marriage, succession
and the like, law to be governed will be the Muslim personal law, thereby giving personal law a
legal effect and fulfilling the criteria laid down by Article 13 of the Constitution.

2.3. Need and importance of Article 13

 The importance of Article 13 lies in the fact that in a democracy set-up like ours, it is
essential to have a mechanism which would not allow them to enact laws to suit their ideologies
and be inconsistent with our constitution.
 Article 13 ensures the supremacy of the Constitution and also takes care of the fact that
the people of this country would not be deprived of their fundamental rights through any
legislation.
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2.4. Author’s note

 One of the changes, the Author would like to see is with respect to the applicability of
Doctrine of Severability.
 Just like the Doctrine of Eclipse, the former doctrine should not be applied to make laws
made after the commencement of constitution valid by repealing the inconsistent portions.
 The legislative makers are well aware of the different aspects and provisions of our
constitution and they should not be making any provision which infringes the provisions of our
constitution.
 The availability of doctrines like these is one of the reasons as to why in our country in
the near times, there have been a lot of enactments and acts which are found to be in
contravention of certain provisions of our constitution.
 The legislative makers are in a mind- set that the Courts would interfere if there are
inconsistent provisions, which leads to drafting of incompetent statutes.

3. ARTICLE 14

3.1. Words of the Article

Article 14 provides that ‘the State shall not deny to any person equality before law or equal
protection of law within the territory of India’.

3.2. Introduction

Articles 14 to 18 of Part III of Indian Constitution provides for a) equality before law, and b)
equal protection of law. One is an affirmative action to be taken, and the other one is a negative

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duty imposed upon duty to refrain from discriminating arbitrarily and irrationally. This is
applicable to all persons, 26 citizens, corporations and foreigners.

Under Article 14 the State cannot discriminate against persons through state action; else such an
action becomes void in the light of fundamental rights guaranteed under the article. Right to
equality is a restriction on the powers of the state. It defines the boundaries within which state
action has to be confined.

A citizen has the Right to be protected against any discriminatory action of executive, legislative,
or judicial authority, as the State has the same meaning granted to it under Article 12 of the
Constitution, and also the important principle that Equality before law is an essential principle of
jurisprudence.

As per the words of Dicey, “equality before law does not mean absolute equality of men, which
is physical impossibility.” To which he further adds that, “……but the denial of any special
privilege by reason of birth, creed , or like in the favor of any individual and also the equal
subjection of all individuals and classes to the ordinary law of the land administered by
ordinary law courts. ”27

Any law which violates this principle is a negation of the basic right comes within a purview of
judicial review.It means that any law, and not discretion or arbitrary power of authority is the
prime factor of the concept of ‘Rule of Law’ –equality before law.Article 14 as such can be
divided into following two components: - equality before law and equal protection of law:

3.3. Meaning and Explanation of Article 14

26
General Clauses Act, 1897, Section 3, clause 42 defines person to include any company or association or body of
individuals, whether incorporated or not. [
27
Law of the Constitution, 1939, p. 193.
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 This Article of our Constitution establishes the concept of ‘Rule of Law’ and ‘equal
protection of laws’. It means that no human being should be placed above law and that every
person irrespective of gender, rank or position should be subjected to the law of the land. No
discrimination shall be between persons when they come before a court of law, based on any
criteria.
 The phrase ‘equality before law’ somewhat has a negative concept as it implies absence
of any kind of special privileges in favour of any class of individuals, while the expression
‘equal protection of laws’ is positive in nature and ensures that each individual shall be treated
equally in all circumstances. In Srinivasa Theatre v. Government of Tamil Nadu28, the Court
observed that the expressions ‘equality before law’ and ‘equal protection of law’ did not mean
same thing.The term ‘law’ in the former expression was used in a philosophical sense, while in
the latter expression ‘law’ denotes specific laws which are in force.

3.4. Equality Before Law

This part of the provision has been taken from the Constitution of England which means;

a) Equal treatment of persons before the court. There will be no bias as to who is rich or
powerful or poor, for it is blind.
b) There shall be not any privileges for any particular person. It means, everyone will get
the same punishment for the same crime.
c) No persons, regardless of race, religion, wealth, social status or political influence, shall
be above the law. The law applicable shall be same for both minister and servant. 29[7]

3.5. Doctrine of Natural Justice And Equality Before Law

28
AIR 1992 SC 999
29
Suryapal Singh vs. U.P; AIR 1951 A1J.674
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 It is important to know as to how a person can attain ‘equality’ in case denied by a statue,
and in that case the doctrine of natural justice comes into play. The historical roots of this
doctrine goes to England, but it owes its origin to two Latin maxims.ie., Nemo debet esse judex
in properia causa and Audi alteram partem, the common law had drawn them from natural law –
jus natural. The former maxim referred to the meaning that ‘no one should be a judge in his own
cause’ and the latter referred to the meaning. ‘the tribunal must provide a fair and unbiased
hearing.’ Both the parties should be heard; otherwise the concept of natural justice is lost.
 The Constitution of India as such does not provide any specific mention of natural
justice; however, it is imbibed through supervisory powers given to the superior courts over the
inferior courts, and that the tribunals require certain essential basic conditions. As such in all and
every judicial and quasi- judicial decision making, fundamental requirements as stated above,
should be followed by the courts or tribunals concerned. 30
 The Supreme Court has observed that there is no universal or uniform standard of natural
justice applicable to all cases coming within the purview of the doctrine. It is the justice which is
required by an aggrieved person without having any considerations prejudicial to his rights. If
the judicial or quasi-judicial authority adopts a partial and biased attitude to the affected person,
it is nothing but the denial of 'natural justice —the 'equality before law'. So long as it is
considered merely a maxim there is flexibility in this concept hence can be adopted by the courts
to changing circumstances. When it is made a constitutional guarantee, every law and action
which violates this principle becomes invalid.

3.6. Equal Protection Before Law

30
Manohar Lai vs. Prem Chand (1957) SCR 575 (580-1)

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This part has been derived from the Constitution of America. The following provisions are given
in it.

a) The similar application of the same laws to all persons who are similarly situated.
b) Equal treatment under equal circumstances, both in terms of the privileges conferred, and
liabilities imposed by laws.31
c) All persons should be equally treated without any discrimination.
 Equal protection of laws means that no one should be favored or no one should be
subjected to any additional disadvantage, in situations that do not warrant any reasonable
justification for such a classification for differential treatment. Unjustifiable favour or individual
or class privilege on the one hand, and a hostile discrimination or the oppression of equality on
the other hand is the denial of the concept of equal protection of laws According to the Supreme
Court: ― “……it implies an equal protection to all persons situated in like circumstances.”32
 In other terms it refers to safety or sanctuary under the laws to everyone: under similar
terms, in her/his life, property, freedom and pursuit of happiness. It implies that laws shall be
enforced equally against all without any distinctions on the grounds whatsoever. Article 13(2)
lucidly states that the States shall not make any laws that takes away or abridges Rights
conferred by Part III of the Constitution. Consequently, any infringement of fundamental rights
is void to the extent it is violative of such a right. In the case of The State vs. Keshab Chandra
Nasker33the Calcutta High Court has held that, “Article 14 of the Constitution is a fundamental
right and is a protection in favour of a person as against the State. It is not a fundamental right
for the State to denounce and disclaim its own Acts and statutes but is a fundamental right for
the person who is aggrieved by the inequality or unequal protection of the laws made by the
State”34

31
Satish Chandra v.Union of India, AIR 1953 SC 250, 252.
32
Chiranjit Lai vs. Union of India, AIR 1951 SC 41
33
AIR 1962 Cal. 338
34
Ibid.
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 Doctrine of Equality is equally operative against the legislature itself. If it enacts a statute
which is inconsistent or in contravention of any of the provisions of fundamental rights, the
courts are competent enough to pronounce it as unconstitutional. For instance, in the case of
Lachman Das. State of Punjab,35Justice SubbaRao in his minority opinion, affirmed this
viewpoint.
 As this part has been superadded to the ‘equal protection of law’, a harmonious
interpretation of these principles is very important if there is any impugned violation of equal
protection. He contended that:
 “It shall be remembered that a citizen is entitled to a fundamental right of equality before
the law and that the doctrine of classification is only a subsidiary rule evolved by courts to give a
practical content to the doctrine.”36
 The reason he emphasizes that classification of the two principles, the courts can
outperform to offend the guarantee of equality before the law. The entire process may ultimately
tend to challenge Section 197 CrPc as violative of Art. 14, by reasonable classification, may even
make it feasible, for certain class of public officials, to claim concessions in their prosecution or
trial.
 It means right to equal treatment in similar circumstances. 37The right to equal treatment
may relate to both privileges conferred and liabilities imposed by laws. 38Hence the doctrine
embodied here is the doctrine of human needs depending upon economic and social status of the
individuals. What remains to be asked as to “whether what is guaranteed under Article 14 is
equality in status or in class?”

3.7. Exceptions to Rule of Equality

35
A.I.R. 1963 S.C. 222 (240)
36
Ibid.
37
ShriKishan vs. State of Raj. (1955) 2 SCR (531)
38
State of W. Bengal vs. Anwar Ali (1952) SCR 214 (320)
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There are certain limitations to the applicability of the concept of ‘Rule of Equality ‘and it is not
that it applies thoroughly. The following are circumstances and individuals that are the
exceptions to it:

a) No criminal proceeding shall be instituted or sustained against the President or the

Governor in any court throughout his /her term in office. 39
b) No arrest warrant can be issued against the President or Governor during the term of
his/her office.
c) No liability shall be imposed in any court against any Member of State legislative
Assembly (MLA) shall be liable to any proceeding in relation to any statement or any vote given
by him in the state Legislature.
d) No liability shall be imposed against any Member of Parliament (MP) in respect of any
statement or vote given by him in Parliament.
e) Diplomatic immunity has also been granted to the United Nations and its agencies.
f) Foreign (sovereign ruler), ambassadors and diplomatic persons shall be immunized from
civil and criminal cases.

3.8. Reasonable Classificationand Non-Arbitrariness

 In the case of Ram Krishna Dalmia v Justice RS Tendolkar the scope and meaning of Art.
14 was reiterated as follows. Article 14 permits classification, as long as it is ‘reasonable’ but it
forbids class legislation. Such a classification is considered reasonable when the following
requirements are complied with:
1. The classification is based on intelligible differentia that distinguishes persons or things
that are grouped from others that are left out of the group,40and ,

39
Article 361 of Constitution of India, 1950.

40
D.S Nakara&Ors v Union of India 1983 AIR 130

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2. Such a differentia has a rational relation with the objective of the Act. It should have a
nexus with the objective sought to be achieved by the state action, and differentiation must be
necessary to achieve that objective.
 In addition to the above requirements, such a classification must have been non-arbitrary,
Supreme Court in the case of E. R Royappa41laid down the conditions for non-arbitrariness of the
Act.
"Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed,
cabined and confined’ within the traditional and doctrinaire limits. From the positivistic point of
view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn
enemies… Where an act is arbitrary, it is implicit that it is unequal both according to political
logic and constitutional law and is therefore violative of Article 14."
3.9. Instances of Classification
 In Ajay Hasia v. Khalid Mujib42,when for the oral interview a high percentage of the
total marks were allotted for the admission to the Engineering College, the Court said that
awarding more than 15 percentage of the total marks for oral interview is an arbitrary action
which violates Article 14.
 In Mithu v. State of Punjab43, Supreme Court struck down Section 303 of Indian Penal
code as violative of Article 14 as there was no rationale in differentiating between persons who
commit murder while serving life imprisonment and persons who commit murder when not
serving life imprisonment for the purpose of awarding death penalty.
 In Air India v. NargeshMeerza 44,Air India and Indian Airlines Regulations which
provided for the air hostess to retire upon the attainment of the age of 35 or on marriage or
pregnancy, if it took place on the first four years of marriage was struck down as it is violative
Article 14.
41
E. P. Royappavs State Of Tamil Nadu &Anr1974 AIR 555, 1974 SCR (2) 348
42
AIR 1981 SC 487
43
AIR 1983 SC 473
44
AIR 1981 SC 1829
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 In P. Rajendra v. State of Madras45, the provision for allotment of seats in medical
colleges in the State amongst the various districts in the State in the ratio of the population of
each district to the total population of the State was struck down as unconstitutional.

3.10. General Applicability of Article 14

 Both rules of procedures and substantive laws fall under the ambit of the Article 14. 46As
a consequence the article condemns, “discrimination not only by substantive law but also by
procedural law.”47The term ‘equality before law’ would also means denial of special privileges
to any person to sue or be sued, to prosecute or prosecuted for the same kind of action.
 Although some exceptions are provided in favour of public officials owing to special
circumstances are deemed unavoidable. For instance, if any special process or procedure was
provided for by any law before commencement of constitution, such a law cannot be hindrance
to the enjoyment of post-constitutional rights. The judiciary in consonance with the
constitutional provisions is entitled to strike down the discriminatory procedure. 48
 Provision of Section 197 CrPc speaks a different tone only although it provides immunity
to public officers from any crimes committed by them during due discharge of their duties,
should the prosecution of such officers is refused by President or Governor, that is only to due to
the nature of their duties such safeguards is required and in no way are such public officials
above the law. However in the Lachmandas case the court had ignored the ‘equal protection’
clause was referred, and ‘equality’ clause was ignored.
 No hesitation it is true that in the facade of such a protective clause, they may harass or
torture the innocent citizens. Nevertheless, they cannot escape the grasps of law as is evident

45
AIR 1968 SC 1012
46
Meenakshi Mills Ltd. vs A.V. Visvanath Sastri, AIR SC 13; Budhan Chaudhari and others vs State of Bihar;
AIRSC195
47
State of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SC 75; Kathi Ranning Rawat vs. The state of Saurashtra,
AIR 1952 SC 123
48
Lachmandas KevalramAhuja and other vs. The State of Bombay, AIR 1952 SC 25
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from a shooting incident at Shahdara (Delhi), in which, the Police Sub-Inspector murdered a
private citizen on the pretext of harboring the dacoits in his house. The case had resulted in the
death punishment to the Sub-Inspector.
 Besides this the equality of law also envisages justice, and hence judiciary should aim to
provide equality in being sued or sue and at the same time provide legal aid to those who cannot
afford or to those who lack means to obtain necessary justice. This is envisaged under Article 39-
A –equal justice and free legal aid.49 Additionally, Section 340(1) C.R.P.C is the only provision
that provides for legal aid at the cost of the State. Similarly under Order 33 of CPC an
opportunity is given to a pauper who has a privilege to institute without the need to pay the court
fee on the filing of plaint.50Furthermore, in its 14th Report the Law Commission had suggested
for representation of an accused having no means in a session’s court by a lawyer at the cost of a
state.51[29] In addition to this there was a suggestion as to inclusion of a provision in CrPc bill
dealing with legal aid to the poor in criminal cases. It is mentioned under Article 22 as well
about the right to consult a legal practitioner of his choice which if read in conjunction with 48th
Law Commission Report would mean that the accused should also be provided with a lawyer.
This reflects the principle of equal protection of law intertwined with equality before law.
 Even tribunals and other authorities have reflected the principle of equality in their
decision making; as a result of rapid growth of subordinate legislation they are doing their bit to
uphold the ‘rule of law.’ If any of such rules, orders and regulations as framed by government, its
departments or local authorities is not in consonance with constitution and is arbitrary in nature,
it would have deemed to have debauched the purpose of Article 14 and hence could be
challenged under Article 13 (2) as they are considered as laws under Article 13(3).
 With ever mounting pressure on the functions of the state and judiciary of the state, apart
from delegation of legislation of powers, some special authorities have also been established

49
Inserted by the Constitution (Forty-second Amendment) Act, 1976, S.8 (w.e.f 3-1-1977)
50
Tara Singh vs. The State (1951) SCR 729.
51
Vol. I (Reforms of Judicial Admn.): Paras 17, 20
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under special enactments and bestowed with adjudicatory powers to which should confirm to the
principles of natural justice and should act with openness, fairness and impartiality. For instance:
Transport Authorities have been established under Motor Vehicles Act,1939, the Rent Controller
under the State Rent Control Acts, and the Custodian of Evacuee Property under the
Administration of Evacuee Property Act, 1950. However, the finality of their judgment rests with
the judicial authorities so as to ensure fairness and transparency in their decision making. 52[30]
 Injunction is also another remedy that prevents a statutory authority from undertaking and
doing an unlawful act and which is contrary to law and excess of its statutory powers. 53[31]
When public rights are involved, a private person may sue for injunction on the ground that her
/his personal interests have been effected. Section 40 of the Specific Relief Act, 1963 provides
for such an injunction which functions the way prerogative writs do.
 Some other ways are also there to effect judicial review and these are in the form of
appeals, revision, and reference on specific points of law. For instance, Section 30 of the
Workmen’s Compensation Act, 1923 provides for an appeal from the decision of a tribunal to the
High Court on issues pertaining to points of laws only. Even a tribunal can make a reference to
the High Court but only for the benefit of the aggrieved party, it is discretionary under Section 27
of the Workmen’s Compensation Act, 1923.

3.11. Conclusion

 The doctrines of equality before law and equal protection of law under Article 14 have
evolved over the period of time since the drafting of the constitution; and through various
judicial and quasi-judicial measures it is upheld time and again in the spirit of rule of law as was
envisaged by Sir A.V Dicey, the English Jurist.

52
Bharat Bank vs. Employees of Bharat Bank (1950), SCR 459 (1950-51) C.C. 255

53
Administrator vs. Abdul Majid, A. 1945 Lah. 81 F.B
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 For, it is not mathematical equality that is to be imposed or enforced, but equal treatment
to equals and reasonable classification.
 No rights can be enforced perfectly, yet it is the awareness of the persons concerned, and
the sovereign authority to be conscious of their duties, obligations and rights that they mutually
hold towards each other for an effective functioning of democracy by being subjected to the laws
of the land as they are, barring exceptions as was stated in the article.
3.12. Need and importance of Article 14
 Article 14 is one of the fundamental rights provided in our Constitution. This Article is
important as if there was no such provision available in our Constitution it would have led to
many arbitrary classifications persisting in our country.
 Whenever legislation or a provision is challenges before the Court, the prime aspect the
judiciary looks into is whether the said Statute or its provision has any arbitrary classification in
it.
 If there is any arbitrary provision, then that provision or Act would be struck down as
unconstitutional.
3.13. Author’s note
 Article 14 has been helpful in repealing away draconian provisions like Section 497 IPC
which made the act of adultery punishable in Joseph Shine v. Union of India 54.
 Many of the historic judgements relating to repealing of unconstitutional Acts and
provisions were done taking into consideration the test of reasonable classification provided by
Article 14.

54
Writ Petition (Criminal.)No.194 of 2017
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