Case-law Supplement [August 2003] Preamble Aruna Roy y. Union of India’ held that secularism is the basic structure of the Constitution. It has to be understood on the basis of more than 50 years’ experience of the working of the Constitution. The complete neutrality towards religion and apathy for all kinds of religious teachings in institutions of the State have not helped in removing mutual misunderstanding and intolerance inter se between sections of the people of different religions, faiths and beliefs. “Secularism”, therefore, is susceptible to a positive meaning that is developing understanding and respect towards different religions. The essence of secularism is non-discrimination of people by the State on the basis of religious differences. Preamble, Articles 19(1)(@), 32, 136, 324, 326 and 368 Union of India v. Association for Democratic Reforms? is a significant decision for a number of issues. It held that the republican and democratic form of government is part of the basic structure of the Constitution; that the right to freedom of speech and expression in Article 19(1)() includes the right to casting of vote and the right to know the antecedents including criminal past of a candidate to be elected as a member of Parliament or State Assembly; that the court cannot ask the legislature to amend the law nor can it issue directions against the existing law, it can ask the appropriate authority to fill any vacuum or void in the law; and that the Election Commission has the power under Article 324 to pass such orders as it ‘considers necessary or appropriate for the purpose of conducting free and fair elections. Upholding the directions issued by the High Court the Supreme Court, directed the Election Commission to issue an order in exercise of its power under Article 324 requiring each candidate seeking election to Parliament or a State Legislature to furnish information on the following aspects as a necessary part of his nomination paper: is convicted/acquitted/discharged of any criminal 7, Whether the candidate ischarge offence in the past — if any, whether he is punished with imprisonment or fine. 2. Prior to six months of filing of nomination, whether the can accused in any pending case, of any offence punishable with imprisot two years or more, and in which charge is framed or cognizance 1S court of law. If so, the details thereof. ‘ 3. The assets (immovable, movable, bank balance ete.) of a of his/her spouse and that of dependants. 1 (2002) 7 SCC 368 2 (2002) 5 SCC 294$2 CONSTITUTION OF INDIA 4 Liabilities, if any particularly whether there are an: Y Overdy ey poblic financial institution or government dues, of 5. The educational qualifications of the candidate, Ym purswance of these directions the Election Commission has iss, Presidential Ordinance has amended the Representation of the People A, , 195 A. Ordinance, however, does not entirely comply with the directions, Therep if vaticdity is under challenge in the Supreme Court. ‘ote, Article 12 A non-government company ie. the United India Insurance Co, given monopoly rights on general insurance business under the Business (Nationalisation) Act, 1972 was held “the State” under Article 19 ‘of the trappings of the State it has. Again, Mysore Papers Mills Lid. y, Papers Mills Officers’ Association* is an example of a government company ¢ within the definition of “the State”. The company was subjeot soo governmental involvement and contol. The Government held 97% of 1 EY its directors either nominated or concurred in their election. Thus the comy ate an instrumentality of “the State”. a So also Bank of India vy. O.P. Swarankar’, the expression cover Nationalised banks. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology® is an ‘nd decision on the definition of “the State” in Article 12. A seven-tudge Beni Court by a majority of 5:2 overruled Sabhajit Tewary case! and held tha ee instrumentality of “the State” falling within the scope of Atticle 12, Relying y, the instrumentality or agency tests formulated in Ajay Hasia® the c ourt Kati those tests were: i ed an Ltd, whi General tf “State” Was h “not a rigid set of principles so that if a body falls within any one of must, ex hypothesi, be considered to be a State within the meaning ; 12. The question in each case would be — whether in the ligh cumulative facts as established, the body is financially, funct administratively dominated by or under the control of the Governm control must be particular to the body in question and must be pervasi is found then the body is a State within Article 12. On the other control is merely regulatory whether under statute or otherwise, Serve to make the body a State”.9 2 The minority was of the view that mere determination of an en instrumentality or agency of the State was not enough to bring it definition of “other authorities” in Article 12: 4 pee Biman Krishna Bose v. United India Insu (2002) 2. Sec 167 (2003) 2 sce 721 (2002) 5 sec 111 Sabhajit Tewary v. Union vance Co. Ltd., (2001) 6 SCC 477 of India, 1975.1 SCC 485 Alay Hasia v. Khalid Mujib Sehravardi, (1981) 1 sec 722 9 ibid., at p. 134, para 40CASE-LAW SUPPLEMENT “To be an authority, the entity should have been created by under a statite and finetioning with lability and obligations to the public, Purther, the state ereating the entity should have vested that entity with power to make law or issue binding directions amounting to law within the meaning of Article 132) governing its relationship with other people or the affairs of other people — their rights, duties, liabilities or other legal relations, By bringing in the issues of creation by or under the statute and imposing the condition of existence of power to issue binding directions the minority seems to be reverting to the majority opinion in Sukldev Singh'!, Developments since Sukhdev Singh® are primarily based on the dissenting opinion in that case. Relying upon those development the majority has not only served the cause of consistency in the law, it has also boosted its movement in the desired and expected direction, Article 14 In Onkar Lal Bajaj v. Union of India'? en masse cancellation of allotments of retail outlets, dealerships/distributorship of petroleum products by Government, on account of allegations in a newspaper that the said allotments were made due to political patronage, without applying mind to individual cases, was held to be arbitrary, In such circumstances, instead of annulling all the allotments, it was held the Government ought to have ordered an independent probe of alleged tainted allotments. Article 15 In Danial Latifi v. Union of India'3 upholding the validity of Muslim Women (Protection of Rights on Divorce) Act, 1986 the Court has once again evaded the question whether existence of different personal laws is violative of Article 15(1), It held that the application of Section 125 CrPC to women other than Muslim women and application of the Act of 1986 to the latter did not create discrimination between them. Application of different laws to them did not constitute discrimination either in Article 14 or 15. Upholding a notification of the State providing for reservation, among others, under Article 15(4), State of Punjab v. Dayanand Medical College and Hospital’ the Court has narrowed down the application of Preeti Srivastava case!5 to the extent that the power of the State to make reservation under Article 15(4) is not subject to the power of the Medical Council of India to prescribe standards for medical education. The Court, however, conceded that the State Government must coordinate its admission policy with the Medical Council. Article 16 In Kailash Chand Sharma v. State of Rajasthan!® the Court invalidated a circular of the State of Rajasthan which among others provided for bonus marks to the candidates for appointment as primary teachers on the basis of their residence in ao nlariia ES 10. ibid., at p. 157, para 98 11 Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421 12 (2003) 2 SCC 673 13. (2001) 7:ScC 740 14 (2001) 8 SCC 664 15 Preeti Srivastava (Dr) v. State of M.P., (1999) 7 SCC 120 16 (2002) 6 SCC 562CONSTITUTION OF INDIA ct and also on the basis of residence in the rural area of the marks was found against Article 16(2) which rs, on the ground of residence. Residential requ; bits S4 a particular distr ‘The provision for bonus discrimination, among othe \ see rticle 16(3). Adequate 140mg, - » laid down only by Parliament under Ar ic 16 Adequate just ent. a tan not given to justify the plea of affirmative action foy 1Ation supported by data 3 the cople as a advantaged group, The Court rejected the specious uray Ea a A ine suffered from disadvantage in comparison to ¢ le iat from urban areas and that though the former accepted the job in the rural are; ie i never performed it ‘actorily, Perhaps the Court would have. accepted iy arguments if they were supported by reliable data, ese Article 19 In Ugar Sugar Works Ltd. v. Delhi Admn.17 the Court has reiterated that Pe, no fundamental right under Article 19(1)(g) to carry on trade and business jn liguon With respect to reasonablene: of restrictions under clauses (2) to (6) of Ans, 19, tracing the pedigree of the principle of proportionality since the 1950s, the ¢ oi ‘has observed that the principle is part of our established law. it “Under the principle, the court will see that the legislature and administrative authority ‘maintain a proper balance between the oe effects which the legislation or the administrative order may have on aaa the rights, ’ liberties or interests of persons Keeping in mind the purpose which they way intended to serve’.”8 : ‘The Supreme Court in Union of India v. Assn. for Democratic Reforms!9, ith directed the Election Commission to call for from prospective candidates for electic information relating to criminal background of the candidate and initi ion of pendency of criminal cases or proceedings against him, his assets and liabilities his educational qualification. Section 33-B was inserted by Representation of the People (Third Amendment) Act, 2002 by virtue of which a candidate ‘was required to disclose the cases in which he was acquitted and discharged of ori offences, his assets and liabilities and educational qualification. In People’s Unio for Civil Liberties v. UOP®, holding Section 33-B ultra vires Article 19(1)(a) Supreme Court held that once Supreme Court in Assn. for Democratic Reforms has held that a voter has right under Article 19(1)(a) to know the antecedents 0 candidate that right can be restricted by passing such legislation only as cove Article 19(2). Section 33-B could not be justified or saved under Article 19(2). not open to the legislature to nullify the decision of the Supreme Court on g that right to know antecedents of voters was only a derivative right and not a fundamental right. Directives of Supreme Court did not impinge upon privacy of the candidate. Article 21 ‘ In a series of orders concerning the industrial and vehicular pollution on petitions of environmentalist M.C. Mehta the Court has given several direction the Government to enforce the right to clean the environment under Article 21.7 17 2001) 3 SCC 635 18 Om Kumar v. Union of India, (2001) 2 SCC 386, pp. 399-400, para 28 19 (2002) 5 SCC 294 20. (2003) 4 SCC 399 21. M.C. Mehta v. Union of India (Delhi Industries Relocation), (2001) 4 SCC 577; M.C. Mehta ¥, Union (Delhi Vehicular Air Pollution), (2001) 3 SCC 763 ; (2001) 3 SCC 756; (2001) 3 SCC 767CA Upon the rig + the Court Auditoriums, “LAW SUPPLEMENT Nt to health wn ditected prohibj Further relying i etary nder Article 21, places; (i) ion on smoking in the followin ng public educational institutions, or nt hospital buildings, (iii) health institutions, (iv) WV Mraries, (yi u yi lic (viii) public conveyay Including ) court buildings, (vii) public Offices, and ilways, Speedy trial in erin under Atticle 21 avoided, the court expeditiously detiy, of a criminal final v Again, emphasizing the right to Speedy trial, lean Judges, oF otherwise triste could be ¢, 1 on b; minal matters Reitorating that has issued gui ef the judgment * has repeatedly been held a fund All possible delays in Conclusion of trials must be idelines to the High Courts and other courts to after the Conclusion of the arguments at any stage vers all stages from accusation to ‘amental right , the Court held that if due to Xpedited, undertrials should be delay in investigation and trial iminal matters, It has rather regard Suggesting that every cast and cireumstances,26 Pursued a flexible policy in this ¢ has to be determined in the light of its own facts hikar Abhiyan v. Union of Indic?” the Court impliedly recognised 1 leless deceased and unclaimed dead bodies to a decent burial or cremation. In view of the fact that decency was being observed in this mater, the Court declined to issue any directions, In State of Maharashtra y, Dr Praful B. Desai?8 conferencing In Ashray Adi the right of hom recording of evidence by video was held to satisfy requirements of Section 273 CPC, so long as the i le evidence was being recorded. as per the “procedure established In Sharda v. Dharmpal®, right to Privacy as developed under Article 21 was not held to be absolute. In an application for divorce, court's direction to the respondent to undergo medical examination was not held to be violative of ne ie personal liberty under Article 21. In case of conflict between fundamental tights of two parties, it was held, the court had to balance the competing rights. In T.N. Godavarman Thirumalpad case30 duty of Government to ‘protect environment was emphasised. Right to live, held, was a right to an envir adequate for health and well-being. 22 (2001) 8 SCC 765 23. Anil Rai. State of Bihar, (2001) 7 SCC 318 st 24 P. Ramachandra Rao v. State of Karnataka, (2002) 4 k C355 . State of M.P., (2001) 4 SC ‘ ae i soci : : idra Shashittal v. State’of Maharashtra, (2001) 4 SCC $25 ; also Mahendra La 26 Seta Hemchan , Bihar, (2002) 1 SCC 149 27 (2002)2.SCC 27 28 (2003) 4 SCC 601 29 (2003) 4 SCC 493 30 (2002) 10 SCC 606CASE-LAW SUPPLEMENT S-1 ¢ authorities to prescribe a rea , the authorities (0 prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities Article 32 In BALCO Employees’ Union v. Union of india35 declining to entertain the petition under Articl 32 and 226 inst the disinvestment policy of the Government, the Court ruled that unless violation of Article 21 is specifically alleged and the affected persons are incapable of approaching the court, such challenge is not permissible under a public interest litigation, Article 51-A In AIMS Students’ Union v. AHIMS* the Court has reiterated that though the fundamental duties are not enforceable by the courts, they provide a valuable guide and aid to the interpretation of constitutional and legal issues. Articles 102(1)(@) and 191(1)(@) Interpreting the expression “office of profit” under Articles 102 and 191, the Court held that Shibu Soren, who was nominated by the Government as Chairman of Interim Jharkhand Area Autonomous Council, was holding an office of profit. He held the office of Chairman at the pleasure of the Government and also received an honorarium (Rs 1750 p.m.) for holding that post. Therefore, he was found holding an office of profit.37 Article 129 The contempt power of the court has drawn severe comments during the recent past. The Court, however, seems to be widening rather than narrowing and restraining the exercise of this power. In T. Sudhakar Prasad y. Govt. of A.P.38 the Court held that the power of contempt in Articles 129 and 215 of the Constitution is not a grant of power to the Supreme Court and the High Courts respectively. Irrespective of these provisions such power has always been inherent in the courts. That power could not be restrained or regulated by any legislation such as the Contempt of Courts Act, 1971. However, the Court held that the punishments and time-limit prescribed for contempt in the Act must be honoured.39 Article 164 In two matters, one following the other closely, the Court has thrown new light on the interpretation of Article 164(4) regarding the appointment of a non-member as Minister or Chief Minister. In S.R. Chaudhuri y. State of Punjab‘ it invalidated the appointment of a non-member as Minister in the State of Punjab while he had already held such office for six months in an earlier ministry but within the life of the same Assembly. It held that a non-member could not be successively appointed as Minister after the expiry of six months even though there was a gap between his 35. (2002) SCC 333 36 (2002) 1 $cc 428 37. Shibu Soren v. Dayanand Sahay, (2001) 7 SCC 425 38 (2001) 1 $c 516 39. ibid., Pallay Sheth v. Custodian, (2001) 7 SCC 549 40 (2001) 7 scc 126PART Ill Part III and Part IV, though two Separate units, human rights.'> Primarily they are divided on the ground of enforceability of the former and non-enforceability of the latter in the courts,!6 Otherwise the rights included in both are equally fundamental. Neither of these parts is superior or inferior to the other. They are complementary of each other because together they constitute the human rights regime including respectively the civil and political rights and the social and economic rights. Without one the rights in the other are not only incomplete but also unattainable.'7 Together they have been called the conscience of the Constitution.!8 carry the common theme of FUNDAMENTAL RIGHTS GENERAL 12. Definition.—In this Part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the government 13. Entry 17, List 7, Sch. 7. 14. Act 57 of 1955. 15. For details see, M.P. Singh, The Statics and the Dynamics of the Fundamental Rights and the Directive Principles—A Human Rights Perspective (likely to be published in the Platinum Jubilee Volume of ILS Law College, Pune). The distinction is similar to the one drawn between the subjective and objective rights in the European countries, particularly in Germany. Subjective rights inhere in the subject of these rights, ie. the individual and, therefore, he can seek their judicial enforcement. The objective rights do not inhere in any individual, but oblige the State authorities to perform certain acts for the individual: In case the authorities concerned fail to perform their job, it is illegal on their part. But the affected individual ___ cannot seek judicial relief against such failure. 17. See, generally Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591: AIR 1980 SC 1789.. 18. G. Austin: The Indian Constitution, p. 50 (1966). 16.20 THE CONSTITUTION OF INDIA [Parr 1h ol id all local or other authors, and the-legisiature of each of the States an authorities within the territory of India or under the control of the Government of India, Barring a few exceptions!’, the fundamental rights are secured against th, action, They are meant to protect persons against the State and not against the private persons, Private action is and can be taken care of by the ordinary the land, It is primarily against the might of the State that the individual constitutional protection, In one of its early decisions, PD. Shamdasani y, Bank of India Ltd,*®, the Supreme Court clarified the position in this regard, In that case, the petitioner in an application under Article 32 of the Constitution sought the protection of the Court on the ground that his property rights under Articles 191 and 31 (now repealed) were being infringed by the action of another private person—the Central Bank of India Ltd. The Court dismissed the petition and said. “The language and structure of Article 19 and its setting in Part Ill of the Constitution clearly show that the article was intended to protect those freedoms against the State action. . . . Violation of rights of property by individuals is not within the purview of the Article.” In another case”!, Patanjali Sastri, C.J. sai “The whole object of Part III of the Constitution is to for the freedoms and rights mentioned therein a; State.” State fellow law of Needs Central provide protection gainst arbitrary invasion by the Moreover, some fundamental rights are expressly guaranteed against the State Therefore, a definition of State was necessary. However, the definition of State cannot and must not be used for restricting the application of a fundamental right only against the State while in its contents and nature a right is not so réstricted, Fundamental rights may be violated by the State as much directly as ‘indirectly. While in the former case its officials or agencies violate them, in the fatter it may let them be violated by others either through its inaction or active connivance, The latter violation may be as injurious as the former. In such cases State cannot escape its responsibility or liability towards the protection of fundamental rights on the plea that they are the actions of private individuals and not of the State, In several cases the Courts have, therefore, given relief to the petitioner without going into the question whether the violator of the fundamental right was the State2 This has happened particularly about the rights in Article 21, but it may also happen with respect to other rights which do not expressly say that they are available only against the State. This development is consistent with the evolution and expansion of the 19. Arts. 15(2), 17, 23(1), 24, 28(3). 20. AIR 1952 SC 59 [Central Bank of India became a nationalized | Bank by Act 5 of 1970.] In Vidya Verma v. Shiv Narayan, AIR 1956 SC 108, writ of habeas “orpus Was refused under Art. 32 against a private person. Such a writ against a private person could be filed under Art, 226. 21. State of W.B. v. Subodh Gopal Bose, AIR 1954 SC 92, 22. M.C. Mehta v. Union of India, (1987) 1 SCC395, When the Court the violation of Article 21 by a company leaving the question open whethera ‘company was State; Ashok ¥. Union of India, AIR 1997 SC 2298; Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 and AIR 1997 SC 2218; Bodhisattwa Gautam y, Subra Chakraborty, AIR 1996 SC 922; ‘Xv. Hospital XZ. (1998) 8 SCC 296 and numerous eases on environment pollution caused by private ‘persons and corporations decided under Article 32, see, eg., M.C. Mehia v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 1997 23, Vishaka v. State of Rajasthan, AIR 1997 $C3011, in which case the Court iaid down rules forexcluding ual harassment of women in all work places, which it did with reference to Articles 14, 15,21 and. 19(1)(g). granted relief to the petitioner against arr] VUNDAMENTAL oHTy Ant a jus inv general and with the philosoph nat \ Phy and spirit of the Indian Constitution in The Stato—The definition of the t F ’ lorm ‘the State’ specifies a insrumentalitesfunetloning Within or without the terreor afte cutis and ndia which shall be semred (0 be ‘the State’ © purposes of stitution, The doen raven for the purposes of Part I of the Constitution, 1 yofinition is inclusive and not exhaustive, Therefore, authorities and scat 2 al , nstrumentalities pot specified in it may also fall within it if they otherwi i ERASE REET wise satisfy the characteristic ay ihe State’ as defined in this Article, The authorities and intr yr tllscbepeaned of Mile 12 are— istrumentalitics specified (i) the Government and Parliament of India; (ii) the Government and the Legislature of e: ach of : (iii) all local authorities; and desta. (iv) other authorities within the territory of India o1 eerie Cane under the control of the The first two categories include the legislative and executive wings of the Union and the States in all their possible varieties. They are quite specific and self-expla- satory. The latter two categories, particularly the las, are not so specific and require some explanation. Local authorities—The expression “local authorities” refers to authorities like ict Boards, Panchayats, Improvement Trusts, Port Trusts, Mining Settlement Boards, ete. Rashid Ahmed v. M.B. Kairana™ is one of the earliest ‘natances where a municipal board was held to be a local authority under Article 12. Other authorities—Article 12 winds up the list of authorities falling within the te by referring to ‘other authorities’ within the territory of India f the Government of India, What are these ‘other authorities’? h Courts held that since the expression ‘other authorities’ ‘a few of them, namely, the government and Parliament of .d the legislature of each of the States, and local authorities, strue this expression ejusdem generis with government it could only mean authorities exercising governmental 's, On this interpretation, the expression, “other tuthorities’ would only include such bodies as are functioning, for or on behalf the Central or State governments. This restricted interpretation of the expression ‘other authorities’ was, however, rejected by the Supreme Court. It held that the doctrine sf oiuden generis, was inapplicable to the interpretation of the expression ‘ite? orden’. to invoke the application of ejusdem generis rule the Court said, tes must be 2 distinct genus or category running through the bodies already nome Article 12 there wes no. common, genus) inning, tikbuah trese ated HOUics Ia could these bodies be placed in one single category on any rational basis.”° Laying down these propositions in Electricity, Board, Rajasthan v. Mohan La’, preme Court held that ‘other authorities’ would include all authorities ct ae SUP ISN COU He 4, AR 1950 SC 163, Followed n State of Gujarat v. Shantital Mangaldas, (1969) | SCC 509, 521: AIR 1969 SC 634, 4, ieee of Medias v, Shantha Bai, AIR 1954 Mad ce Wet pais y. Se 6; Krishna Gopal v. Punjab University, AIR 1 ij 34. = %, Etec tricity Board, Rajasthan v. Mohan Lal, AIR 1967 SC 1857, 1862, Also Ujiambai (Smt) v- State of U.P., AIR 1962 $C 1621. AIR 1967 SC 1857. Municipalities, Distr definition of the Sta or under the control of To begin with some Hig! is used after mentioning India, the government an it would be reasonable to con: or legislature.25 So construed, or sovereign powers and function slection Committee, AIR 2.22 THE CONSTITUTION OF INDIA (Parr It by the Constitution or statute on whom powers are conferred by law. It wag necessary that the statutory authority should be engaged in performin, governm or sovereign functions. In support the Court cited, Articles 19(1)(g) and 208 whi contemplate trade or business by the State and Article 46 which requires the | to promote educational and economic interests. In these cases ‘other authorities Would cover bodies created for the purpose of performing commercial activities or for promoting the educational and economic interests of the people. The Court also noted that in the instant case the Rajasthan Electricity Board had Power to give directions, the disobedience of which was punishable as an offence. This decision in effect overruled earlier cases holding ‘university’ not to be ‘the State? within the meaning of Article 12.78 Accordingly the universities have been later held to be ‘the State’? In the next important case on the subject, Sukhdev Singh v. Bhagatram°0, question arose whether statutory corporations such as the ONGC, IFC and Lic created respectively by the Oil and Natural Gas Commission Act, 1959, the Industrial Finance Act, 1948, the Life Insurance Act, 1956, came within the definition of ‘the State’ under Article 12. By a majority of 4 to 1, the Court held that the three corporations were State, Following the Rajasthan Electricity case, majority led by Ray, C.J., held that the three corporations were created by statutes, had the statutory Power to make binding rules and regulations, and were subject to pervasive gov- ernmental control. They were, therefore, ‘other authorities’ within the meaning of Article 12. Mathew, J., concurring, held that the public corporation is a new type of institution which sprang from the new social and economic functions of govern- ment, and instead of classifying it into old legal category, it should be adapted to the changing times and conditions. The State, being an abstract entity, could undertake trade or business as envisaged under Article 298 through an agency, instrumentality or a juristic person. Statutory corporations are agencies or instrumen- talities of the State for carrying on trade or business which otherwise would have been carried out by the State departmentally. Therefore, it has to be seen whether a body is acting as an agency or instrumentality of the State. Whether it is so acting or not could not be determined on the sole criterion of existence of sovereign power to pass laws or regulations having the force of law. Nor could it be determined exclusively on the basis of the extent of State control or the amount of financial support. State financial support plus an unusual degree of control over the manage- ment and policies could be one indicator of the character of the body. The other indicator was the kind of function the body was performing. ‘The combination of State aid and the furnishing of an important public service’, he said, ‘may result in a conclusion that the operation should be classified as a State agency.” Alagiriswami, J., dissenting, saw no distinction between the nature of rules and regulations of an ordinary company and those of a statutory corporation as both stood on the same footing, one deriving its authority from the Companies Act and the other from the Act creating that corporation. According to him, the whole purpose of Part IJ] of the Constitution was to confer fundamental rights on the citizens against the powers of the State. As none of these corporations shared the sovereign powehr 2%. University of Madras v. Shantha Bai, AIR 1954 Mad 67; Krishna Gopal v. Punjab University, AIR. 966 Pun 34 29. Umesh v. V.N. Singh, AIR 1968 Pat 3, 30. (1975) 1 SCC 421: AIR 1975 SC 1331ART 1) FUNDAMENTAL RIGHTS: 2B they were held to be State, thei verniment servants and will A Seniority, scale of pay and minor 900) be ‘State’, Hi those could not "He apprehended i employees would get more protection than ee i ‘courts With eases involving petty matters like e the punishments: justice Mathews approach in Sukhdey instrumentality oF agency of the government Shetty Ve Luernational Airport Authority®!, Bhagwati pointed out thatthe corporations acting as inate Swat J speaking for the Court, Pld obviously be subject to the same limita ientality or agency of government Caan me limitations in the field of constituti jdministrative ]aw as the government itself, though in th Constitutional or be distinct and independent legal entities. If the go e eye of the law they would be cers is subject €0 certain Constitutional and Coulee nee ee «fortiori, that government acting through the Fae ee ee oe ations should equally be subject to the same limitations. With ie ot ORG Hawai, J, discussed in detail various factors relevant for determining exhaustive, body is an instrumentality or agency of the State, These factors, Silane 2 summarised by him in Ajay Hasia v. Khalid Mujib®, are: ee (1) If the entire share capital of the corporation is held by the gov it would g0 2 long way towards indicating that the corporation ats a instrumentality or authority of the government. (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation it would afford some indication of the corporation being impregnated with government character. (3) Whether the corporation enjoys monopoly status which is State confered or State protected. (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (5) If the functions of the corporation are of public importance and closely related to government functions, it would be a relevant factor in class ifying a corporation as an instrumentality or agency of government. (6) If a department of government is transferred to corporation, it would be 4 strong factor supporting the inference of the corporation being an instrumentality or agency of government. Iron 2 consideration of these relevant factors it is found that the conporalios ‘ tt, it would be an authority and, is an instrumentality or agency of government therefore, State ‘within the meaning of Article 12. However, these tes 2% not conclusive or clinching, and it must be realised that it would not be stretched so far as to bring in every autonomous body which has some nexus with the government within the sweep of the expression. Following this approach, i Nee held that the International Airport Authority constituted under the International Airport sper! Act, 1971 was an authority and, therefore, ‘State’ within the means of Article meaning of other authorities has been finally the Supreme Court. In Som Prakash laid down in the Airport Singh case, wheth case, whether a body i Was reiterated with approval im RO. This line of approach to the confirmed in the following two decisions of Rethi v. Union of India’, applying the criteria z 3 ‘C489: AIR 1979 SC 1628. 1981) | SCC 722, 737: AIR 1981 SC 487. iz 137; AIR 1981 SC 48° sre laid down in SCCP- factors are laid down 3. ip) 1 SOC 449: AIR 1981 SC 212. In Som Prakash these. AIR at 225, femay be noted that Krishna Tyer, J», who wrote Som,JON OF INDIA (Parr an THE CONSTITU 4, the Supreme Court reached the conclusion that there is enough the Bharat Petroleum Corporation registered as a compan tinder the Companies Act, is State within the enlarged meaning Of ‘Article iD Consequent upon takeover of Burmah Shell under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, the right, title and interest of the company stood transferred and vested in the Government of India. Thereafter, the Central Government acting under Section 7 of that Act took necessary steps for vesting the undertaking in the Bharat Petroleum Corporation Ltd. which became the statutory sor of the petitioner’s employer. Krishna Iyer, J., speaking for himself and J, Pathak, J. concurring, observed that the various provisions of formed the corporation into an instrumentality of the Br Authority case material to hold that suc Chinnappa Reddy, the Act of 1976 have transi Central Government with a strong statutory flavour super-added are clear indicia of it an ‘authority’. Although registered as a company under the e Bharat Petroleum Corporation is clearly a creature of the statute, power to make it an agency of the State and is recognised and clothed with Companies Act, th a limb of government, rights and duties by the statute. In Ajay Hasia v. Khalid Mujib¥, the question arose whether the Regional Srinagar, established, administered and managed by a society tion of Societies Act, was a State within the . speaking for the unanimous five-judge bench, reiterated that the tests for determining as to when a corporation falls within the definition of State in Article 12 is whether it is an instrumentality or agency of enquiry must be not how the juristic person is born but why it has therefore, immaterial whether the corporation is created by a statute or under a statute. The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society considering the relevant factors as explained in the International Airport Authority case. Applying this criterion, it was held that the society registered under the J&K Registration of Societies Act was an instrumen- tality or agency of the State and the Central Government, for the reason. that these governments had full control of the working of the society and the society was merely their projection. Following the law laid down in Ajay Hasia case*7, the Indian Statistical Institute®®, Indian Council of Agricultural Research®, Sainik School Society®, U.P. State Co-operative Land Development Bank Ltd.4!, all societies registered under the the cases and since the decisions in both the cases were pronounced on the same day it is natural, that being said by his brother Bhagwati, J. in Ajay Hasia. (1979) 3 SCC 489: AIR 1979 SC Krishna Iyer, J. fully knew what was Raman Dayaram Shetty v. International Airport Authority of India, 1628, (1979) 3 SCC 489: AIR 1979 SC Engineering College, registered under the J&K Registra meaning of Article 12. Bhagwati, J. government. Th been brought into existence. It is, 34, 35. (1981) 1 SCC 722: AIR 1981 SC 487. 36. es Dayaram Shetty v. International Airport Authority of India, 31. Ajay Hasia vy. Khalid Mujib, (1981) 1 SCC 722: AIR 1981 SC 487. 38. B.S. Minhas y. Indian Statistical Institute, (1983) 4 SCC 582: AIR 1984 SC 363. 39. PK. Ramchandra Iyer v. Union of India, (1984) 2 SCC 141; S.M. Ilyas (Dr.) ¥. Indian Council for Agriculture Research, (1993) 1 > 182. 1989 Supp (1) SCC 205: AIR 1988 40. All India Sainik School Employees’ Assn. v. Sainik Schools Society, SC 88, 41. UP. State Coop. Land Development Bank Lid. v. Chandra Bhan Dubey, AIR 1999 SC 753:ants 121 HUNDAMENTAL tuaHty 25 ceotios Revistration Act) Project and i . Seeaont of India: Undertaking? ih ees aren Ce the Stel Authority of India Lidy a publ ilihvatestameeee tee Isreal supervised by the Central Governmentit ihe teers pany, owed spauty rexistered under the Companies Act, 195645 4/4 Indian Oil Corporation, aployees enjoy statutory protection and which is subject to the aac to py the State education department;"¢ 4 medical college run 6 a Sate aie 1” several State electricity boards! created on the lines of Ree ay conor joard; Central Inland, Water ‘Transport Corporation Lid. a gen ety jointly owned by the Central Government and two State Governmentn ¢ ora eet constituted as development authority under a State Town Prana v2 regional rural banks established under the Regional Rural Beake fen Sat pave ouss created under the Major Port Trusts Act, 1889 or 19639 have beemhel ‘er authorities’ within the meaning of Article 12, In M.C. Melita v. Union ses without deciding the question finaly, ina unanimous opinionot the Secon, Court Bhagwati, fos @ advanced strong arguments for including even the ee ernment companies within the meaning of State if for reasons of State control and regulation and the kind of public function they are performing, they satisfy the test of being an instrumentality or agency of the government. Without pursuing this argument any further the Court has subjected private educational institution to the Gicipline of Article 14 on the ground that they were performing a function in furtherance of a State function, that is, the provision for education.°> In this straight line of cases Sabhajit Tewary v. Union of India®® decided along with Sukhdev Singh case5’ by the same bench of the Supreme Court is the only case which stands separate so far as it held that the Council of Scientific and Industrial Research, a society registered under the Societies Registration Act, 1860 was not State within Article 12. This case has been analysed and distinguished in @. AL Kalra v. Project and Equipment Corpn, (1984) 3 SCC316. 43. Workmen of the FCI v. FCI, (1985) 2 SCC 136; Food Corpn. of India Workers’ Union v. Food Corpn. of India, (1996) 9 SCC 439; AIR 1996 SC 2412. 44. Bihar State Harijan Kalyan Parishad y. Union of India, (1985) 2 SCC 644; Balbir Kaur v. Steel Authority of India, (2000) 6 SCC 493: AIR 2000 SC 1596. 45. Mahabir Auto Stores v. Indian Oil Corporation, (1990) 3 SCC 752: AIR 1990 SC 1031. 46. Manmohan Singh Jaitla v. Governor, Union Territory of Chandigarh, 1984 Supp SCC 540. 47. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, (1985) 3 SCC 542. 48. Rohtas Industries Ltd. v. Bihar S.E.B., 1984 Supp SCC 161 and Surya Narain Yadav v. Bihar S.E.B., (1985) 3 SCC 38; W.B. State Electricity Board y. Desh Bandhu Ghosh, (1985) 3 SCC 116. 49. Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156, 50. Star Enterprises v. City and Industrial Development Corp. of Maharashira Lid. (1990)3 SCC 280. 51. Prathama Bank v. Vijay Kumar Goel, (1989) 4 SCC 441. 52, Dwaradas Marfatia& Sons v. Board ef Tras of te Fore of Bombay, (1989) 3 SCC 295: AIR 1989 $3. (1987) 1 SCC 395. 54, Later in Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584, ay Supe Court: has clarified that “In M.C. Mehta case. . « conclusion that Shriram (the delinquent Company) came wi be subjected toa proceeding, under Art 320 the Constitution.” Foraplea tha even public corporations ould be excluded from the definition of ‘the State see Ramaswamy RAs: Public Enters jie and Article 12", XXN Beonomic & Political Weekly, M-129 ( it 56. (ongin Krishnan v, State of AP. (1993) 1 SCC 645. wets 51 Suan | SCC 485: AIR 1975 SC 1329, ga nas ache thdev Singh v. Bhagatram Sardar Singh Raghuvansh, (1975) 1 SCC421: AIR company26 THE CONSTITUTION OF INDIA (Parr tn ases and in view of the fact that in several subse sa ovieties have been held ‘State’ it stands impliedly overruled 34 Bats is no general rule or presumption that registered socities having some nexug the government are ‘State’, It has been held that the Institute of Constitutional nt” Parliamentary Studies and the National Council of Educational Research and et ing, both registered societies, are not ‘State?..? ae 'n pursuing the definition of ‘State’ in Article 12 the Court has time and aya reminded that what is State for the purposes of Article 12 need not be Suet other purposes. For the purpose’ of wider application of the fundamental sigh gen has to be defined liberally, but not for other purposes. Thus, an employee of a itt corporation may challenge the violation of his fundamental rights by the corporation but for that reason he does not become a State employee and cannot seek the protection, for example, of Article 311, The words ‘under the control of the Government of India’, are meant to bring into the definition of State not only every authority within the territory of India, but also those functioning outside, provided such authorities are under the control of the Government of India. Thus, relief under Article 32 of the Constitution can be given to the petitioner in respect of an executive or administrative order of an authority under the control of the Government of India, but functioning outside the territory of India. In such case suitable orders may be passed against the Government of India directing them to give effect to the decision of the court in the exercise of their power of control over the authority outside the territory of India.6! The Judiciary—It may be noted that the ‘judiciary’, though an organ of the State like the executive and legislature, is not specifically mentioned in Article 12. Does it mean that the ‘judiciary’ is not meant to be included in the concept of ‘the State’? The answer depends on the distinction between the judicial and non-judicial functions of the courts. In the exercise of non-judicial functions, the courts fall within the definition of ‘the State’. The exercise of judicial functions will not occasion the infringement of the fundamental rights and, therefore, the question of bringing the courts within the definition of ‘the State’ would not arise.®? It has been held that when a court, in the exercise of its statutory rule-making powers, makes rules which contravene the fundamental rights of citizens, the rule could be held ultra vires and appropriate remedy under Article 32 or Article 58. Thus in Som Prakash v. Union of India, (1981) 1 SCC 449; AIR 1981 SC 212 at 226 the Court ound that in Tewary case the Court unfortunately relied on precedents falling under Article 3; In Som Prakash supra as well as Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722: AIR 1981 a 497 the Court said that in Tewary case the Court recognised the instrumentality or agency test thougp on facts held otherwise. Finally in P.K. Ramchandra Iyer v. Union of India, (1984) 2 SCC 141 al the Court holding the Indian Council of Agricultural Research as State within Article 12 sal since Tewary case, law has moved a long way and, therefore, though not overruled that case confined to its own facts, 4 Ase 59. Chander Mohan Khanna v, NCERT, (1991) 4 SCC 578; Tekraj Vasandi v. Union of India, (19890 SCC 236: AIR 1988 SC 469. In NCERT case the ICAR (Ramchandra Iyer, ibid.) wast and its a cryptic observation that ‘ICAR was originally an attached office of the Government of India Position was not altered when it was registered as a society’. (1991) 4 SCC 578, 583. ied See Sukhdev Singh v. Bhagatram, (1975) 1 SCC 421: AIR 1975 SC 1331, 1348; K:C. Joshi v. Ula of India, (1985) 3 SCC 153: AIR 1985 SC 1046. 61. N. Masthan Sahib v. Chief Commr., AIR 1963 SC 533. . 62. of. HM. Seervai: Constitutional Law of India, 225 ff (3rd Edn., 1983) for a forceful argue Judiciary is ‘the State’ even in the exereise of its judicial functions. This wouldalso seem the view & by Mukharji, J. in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602. 60FUNDAMENTAL RIGHTS va sao could be given.®® Likewise, the Ci 226 mament of officers shall be ree are in exercising the powers of anpvade it violation of the equality clause of cna tut Gene to the appointments to subordinate jud missions ‘This is equally avon if a court is “the State the Supreme Ce ilies concatenate 2 cannot be issued to a High Court of Saat held that awit ander judicial © Jers, because no violation of the fuiaasiental jurisdiction against its fo such orders: “Tt is singularly inappropriate to ia rights can be attributed ® P¥cgnat judicial decision pronounced by a Judge es lL Ae, C+ jn relation to a matter brought before him nd esolacomestentehi ee ino mental rights of the citizen under Atele 19(1) eee aliecnie jundails to do is 10 decide the controversy b Manin dicta coe purports t¢ a troversy between the parties brought before the court and nothing more, ‘66 Again, a petition under Article 32 challengi - iwninal conviction by the Supreme Court in the exercise of its Sea . jurissietion une Ariel 1363 we entertained simply to be reece ea cidentally the Court justifi rticle 136 as ‘ i i nied by Article 245k as ‘procedure established by law’ ‘fo be more explicit and specific, in the exercise of judicial functions cours are required t0 determine the scope of the fundamental rights vis-a-vis a legislative or veecative action. Unless their power to perform that function is excluded or restricted by the Constitution oF any ‘other law they are competent to make a right or wrong determination. A wrong determination in such case does not constitute a breach of any fundamental right by the court. It is a genuine mistake which it is competent to, though it must not, make. The remedy against such a mistake is not to allege a violation of the fundamental rights and approach the courts under Article 32 or 226 put to allege that the determination of the court is not consistent with the fundamental rights and approach the appropriate court with such allegation in appeal. In case the determining court is the highest court, i the Supreme Court then the only remedy is to invoke its review jurisdiction. This position has been amply clarified and maintained by the Court in A.R. Antulay v: RS. Nayak although some of the judges resorted to the inherent jurisdiction of the Court in setting aside an earlier order of the Court for violation of the fundamental rights. While a majority of the judges have expressly said that a wrong: determination of the Court cannot be corrected in proceedings for certiorari, no judge has refuted this proposition. In any case Antulay was decided on appeal under ‘Article 136 and not under Article 32. In Khoday Distilleries Ltd. v. Registrar General, S.C. of India®, the court held that a petition under Article 32 against @ final order of the Court under Article 136 reviewed under Article 137 is not maintainable. In another case admissibility of applicable article Prem Chand Garg v. Excise Commr., AIR 1963 SC 996. 2 vk 64. Naresh S. Mirajkar y. State of Maharashtra, ‘AIR 1967 SC 1. See also, State of Pi v.Ajaib, ; AIR 19538C 10; Ranjit Singh v. Union Territory ‘of Chandigarh, (1991) 4 SCC 304: AIR 1991 SC 6 Sat of Bitar al Maun ‘Shan, (2000) 4 SCC 640: ATR 2000 SC 1296 6. Ibid OPS , 6) PSR, Sadhanatham v. Arunachalam, (1980) 3 SCC 141: AIR 1980 SC 856. 3 i 1 AIR a analysis of wis as see UB (1988) 2 SCC 602: AIR 19% f 88 SC 1531. For a detailed sn ; bert, ‘and Corruption, (Easten Book Co., 1989). 1 1999) 6 SCC 114, : te te‘1H CONSTITUTION OF INDIA d 28 a ferred to a Constitutionay ot Jor Article 32 has been re! auneadiical similar petition und sided Supreme Court Bar Association ¥. Union os On viv the Court has dee 6 a ns Linder Article 32. The existing legal position has, howe a petition Ver, crtocted by this decision because firstly, the court expressly affirmed Ania ’ cone sooundly, the case Was decided entirely on the question of powers of the and Atticles 129 and 142 in disregard of statutory provisions. The question of the oye of the Court to violate the fundamental rights in the exercise of its judicial fu was not raised or discussed at all. bisa) ‘The foregoing propositions are true only in respect of courts, ie., the cous which have the power to determine their own jurisdiction and not in respee tribunals or other similar bodies which do not have such power. Therefore, ot determinations in violation of the fundamental rights can be: challenged proceedings on the ground that they are without jurisdiction. But unless tie determinations are without jurisdiction they cannot be challenged in writ Apparently not much seems to be gained by including the judiciary within ‘the State’ under Article 12. On the contrary, it will lead to the multiplicity of proceeding by raising the same issues first in appeal and then in writ proceedings, Perl only remote gain could be that the courts will feel more obliged to enforce directive principles of state policy which in view of the definition of ‘the Si Article 36 would bind them as much as the legislature and the executive.?3 But it can also be argued that as guardians and sentinels of the Constitution, the eo must always be as much dutybound to defend and give effect to the direct Principles as to the fundamental rights irrespective of their inclusion within { definition of ‘the State’. sation in India and globalisation of world economy some people entertain. doubts about the application and efficacy of the fundamental rights. The doubts based on two fundamental premises: firstly, that with the increasing role of pri enterprise and the decreasing role of the State, the fundamental rights wou violated more by the private enterprises than by the State, and secondly, the j enterprise itself will claim the fundamental rights as legal person such as © tions, including the multi-national corporations. While these premises warn the possibility of disuse or misuse of fundamental rights, they may not b cause any damage to them. As regards the first premise, merely by incre role of the private enterprise the State cannot absolve itself from the of honouring and safeguarding the fundamental rights. Of course in enforcement of the fundamental rights will depend more on the po than on the courts. But in any case enforcement of almost all econon rights depends more on political Process than on the courts. As rege and civil rights the position is unlikely to change and the courts 70. Rupa Ashok Hurra v. Ashok Hurra, (1999) 2 SCC 103 and 71. (1998) 4 SCC 409, , poke 72, Fx els ser Anicle 32below unde he «Unione nd Rik RSS 73. See Mathew, J. in Kesavananda Bharati v, St b ee eee 5, (1976) 2 SCC 310; AIR 1976 SC 490, 515; Unni: head 'Quas:judicial authorities’. Se also. ChFUNDAMENTAL RIGHTS 29 available to enforce them. In those cases the definition of ‘the State’, as interpreted by the courts, has enough potency to cover direct and indirect eee the rights. In this connection phenomenal advancement in information technology shall play a decisive role in shaping the polit Shaping ical and judicial Process in support of the fundamental rights. Their violation will be as much subject to international scrutiny as to national. As regards the second premise, no doubt a few of the fundamental tights, such as the right to equality in Article 14, are available to legal persons as well as to natural persons. But most of them by their nature and intent are available only to natural persons. They cannot inhere in legal or non-natural persons. Therefore, no question arises of their being availed of by the Corporations including the multi-na- tional corporations. Further, quite a few of the fundamental rights are available only \o citizens. As corporations, particularly foreign corporations, cannot be citizens, no question arises of their claiming those rights. Even in respect of those fundamental rights, which are available to legal persons, such as the right to equality, it may be said that the core of equality, equality of respect, is incapable of application to non-natural persons. Moreover, it is a well-settled proposition that the same standards of equality do not apply to business and economic activities as apply to other matters. It may be hoped that the evolving universal expansion of human rights will ‘nsure suitable efficacy to and enforcement of the fundamental rights in the changing Scenario. The Constitution in general and the fundamental tights in particular are capable of meeting the challenge of any changes in the society. daeRIGHT TO FREEDOM 19. Protection of certain rights regarding freedom of speech, etc.— (4) All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; 81. Art. 8, S. 9. 82. Raghavachariar: The Constitution of India, p. 57. 83. Jennings: Some Characteristics of the Indian Constitution, (1953), p. 18. 84. Balaji Raghavan v. Union of India, ATR 1996 SC 770.100 THB CONSTITUTION OF INDIA (Parr th eely throughout the territory of India; to move ff eT any part of the territory of India; *Sfand) (e) to reside and settle in ihellere dail (g) to pract! ® aa 1) shall affect the operati 87[(2) Nothing ih sub-clause (a) of clause ( di AS gpejaten of any existing law, or prevent the State from making ae ae far as such law imposes reasonable restrictions on the. 9x of the right conferred by the said sub-clause in the interests of [the sovereignty and integrity of India,) the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.) (3) Nothing in sub-clause (4) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of ~[the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of ®Sithe sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (6) Nothing in °°[sub-clauses (a) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6).Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general ay reasonable restric- tions on the exercise of the right conferred by the said sub-clause, and, in particular, °*'inothing in the said sub-clause shall affect the operation of any 85. Ins. by Constitution (Forty-fourth Amendment) Act, 1978, S. 2 (w.e.f. 20-6-1979), 86, Clause (f) on “to acquire, hold and dispose of property; and’ omitted by Constitution (Forty-fourth Amendment) Act, 1978, $. 2 (wee 2061979), i i 87. ee Sey by the Constitution (First Amendment) Act, 1951, S. 3, for the original cl. (2) any profession, or to cary on any occupation, trade oy Nothing is sub-clause (a) of cl (1) shall affect the operation of any existi ityelates is sub-< y existing law in so faras trl to, or He ie See from making any law relating to, libel, slander, detaraliog ‘Contempt of Court or any matter which offends in er i i to ovcuace, Which offends against decency or morality or which undermines the security of ors 8. /ns. by the Constitution (Sixteenth Amendment) Act, 1963, S. 2. ia Py the Constitution (Sixteenth Amendment) Act, 1963, 0. Subs. by the Constitution (Forty Act, 197 : Sus. by the os {ution (Forty-fourth Amendment) Act, 1978, S. 2 for ‘‘sub-clauses (d), (e) and ()" Subs. by the Constitution (First Amendn by the Cons i ment) Act, 1951, S. 3, for the original words. er “Ne palaa te nigra shall sfegetie operation of any etn ivr nsotartel P a 10 pres i Practising any profession or carrying on a 1 ¥ professional or technical qualifications iny Occupation, trade or business,” .xt 19] ’ 5 FUNDAMENTAL RIGHTS existing law in so far as it relat fe SP pein to to, oF prevent the State from mak faking () the professional or te a chnical quali ‘ Ae ali any profession of canying ee fications necess By Any Occupation, tr any ary for practising ‘ade or business, whether to the exclusi my t isior a Nn, complete or partial, of citizens or other- of the Constitution ‘ ara fundamental fi doms which are SEEN 8 the territory of India, These are— (a) freedom of speech and expression; (b) freedom of assembly; (c) freedom of association; (@ freedom of movement; (e) freedom of residence and settlement; and (f freedom of profession, occupation, trade or business. ‘These rights are not exhaustive of all the rights of a free man who has far and wider rights.’ Some of these rights falling outside Article 19 are ee live?, right of citizenship’, the right to vote* or contest election®, the contractual right against the Government®, right of government servants to continue in employ- ment’, and the right to strike.8 Some of these rights may otherwise have protection from the provisions of the Constitution outside Part II or of ordinary statutes. /The freedoms enumerated in Article 19(1) are those great and basig rights which Frerecognised as the natural rights inherent in the status of a citizén.) But none of these freedoms is absolute or uncontrolled, for each is liable to be cuftaited by laws made or to be made by the State the extent mentioned in clauses (2) to (6) of Article 19./Clauses (2) to (6) of Article 19 recognize the right of the State to make Jaws putting reasonable restrictions in the interests of the general public, security of r other reasons set out in those the State, public order, decency or morality and for in thos sub-clauses. |The principle on which the power of the State to impose restriction is based is that all individual rights of a person are held subject to such reasonable limitations and regulations as may be necessary or expedient for the protection of Esc interest in Fin liberty the citizens of India the six y them throughout and in all parts of the general welfare.)In the words of Das, J. r _ may well have to subordinated to other greater social interests.|° Indeed, there 1. Per Das, J. in AK. Gopalan v. State of Madras, AIR 1950 SC27, 110, f 5 ‘ Dclaprotin sak v Sutaef UB, GOR uSee oD UM TAT te safeauarded by Art. 21 per A.K. Gopalan v. State of Madre ZR 100 SO er 3. [ahar Alned Khan v. Union of India, AIR 1962 SC sears f NP. Ponnuswami v. Returning Officer, ATR 1952 SE 64, 7. 6, 688 Sathawor Av Siale of Orissa, Ibid, Jamuna Prasad Mukhariya v.Lacihi Ram, AIR 1954 AIR 1955 SC 166, 170. 6. Anand Behera v. State of Orissa, AIR 1956 SC 17. 19. 7. P. Balkotah v. Union of India, AIR 1958:SC 232, 238, P Radhey Shyam Sharma v. P.M.G., AIR 1965 SC 31, 313. = Sate of WB, v. Subodh Gopal Bose, AIR SSE ie | A.K. Gopalan v. State of Madras, AIR 1950 SC 27.——- 102 THE CONSTITUTION OF INDIA se TI has to be a balance between individual rights guaranteed under Article 194 I the exigencies of the State which is the custodian of the interests Of the Me and public, public order, decency or morality and of other public interests Which wt compendiously be described as social welfare.”"!! May The restrictions which may be imposed under any of the clauses m reasonable restrictions. In the original Constitution, distinction had been ae between clauses (3) to (6) on the one hand, and clause (2) on the other, idan as the word ictions” used in clauses (3) to (6) was qualified by the Ss ‘reasonable’, while the word ‘reasonable’ was absent from clause (2). The Cons tion (First Amendment) Act, 1951 inserted the word ‘reasonable’ before the wo.) ‘restrictions’ in clause (2) also. Hence, a law restricting the exercise of. any of seven freedoms guaranteed by clause (1) of Article 19 to be constitutionally yaig, must satisfy two conditions, namely,— (0 the restriction must be for the particular purpose mentioned in the clause permitting the imposition of the restriction on that particular right, and (ii) the restriction must be a reasonable restriction. Itmay be emphasised that the requirement that a restri¢tion should be reasonable is of great constitutional significance, for it acts as a limitation on the power of the legislature, and consequently, widens the scope of judicial review of laws restraining the exercise of freedoms guaranteed by Article 19. The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive;!? it is subject to supervision of courts. Citizens.—It is the citizens alone to whom the rights under this article are secured. An alien or a foreigner has no rights under this article because he is not a citizen of India.'3 Juristic persons such as companies are not citizens within the meaning of Article 19. ‘Citizens’ under this article means only natural persons who have the status of citizenship under the law." \isa In the Bank Nationalisation case'® it was held that a shareholder, a depositor or a director is not entitled to move a petition for infringement of the rights of the company, unless by the action impugned by him, his rights are also infringed. The test in determining whether the shareholder’s right is impaired is not formal; itis essentially qualitative: if the State action impairs the right of the shareholders & well as of the company, the Court will not, concentrating merely upon the technical operation of the action deny to itself jurisdiction to grant relief.!° In Bennett Coleman and Co. v. Union of India", the Court said that the fundamental rights of citizens are not lost when they associate to form a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are a f All. Hari Khemu Gawali v. Dy. Commissioner of Police, AIR 1956 SC 559, 565. ‘ 18, 12. Babu Ram v. B. Baijnath Singh, AIR 1962SC 1476; Chintaman Rao v. State of M.P, AIR 1951SC 15s 120, 18, Anwar Sate of 14K, (1971) 3 $C 104 AIR 1971 $C337 ‘orporation of India Ltd. v. CTO, AIR 1963 SC 1811; Indo-China S. Navigation Co. v- J AIR 1964 SC 1140; British LS.N. Co. v. Jasit Singh, AIR 1964 SC 1451; Tata E & L Co. of Bihar, IR.1965 SC 40; Barium Chemicals Ltd. v. Co. Law Board, AIR 1967 SC295; State 15, Arun Mis, 1974) 4 SCC 656: AIR 1974 SC 1300. i ‘ooper v. Union of India, (1970) 1 SCC 248; see of India, (1970) 1 SCC 248; AIR 1970 SC 1318. ? 17, (1972) 28CC788, 806; AIR 1973 ‘ : 1 SCC ae igi AIR 1973 SC 106, Followed in Godhra Electricity Co v. Sate ele9) ant 19) FUNDAMENTAL jGHTy pho reason is that the shareholder's rights are ei rights of the Company are affected, SaWally and necessarily affected if the Reasonable Restrictio he sqpasonable restrictions’. The test of jadividual statute impugned and no abstract stand, ableness can be laid down ipplicable to al aa scoring to which of the six rights euarantes ty the impugned law,'S The sine Bea Te ne (1) is being restricted the underlying purpose Of the restricts Peeters the judicial verdict are evils sought tobe remedied thereby,-the disproponice ee int urgency of the prevailing conditions at the time, and the duration of tha eacren sein ostion. the js an clastic one: it varies with time, spa Ine restrictions:}” The standard : s » Space and condition and from case to case. With the reservation that no absolute definition of the is il we may here summarise some of the principles which the Sunere Coot affirmed in ascertaining the reasonableness of restrictions on the exaciee of re rights secured under this article. Se ala 1. Reasonableness demands proper balancing.—The phrase “reasonable restric- tions’ connotes that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of an excessive nature. Legislation which arbitrarily or excessively invades any of the six freedoms cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedoms guaranteed under Article 19(1) and the social control permitted by clauses (2) to (6) of Article 19, it must be held to be wanting in reasonableness.” 2. Reasonableness: both substantive and procedural—tn determining the rea- sonableness of a statute, the court would see both to the nature of the restriction and procedure prescribed by the statute for enforcing the restriction on the individual freedom. Not only substantive, but “procedural provisions of a statute also enter into the verdict of its reasonableness”. Thus, to illustrate, if the law prescribed five years’ externment or ten years’ externment, the question whether such period of externment is reasonable, being the substantive part, is necessary for the consider- ation of the Court under clause (5) of Article 19. Similarly, if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court so as to determine if the exercise of the right has been reasonably restricted.?2 Procedural reasonableness for natural justice flows from Article 19. So principles of natural justice are an element in considering the reasonableness of a restriction Where Article 19 is applicable, But the elaborate rules of natural justice may be excluded expressly or by necessary implication where procedural provisions. are made in the statute. Absence of provision for review makes the provisions 18, State of Madras v. V.G, Row, AIR 1952 SC 196. 18 Sie ie ¥. VG. Row, AIR 1952 $C 196, Also eee rae SO SCC 39, 6 . State of U.P 5, Idan Eyres Newpapr Aga te C1985) 1 SCC 641, 691; Krishnan Katka v. Gov. of ‘erala, AIR. 1997 SC 128. oe 20, fie Math State of Punjab, MIR 1967 SC 1643, 1655; Olga Tellis v. Bombay Municipal Corpn., | 21: Darke Prasad Lakshmi Nara P, AIR 1954 SC 224, 227; Chintaman Rao v. State of on Al i951 SC1I A tne Une of (1982) 2 SCC 33: AIR 1982 SC 1016. shan Chand Aror , AIR z J 23. tran Sata Ste of WB, an753 JC 198, See also dissent of Sinha, CJ, and Subba Rao Jin Constitution nowhere det fines the t Feasonableness hay a eae (0 be applied to each eneral pattern of reason- he meaning would varya ii THE CONSTITUTION OF INDIA 104 [Pawer tit sagonable2! Retrospectivity of a law may also be a relevant factor ajth, we tiity of a ay does not make it automatically unreasonable thoy Discretion vested in an administrative authority is also a relevant factor, If j exerise is properly controlled and safeguarded, it is reasonable otherwise is n'a 3, Reasonableness and objective concept-—The reasonableness of a restric, has to be determined in an objective manner and from the standpoint of the inj fof the general public and not from the point of view of the persons upon whom restrictions are imposed or upon abstract considerations.”” It is this need of Objee. tivity that prompted the Supreme Court to warn the Judges not to bring in their own predilections in ascertaining the reasonableness of restrictions. It sai “In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, itis inevitable thay the social philosophy and scale of values of the Judges participating in the decisions should play an important part, and the limit of their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for the people of their way of thinking, but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restriction, considered them to be reasonable.” _4. Reasonableness of restriction and not of law—The Court is called upon to ascertain the reasonableness of the restriction and not of the law which permits the restriction. A law may be reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.” In some cases the Court has held that Article 19 read with Articles 14 and 21 requires that the law must be reasonable. 5. Reasonableness includes total prohibition —The word ‘restriction’ also in- cludes cases of prohibition and the State can establish that a law, though purporting to deprive a person of his fundamental right, under certain circumstances amounts to a reasonable restriction only! 6. Reasonableness and American ‘Due Process'—Though the test of reason- ableness laid down in clauses (2) to (6) of Article 19 might in great part coincide: with that for judging of ‘due process’ under the American Constitution, it must not be assumed that these are identical. For it has to be borne in mind that the Constitution framers deliberately avoided in this context the use of the expression ‘due process’ with its comprehensiveness, flexibility and attendant vagueness, i Kishan Chand Arora v. Commr. of Police, AIR 1961 SC705, 713-14.and Nawabkhan v. State of Gujarah (1974) 2 SCC 121: AIR 1974 SC 1471. m4. beets v. Siate of Punjab, AIR 1957 SC 896, 903; K.T. Moopil Nair v, State of Kerala, AIR 1961SC 25. Navotamdas v. Sate ofM.P, AIR 1964 $C.1667, 1671; Empire Industries dv Union of nia (1989) 26. Municipal Corpn. v. Jan Mohd. Usmanbhai, (1986) 3 SCC 20. 7 Manif Ouareshi. Stale of Bikar, AIR 1958 SC 751; Muntlpal Corpn. v. Jan Mob Usman 1989) 28, State of Madras ¥. V.G. Row, AIR 1952. SC 196, 200. Rao zB, NB: Kare ¥. State of Delhi, AUR 1950 SC-211, 217, Delt Adtoiraien Tee 1 (1978) 1 SCC 248, 294, 323: AIR 1978 SC 5975. 80 SC-470; See also M.P. Singh: ‘The Const of Reasonableness", (1981) 3 SCC (J) 31. zt CEE: Kochunl v, State of Madras, A1R.1960 SC 1080; Narendra Kumar v, Union of India, AIR ooFUNDAMENTAL RiGHTy tr mewhat more definite word, § i 10s « Spefore the literal application chant tnd caution hag nably precise Reneral guidance jn this Gecisions.32 yy qq" restriction has to be considered in eagyr eter The test of Tntvinged, the purpose of the restriction, the sa He light of the nate ‘ xd to be Suppressed, and the preva o%! of el a be misleading to construe the concept ti gecisions.? eness and Directive Principles of State poy, ' in carrying out the Directive mca (eam the restric. ae mr easonableness of the restrictions ™ Hate Policy isa point bleness of Taxes.—The Constitutioy Hana While restrictions are imposed by ee 4 distinction between tx a - Ep WS, tax laws impose taxes, na facie a tax is not a restriction on any of the freedo i ms guaranteed ind for challenging it as Tespect of freedom of 1as, however, asked for r s0) es Te reason ¢ impose’ avout “g, Reasonal iter 10S: ine, pri i 19, Mere excessiveness of a tax is not a grou yset Mt on one of the freedom in Article 190 In si expression under, Article 19(0)(@) the Court h ution in imposing taxes. wn of proving reasonableness.—Under Article 19, once the invasi eae vovedt the State must prove that its case comes det ae ‘ticle 19..” The onus of proving to the satisfaction of the Court that the ‘retion is reasonable is upon the State.%* It is surely not for the petitioner to ively that the legislation was not reasonable.” The harsher the restrict the onus to prove the reasonableness.“ . CLAUSE (1)(@)—FREEDOM OF SPEECH AND EXPRESSION bevy ‘Article 19(1)(a) secures to every citizen the freedom of speech and e se should be read with clause (2) which provides that the said ‘aaa 16t ae the operation of a law relating to the matters specified therein.” e ‘The freedom of speech and expression means the right to ex comictions and opinions freely by word of mouth, writing, prin, «tier mode, A democratic government attaches great importance tecause without the freedom of speech appeal to reason, W democracy, cannot be made. In Romesh Thappar v. Sastti, C.J. observed as follows: 32 Collector of Customs v. Nathella Sampath Chetty, A om AIR 1957 SC 297; Jagmohan Singh v. State 573 (cata) in Kesavananda Bharati, (1973) 4SCC 225, 873: 3 Sawoth Singh v. Delhi Administration, (1973) 1 Aiea, AIR 1962 SC 316, 328. ave Sate of Bombay y. F.N. Balsara, ATR 35: Pankaj Jain Agencies v. Unie"THE CONSTITUTION OF INDIA, syeedom of speech and of the press lay at the foundation, onganisations, for without free political discussion no publig , essential for the proper functioning of the process of popular », possible. A freedom of such amplitude might involve risks of gp framers of the Constitution may well have reflected with the leading spirit in the preparation of the First Amendment Constitution, that it is better to leave a few of its noxious b Juxuriant growth than by pruning them away, to injure the yi, yielding the proper fruits.” sg Unlike the American Constitution, Article 19(1)(a) does not ex; the liberty of the press, ie., the freedom to print and to publish wh; without previous permission /But it is settled law that the right to 0 and expression in Article 19(1)(a) includes the liberty of the press.43 Lo, as early as 1784, had defined the “liberty of the press’ as consisting without previous licence, subject to the consequences of law” ang sense that the freedom has existed in England since the end of the Century. The freedom of the press is not confined to newspapers but includes also pamphlets, leaflets, circulars, and every sort of pul affords a vehicle of information and opinion,*¥ It needs no emphasis press, which is neither directed by the executive nor subjected to cens vital element in a free State; in particular, a free, regularly published, , is essential in a modern democracy.) The citizen, called upon to decisions, must be comprehensively informed, know the opinions able to weigh them up against each other. (The press keeps this: di provides the information, adopts its own point of view, and thus works 4 giving force to the public debate. It stands as a permanent means of and control between the people and their elected representatives Government.“6 ) \ Imposition of pre-censorship on publication is, clause (2), Wiolative of freedom of speech and expression) In Brij B of Delhi*?, an order issued under Section 7(1)(c) of thé East Pung Supreme Court, observing: “There can be little doubt that the imposition of pre-ce is a restriction on the liberty of the press which is an essential freedom of speech and expression declared by Article 9a Likewise, banning of publication in any newspaper of any m particular subject or class of subjects would be obnoxious to the right freedom of speecl pace ad! SE Dal 43. Sakal Papers (P) Lid. v. Union of Saal Papers dia ALR 1962.SC 308; Eapress Newspaper $78; Brij Bhushan v. State, AIR 1950.SC 129, ts seal rte Common gee Peete opis mal Commission of Jurists, Vol. VIIL, p. 132. 4 AIRi9s7 sceru o UNDAMENTAL wate ‘ as ge tom publish NS OM Yeo 4 we an even under ac th ‘on batt € lor a Court 8 vi \ sti" IMlunetiOn gan net OF its g, , n f iE yplic on there is a clea N a con ty aon and itn hn be Tesponeni DE ofl jot otherwise”? Prohibition onthe ' sted ig the 3 ca Me MAY ot ot the adm te «has also been held to fh letion of ancnstation of " bli ips ottioial © violative ot of speech and expression includeg ite Fs Article Loci ahY Critica Teedom of od by the freedom of circulation on) ue reat ofS eee gist is om iol 8 SNe notification banning the entry img es gw of NF ine State of Madras or any part of it of then ition, sale, sou nS capombay Was Nel invalid, because, nya tet j ibe on would be of litte’ value”, * without liber i ica ye The ylation aht to freedom of speech’ is infrin, righ publication, but also by an agsion ot! affect the circulation of the paper, the Daily Newspapers (Price and P; and ges rape ; te of Article 190) The order affected the libert ould mean, the petitioners explained, eit on F pages or raising of the prices ce pea act in the “jume or circulation of the paper and therefore a di Would be reduction the vO Ore a direct violation of the lit “the press: ON behalf of the State, the law Was justified as a reasonable rest she business activity of a newspaper in the interests of the general wre Court accepted the plea of the petitioners that the order aff nd so restrained the dissemination of news and views a spe freedom to do. The order was struck down and held se en ‘pe plea of the State justifying the legislation as a restriction on wguty under clause (6) of Article 19, it held that the only re te imposed on the press are those which clause (2) of siner Mudholkar, J. speaking for the unanimous Court, “The right of freedom of speech cannot be placing restrictions on the business activities of can be restricted only in the interest of the with the Foreign States, public order, d contempt of court, defamation or inci freedom to carry on business, be curts The freedom of the press includ ment of the necessary means of exer ‘nthe editorial force of a news} calculated 10 undermine the i Of the press implicit i ofthe pres Beem te amber of gecuation a(ON OF INDIA re CONSTIT 108 jogitimate (0 subject the press to.ley, och and expression or adopt 7 J, thereby narrow the scope ofd cor intended onion. sy the majority in Bennett Coleman Co, v, Yp es A ress is not only in the ‘volte iat eso of Peer ye and views: ‘The press ha the right of a a ation without any previous re straint. If a law were to jown prohibitive burdens on it that would restrict thea its freedom of hoice as to personnel, prevent newspapers from : oto seek government aid. This would violate outside the prote ion afforded by Article 19(2)) The " for 1972-73, along with the Newsprint ControlOrder, ential Commodities Act, 1955, provided (i) b by common ownership unit, (i) rigid limitation » bar on interchangeability within common ownership unit, and (iv) 20 per cent page increase only to newspapers below ten pages. The own the Policy as being violative of Article 19(1)(a). Drawing inspir nt, Mathew, J. dissented and expressed that th American First Amendmet be an abridgment of speech, but not an abridgment of the freedom o observed that if the scheme of distribution is calculated to preyer ruling the market and thus check the tendency of monopoly in the 1 not be open to any objection on the ground that the scheme involve of the press which would amount to an abridgment of the However, the majority, through Ray, J. (as he then was) pointed out tha First Amendment contained no exception like Article 19(2) of the I tion, and the American decisions establish that a governmental f justified in America as an important or essential government unrelated to the suppression of free expression. The Court has ¢ freedom of the press cannot be taken away in the manner the Policy had done. . Commercial advertisement’, does not fall within the pro speech and expression. Such advertisements have an. element Thus, a law which puts restrictions on the publication, means of advertisements to promote the sale of certain right to free speech or the press. Here, the advert has the object of furthering business and has no freedom of speech which is a privilege of 4 economical, or furtherance of literary ment does not aim at the furtherance about advertisement has changed a part of the freedom of speech’ Therefore, a commercial speech ¢ under Article 19(2) and comprising paid adver — ne 55. Express Newspapers (Bi) 56. (1972) 2 SCC 788; i would not be | Jom of Spe he freed ai} cireulation and the general I away oF J to curt press for laying ¢ penali and compel the Pr and would fall for Newsprint under Section 3 of the newspapers or editions @ 57. Hamdard DawaFUNDAMENTAL RiGitTy art e xereise of freedom OF specch and yy a8 ON le 458 of the Indian Ty Lind ‘expressio wating B 6 Tndlan ‘Telegrg under Ax pe ph abet to bis Ae !55 “etn 19a) or such as Tat Pr td, could elephone sub; Tout their product along with ip rgd of ihn. Hes and telephi y Me nut. mm gave rots al woe opstrations being visible representations of ideas would ould be pr folected as a yvided they are not violent nbit of freedom of spocen Oty but a tke is not je! a a cstineton between “bandh and if tot eealy reasoned ou a ee is n0 fundamental right othe Fame att the Court seems to Mich does not go beyond the limit of eels which is done by doe not restrain others py doing what they please, ow inducement and waxed under Article 19(1)(@).© The freedoms guaranteed by feo eesti at pete not include the right to exercise them in properties belon re 19()(@) and ) amatic PertormanGialaes form of speech and expression ne ns ‘0 others. of films as 4 media of expression and its prior-censo1 hin vane constitution yo of Indi. Unable to get “ees for his ern dite . Uni jpas questioned the validity of the Cinematograph he Tale of Four Avade under it. Though the government decided cee te 2azalone n was pending in the Supreme Court, Hidayatullah, eas films including pre-censorship was constitutionally v: arn sh yen Der apoesh PEC oo Oo within the am ie the petitiol is it was @ reasonable restriction within the ambit of Article 19(2) & onsorship was but an aspect of censorship and bore the cut that pre~ ship in quality £0 However, censorshiP should n the material as censorship after the motion picture ot be exercised as to cause unreasonable we te freedom of expression. Hidayatullah, C.J. went to the extent of auidelines for the censors, e.g., that sex and obscenity are not seit is wrong to classify Sex as ‘essentially obscene or even In S, Rangrajan v. P. Jagjivan Ram®, the Madras C certificate issued to a film on the ground that the exhil to cause public disorder and violence. On appeal by t the Union of India, the Supreme Court reversed, Th importance of the freedom of speech and expressi timate media for its exercise, but also held be validly restricted under Article 192) it ‘ean of demonstration and processions or threat ol It is the duty of the State to __ a liberty guaranteed against the 5 To Pres Liv abana Tl 8. Kameshvar Sin 3 Kaeser Singh v Stat af Bi 8 Goi Pay ti ‘aj Narain v. St Pa vayTHE CONSTITUTION OF INDIA 110 handle the hostile audience problem. It is its obligatory oe wssion” ‘Slee ot the freedom ‘of expre: ve Pepi aspect of the right to eect of speech and ¢) portant jnnovation by the Court in this case. ; on * Maneka Gandhi v. Union of India®, the constitutionality of cert Pad dered at the instance of the rt Act, 1967 was consi | é in The ‘Supreme Court held that the right to go abroad 1), Bhagwati, Untwalia and Fazal Ali, JJ. observed” emer ressly mentioned in any clause of A "ae a right not expré : covered by some claus of the article. For example, freedom of the | by Article 19(1)(@) though not specifically mentioned therein. Thus, ev ti ned in Article 19(1), it may still be a fun is not specifically mentiot } covered by any of the articles, if it is an integral part of a named fu or partakes the same basic nature and character of that fundamental Sense right to go abroad cannot in all circumstances be regarded feadom of speech and expression. Therefore, the theory that a p concommitant right which facilitates the exercise of a named fundam gives it a meaning and substance or makes its exercise effective, is itself a gu right included within the named fundamental right, cannot be accepted. to go abroad cannot, therefore, be regarded as included in freedom o expression guaranteed under Article 19(1)(a) on the theory of perip mitant right even if the claimant of the right is a journalist and cl abroad is related to journalism.” In A.V. Chandel v. Delhi University High Court, however, held that the right to freedom of speech under c includes right to education. This extension seems to be farfetched.”* The right to know, ‘receive and impart information has been rec 7 the right to freedom of speech and expression. 73 “A citizen has a fundam to use the best means of imparting and receiving information and ‘an access to telecasting for the purpose.” The right to know has, ho\ extended to the extent of invalidating Section 5 of the Official Sec which prohibits disclosure of certain official documents, In 5.P. Gupta India”, it was admitted that whenever disclosure of a document is to the public interest it is immune from disclosure, But the decisi immunity will rest with the court and not with the head of government or Rejecting the plea for disclosure of the supporting documents and evi 68. of Christian Starck: ‘*Freedom of Expression and Academic Freedom: Background Legal Principles and Torsten Stein: ‘Free Speech in Germany’ M.P. Singh (ed), ¢ Constitutional Law, 193, 196 and 231, 235 respectively (1989). 9. (1978) 1 SCC 248: AIR 1978 SC 597. 70. elie Gandhi v. Union of India, (1978) 1 SCC 248: AIR 1978 SC 597. Ina ce xpress Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133, one of the three Seems pelea re-entry upon forfeiture of lease and of the threat to demolish the Exp 71. AIR 1978 Del 308. Contra W.B. Head Masters’ Assn. v. Union of India, AIR 1983 Cal 72. See MP. Singh: “Cons fijayy: Singh “Constitutional Right to Vidva or Privilege for Avidya?”, 83.8 13, Capt v, Peden of yee resident of India, AIR 1982 SC 149 at 23: cl is * i 1 Association of Bengal, (1995) 2 § 161. Se 75: (1981) Supp SCC 87 at 284-286. Also State of U.P. v. Raj Narain, (1975) 4 SCC 428: