Friday, January 26, 2007

Constitutional Law II

Article 12
State

Most of the Fundamental Rights are claimed against the state and its instrumentalities and not against private bodies. Art. 13(2), bars the ‘state’ from making any ‘law’ infringing a Fundamental Right. Art. 12 gives an extended significance to the term ‘state’. Art. 12 clarifies that the term ‘state’ occurring in Art. 13(2), or any other provision concerning Fundamental Rights, has an expansive meaning.
Article 12. : In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the State and all local or other authorities within the territory of India or under the control of the Government of India.
According to Article 12, the term ‘State’ includes:
(i) The Government and Parliament of India;
(ii) The Government and the Legislature of a State;
(iii) All local authorities; and
(iv) Other authorities within the territory of India; or under the control of the Central Government.
The action of the any of the bodies comprised within the term ‘state’ as defined in Art. 12 can be challenged before the courts under Art. 13(2) on the ground of violating Fundamental Rights.
The first two categories include the legislative and executive wings of the Union and the State in all their possible varieties. They are quite specific and self-explanatory. The latter two categories, particularly the last, are not so specific and require some explanation.
Local Authorities: The expression ‘local authority’ in Art. 12 refers to a unit of local self-government like a municipal committee or a village panchayat.
The Supreme Court has ruled that to be characterized as a ‘local authority’ the authority concerned must have separate legal existence as a corporate body, it must not be a mere government agency but must be legally an independent entity; it must function in a defined area and must ordinarily, wholly or partly, directly or indirectly, be elected by the inhabitants of the area. It must also enjoy a certain degree of autonomy either complete or partial, must be entrusted by statute with such governmental functions and duties as are usually entrusted to locally like health and education, water and sewerage, town planning and development roads, markets, transportation, social welfare services, etc. Finally, such body must have the power to raise funds for furtherance of its activities and fulfillment of its objectives by levying taxes, rates, charges or fees.
In Calcutta State Transport Corporation V. Commissioner of Income-tax, West Bengal, the Supreme Court refused to characterize the Corporation as a ‘local authority’. The corporation is meant only for the purpose of providing road transport services and has no element of popular representation in its constitution. Its powers and functions bear no relation to the powers and functions of a municipal committee. It is more in the nature of a trading corporation.
Other Authorities.: The interpretation of the term ‘other authorities’ in Art. 12 has caused a good deal of difficulty, and judicial opinion has undergone changes over time.
Today’s government performs a large number of functions because of the prevailing philosophy of a social welfare state. The government acts through natural persons as well as juridical persons. Some functions are discharged through the traditional governmental departments and officials while some functions are discharged through autonomous bodies existing outside the departmental structure, such as, companies, corporations etc.
Some High Courts held that since the expression ‘other authorities’ is used after mentioning a few of them, namely, the Government and Parliament of India, the Government and the Legislature of each of the State, and local authorities, it would be reasonable to construe this expression ejusdem generis with government or legislature. So construed, it could only mean authorities exercising governmental or sovereign powers and functions. On this interpretation, the expression, ‘other authorities; would only include such bodies as are functioning for or on behalf the Central or State Government. This restricted interpretation of the expression ‘other authorities’ was, however, rejected by the Supreme Court. It held that the doctrine of ejusdem generis was inapplicable to the interpretation of the expression ‘other authorities.
Laying down these propositions in Electricity Board, Rajasthan V. Mohan Lal, Supreme Court held that ‘other authorities’ would includes all authorities created by the constitutional or statute on whom powers are conferred by law. It was not necessary that the statutory authority should be engaged in performing government or sovereign functions. The court emphasized that it is not material that some of the power conferred on the concerned authority are of commercial nature. This is because under Art. 298 the government is empowered to carry on any trade or commerce. Thus, the court observed : “ The circumstances that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore give any indication that the ‘Board” must be excluded from the scope of the word ‘State’ is used in Article 12.
In the next important case on the subject, Sukhdev Singh V. Bhagatram, Three statutory bodies viz., LIC, ONCG & FCI were held to be ‘authorities’ and thus fall within the term ‘State’ in Article 12. These corporations were created by the statutes, had the statutory power to make binding rules & regulations and were subject to the pervasive governmental control. These corporations do have independent personalities in the eyes of law, but that does not mean that “they are not subject to the control of the government or they are not instrumentalities of the government. Public Corporations is a new type of institution which sprang from the new social and economic functions of the government, and instead of classifying it into old legal category, it should be adopted to the changing time and conditions. Statutory corporations are agencies or instrumentalities 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.
The approach in Sukhdev Singh case, was reiterated with approval in R D Shetty V. International Airport Authority. Bhagwati, J., speaking for the Court, pointed out the corporations acting as instrumentality or agency of government would obviously be subject to the same limitation in the field of constitutional or administrative as the government itself, though in the eye of the law they would be distinct and independent legal entities. If the government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori, that government acting through the instrumentality or agency of corporations should equally be subject to the same limitations.
Bhagwati, J., discussed in detail various factors relevant for determining whether a body is an instrumentality or agency of the state. These factors as they were finally summarized by him in Ajay Hasia V. Khalid Mujib, are:
1. If they entire share capital of the corporation is held by the government, it would go a long way towards indicating that the corporation is an 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 conferred or state protected.
4. Existence of deep and pervasive state control may afford an indication of 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 relevant factor in classifying a corporation as an instrumentality or agency of government.
6. If a department of the government is transferred to corporation it would be a strong factor supporting the inference of the corporation being an instrumentality or agency of government.
The Supreme Court ruled in the instant case that where a corporation in an instrumentality or agency of the government, it must be held to be an authority under Article 12. “The concept of the instrumentality or agency of the government is not limited to a corporation created by statute but is equally applicable to a company or society.”
This line of approach to the meaning of other authorities has been finally confirmed in Som Prakash Rekhi V. Union of India. Applying the criteria laid down in the International Airport Authority case, the Supreme Court reached the conclusion that there is enough material to hold that the Bharat Petroleum Corporation registered as a company under the Companies Act, is State within the enlarged meaning of Art. 12. Consequent upon takeover of Burmah Shell the right, title and interest of the company stood transferred and vested in the Government of India. Thereafter, the Central Government took necessary steps for vesting the undertaking in the BPC Ltd. which became the statutory successor of the petitioner employer. Krishna Iyer, J., speaking for himself have transformed the corporation into an instrumentality of the Central Government with a strong statutory flavour super-added are clear indica of power to make it an ‘authority. Although registered as a company under the Companies Act, the BPC is clearly a creature of the statute, a limb of government, an agency of the State and is recognized and clothed with rights and duties by the Statute.
If there is an instrumentality or agency of the state which has assumed the grab of a government company as defined in Section 617 of the Companies Act it does not follow that it thereby ceases to be an instrumentality or agency of the state.
Not only a body sponsored or created by the government may be treated as an ‘authority’ but even a private body (One sponsored and formed by private persons) may be so treated if – (i) It is supported by the extraordinary assistance given by the state, or (ii) if the state funding is not very large, state financial support coupled with an unusual degree of control over its management and policies may lead to the same result.
In this expansive trend, there have been some discordant notes as well. One such example is furnished by Tekraj V. U.O.I., where the Supreme Court held the Institute of Constitutional and Parliamentary Studies as not being an ‘authority’ under Article 12, The Institute is a registered society receiving grants from the Central Government and having the President of India, Vice-President and the Prime Minister among its honorary members. The Central Government exercises a good deal of control over the Institute. Inspite of the government funding and control, the court has refused to hold it as an authority.
On the same basis, NCERT, has been held to be outside the scope of Article 12. NCERT is a society registered under Societies Registration Act. It is largely an autonomous body; its activities are not wholly related to governmental functions; governmental control is confined mostly to ensuring that its funds are properly utilized; its funding is not entirely from government sources.
Another example of the expansive interpretation of the expression ‘other authorities’ in Art. 12 is furnished by the recent decision of the Supreme Court in Pradeep Kr. Biswas V. Indian Institute of Chemical Biology. In this case, the Supreme Court held that the Council of Scientific and Industrial Research (CSIR) is an authority under Art. 12. and was bound by Art. 14. The Court has ruled that the “Control of the Government in CSIR is ubiquitous. The court has now laid down the following proposition for identification of ‘authority’ within Art. 12:
The question in each case would be – whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a state within Article 12. On the other hand, when control is merely regulatory whether under statute or otherwise it would not serve to make the body a state.

Article 14
Single Persons Law
A Statute based on a reasonable classification does not become invalid merely because the class to which it applies consists of only one person. A single body or institute may form a class. A legislation specifically directed to a named person or body would be valid if, on account of some special circumstances, or reasons applicable to that person, and not applicable to others, the single persons could be treated as a class by himself. The Act may however be bad if there are no special circumstances differentiating the person concerned from the rest, or if other having the same attributes are not covered by the Act.
In Chiranjit Lal Chawdhary V. Union of India, the petitioner approached the Supreme Court for the protection against the enforcement of a Central Act, the Sholapur Spinning and Weaving Co. (Emergency Provisions) Act, 1950. The petitioner was an ordinary shareholder of the Sholapur Spinning and Weaving Co. Ltd. On Account of mismanagement and neglect of the affairs of the Company a situation had arisen that brought about the closing down of the mill. The action of the company prejudicially affected the production of an essential commodity, apart from causing serious unemployment amongst certain sections of he community. The Central Government thereupon issued an Ordinance Which was later replaced by the above-mentioned Act. By this Act the management and administration of the assets of the Company were placed under the control of the directors appointed by the government. As regards the shareholders, the Act declared that they could neither appoint a new director not could they take proceedings for the winding up of the Company. The contention of the petitioner was that the impugned Act infringed the rule of equal protection of the laws embodied in Article 14 because a single company and its shareholders were being subjected to disabilities vis-à-vis other companies and held the legislation valid.
In Ameerunnisa Case, a dispute between two rival parties regarding succession to the estate of a deceased Nawab was pending and after several vicissitudes for which the Nizam himself or his legal advises were primarily responsible, a report was prepared by the legal advisers of the State in a particular way which, contrary to the opinion given by an earlier special commission, negatived the claim of one party, i.e. of two ladies and their children. To give effect toe the report, the Nizam, who at that time exercised the powers of the Hyderabad Legislature, passed an Act, the Wali-ud-Dowla Succession Act, 1950. By this Act the claim of the two ladies was dismissed and the property adjudged to the other party. Obviously the effect of the Act was that the two ladies and their children were deprived of the right to enforce their claim in a court of law in accordance with the Mohammadan Law. They, in fact, were discriminated against the rest of the community in respect of a valuable right which the law secures to all, namely, the right of free access to the court. The discrimination made against the two ladies could only be valid if there were some reasonable ground for the differentiation made by the law. Two reasons were put in justification of the classification or differentiation made by the Act. First, that there was an adverse report against them by the Sate legal advisers and, second, that the dispute was of a long standing. The Supreme Court held that neither of these grounds could serve as a reasonable basis for the differentiation made by the law. As regards the first, the dispute regarding succession to the estate of the Nawab was a legal dispute, and without determination of the points in issue by a properly constituted tribunal of law, a legislation based upon the reports of a non-judicial authority and made applicable to specific individuals, who were deprived thereby of valuable rights, which were enjoyed by all other persons occupying the same position, did plainly come within the constitutional inhibition of Article 14. If the legislature makes the report of the legal adviser as the ground on which it deprives one specific person of his rights to have his say in a court of law, that law would be arbitrary and unreasonable. The second ground put in support of the classification was also rejected. The Court pointed out that the continuance of a dispute even for a long period of time between two sets of rival claimants to the property of a private person is not a circumstance of such an unusual nature as would invest a case with special or exceptional features and made it a class by itself justifying its differentiation from all other cases for succession disputes. Thus there was nothing to distinguish the dispute between the parties under the Wali-ud-Dowla Act which is not found in any other dispute between private parties.
In Ram Prasad V. State of Bihar, the two appellants had obtained a settlement of land in Bihar which at that time was under the management of the Court of Wards on behalf of the disqualified proprietress. The lands were settled at the prevailing rate or rent but the salami or premium was fixed at the half of the usual rate as a concession to the appellants who happened to be distant relations of the proprietress. For some reasons there was an agitation amongst the tenants of the locality against the lease held by the appellants. The matter was brought to the notice of the Congress Working Committee which found the settlement illegal and against the public interest. The lessees, therefore, were asked to vacate the land which they refused. Thereupon the Bihar State Legislature passed the impugned Act. The Act terminated the contract of lease and directed the lessees to quit the land immediately. The lessees contended the Act was unconstitutional because it denied o them the equal protection of laws. The Supreme Court accepted the appellants’ contention and held the Act ultra vires the Bihar Legislature because it appeared that there were numerous persons occupying the same position as the Alternatively, the dispute being between private parties, it was a matter for determination by duly constituted courts in accordance with the normal procedure. But what the legislature had done was to single out the two individuals and denied them the right which every Indian Citizen possesses to have his rights adjudicated in accordance with the laws. The reasons given for the extraordinary procedure were indeed remarkable for ‘their disturbing implications’. It was said that the agitation amongst the tenantry of the locality and opposition on the part of persons living in the locality against the appellants’ possession of the land had led to the breach of peace and institution of criminal cases. This could not be a rational basis to discriminate against the two named individuals. When on the face of a statute there is no classification at all and no attempt has been made to select any individual or group with reference to any differentiating attribute peculiar to that individual or group and not possessed by other, this presumption is of little or no assistance.
These and some other cases seems to establish that except in Charanjit Lal case, the singling out of the individuals has never been seen with favour, particularly when such singling out has been done for the purpose of hostile discrimination. As a matter of course single person laws are prima facie violative of Article 14 because they do not make a classification on the basis of some general or particular characteristics which may be found in any individual or class of individuals now or in future; rather they make one individual their target excluding every possibility of bringing any other person within their reach even if that other person also depicts those characteristics.



















Article 14
Right to Equality

Article 14. Equality before law. :- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
The guiding principle of the Article is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. ‘Equality before the law’ means that amongst should be treated alike. Hence, what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequals. The rule rather is that like should be treated alike and that unlike should be treated differently. The same or uniform treatment of unequals is as bad as unequal treatment of equals.
Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transactions by the Legislature for the purpose of achieving specific ends. Classification to be reasonable should fulfill the following two tests:
1. It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in the class from other left out of it.
2. The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question.
In re Special Courts Bill, the Supreme Court has however warned against over-emphasis on classification. The Court has explained that ‘the doctrine of classification is only a subsidiary rule evolved by the courts to give practical content to the doctrine of equality, over-emphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equity enshrined in Art. 14 of the Constitution. The over-emphasis of classification would inevitably result in substitution of the doctrine of classification for the doctrine of equality.
If there are two laws covering a situation, one more drastic than the other, there is the danger of discrimination if the Administration has a discretion to apply any of these laws in a given case. Of the two persons placed in similar situation, one may be dealt with under the drastic law and the other under the softer law. To minimize any chance of such discrimination, the court insist that the drastic law should lay down some rational and reasonable principle or policy to regulate administrative discretion as to its application. If the drastic law fails to do so, then it will be void under Art. 14.
This proposition was applied by the Supreme Court in Northern India Caterers V. State of Punjab. To evict a person from unauthorized occupation of public premises, a Punjab Act provided for a Summery procedure. The collector had two choices; he could either himself order eviction under the special law, or could file an ordinary suit in a court for eviction under the general law. The Punjab law was declared void under Art. 14 because being a drastic law it laid down no policy to guide the collector’s choice as to which law to follow in what cases; the matter was left to his unguided discretion and so there could be discrimination within the same class inter se, viz., unauthorized occupants of public premises.
In Maganlal Chhagganlal V. Greater Municipality, the validity of certain provisions of Bombay Municipal Corporation Act, which conferred powers on the authorities to initiate special eviction proceedings against unauthorized occupants of Corporation and government premises was challenged. Following the N.I. Caterers case, it was argued that the availability of two procedures, one under the CPC and other under the two Acts of which the former was onerous and harsher than the latter, the former was hit by Article 14 in the absence of any guidelines as to which procedure might be adopted. The majority did not agree with the N.I. Caterers case.
Analysing the whole line of cases on the subject he drew distinction between the statutes which themselves make a classification and those which authorize the executive to make the classification. While in the first case the statue will be invalid if it fails to satisfy the requirements of Article 14 9reasonable classification), in the second case the statute is valid so ling as it provides guidance to the executive about the exercise of its discretion in making the classification. Such guidance need not be provided expressly and specifically in the provisions of the statute; it may be gathered either from the preamble and other surrounding circumstances and facts which necessitated the enactment of the statute or from the general object or policy or the statute gathered from other operative provisions applicable to analogous or of the statue gathered from other operative provisions applicable to analogous or comparable situations. If such guidance is missing then only the statute will be invalid. Otherwise only the act of classification by the executive will be examined. In that case, if the classification fails to satisfy the requirements of Article 14 it will be ultra vires not only the Constitution but also the statute under which it is undertaken.
The Court observed that it was inevitable that when a special procedure is prescribed for a defined class of persons, such as occupiers of municipal or government premises, discretion which is guided and controlled by the underlying policy and purpose of the legislation has necessarily to be vested in the administrative authority to select occupiers of municipal or government premises for bringing them within the operation of the special procedure.
In State of West Bengal V. Anwar Ali Sarkar, was involved a Bengal law permitting setting up of special courts for the ‘speedier trial’ of such ‘offence’, or ‘classes of offences’ or ‘cases’, or ‘classes of cases’, as the State Government might direct by a general or special order. These courts were to follow a procedure less advantageous to the accused in defending himself than the procedure followed by the ordinary criminal courts.
The Act was held invalid as it made no reasonable classification, laid down “no yardstick or measure for the grouping either of persons or of cases or of offences” so as to distinguish them from others outside the purviews of the Act. The government had the power to pick out a case of a person and hand it over to the special tribunal while leaving the case of another person similarly situated to be tried by the ordinary criminal courts. It gave ‘uncontrolled authority’ to the executive ‘to discriminate’. The necessity of ‘speedier trial’ was held to be too vague, uncertain and indefinite criterion to form the basis of a valid and reasonable classification.
On the other hand, in Kathi Ranining Rawat V. Saurashtra, a provision practically similar to the one involved in the Anwar Ali Case, was held valid because the Court found that a policy was stated in the preamble to the Act, and that the government was expected to select such offences, classes of offences and classes of cases for trial in special courts as were calculated to affect public safety, maintenance of public order, etc.
Comparing the above two cases, it would appear that the main difference in the terms of the statutes, which resulted in different judicial verdicts as to their validity, was that the preamble in the Saurashtra Act was more elaborately worded than that to the Bengal Act. While the term ‘speedier trial’ used in the Bengal Act to set up special courts was held to be indefinite, the words ‘public safety, etc’. in the preamble to the Saurashtra Act were held to be more definite and as giving a guiding principle to control administrative discretion. In essence, therefore the difference would appear to be more of a drafting nature than of substance.
For some times, a new orientation is being given to Art. 14. As has been explained by Bhagwati, J., in Bachan Singh V. State of Punjab, Rule of law which permeates the entire fabric of the Indian Constitution excludes arbitrariness. “Whenever we find arbitrariness or unreasonableness there is denial of rule of law”. Art. 14 enacts primarily a guarantee against arbitrariness and inhibits state action, whether legislative or executive, which suffers from the vice of arbitrariness. “Every state action must be non-arbitrary and reasonable. Otherwise, the court would strike it down as invalid.”
This new dimension of Art. 14 transcends the classificatory principle. Art. 14 is no longer to be equated with the principle of classification. It is primarily a guarantee against arbitrariness in state action and the doctrine of classification has been evolved only as a subsidiary rule for testing whether a particular state action is arbitrary or not. It a law is arbitrary or irrational it would fall foul of Art. 14.
A common tendency in modern democracies is to confer discretionary power on the government or administrative officers. In order to ensure that discretion is properly exercised, it is necessary that the statute in question lays down some norms or principles according to which the administrator has to exercise the discretion. Many a time the statutes do not do this and leave the administrator free to exercise his power according to his judgment. This creates the danger of official arbitrariness whish is subversive of the doctrine of equality. To mitigate this danger, the courts have invoked Art. 14. In course of time, Art. 14 has evolved into a very meaningful guarantee against any action of the Administration which may be arbitrary, discriminatory or unequal.
In Air India V. Nergesh Meerza, a regulation made by Air India International, a statutory corporation, providing for termination of service of an air hostess on her first pregnancy has been held to be arbitrary and abhorrent to the notions of a civilized society. The regulation also fixed the normal age of retirement of air hostess at 35 years but authorized the managing directors to extend the same to 45 years at his option subject to other conditions being satisfied. The regulation was held bad as it armed the managing director with uncanalized and unguided discretion to extend the age of retirement of any air hostess. No guidelines, principles or norms were laid down subject to which the power was to be exercised. Nor was there any procedural safeguards available to an air hostess who was denied extension.
In J. Jayalalitha V. Union of India, Section 3 of the Prevention of Corruption Act, 1988, empowers the State Government to appoint as many special Judges as may be necessary “for a such case or group of cases” as may be specified in the notification. The validity of this provision was challenged under the Art. 14 on the grounds that is confers unfettered, unguided and absolute discretion on the Government and is thus capable of leading to abuse of power by the Government.
The Supreme Court has however upheld the validity of this provision. The court has agreed with the proposition that conferment of discretionary power on the executive which in the absence of any policy or guidelines permits it to pick and choose it unconstitutional. But, in the instant case, the court has ruled that S. 3(1) does not confer unfettered or unguided power because the object of the Act and S. 3 indicate when and under what circumstances, the power conferred by S. 3 has to be exercised. The policy can be gathered from the preamble, the provisions of the enactment and other surrounding circumstances.
One of the objects of the Act is to provide speedy trial for cases of corruption. This is the policy of the Act and, therefore, while exercising the power under S. 3, the Government shall have to be guided by the said policy. The Legislature could not have anticipated as to how many special Judges would be needed in an area. Therefore, the Legislature could not have laid down any fixed rule or guidelines. It had to leave this matter to the discretion of the State Government as it would be in a better position to know the requirement. This is why discretion has been conferred on the State Government to appoint as many special Judges as may be necessary.
The situation where the statute itself does not suffer from any such vice, but the administrative authority may implement it in a discriminatory manner, or may not follow the policy or principle laid down in the Act to regulate its discretion. In such a case, the charge of violation of equal protection may be laid against the Administrative and its action quashed under Art. 14.
Every action of the state must be informed by reason and guided by public interest. Actions uninformed by reason may be questioned as arbitrary. Whenever there is arbitrariness in state action, Art. 14 springs to life and judicial review strikes such an action down. Arbitrariness is the antithesis of Art. 14 Equality and arbitrariness are sworn enemies. Art. 14 strikes at arbitrariness in state action and ensures fairness and equity of treatment.




























Article 15
Reservation

Article 15. :- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. :- (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex place of birth or any of them, be subject to any disability, liability, restriction or condition with regards to-
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
Article 15(1) would have come in the way of making favourable provisions for backward sections of society. Clause (1) prohibits the State from discriminating against citizens on grounds only of religion, race, sex, caste, place of birth or any of them. The right guaranteed in clause (1) is conferred on a citizen as an individual and is available against his being subjected to discrimination in the matter of rights, privileges and immunities pertaining to him as a citizen generally.
Restriction provided in Clause (2) will apply only if the places mentioned in the Clause are either maintained wholly or partly out of State funds or dedicated to the use of the general public.
Attention is drawn to the word ‘only’ in Clause (1) and (2) of Article 15, viz. the State shall to discriminate against any person on grounds only of religion, race caste, sex, place of birth or any of them. It is the effect or operation of the statute which is the determining factor and not its purpose or motive. Accordingly, the court should hold a law repugnant to the guarantee given by Article 15(1) if, as a result of the law, a person is denied any right or privilege solely because of his religion, caste, race, sex or place of birth.
Clause (1), (2) and (3) together it will follow that while there can be no discrimination in general on the ground of sex, special provision in the case of women and children are permissible. Thus it would be no violation of Article 15 if institutions are set up by the State exclusively for women or places are reserved for women at public entertainments or in public conveyances.
Clause (4) was added by the Constitution (First Amendment) Act, 1951 as a result of the decision of the Supreme Court in State of Madras V. Champakam Dorairajan. In that case the Court struck down the communal G.O. of the Madras Government which, with the object to help the backward classes, had fixed the proportion of students of each community that could be admitted into the State medical and engineering colleges. Although the Directive Principles of State Policy embodies in Article 46 of the Constitution lays down that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice, the court held that “the Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental rights”. Now clause (4) enables the State to make special provisions for the advancement of socially and educationally backward classes of citizen or for the Scheduled Castes and Scheduled Tribes. Such provisions include reservations or quotas and can be made in the exercise of executive powers without any legislative support.
The two most contentious issues in the application of Article 15(4) as well as Article 16(4) have been : (i) determination of backward classes and (ii) extent or quantum of reservation. Although Article 16(4) does not qualify ‘backward class of citizens’, as does Article 15(4), by the words ‘socially and educationally’, the problem of determining such classes is similar under both the provisions.
From the several judicial pronouncements concerning the definition of backward classes, several propositions emerge. First, the backwardness envisaged by Art. 15(4) in both social and educational and not either social or educational. This means that a class to be identified an backward should be both socially and educationally backward. In Balaji, the Court equated the “social and educational backwardness” to that of the “Schedule Castes and Schedule Tribes”. The Court observed: “It was realized that in the Indian society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Scheduled Tribes and it was thought that some special provision ought to be made even for them.”
Secondly, poverty alone cannot be the test of backwardness in India because by and large people are poor and, therefore, large sections of population would fall under the backward category and thus the whole object of reservation would be frustrated.
Thirdly, backwardness should be comparable, thought not exactly similar, to the scheduled Castes and Scheduled Tribes.
Fourthly, ‘caste’ may be a relevant factor to define backwardness, but it cannot be the sole or even the dominant criterion. If classification for social backwardness were to be based solely on caste, then the caste system would be perpetuated in the Indian society. Also this test would break down in relation to those sections of society which do not recognize caste in the conventional sense as known to the Hindu Society.
Fifthly, poverty, occupations, place of habitation, all contribute to backwardness and such factors cannot be ignored.
Sixthly, backwardness may be defined without any reference to caste. As the Supreme Court has emphasized, Art. 15(4) “does not speak of castes, but only speaks of classes”, and that ‘caste’ and ‘class’ are not synonymous. Therefore, exclusion of caste to ascertain backwardness does not vitiate classification if it satisfies other tests.
In M.R. Balaji V. State of Mysore, it was held that the caste of a group of persons cannot be the sole or even predominant factor though it may be a relevant test for ascertaining whether a particular class is a backward class or not. Backwardness under Article 15(4) must be social and educational, and that social backwardness is, in the ultimate analysis, the result of poverty. One’s occupation and place of habitation could be the other relevant factors in determining social backwardness. The Court invalidated the test of backwardness which was based predominantly, if not solely, on caste.
In this case the validity of a Mysore Government Order reserving 68 per cent of the seats in the engineering and medical colleges and other technical institutions in favour of backward classes including the Scheduled Castes and Scheduled Tribes was challenged. The Supreme Court characterized Art. 15(4) as an exception to Art. 15(1)[as well as to Art. 29(2)]. The Court held:
“A special provision contemplated the Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits. In this matter again, we are reluctant to say definitely what would be provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case.”
Reservation of 68 per cent of seats in that case was found by the Court plainly inconsistent with Article 15(4).
In the State of U.P. V. Pradeep Tandon, in admission to medical colleges in U.P. in favour of candidates from- (a) rural areas, (b) hill areas and (c) Uttrakhand area was challenged. The classification was based on geographical or territorial considerations because in governments view the candidates from these areas constituted socially and educationally backward classes of citizens. The Court held that the accent under Article 15(4) was on classes of citizens and the Constitution did not enable the State to bring socially and educationally backward areas within the protection of Article 15(4). It was emphasized that the backwardness contemplated under Article 15(4) was both social and educational and the socially and educationally backward classes of citizens were groups other than the groups based on castes. The traditional unchanging conditions of citizens could contribute to social and educational backwardness. The place of habitation and its environment could be a determining factor in judging the social and educational backwardness. The Court upheld reservations for persons from hill and Uttrakhand areas. It was found that the absence of means of communication, technical processes and educational facilities kept the poor and illiterate people in the remote and sparsely populated areas backward. However, reservation of seats for rural areas was invalidated because the division of the people on the ground that the people in the rural areas were poor and those in the urban areas were not, was not supported by the facts. Further, the rural population was heterogeneous and not all of them were educationally backward.
The question was again considered in Jayasree V. State of Kerala, where the Supreme Court was called upon to determine whether the constitutional protection could be extended to a person who belonged to a backward community but the family’s income exceeded the prescribed limit of certain amount per annum. The court held that in ascertaining social backwardness of a class of citizens, it may not be irrelevant to consider the caste of group of citizens. Castes cannot, however, be made the sole or dominant test as social backwardness which results from poverty is likely to be aggravated by considerations of caste. This shows the relevance of both caste and poverty in determining the backwardness of the citizens but neither caste alone nor poverty alone can be the determining test of social backwardness. It was, therefore, held that the impugned order prescribing the income limit was valid, as the classification was based not on income but on social and educational backwardness. IT was recognized that only those among the members of the mentioned castes, whose economic means were below the prescribed limit were socially and educationally backward, and the educational backwardness was reflected to a certain extent by the economic conditions of the group.
Upholding the validity of a total of 49.5 per cent reservation (22.5 per cent for SCs and STs and 27 per cent for SEBCs) in the Mandal Commission case, the Court held that barring any extraordinary situation Court mentioned of a far-flung remote area whose population needs special treatment for being brought into the mainstream. For such cases the Court suggested extreme caution and making out of a special case. The 50 per cent limit does not include those members of SEBCs who get selected on their own merit. They are entitled to get adjusted against the open category. The 50 per cent limit, however, applies to all reservations, including those which can be made under Article 16(1), i.e., altogether the reservation should not exceed 50 per cent limit. But this limit applies only to reservations and not to exemption, concessions and relaxations. Therefore 50 per cent limit may not apply to many situations under Article 15(4) and 16(4). For the application of 50 per cent rule a year should be taken as the unit and not the entire strength of the cadre service or the unit, as the case may be. So long as this limit is observed, carry forward rule is permissible. The policy of reservation has to be operated year-wise and there cannot be any such policy in perpetuity. The State can review from year to year the eligibility of the class of socially and educationally backward class of citizens. Further, it has been held that Art. 15(4) does not mean that the percentage of reservation should be in proportion to the percentage of the population of the backward classes of the total population.
The Court in the Mandal Commission case has clearly held that Article 15(4) and 16(4) are not exceptions to clauses (1) and (2) of those articles or to Article 14. They are rather the means of achieving the right to equality enshrined in those articles.
Following the Court’s direction the Centre and the States have appointed backward class commissions for constant revision of such classes and for the exclusion of creamy layer from amongst them. Unreasonably high standards for determining the creamy layer have been invalidated and wherever any government has failed to implement the requirement of appointing a commission and exclusion of creamy layer it has issued necessary directions compelling them to do so.
In Jagdish Saran V. Union of India, a rule reserving 70 per cent of the seats in the post-graduate medical course to Delhi University medical graduates and keeping 30 per cent open to all, including the Delhi University graduates, was challenged by a medical graduate from Madras University as violating Article 14 and 15. Though the rule was not invalidated in view of imperfect, scanty, fragmentary and unsatisfactory materials, Krishna Iyer, J., explained that (i) where the aspiring candidates are not an educationally backward class, institution-wise segregation or reservation has no place in Article 15; (ii) equality is not negated or neglected where special provisions are made with the larger goal of the disabled getting over their disablement consistently with the general good and individual spirit; (iii) exceptional circumstances cannot justify making of reservations as a matter of coaurse in every University and in every course; (iv) the quantum of reservation should not be excessive or societally injurious, measured by the overall competency of the end product, viz., degree holders; (v) the burden is on the party who seeks to justify the ex-facie deviation from equality. Speaking generally, Krishna Iyer, J. asserted that unless there is a vital nexus with equal opportunity, broad validation of university-based reservation cannot be built on the vague ground that all universities are practicing it, or that medical graduates resorted to hunger strike to press for higher percentage of reservation of seats.













Article 16
Right of Equality

Article 16. Equality of Opportunity in matters of public Employment. :- (1) There shall be quality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of , or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the service under the State.
(4-A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the service under the State.
(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in (4) or Clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling fifty per cent reservation on total number of vacancies of that year.
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
Art. 16(1) is a facet of Art. 14. Arts. 14 and 16(1) are closely inter-connected. Art. 16(1) takes its roots from Art. 14. An important point of distinction between Arts. 14 and 16 is that while Art. 14 applies to all persons, citizens as well as non-citizens, Art. 16 applies only to citizens and not to non citizens. The goal of Articles 14 and 16 is limited to equality among comparables, a necessary implication of which is permissibility of reasonable classification, having nexus with the object to be achieved.
Art. 16 deals with a very limited subject, viz., public employment. The Scope of Art. 15(1) is much wider as it covers the entire range of state activities. The ambit of Art. 16(2) is restrictive in scope than that of Art. 15(1) because Art. 16(2) is confined to employment or office under the state, meaning services under the Central and State Governments and their instrumentalities, Art. 15 being more general in nature covers many varied situations of discrimination. Further, the prohibited grounds of discrimination under Art. 16(2) are somewhat wider than those under Art. 15(2) because At. 16(2) prohibits discrimination on the additional grounds or descent and residence apart from religion, race, caste, sex and place of birth.
In Clause (1) the general rule is laid down hat there shall be equal opportunity for citizens in matters relating to ‘employment’ or ‘appointment to any office’ under the State. What is guaranteed is the equality of opportunity.
Clause (2) lays down specific grounds on the basis of which citizens are not to be discriminated against each other in respect of any appointment or office under the State. The scope of clause (1) of Article 16 is wider than the scope of clause (2), because discrimination on grounds other than those mentioned in clause (2) of the Article 16 has to be weighed and judged in the light of the general principles laid down in clause (1).
Under Clause (3) Parliament is competent to regulate the extent to which it would be permissible for a State to depart from the law laid down in clause (2). It is Parliament alone which can prescribe such conditions, and that too in regard to State and not the Union appointments.
Explaining the nature of Art. 16(4), the Supreme Court has stated that it is “an enabling provision” conferring a discretionary power on the state for making any provision or reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the service of the state. Art. 16(4) neither imposes any constitutional duty nor confers any Fundamental Right on any one for claiming reservation.
The equality of opportunity guaranteed by Art. 16(1) is to each individual citizen of the country while Art. 16(4) contemplates special provision being made in favour of the socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. Accordingly, the rule of 50% reservation in a year should be taken as a unit and not the entire strength of the cadre, service or the unit as the case may be.
In Devadasan case the Supreme Court was required to adjudge the validity of the carry forward rule. The carry forward rule envisaged that in a year, 17½ per cent posts were to be reserved for Scheduled Castes/Tribes; if all the reserved posts were not filled in a year for want of suitable candidates from those classes, then the shortfall was to be carried forward to the next year and added to the reserved quota for that year, and this could be done for the next two years. The result of the rule was that in a year out of 45 vacancies in the cadre of section officers, 29 went to the reserved quota and only 16 posts were left for others. This meant reservation upto 65% in the third year, and while candidates with low marks from the Scheduled Castes and Scheduled Tribes were appointed, candidates with higher marks from other classes were not taken.
Basing itself on the Balaji principle, the Supreme Court declared that more than 50 per cent reservation of posts in a single year would be unconstitutional as it per se destroys Art. 16(1). The Court emphasized that in the name of advancement of backward communities, the Fundamental Rights of other communities should not be completely annihilated. The Court held that as Article 16(4) was a proviso or an exception to Art. 16(1), it should not be interpreted so as to nullify or destroy the main provision, as otherwise it would in effect render the guarantee of equality of opportunity in the matter of public employment under Art. 16(1) wholly illusory and meaningless.
The overriding effect of Cl. (4) of Art. 16 on Cls. (1) and (2) could only extend to the making of a reasonable number of reservations of appointments and posts in certain circumstances. A ‘reasonable number’ is one which strikes a reasonable balance between the claims of the backward classes and those of other citizens.
The Court emphasized that each year of recruitment has to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.
In State of Kerala V. N.M. Thomas, the Supreme Court held that it was permissible to give preferential treatment to Scheduled Castes/Tribes under Art. 16(1) outside Art. 16(4). In this case in a dissenting opinion, Subba Rao, J., had express the opinion that Art. 16(4) was not an exception to Art. 16(1), but was a legislative device by which the framers of the Constitution had sought to preserve a power untrammeled by the other provisions of the Article. It was a facet of Art. 16(1) as “it fosters and furthers the idea of equality of opportunity with special reference to under privileged and deprived classes of citizens.
The majority accepted this view of Subba Rao, J. Accordingly, the Court observed: Art. 16(4) is not in the nature of an exception of Art. 16(1). It is a facet of Art. 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an under privileged and deprived class of citizens. Thus, Art. 16(1) being a facet of the doctrine of equality enshrined in Art. 14 permits reasonable classification just as Art. 14 does. The majority ruled that Art. 16(4) is not an exception to Art. 16(1). Art. 16(1) itself permits reasonable classification for attaining equality of opportunity assured by it.
Thomas marks the beginning of a new judicial thinking on Art. 16 and leads to greater concessions to SC, ST and other backward persons. If the Supreme Court had stuck to the view propagated in earlier cases that Art. 16(4) was an exception to Art. 16(1), then no reservation for any other class, such as army personnel, freedom fighters, physically handicapped, could have been made in services.
The fact situated in Thomas was that the Kerala Government made rules to say that promotion from the cadre of lower division clerks to the higher cadre of upper division clerks depended on passing a test within two years. For SCs and STs, exemption could be granted for a longer period. These classes were given two extras years to pass the test. This exemption was challenged as discriminatory under Art. 16(1) on the ground that Art. 16 permitted only reservation in favour of backward classes but it was not a case of reservation of posts for SCs and STs under Article 16(4) and that these persons were not entitled to any favoured treatment in promotion outside Art. 16(4).
By majority, the Supreme Court rejected the argument. It ruled that Art. 16(1) being a facet of Art. 14, would permit reasonable classification and, thus, envisaged equality between the members of the same class of employees but not equality between members of a separate, independent class. Classification on the basis of backwardness did not fall within Art. 16(2) and was legitimate for the purposes of Art. 16(1). Giving preference to an under-represented backward community was valid and would not contravene Arts. 14, 16(1) and 16(2). Art. 16(4) removes any doubt in this respect. The classification of employees belonging to SC and ST for allowing them an extended period of two years for passing the special tests for promotion is a just and reasonable classification having rational nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment to public office.
The majority adopted a very liberal attitude in Thomas as regards SCs and STs and backward classes. The result of the pronouncement is to enable the state to give the backward classes a preferential treatment in many different ways other than reservation of posts as envisaged in Art. 16(4). Preferential treatment for one is discriminatory treatment for another and, therefore, it is necessary to draw a balance between the interests of the backward classes and the other classes. The Supreme court has shown consciousness of this danger and, therefore, has laid down a few criteria which a classification must fulfil, viz.:
(i) the basis of the classification has to be backwardness;
(ii) the preferential treatment accorded to backward classes has to be reasonable and must have a rational nexus to the object in view, namely, adequate representation of the under-represented backward classes;
(iii) the overall consideration of administrative efficiency should be kept in view in giving preferential treatment to the backward classes.
It is obvious that in Thomas, the Court has taken a more flexible view of Art. 16(1) than had been taken by it is earlier cases. It is now clearly established that Art. 16(4) does not cover the entire field covered by Arts. 16(1) and (2) and some of the matters relating to employment in respect of which equality of opportunity is guaranteed by Arts. 16(1) and (2) do not fall within Art. 16(4).
In Akhil Bhartiya Soshit Karamchari Sangh (Railway) V. Union of India, the Supreme Court again went into the question of reservation in public services vis-à-vis Art. 16. The Court upheld reservation of posts at various levels and making of various concessions in favour of the members of the SC and ST.
The Court reiterated the Thomas proposition that under Art. 16(1) itself, the state may classify, “based upon substantial differentia, groups or classes” for recruitment to public services and “this process does not necessarily spell violation of Article 14 to 16”
Art. 1692) expressly forbids discrimination on the basis of ‘caste’. SC and ST are not castes within the ordinary meaning of caste. These are backward human groups. There is a great divide between these persons and the rest of the community.
Thus, reservation in selection posts in railways for SC and St was held valid. The quantum of reservation (17½%) in railway services for SC and ST was held not excessive and the field of eligibility was not too unreasonable. The carry forward rule for three years was held not bad. Under the Carry forward rule, the quota for SC and ST could go up to a maximum of 66% of posts. This was upheld with the remark that figures on paper were not so important as the facts and circumstances in real life which showed that the quota was never fully filled. But this fixation was subject to the rider that, as a fact, in any particular year, there would not be a substantial increase over 50% in induction of reserved candidates. Here the Court took the actual facts, rather than the paper rules, into consideration.
In Indra Sawhney, the Supreme Court has taken cognizance of many complex but very momentous questions having a bearing on the future welfare and stability of the Indian Society. The Supreme Court has delivered a very thoughtful, creative and exhaustive opinion dealing with various aspects of the reservation problem. Basically reservation in government services, is anti-meritocracy, because when a candidate is appointed to a reserved post it inevitably excludes a more meritorious candidate. But reservation is now a fact of life and it will be the ruling norm for years to come. The society may find it very difficulty to shed the reservation rule in the near future. But the Court’s opinion has checked the system of reservation from running riot and has also mitigated some of its evils.
Three positive aspects of the Supreme Court’s opinion may be highlighted.
One, the over-all reservation in a year is now limited to a maximum of 50%.
Two, amongst the classes granted reservation, those who have been benefited from reservation and have thus improved their social status (called the ‘creamy layer’ by the Court), should not be allowed to benefit from reservation over and over again. This means that the benefit of reservation should not be misappropriated by the upper crust but that the benefit of reservation should be allowed to filter down to the lowliest so that they may benefit from reservation to improve the position.
Three, an element of merit has now been introduced into the scheme of reservation. This has been done in several ways, e.g.:
(a) promotions are to be merit-based and are to be excluded from the reservation rule;
(b) certain posts are to be excluded from the reservation rule and recruitment to such posts is to be merit based;
(c) minimum standards have to be laid down for recruitment to the reserved posts. IN facts, the Courts has insisted that some minimum standards must be laid down even though the same may be lower than the standards laid down for the non-reserved posts.
In his opinion in Indra Sawhney, Jeevan Reddy,J., has emphasized upon the member of a backward class reaching an “advanced social level or status”, he would no longer belong to the backward class and would have to be weeded out. The Court has opined that exclusion of creamy layer, i.e., socially advanced members, will make the class a truly backward class and would more appropriately serve the purpose and object of Art. 16(4). Jeevan Reddy, J., has stated that there are sections among the backward classes who are highly advanced socially and educationally, and they constitute the forward section of the community. These advanced sections do not belong to the true backward class. “After excluding them alone, would be the class be a compact class. In fact, such exclusion benefits the truly backward.”
Accordingly to Jeevan Reddy, J., the exclusion of the creamy layer must be on the basis of social advancement and not on the basis of economic interest alone. It is difficult to draw a line where a person belonging to the backward class ceases to be so and becomes part of the ‘creamy layer’.
In Ashoka Kumar Thakur V. State of Bihar, the Supreme Court has assessed the validity of unrealistically high levels of income or holdings of other conditions prescribed by the Legislatures of UP and Bihar as criteria to identify the creamy layer. For example, while the Supreme Court in the Mandal case has categorically said that the Chiildren of IAS or IPS, etc. without anything more could not avail the benefit of reservation, in the scheme drawn in UP and Bihar, a few more conditions were added for falling in the creamy layer, such as, he/she should be getting a salary or Rs. 10,000/- p.m. or more; the wife or husband to be a graduate and owing a house in an urban area. OR, if a professional doctor, surgeon, lawyer, architect, etc., he should be having an income not less than Rs. 10 lakh, his/ her spouse is a graduate and having family property worth Rs. 20 Lakhs. Similar conditions were added in case of others, such as, traders, artisans, etc.
The Supreme Court has quashed these conditions as discriminatory. The Court has ruled that these conditions laid down by the two States have no ‘nexus’ with the object sought to be achieved. The criterion laid down by the two States to identify the creamylayer are violative of Art. 16(4), wholly arbitrary, violative or Art. 14, and against the law laid down by the Supreme Court in the Mandal case, where the Court has expressed the view that a member of the All India Service without anything more ought to be regarded as belonging to the “creamy layer”













Article 19
Right to Freedom

Clause (a) to (g) of Art. 19(1) guarantee to the citizens of India six freedoms, viz., of ‘speech and expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’, and ‘practising any profession and carrying on any business’.
These various freedoms are necessary not only to promote certain basic rights of the citizens but also certain democratic values in, and the oneness and unity of, the country. Art. 19 guarantees some of the basic, values in, and the oneness and unity of, the country. Art. 19 guarantees some of the basic, valued and natural rights inherent in a person.
These rights are not exhaustive of all the rights of a free man who has far more and wider rights. The freedoms enumerated in Article 19(1) are those great and basic rights which are recognized as the natural inherent in the status of a citizen. According to Supreme court, it is possible that a right does not find express mention in any clause of Art. 19(1) and yet it may be covered by some clause therein. This gives an additional dimension to Art. 19(1) in the sense that even though a right may not be explicit, it may yet be implicit in the various clauses of Art.19.
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 the general welfare. In the words of Das, J., “social interest in individual liberty may well have to be subordinated to other greater social interests. Indeed, there has to be a balance between individual rights guaranteed under Article 19(1) and the exigencies of the State which is the custodian of the interests of the general public, public order, decency or morality and of other public interests which may compendiously be described as social welfare.”
A law restricting the exercise of any of the seven freedoms guaranteed by clause (1) of Article 19 to be constitutionally valid, must satisfy two conditions, namely:-
(1) The restriction must be for the particular purpose mentioned in the clause permitting the imposition of the restriction on that particular right, and permitting the imposition of the restriction.
(2) The restriction must be a reasonable restriction.
It may be emphasized that the requirement that a restriction 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.
Freedom of speech is essential for the proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving succour and protection to all other liberties.
The test of reasonableness has to be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The meaning would vary according to which of the six rights guaranteed under clause (1) is being restricted by the impugned law. Some of the principles which the Supreme Court has affirmed in ascertaining the reasonableness of restrictions on the exercise of the rights secured under this article.
1. Reasonableness demands proper balancing:- The phrase ‘reasonable restrictions’ 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 social control permitted by clauses (2) to (6) of Article 19, it must beheld to be wanting in reasonableness.
2. Reasonableness both substantive and procedural:- In determining the reasonableness 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. Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable. Absence of provision for review makes the provisions unreasonable.
3. Reasonableness and objective concept:- The reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations.
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.
5. Reasonableness includes total prohibition:- The word ‘restriction’ also includes 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’:- The Constitution framers deliberately avoided the use of the expression ‘due process’ with its comprehensiveness, flexibility and attendant vagueness, in favour of the somewhat more definite word, ‘reasonable’, and caution has, therefore, to be exercised before the literal application of American decisions. Our Constitution provides reasonably precise general guidance in this matter.
7. Reasonableness and Directive Principles of State Policy:- That the restrictions are imposed in carrying out the Directive Principles of State Policy is a point in favour of the reasonableness of the restrictions.
8. Reasonableness of Taxes:- Prima facie a tax is not a restriction on any of the freedoms guaranteed under Article 19. Mere excessiveness of a tax is not a ground for challenging it as a restriction on one of the freedom in Article 19(1).
Art. 19(1)(a) guarantees to all citizens the right to ‘freedom of speech and expression’. Under Article 19(2), reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Art. 19(1)(a) not falling within the four corners of Art. 19(2) cannot be valid.
The freedom of speech under Art. 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture, film, movie, etc. It thus includes the freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Art. 19(2).
Unlike Art. 19(1)(a) of the Indian Constitution, the provision in the U.S. Constitution has two notable features, viz.,
(1) Freedom of Press is specifically mentioned therein;
(2) No restrictions are mentioned on the freedom of speech unlike Art. 19(2) which spells out the restrictions on Art. 19(1).
The Courts in the U.S.A. have to spell out the restrictions on this right from case to case.
The ‘freedom of speech and expression’ includes the right to acquire information and disseminate the same. It includes the right to communicate it through any available media whether print or electronic or audio-visual. This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country, as well as abroad, as is possible to reach.
Freedom of the press is implied from the freedom of speech and expression guaranteed by Art. 19(1)(a). There is no specific provision ensuring freedom of the press as such. The freedom of the press is regarded as a “species of which freedom of expression is a genus. Thus being only a right flowing from the freedom of speech, the freedom of the press in Indian stands on no higher footing than the freedom of speech of a citizen, and the press enjoys no privilege as such distinct from freedom of the citizen.
The prime purpose of the free press guarantee is regarded as creating a fourth institution outside the government as an additional check on the three official branches- executive, legislative and the judiciary. It is the primary function of the press to provide comprehensive and objective information on all aspects of the country’s social, economic and political life. The press serves as a powerful antidote to any abuse of power by government officials and as a means for keeping the elected officials responsible to the people whom they were elected to serve.
The Supreme Court has emphasized that the freedom of the press is not so much for the benefit of the press as for he benefit of the general community because the community has a right to be supplied with information and the government owes a duty to educate the people within the limits of its resources.
Imposition of pre-censorship on publication is, therefore, unless justified under clause (2), violative of freedom of speech and expr3ession. In Brij Bhushan V. State of Delhi, an order issued under East Punjab Safety Act, directing the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before publication ,till further orders, all communal matters and news and views about Pakistan, including photographs and cartoons”, was struck down by the Supreme Court observing, there can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the freedom of speech and expression declared by Art. 19(1)(a).
Das C.J. said in Virendra V. State of Punjab, that “It is certainly a serious encroachment on the valuable and cherished right to freedom of speech if a newspaper is prevented from publishing its own view or views of its correspondents”.
Freedom of speech and expression includes the freedom of propagation of ideas and is ensured by the freedom of circulation. In Romesh Thappar V. State of Madras, the notification banning the entry into or circulation, sale, or distribution in the State of Madras or any part of it of the newspaper entitled ‘Crossroads’ published at Bombay was held invalid because, “without liberty of circulation, the publication would be of little value”.
The right of freedom of speech is infringed not only by a direct ban on the circulation of a publication, but also by an action of the government which would adversely affect the circulation of the paper. In Sakal Papers (p) ltd. V. Union of India, a government order which fixed the number of pages and size which a newspaper could publish at a price was challenged by the petitioners on the ground that it infringed the liberty of the press implicit in the terms of Art. 19(1)(a). The order affected the liberty of the press because its adoption would mean, the petitioners explained, either the reduction in the existing number of pages or raising of the price. In either case, there would be reduction in the volume or circulation of the paper and therefore a direct violation of the liberty of the press. On behalf of the State, the law was justified as a reasonable restriction on the business activity of a newspaper in the interests of the general public.
The Court agreed that newspapers have two aspects-dissemination of news and views and commercial. The two aspects are different, the former falls under Art. 19(1)(a) read with Art. 19(2), and the latter falls under Art. 19(1)(g) and can be regulated under Art. 19(6). However, the state cannot seek to place restriction on business by directly immediately curtailing any other freedom of the citizen guaranteed by the constitution and which is not susceptible of abridgement on the same grounds as are set out in Art. 19(6). “Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen.
The Court accepted the plea of the petitioners that the order affected the circulation and so restrained the dissemination of news and views which a newspaper had the freedom to do. The order was struck down and held to be inoperative. Therefore, referring the press as a business and justifying the impugned restriction under Art. 19(6) as a proper restriction on the right to carry on the business of publishing a newspaper “would be wholly irrelevant for considering whether the impugned Act infringes or does not infringes the freedom guaranteed by Art. 19(1)(a).” This means the freedom of speech cannot be restricted for the purpose of regulating the commercial aspects of the activities of the newspapers.
Bennett Coleman & Co. V. Union of India, is a case of great significance in the area of freedom of speech and expression. India faces a shortage of indigenous newsprint. Because of the shortage of foreign exchange, quantity of newsprint imported was not adequate to meet all requirements. Some restrictions, therefore, become necessary on the consumption of newsprint. Accordingly, s system of newsprint quota for newspapers was evolved. The actual consumption of newsprint by newspaper during 1970-71 & 1971-72, whichever was less, was taken as the base. For dailies with a circulation up to 1,00,000 copies, 10% increase in the basic entitlement was to be granted, but for newspapers with a larger circulation, the increase was to be only 3%. Newspapers with less than 10 pages daily could raise the number of pages by 20% subject to the ceiling of 10. A few more restrictions were imposed on the user of newsprint. This newsprint policy was challenged in the Supreme Court.
By a majority, the Supreme Court declared the policy unconstitutional. While the Government could evolve a policy of allotting newsprint on a fair and equitable basis, keeping in view the interests of small, medium and big newspapers, the Government could not, in the grab of regulating distribution of newsprint, control the growth the circulation of newspapers. In effect, here the newsprint policy became the newspaper control policy. While newsprint quota could be fixed on a reasonable basis, post-quota restrictions could not be imposed. The newspapers should be left free to determine their pages, circulation and new editions within their fixed quota. The policy of limiting all papers whether small or large, to 10 pages was held to be discriminatory as it treated unequal as equals. The restrictions imposed cut at the very root of the guaranteed freedom. In the words of the Court, “Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content.”
The Supreme Court in concluded in Tata Press Case that “commercial speech” cannot be denied the protection of Art. 19(1)(a) merely because the same is issued by business man. “Commercial Speech” is a part of freedom of speech guaranteed under Art. 19(1)(a). The public at large has a right to receive the “commercial speech”. The protection of Art. 19(1)(a) is available both to the speaker as well as the recipient of the speech.
The Supreme Court accepted as valid the printing of yellow pages by the Tata Press. Printing of a directory of telephone subscribers is to be done exclusively by the Telephone Department as a part of its service to the telephone subscribers. But yellow pages only contain commercial advertisements and Art. 19(1)(a) guarantee freedom to publish the same.
In LIC V. Manubhai D. Shah, the Supreme Court stated a liberal interpretation should be given to the right of freedom of speech and expression guaranteed by Rt. 19(1)(a) . The Court has characterized this right as a “basic human right”. This right includes “the right to propagate one’s views through the print media or through any other communication channel, e.g. the radio and television”. Thus, every citizen “has the right to air his or her views through the print and/or the electronic media subject, of course, to permissible restrictions imposed under Art. 19(2) of the Constitution.
In this case the Supreme court has taken cognizance of two situations. One, the respondent circulated a research article suggesting that the LIC was charging unduly high premiums from those who took out life insurance policies. The LIC published a counter reply to this paper in a daily newspaper and also in its own in-house magazine. The respondent then prepared a rejoinder and got it printed in the same daily newspaper. He also wanted the LIC to print his rejoinder in their magazine, but the LIC refused to do so. The Supreme Court was called upon to decide the question whether the LIC was right in refusing to publish the rejoinder the responded in magazine. Answering in the negative the court pointed out that the attitude of the LIC was both “unfair and unreasonable”-unfair because fairness demanded that both view points were placed before the readers and unreasonable because there was no justification for refusing publication. By refusing to print and publish the rejoinder the LIC had violated the respondent’s Fundamental Right.
Every free citizen has an undoubted right to lay what sentiments he pleases before the public. Freedom of speech and expression is subject only to the restrictions imposable under Art. 19(2). Efforts by intolerant authorities to curb or suffocate this freedom must be firmly replied, more so when public authorities betray autocratic, tendencies.
LIC is a ‘state’ within the meaning of Art. 12. The LIC Act enacted by Parliament requires LIC to function in the best interest of the community. The community is, therefore, entitled to know whether or not, this requirement of the statute is being satisfied in the functioning of the LIC.
The right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the latter has been recognized. On further consideration in Secretary, Ministry I&B V. Cricket Association of Bengal, the Court has held that air waves or frequencies are public property, their use must be controlled and regulated by a public authority in the interest of public and to prevent the invasion of their rights. As the electronic media involves the use of the air wages, this factor creates an inbuilt restriction on its use as in the case of any other public property. This limitation in the nature of public property involved in the electronic media is in addition to the grounds of restriction on the right of freedom of speech and expression under Art. 19(2). Accordingly, while an individual has a right under Art. 19(1)(a) to have an access to telecasting, this right is subject to the limitation on account of use of public property, i.e. the air waves involved in the exercise of the right can be controlled and regulated by the public authority even on grounds not strictly covered under Art. 19(2). The Court also asked the Central Government to take immediate steps to establish an independent autonomous public authority representative of all sections and interests of the society to control and regulate the use of air waves. The provision for the Prasar Bharti seems to be taking care of this issue.

Virendra V. State of Punjab.

The general principle is that it is unreasonable to leave absolute and arbitrary discretion to an administrative officer to regulate the freedom of speech and expression. The discretion to be valid must be exercisable for purposes specified in Art. 19(2), and subject to legislative policy and procedural safeguards. Like, banning of publication in any newspaper of any matter relating to a particular subject or class of subjects would be obnoxious to the right of free speech.
The significant judicial pronouncement in the area is Virendra V. State of Punjab. This is an important decision of the Supreme court illustrating the Scope of Permissible restriction on the right of freedom of speech and expression. Punjab Special Powers (Press) Act empowered the State Government to:
(i) Prohibit the Printing or Publication of any article, report news item, letter or any other material relating to or connected with “Save Hindi Agitation”;
(ii) The imposition of ban against the entry and circulation of the said papers published from New Delhi in the State of Punjab and
(iii) Authorizing the State Government of its delegate to impose Pre-censorship, for a maximum period of two months in any issue of a newspaper.
These provisions were challenged on the ground of giving arbitrary and uncontrolled discretion to the government to curtail freedom of speech ‘on its subjective satisfaction’. The Supreme Court pointed out that there existed in Punjab serious tension amongst the various communities and in such a situation, conferment of wide powers to be exercised in the subjective satisfaction of the government could not be regarded as an unreasonable restriction. The State Government being in possession of all material facts, was the best authority to take anticipatory action for prevention of threatened breach of peace. Therefore, determination of necessity be left to the judgment and discretion of the government. To make the exercise of those powers justiciable would defeat the very purpose of the Act.
The first provision relating to ban on publication of news, etc. was upheld in the time of tension brought about or aided by the ‘Save Hindi Agitation’, taking into consideration the safeguard provided therein, as being a reasonable restriction and procedurally reasonable were:
(a) The positive requirement of the existence of the satisfaction of the authority as to the necessity for the making of order for the specific purposes mentioned in the Act.
(b) The discretion was given in the first instance to the State Government and not to every subordinate officer to determine the necessity of passing the order.
(c) The order could remain in force only for two months from the making thereof.
(d) The aggrieved party was given the right to make representation to the State government which could, on consideration thereof, modify, confirm or rescind the order.
The second provision of the Act mentioned above, namely the power to impose a ban against the entry and the circulation of the paper, was not sustained as a reasonable restriction on the freedom of speech because there was no time-limit for the operation of an order made against a paper and also because there was no provision made for any representative being made to the State Government.
Further the court held that a law conferring discretion on the executive could not be invalid if it laid down the policy so that discretion was exercised to effectuate the policy. The law in question satisfied this test for it laid down the purpose for which the power could be exercised. Further there were two safeguards subject to which the government was to exercise its power, viz., an order could remain in force only for two months, and the aggrieved person could make a representation to the government against the order, and so Act as a whole was valid of the order, nor did it provide for any representation to the government against the order.
































Article 21
Protection of Personal Life and Liberty

Article 21. Protection of Personal Life and Liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 21, though couched in negative language, confers on every person the fundamental right to life and personal liberty. The two rights have been given paramount position by our Courts. The right to life which is the most fundamental of all is also the most difficult to define. Certainly it cannot be confined to a guarantee against the taking away of life; it must have a wider application. With reference to a corresponding provision in the 5th and 14th amendments of the U.S. Constitution, which says that no person shall be deprived of his “life, liberty or property without due process of law”.
The word ‘due’ in this clause is interpreted to mean ‘just’, ‘proper’ or ‘reasonable’, according to the judicial view. Due process has two aspects. Substantive due process envisages that the substantive provisions of a law should be reasonable and not arbitrary. Procedural due process envisages a reasonable procedure, i.e., the person affected should have fair right of hearing which includes four elements; (i) notice, (ii) opportunity to be heard, (iii) an impartial tribunal and (iv) an orderly procedure.
The term ‘life’ as here used something more is meant than mere animal existence by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.
For some time the Court held that the view that right of life in Art. 21 does not include right to livelihood. After some controversy on the issue the Court has clearly held that right to livelihood is included in the right of life “because no person can live without the means of living, that is, the means of livelihood.
The Court has also observed that life ‘includes all that give meaning to a man’s life including his tradition, culture and heritage and protection of that heritage in its full measure’. Again, the Court has held that right to life includes the right to ‘a reasonable accommodation to live in’ and right to shelter, includes the necessary infrastructure to live with human dignity. The offence of rape has also been held to be a violation of the right of life under Art. 21. Right to self-preservation has also been recognized under the Article. Art. 21 has also been invoked for the upliftment of and dignified life for the prostitutes.
More importantly, in Unni Krishanan V. State of A.P. the Court has recognized a fundamental right to education in the right to life under Art.21. Taking help from Art. 41 and 45 it has held that ‘every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State. But this right does not include the right to participate in the student union activities and to contest union elections.
In Art. 21, in contrast to with the American Constitution, the word ‘liberty’ is qualified by the word ‘personal’, leading to an inference that the scope of liberty under our Constitution is narrower than in the U.S. Constitution. Seemingly that was the impression drawn by some of the judges in A.K. Gopalan V. State of Madras. Though that case was concerned about the constitutionality of preventive detention of the petitioner which in any case was an infringement of the ‘personal liberty’ even in the narrowest sense of the term and therefore it may be said that the scope of ‘personal liberty’ was not an issue in that case, yet some of the learned judges looking at the difference in the expression in U.S. and Indian Constitutions and relying upon the meaning given to ‘personal liberty’ by some English jurists concluded that ‘personal liberty’ was confined to freedom from detention or physical restraints. “But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words ‘personal liberty’ as the inter-relation between Art. 19 and 21.
For the First time the meaning and scope of ‘personal liberty’ came up pointedly for consideration in Kharak Singh V. State of U.P. In that case validity of certain police regulations which, without any statutory basis, authorized the police to keep under surveillance persons whose names were recorded in the ‘history-sheet’ maintained by the police in respect of persons who are or are likely to become habitual criminals. Surveillance as defined in the impugned regulation included secret picketing of the house, domiciliary visits at night, periodical inquiries about the person, an eye on his movements, etc. The petitioner alleged that this regulation violated his fundamental right to movement in Article 19(1)(d) and ‘personal liberty’ in Art. 21. For determining the claim of the petitioner the Court, apart from defining the scope of Art. 19(1)(d) had to define the scope of ‘personal liberty’ in Art. 21.
The Court rejected that ‘personal liberty’ was confined to “freedom from physical restraint or freedom from confinement within the bounds of a prison” and held that “personal liberty” is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the ‘personal liberty’ of man other than those dealt with in several clauses of Art.19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in Art. 21 takes in and comprises the residue. He concluded that “an unauthorized intrusion into a person’s home and the disturbance caused to him thereby” violated ‘personal liberty’ enshrined in Art. 21 and therefore the regulation was invalid insofar as it authorized domiciliary visits but the rest of it did not violate either Article 1(91)(d) or Art. 21. He also held that “the right to privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right.
Subba Rao, J. held that right to privacy “is an essential ingredient of personal liberty” and that the right to personal liberty is “a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures”.
In Satwant Singh Sawhney V. A.P.O., New Delhi, it was held that right to travel abroad is included within the expression ‘personal liberty’ and, therefore, no person can be deprived of his right to travel except according to the procedure established by law. Since a passport is essential for the enjoyment of that right, denial of a passport amounts to deprivation of personal liberty. In the absence of any procedure prescribed by the law of land sustaining the refusal of a passport to a person, its refusal amounts to an unauthorized deprivation of personal liberty guaranteed by Art. 21. This decision was accepted by Parliament and the infirmity was set right by the enactment of the Passport Act.
In A.K. Gopalan V. State of Madras, it was held that the expression ‘procedure established by law’ means procedure enacted by a law made by the State. The Supreme Court, by a majority, rejected that the argument that the ‘law’ in Art. 21 is used in the sense of jus and lex, and that it means the principles of natural justice on the analogy of ‘due process of law’ as interpreted by American Supreme Court.
In Maneka Gandhi V. Union of India, the passport authorities impounded the passport of Maneka Gandhi under S. 10(3) of the Passport Act which provides authorizes if it deems it necessary to do so in the interest of the sovereignty and integrity of India. Maneka challenged the order on the ground of violation of her fundamental right under Art. 21. One of the major grounds of challenge was that the order impounding the passport was null and void as it had been made without affording her an opportunity of being heard in her defence.
Bhagwati, J. in Maneka Gandhi case, established that the requirement of reasonableness of procedure in Art. 21 through Art. 14, some of the judges in that case and in some other subsequent cases have read it in Art. 21 itself and particularly in the word ‘law’ leading to the conversion of ‘procedure established by law’ into ‘due process of law’ in the American sense which the Constitution-makers had intended to avoid by replacing the latter expression by the former. Thus in Maneka Gandhi, it was said that the procedure in Art. 21 “has to be fair, just and reasonable, not fanciful, oppressive or arbitrary”. The ‘law’ in Art. 21 “is reasonable law, not any enacted piece”.
The Court reiterated the proposition that Arts. 14, 19 and 21 are not mutually exclusive. A nexus has been established between these Articles. This means that a law prescribing a procedure for depriving a person of ‘personal liberty’ has to meet the requirements of Art. 19. Also, the procedure established by law in Art. 21 must answer the requirement of Art. 14 as well. According to K. Iyer. J., no Article in the Constitution pertaining to a Fundamental Right is an island in itself. Just as a man is not dissectible into separate limbs, cardinal rights in an organic constitution have a synthesis.
Court held that as the right to travel abroad falls under Art. 21, natural justice must be applied while exercising the power of impounding a passport under the Passport Act. Although the Passport Act does not expressly provide for the requirement of hearing before a passport is impounded, yet the same has to be implied therein.
Again in Sunil Batra V. Delhi Administration, it was held that “true our Constitution has no ‘due process’ clause but the consequence is same” and added that Art. 21 is the counterpart of the procedural due process in the U.S.
The Supreme Court has made a novel use of Art. 21 viz., to ensure that the female workers are nor sexually harassed by their male co-workers at their work. In Vishaka V. State of Rajasthan, the Supreme Court has declared sexual harassment of a working woman at her place of work as amounting to violation of rights of gender equality and right to life and liberty which is a clear violation of Art. 14, 15 and 21 of the constitution.
In Mithu V. State of Punjab, a constitutional bench, for the first time and unanimously invalidated a substantive law - Section 303 of the IPC – which provided for the mandatory death sentence for murder committed by a life convict.
After posing the question of reasonableness of Section 303 under Art. 21 the Court concluded that “it is difficult to hold that the prescription of the mandatory sentence of death answers the test of reasonableness” and added that “a provision of law which deprives the Court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair”. Relying exclusively on Art. 21 it was concurred that “so final, so irrevocable and so irresuscitable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Thus not merely procedure but a substantive law was invalidated under Art. 21.
In Mr. X V. Hospital Z, the Supreme Court was called upon to decide a very crucial questioning the modern social context, viz., can a doctor disclose to the would be wife of a person that he is HIV positive? Does it infringe the right to privacy of the person concerned?
The Court has answered both of these question in the negative. The Court has argued that the lady proposing to marry such a person is also entitled to all the human rights which are available to any human being.
The ‘right of life’ guaranteed by Art. 21 “would positively include the right to be told that a person with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable”. Moreover when two Fundamental Rights clash, viz., that of the person concerned (right to Privacy) and that of the would be wife (to live a healthy life also guaranteed by Art. 21) “the Right which would advance the public morality or public interest would alone be enforced through the process of Court.
It has been noted that the impression of exclusiveness among different fundamental rights, particularly between Art. 19 and 21, which Gopalan had left has been removed by Maneka Gandhi. It has also been noted that by establishing a relationship among Art. 14, 19 and 21, particularly between Art. 14 and 21, a requirement of reasonableness of law providing for deprivation of life or liberty has been created. The creation of requirement of reasonableness is different thing, but otherwise no controversy apparently ever existed about the relationship between Art. 14 and 21.
It is only in respect of relationship between Art. 19 and 21 that the controversy has exited. The test is whether the law penalizes an activity protected by Art. 19. if it does, its validity shall have to be tested under Art. 19 though it may also be tested under Art. 21 if the reasonableness of procedure for penal sanctions is also questioned.
There are many more heads concerning the expansion of Art. 21 in different directions such as:
(i) Right of Prisoners:- In Sunil Batra V. Delhi Administration, the solitary confinement of a prisoner, who was awarded the capital sentence for having committed the offence of murder under the Prisons Act, was held bad as it was imposed not as a consequence of violation of the prison discipline but on the ground that the prisoner was one under sentence of death. Court pointed out that ground that the conviction of a person for a crime did not reduce him to a non-person vulnerable to major punishment imposed by jail authorities without observance of procedural safeguards.
(ii) Right of Inmates of Protective Homes:- Appropriate directions have been given by the courts to the inmates of protective and remand homes for woman and children for providing suitable human conditions in the homes and for providing appropriate machinery for effective safeguard of their interests.
(iii) Right to Legal Aid:- Right to free legal aid at the cost of the State to an accused who cannot afford legal services for reasons of poverty, indigence or incommunicado situation is part of fair, just and reasonable procedure under Art. 21.
(iv) Right to Speedy Trial:- In Hussainara Khatoon V. Home Secretary, Bihar, it was held that a procedure which keeps such large numbers of people behind bars without trial so long cannot possibly be regarded reasonable, just or fair so as to be in conformity with the requirement of Art. 21. Bhagwati, J. observed that although the right to speedy trial is not specifically mentioned as a fundamental right, it is implicit in the broad sweep and content of Art. 21. The court re-emphasized the expeditious review for withdrawal of cases against undertrial for more than two years. The court reiterated that the investigation must be completed within a time-bound programme in respect of undertrials and gave specific orders to be followed for quick disposal of cases of undertrials. It was held that continuance of such detention of undertrials held by periods more than the maximum term imposable on them on conviction, is clearly illegal and in violation of that fundamental right under Art. 21.
(v) Right against Cruel and Unusal Punishment.
(vi) Right of Release and Rehabilitation of Bonded Labour:- Art. 21 read with the Directive Principles of State Policy and the Bonded Labour System (Abolition) Act obliges the State to identify release and suitably rehabilitate the bonded labourers. The bonded labourers also have the right to live with human dignity enshrined in Art. 21.
(vii) Right of Compensation:- Right to claim monetary compensation for the violation of the right in Art. 21 has also been recognized in several cases.
(viii) Right to Know:- The courts have also recognized the right to know in Art. 21 as a necessary ingredient of particularly democracy.

















Article 368
Amendments

The process to amend and adapt the provisions of the Indian Constitution is contained in Article 368. The phraseology of Art. 368 has been amended twice since the inauguration of the Constitution. However, the basic features of the amending procedure have remained intact in spite of these changes. These basic features are:
(i) An amendment of the Constitution can be initiated only by introducing a Bill for the purpose in either House of Parliament.
(ii) After the Bill is passed by each House by a majority of not less than two-third of the members of that House present and voting, and after receiving the assent of the President, the Constitution Stands amended in accordance with the terms of the Bill.
(iii) To amend certain constitutional provisions relating to its federal character, characterized as the ‘entrenched provisions’, after the Bill to amend the Constitution is passed by the House of Parliament as mentioned above, but before being presented to the President for his assent, it has also be ratified by the legislatures of not less than one-half of the States by resolutions.
The procedure to amend the ‘entrenched provisions’ is in conformity with the federal principle which requires the consent of the State Legislatures also to any amendment which vitally affects federalism in which both the Centre and the States are interested.
In Shankari Prasad Singh V. Union of India, the first case on amendability of the Constitution, the validity of the First Amendment curtailing the right to property guaranteed by Art. 31 was challenged. The argument against the validity of the First Amendment was that Art. 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights, that the world ‘law’ in Art. 13 would include any law, even a law amending the Constitution and, therefore, the validity of such a law could be judged and scrutinized with reference to the Fundamental Rights which it could not infringe.
The Supreme Court upheld the validity of the First Amendment. Ruling that the ‘law’ in Art. 13 would not include within its compass a constitution amending law passed under Art. 368. The Court stated on this point, ‘We are of the opinion that is the context of Art. 13 law must be taken to mean rules and regulations made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368’.
The Court held that the terms of Art. 368 are perfectly general and empower Parliament to amend the Constitution without any exception. The Fundamental Rights are not excluded or immunized from the process of constitutional amendment under Art. 368. The Court insisted hat there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power.
The Court thus held that the Parliament could by following the ‘procedure’ laid down in Art. 368 amend any Fundamental Right.
The same question was raised in Sajjan Singh V. Rajasthan, when the validity of the Seventeenth Amendment was called in question. This Amendment again adversely affected the right to property. By this amendment, a number of statutes affecting property rights were placed in Ninth Schedule and were thus immunized from court review. The majority in this case ruled that the ‘pith and substance’ of the Amendment was only to amend the Fundamental Right so as to help the State Legislature in effectuating the policy of the agrarian reform.
The question whether any of the Fundamental Rights could be abridged or taken away by Parliament in exercise of its power under Art. 368 was raised again in Golak Nath. The Constitutional validity of the Seventeenth Amendment was challenged. The majority now held, overruling the earlier cases that the Fundamental Rights were non-amendable through the constitutional amending procedure set out in Art. 368.
The majority now took the position that the Fundamental Rights occupy a ‘transcendental’ position in the Constitution, so that no authority functioning under the Constitution, including Parliament exercising the amending power under Art. 368, would be competent to amend the Fundamental Right. It apprehended that if the courts were to hold that Parliament had power to take away or abridge the Fundamental Rights, a time might come when these rights are completely eroded and India would gradually and imperceptibly pass under a totalitarian regime. They equated Fundamental Rights with natural rights and characterized them as ‘the primordial rights necessary for the development of human personality’. Art. 368 merely laid down the procedure for constitutional amendment and did not by itself confer a substantive power to amend. The amending process in Art. 368 is merely ‘legislative’ and not ‘constituent’ in nature.
It was now ruled that the term ‘law’ in a comprehensive sense would include constitutional law as well. ‘An amendment of the Constitution is law within the inclusive definition of law under Art. 13 of the Constitution and, as the entire scheme of the Constitution postulates the inviolability of Part III thereof, Art. 368 shall not be so construed as to destroy the structure of our Constitution.’
Under Art. 368, a Constitutional amendment is to be enacted by following a procedure which is similar to the procedure for making laws. The fact that a larger majority, and in case of amendment of some Articles even ratification by State Legislatures, are provided for, would not make the constitutional amendment any the less a ‘law’. Therefore, the amendment made under Art. 368 is ‘law’ and is subject to Art. 13. The Constitution Amendment Act in question was thus held void inasmuch as it abridged the Fundamental Right. Thus, the majority ruled that the Fundamental Rights would fall outside the amendatory process if the amendment sought to abridge or take away any of these rights.
To neutralize the effect of Golak Nath bill was introduced in Lok Sabha for amending Art. 368, so as to make it explicit that any constitutional provision could be amended by following the procedure contained in Art. 368. The proposed bill was justified as an assertion of the ‘Supremacy of Parliament’, which principle implied ‘the right and authority of Parliament to amend even the Fundamental Rights.’ Parliament enacted Twenty-Fourth Amendment introducing certain modifications in Art. 13 and 368 to get over the Golak Nath ruling and to assert the power of Parliament, denied to it in Golak Nath, to amend the Fundamental Rights.
A clause was added to Art. 368 to make an express grant of power to Parliament to amend any part of the Constitution including Fundamental Rights. It was also clarified that once a bill is passed by both House of the Parliament the President would have no option but to give his assent to it.
Another effect of the Amendment was that the Directive Principles had been treated as subservient to Fundamental Rights. Now this relationship was sought to be reversed; Directive Principles contained in Art. 39 (b) and (c) were not sought to be given precedence over Fundamental Rights.
The validity of the above amendment was challenge in the Supreme Court in Kesavananda Bharti V. State of Kerala, The Court now held that the power to amend the Constitution is to be found in Art. 368 itself. It was emphasized that the ‘provisions relating to the amendment of the Constitution are some of the most important features of any modern Constitution. Further, the Court recognized that there is a distinction between an ordinary law and a constitutional law. It was asserted that the constitution makers did not use the expression ‘law’ in Art. 13 as including ‘constitutional law’. This would thus mean that Art. 368 confers power to abridge a Fundamental Rights or any other part of the Constitution. To this extent, therefore, Golak Nath was now overruled.
But Kesavananda did not concede an unlimited amending power to Parliament under Art. 368. The amending power was now subjected to one very significant qualification, viz., that the amending power cannot be exercised in such a manner as to destroy or emasculate the basic or Fundamental Features of the Constitution. A constitutional amendment which offers the basic structure of the Constitution is ultra vires.
Some of the basic features regarded by the Court as fundamental and, thus, non-amendable are:
(i) Supremacy of Constitution;
(ii) Separation of Powers between the Legislature, the executive and the judiciary;
(iii) Republican and democratic form of Government;
(iv) Secular character of the Constitution;
(v) Federal Character of the Constitution;
(vi) The dignity of the individual secured by the various Fundamental Rights and the mandate to build a welfare state contained in the directive principles;
(vii) The unity and integrity of the nation;
(viii) Parliamentary System.
This, therefore, means that while Parliament can amend any constitutional provision by virtue Art. 368, such a power is not absolute and unlimited and the court can still go into the question whether or not an amendment destroys a fundamental or basic features of the Constitution. If an amendment does so, it will be constitutionally invalid. The list given above is not final or exhaustive of such features. It is for the court to decide as and when a question arises whether a particular amendment of the Constitution affect any ‘basic’ or ‘fundamental’ feature of the Constitution or not.
Kesavananda also answered the question left unanswered in Golak Nath, namely, can Parliament, under Art. 368, rewrite the entire Constitution and bring in a new Constitution. The answer to the question is that Parliament can only do that which does not modify the basic features of the Constitution and not go beyond that.
The majority judges sought to protect and preserve the basic features of the Constitution against the onslaught of transient majority in Parliament. An unqualified amending power could mean that a political party with a two-thirds majority in Parliament, for a few years, could make any changes in the Constitution, even to the extent of establishing a totalitarian State, to suit its own political exigencies.
In Indira Nehru Gandhi V. Raj Narayan, the validity of Cl. 4 of Thirty-ninth Amendment was challenged. The Amendment sought to do three things: one, generally, to withdraw the election of the Prime Minister and a few other Union officials from the scope of the ordinary judicial process; two, more specifically, to void the High Court decision declaring Indira Gandhi’s election to the Lok Sabha as void; and three, to exclude the Supreme Court’s jurisdiction to hear any appeal.
The amendment was challenged as destroying the basic feature of the Constitution insofar as it constituted a gross interference with the judicial process. The contention was that the clause in question wiped out not merely the High Court’s judgment, but even the election petition and the law relating thereto.
The Supreme Court upheld the contention and declared Cl.4 as unconstitutional. The first part of Cl. 4 was regarded to violate three essential ‘essential features’ of the Constitution. It destroyed an essential democratic feature of the Constitution, viz., the resolution of an election dispute ‘by ascertaining the adjudicative facts and applying the relevant law for determining the real representative of the people.’ A constitutional amendment cannot dispense with the requirement without damaging an essential feature of democracy, viz., the mechanism for determining the real representative of the people in an election as contemplated by the Constitution. Democracy could function only when there are free and fair election.
A more substantial ground against the proposed Amendment was that the decision of a specific election dispute was a judicial function. When the constituent body declared that the election of the Prime Minister would not be void, it discharged a judicial function. A judicial power has to be exercised according to some procedure and by following some law. In the instant case, in enacting the Amendment in question, the amending body exercised judicial power in violation of the principle of natural justice or audi alteram partem as it gave no hearing to the person challenging the Prime Minister’s election.
Art. 368 was again amended by 42nd Amendment in order to ensure that the courts should not have the power to pronounce a constitutional amendment invalid. It sought to ensure that a constitutional amendment may not be challenged before the court on any ground whatsoever. To achieve this objective, two new clauses were added to Art. 368.
In Minerva Mills Ltd. V. Union of India, the scope and extent of the doctrine of basic structure was again considered by the Supreme Court. The Court held certain section of 42nd amendment to be beyond the amending power of the Parliament and void since it sought to remove all limitations on the power of Parliament to amend the Constitution and confer a power on Parliament to amend the Constitution so as to damage or destroy its basic or essential features or its basic structures. The true object of these clauses was to remove the limitation imposed on Parliament’s power to amend the Constitution through the Kesavananda case.
The court observed that ‘the power to destroy is not a power to amend.’ The Constitution confers only a limited power on Parliament to amend Constitution; Parliament cannot therefore by exercising that limited power to enlarge that very power into an absolute power. ‘The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. A limited amending power is indeed one of the basic features of the Constitution. Therefore, the limitation on that power cannot be destroyed.

















Directive Principles & Fundamental Rights

The Directive Principles are designed to usher in a social and economic democracy in the country. These principles obligate the state to take positive action in certain direction in order to promote the welfare of the people and achieve economic democracy. These principles give directions to the legislatures and the executive in India as regards the manner in which they should be exercise their power.
Directive Principles differ from Fundamental Rights which enjoin the state to refrain from prejudicial action against an individual and, thus, impose a negative duty on the state. Fundamental Rights seek to introduce an egalitarian society and to ensure liberty for all. The Directive Principles seek to achieve a welfare state. The two together constitute the conscience of the Constitution. Originally, the Directive Principles were more akin to moral, rather than to legal, precepts as they did not have much value from a legal point of view.
Article 37 says that the Directive Principles ‘shall not be enforceable by any court, but the principle therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
The Directive Principles of State Policy detailed in Article 37 to 51 of the Constitution possess two characteristics. Firstly, they are not enforceable in any court and therefore, if a directive is not obeyed or implemented by the State, its obedience or implementation cannot be secured through judicial proceedings. This characteristic has been diluted in practice by court decisions which have enforced some of the directive principles in support of the fundamental rights. Secondly, they are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. The expression ‘laws’ must be construed in a generic sense and should include all normative exercise of power including the decision making.
Since the directive principles are not enforceable by any court, it has been advocated that they are not law, much less constitutional law and therefore their non-observance by the State does not entail any legal consequences. For the same reason a law giving effect to the directive principles has to be observe all the constitutional limitations such as the fundamental rights and in case it violates these limitations, it must be held unconstitutional.
Initially, the court adopted a strict and literal legal position in this respect. The Supreme Court adopting the literal interpretative approach to Art. 37 ruled that a Directive Principle could not override a Fundamental Right, and, that in case of conflict between the two, the Fundamental Right would prevail over the Directive Principle.
This was also the view taken by the Supreme Court, soon after the commencement of the Constitution in State of Madras V. Champakam Dorairajan. Invalidating a Madras Government order which fixed quotas for admission to medical and engineering colleges for different communities including Harijans and was sought to be defended under Article 46, the Court held that ‘The Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights’ because the latter are enforceable in the court while the former are not. But this view has been contested from the very beginning on the ground that being part of the same constitution fundamental rights and directive principles are equally important and neither of them is superior or inferior to the other; rather both supplement each other and have to be construed harmoniously. The Court did not abandon its initial position immediately.
In Course of time, a perceptible change came over the judicial attitude on this question. The Supreme Court’s view as regards the interplay of Directive Principles and Fundamental Rights underwent a change. The Supreme Court started giving a good deal of value to the Directive Principles from a legal point of view and started arguing for harmonizing the two-the Fundamental Rights and Directive Principles.
Further, the courts also adopted the view that in determining the scope and ambit of Fundamental Rights, the Directive Principles should not be completely ignored and that the court should adopt the principle of harmonious construction and attempt to give effect to both as far as possible. The Supreme Court began to assert that there is ‘no conflict on the whole’ between the Fundamental Rights and the Directive Principles. ‘They are complementary and supplementary to each other.’
Since then, the judicial attitude has become more positive and affirmative towards Directive Principles, and both Fundamental Rights and Directive Principles have come to be regarded as co-equal.
This aspect of the Directive Principles was stressed upon by the Supreme Court in Golak Nath. The Supreme Court emphasized that the Fundamental Rights and Directive Principles formed an ‘integrated scheme’ which was elastic enough to respond to the changing needs of the society.
In Minerva Mills Ltd. V. Union of India, it was held that ‘harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.’ The court asserted that ‘the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.
In Kesavananda Bharti V. State of Kerala, the importance of the directive principles was explained. It was said that these are rights which are inherent in human beings because they are human beings-whether you call them natural rights or by some other appellation is immaterial. As the preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part IV of the constitution are equally an essential feature of it, the only difference being that the moral rights embodied in Part IV are not specifically enforceable as against the State by a citizen in a court of law in case the State fails to implement its duty but, nevertheless, they are fundamental in the governance of the country and directives. The fundamental rights themselves have no fixed content; most of them are mere empty vessles into which each generation must pour its content in the light of its experience. Restrictions, abridgment, curtailment, and even abrogation of these rights in circumstances not visualized by the Constitution-makers might become necessary; their claim to supremacy or priority is liable to be over borne at particular stages in the history of the nations by the moral claims embodied in Part IV.’
It is now universally recognized that the difference between the Fundamental Rights and Directive Principles lies in this that the fundamental rights are primarily aimed at assuring political freedom to the citizens by protecting them against excessive State action while the directive principles are aimed at securing social and economic freedoms by appropriate action. The fundamental rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to courts, so they are made justicable. However, notwithstanding their great importance the directive principles cannot in their nature of things be enforced in a court of law. It is unimaginable that any court can compel a legislature to make a law. If the court can compel Parliament to make laws then parliamentary democracy would soon be reduced to a oligarchy of judges. It is for this reason that the Constitution says that the directive principles shall not be enforceable by courts. However, it does not mean that the directive principles are less important than the fundamental rights for the simple reason that they are not judicially enforceable. Article 37 of the Constitution emphatically states that directive principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It follows that it becomes the duty of the court to apply the directive principles should serve the courts as a code of interpretation. Fundamental rights should thus be interpreted in the light of the directive principles and the latter should whenever and wherever possible, be read into the former. This command of the Constitution must be ever present in the minds of the judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the directive principles.
Special importance has been attached to the directive principles vis-à-vis the fundamental rights in Unni Krishnan V. State of A.P., where the Court has drawn the parameters of the right to education from Article 45 and 41. Following these articles in that order it has held that ‘every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State.
In Mohd. Hanif Quareshi V. State of Bihar, the prohibition of slaughter of cows, bulls and bullocks to enable the public to have a sufficient supply of milk, and to ensure availability of sufficient number of fraught cattle for agricultural operations was held reasonable under Art. 19 in view of the Directive Principles contained in Article 47 and 48.
On the whole, a survey of the case law shows that the court have used Directive Principles not so much to restrict Fundamental Rights as to expand their scope and content.