Content of Right to Life

• Francis Coralie v Union Territory of Delhi (1981) – Right to life includes the right to live with human dignity and all that goes along with it, namely bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
• Right to means of livelihood is  a part of right to life  (Olga Tellis v Bombay Municipal Corporation (1985)
• Right to Food  (PUCL v Union of India (2001)
• Right to Dignified life of the prostitutes (Gaurav Jain v Union of India (1997)
• Right to primary education (Unnikrishnan v State of Andhra Pradesh (1993)
• Right to Shelter ( Gauri Shanker v Union of India (1994)
• Right to potable drinking water ( Narmada Bachao Andolan v Union of India (2000)
• Right to seek a ban on injurious drugs to protect health of citizens ( Vincent Punikurlangara v Union of India (1987)
• Right to life does not include right to commit suicide or die.( Gian Kaur v State of Rajasthan (1996)
• Active Euthanasia and assisted death are offences but non-voluntary euthanasia is permissible subject to certain conditions and safeguards Aruna Ramchandra Shanbaug v Union of India (2011)

Evolution of Personal Liberty

• A K Gopalan v. State of Madras:

o   Petitioner was detained under the harsh preventive detention act
o   Petitioner alleged that procedure is not just
o   Court stated that due process of law and procedure is not part of Indian constitution
o   When person lawfully deprive of his right under Art.21 or 22 then he cannot ask for other fundamental rights (14 & 19)
o   Law means enacted law by the government so protection available is against executive action
o   Personal liberty means from physical restrain

• Kharak Singh v State of UP:

o   Police notification which allowed for untimely intrusion in house of suspects.
o   Unauthorized intrusion into a person’s home and disturbance caused to him is a violation of personal liberty.
o   Court held that unauthorized entry into home by police and disturb sleep could be deprived by procedure established by law but since this was administrative action without backing of law is unconstitutional.

• Govind vs State Of Madhya Pradesh:

o   Police notification backed by statutory acts which allowed for untimely intrusion in house of suspects.
o   Personal liberty includes right to privacy but the Court upheld the violation of right to privacy as the regulations had statutory backing.

• R.Rajagopal v State of Tamil Nadu:

o   Every citizen has the right to be let alone and the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among others.
o   No one can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical.

• State of Maharashtra v Prabhakar Pandurang:

o   Right of a prisoner to write and publish a book a part of right to personal liberty. A prisoner is entitled to all his fundamental rights unless his liberty has been constitutionally curtailed.

• Satwant Singh v Assistant Passport Officer:

o   Right to travel 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.
o   Every citizen has the Right to go abroad.

• Maneka Gandhi v Union of India:

o   “The expression “personal liberty” in Art. 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct FRs and given additional protection under Art. 19.”

• Naz Foundation v Govt of NCT (2009):

o   Case concerned with constitutionality of §377 of Indian Penal Code. Petitioner contended that the provision was violative of right of privacy of homosexuals.
o   Delhi HC held that it was unconstitutional.

• Selvi v State of Karnataka:

o   Involuntary subjection to tests such as polygraph examination, narco-analysis and BEAP violates right to privacy.

• Hussainara Khatoon v State of Bihar:

o   Right to speedy trial is a part of fair just and reasonable procedure and thus protected by Article 21.

• Bandhua Mukti Morcha v Union of India (1984):

o   Right of bonded labor to be released and rehabilitated is  a part of right to life and personal liberty and right to live with dignity.

From Procedure Established By Law to Due Process of Law

• A K Gopalan v State of Madras: Took a strict interpretation of procedure established by law and rejected due process of law. Case discussed in detail above.
• ADM, Jabalpur v Shivkant Shukla:

o   Article 21 was the sole repository of the right to life and personal liberty against its illegal deprivation by the executive and in case enforcement of Article 21 was suspended by a presidential order under Article 359, the Court could not enquire whether the executive action depriving a person of his life or personal liberty was authorized by law.

• Maneka Gandhi v Union of India:

o   Maneka’s passport seized under 10(3)(c) of Passport Act, 1967 which empowered authority to do so in public interest.
o   Article 21 does not exclude Articles 19 and 14. A law prescribing a procedure for depriving a person of his life and personal liberty will have to meet the requirement of Article 19 as well the principle of reasonableness embodied in Article 14.
o   Principle of reasonableness an essential element of equality and non-arbitrariness pervades Article 14 and must equally apply to procedure in Article 21.
o   Hence procedure depriving a person of his life or personal liberty must be fair, just and reasonable and not arbitrary, fanciful or capricious or oppressive.
o   The case implanted procedural due process and not substantive due process.

• Sunil Batra v Delhi Administration (1978):

o   Krishna Iyer, J: True our Constitution has no ‘due process’ clause but after Cooper and Maneka Gandhi, the consequence is the same
o   Desai J: the word law in the expression ‘procedure established by law’ in Article 21 has been interpreted to mean in Maneka Gandhi Case that the law must be right, just and fair, and not arbitrary, fanciful or oppressive

• Bachan Singh v State of Punjab:

o   The Supreme Court upheld the validity of section 302 of IPC dealing with death penalty as not violating Article 14, 19, and 21.
o   Justice Bhagwati in his dissenting opinion for the first time declared a substantive law as unreasonable and thus unconstitutional law.(Substantive Due Process). He held that Section 302 read with Section 354 Cr PC was unconstitutional and thus void.

• T Sareetha v T Venkata:

o   Andhra Pradesh High Court held Section 9 of Hindu Marriage Act providing for restitution of conjugal rights to be barbarous and savage remedy violating Article 21 right to privacy and human dignity. The Court held that after Maneka Article 21 is no longer confined to procedural reasonableness but extends to substantive reasonableness.
o   Case was overruled in Saroj Rani  v Sudarshan Kumar Chadha.

• Selvi v State of Karnataka:

o   The Court held that Article 20(3) forcing an individual to undergo lie detection test violated standards of substantive due process.

• Naz Foundation v. State of Delhi NCT:

o   Delhi High Court held that Article 21 incorporates substantive due process and struck down Section 377 as violating Articles14,15 and 21 of the Constitution and therefore unconstitutional.
o   Case was overruled in Suresh Kumar Koushal v Naz.

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 Article 20(1) – Retrospective penal law is prohibited.

• Article 20(1) -A law cannot change the punishment and make it greater and apply it to previous offences.
• Article 20(2) – Double Jeopardy – No person shall be prosecuted and punished for the same offence more than once.

o   Proceedings must be before a court or judicial tribunal
o   A person fined under Customs Act can still be prosecuted under FERA because custom authority is not a court or judicial tribunal.

• Protection against self-incrimination.

Nandini Satpati v P L Dhani

• The Supreme Court held that protection against self-incrimination under Article 20 extends to suspects also.

Selvi v. State of Maharashtra

• The court held that evidence procured through narco-analysis, polygraph. is not admissible in court.
• The only case not overruled so far which states that substantive due process is part of the basic structure.

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• The freedom given under Article 19 could only be restricted on the grounds mentioned in the article itself.

Grounds of Restriction

• Security of State and Public order – Public order means public peace, safety and tranquility.
• Sovereignty and integrity of India – This is the restriction which legitimizes the law of sedition. Was added by 16^th Amendment Act based on the recommendations made by the Committee on National Integration and Regionalism. Targets individuals or organizations promoting secessionist tendencies or ideas of disintegration.
• Friendly relations with foreign states
• Incitement to an offence
• Contempt of Courts
• Decency or morality

Constitution (First Amendment) Act, 1951

• Added ‘public order’, ‘friendly relations with foreign states’ and ‘incitement to an offence’ as grounds for restriction.
• Nehru introduced these for the following reasons:-

o   The moral problem posed by irresponsible journalism.
o   Telangana problem

Freedom of Press

Brij Bhusan v State of Delhi (1950)

• Direction was issued under Section 7(1)(c) of the East Punjab Public Safety Act to editor and publishers to submit for scrutiny in duplicate all communal matters, news and views about Pakistan.
• This was struck down as violation of Article 19(1)(a) as imposing unreasonable restriction not justified under 19(2).
• Provided freedom from pre-censorship on publication

Romesh Thapar v Madras (1950)

• Petitioner contended that banning of his journal ‘Crossroads’ in Madras is violative of the fundamental right granted under Article 19(1)(a).
• Court held that order is outside the purview of Article 19(2) and cannot be sustained.
• Provided the right to liberty of circulation.

Sakal Papers v Union of India (1962)

• Order was passed, fixing number of pages and size which a newspaper could publish at a price.
• The court held that restriction not justified by the grounds under 19(2).
• The effect was to reduce circulation or volume of newspaper.

Bennett Coleman & Co. v. Union of India

• The import of news print policy provided several restrictions such as that that there will be rigid limit of 10 pages for a newspaper, there will bar on starting new newspapers or magazines by common ownership unit etc.
• The government justified the restriction as regulation on the supply of newsprint quota to papers.
• Court gave Effects Test – Object not important. If the effect of excessive and prohibitive.  Thus, the object of the newspaper restrictions of controlling the availability of newsprint or foreign exchange cannot be sustained as long as it effects circulation of newspapers.
• Court held that liberty of press includes not only in volume of circulation but also in the volume of news and views. It includes right to free propagation and free circulation without any previous restraint.

Express Newspaper v. Union of India

• The validity of Working Journalists Act was challenged which was enacted to regulate conditions of services (such as number of working hours, number of leaves, fixation of wages, etc) of persons employed in newspaper industry .
• Act was challenged on the ground that it will adversely affect the economic conditions of newspaper and consequentially will affect their circulation and thus was violation of Article 19(1)(a).
• The court held that the press was not immune from laws of general application or ordinary forms of taxation, or law of industrial relation. Therefore, the court upheld the constitutionality of the act.

Secretary Ministry of Information and Broadcasting v Cricket Association of West Bengal (1995) AIR WAVES CASE

• Petitioner wanted to telecast cricket matches organized by it through frequency not owned or controlled by government of India but owned by a foreign satellite agency.
• Petitioner sought permission from Doordarshan to uplink the signals created by its own camera and the earth station. Doordarshan rejected the permission on the ground that it enjoys monopoly by virtue of Telegraph Act 1885 and that frequencies available in India are in limited number.
• Board argued that game of cricket provided entertainment to public and was a form of speech and expression under 19 (1) (a) which included a right to telecast the matches and broadcast it to the public.
• The Court held that Freedom of speech and expression includes the right to acquire information and to disseminate the same. The right to communicate therefore means right to communicate through any media that is available whether print or electronic or audio-visual such as advertisements, articles, speech etc. it includes freedom to communicate and circulate one’s views.
• The right to freedom of speech and expression includes right to educate, right to inform, and to   entertain and also right to be educated, informed and entertained. The former is the right of the telecaster and the latter the right of the viewers.
• The right to impart and receive information is a species of the right to freedom of speech and expression. A citizen has a right to use the best means of imparting and receiving information.

Tata Press Ltd v MTNL (1995) (Right to Commercial Speech)

• Petitioner wanted to publish a telephone directory. Respondent claimed exclusive right to publish telephone directory under Telegraphs Act 1885.
• The Court held that commercial advertisement is a form of speech and expression as they disseminate information through advertisement.
• Since the restriction was not part of Article 19(2) it cannot be sustained.

KA Abbas v Union of India

• Petitioner’s movie ‘A Tale of Four cities’ was denied U (Universal) certificate for its screening. Petitioner dissatisfied from the rating challenged the validity of Cinematograph Act itself on the ground of violation of Article 19(1).
• The Central government will grant authority to competent persons who can impose restriction. And the board appointed should draw a line and put reasonable restrictions. And also classification according to age groups and their suitability for unrestricted exhibition is considered as valid in the interests of public morality and thus won’t offend freedom of speech and expression.
• The Court held that pre-censorship is justified because it is done in the interest of the society thus restriction is fine if it is reasonable but if it isn’t and goes outside the purview of Article 19(2) then the abuse of power can be questioned.

Union of India v. Association for Democratic Reforms (Right to Know)

• Every voter has a right to know the antecedents of the candidates at election. Right to know is included in 19(1)(a).

Bijoe Emmanuel v State of Kerala (1986) – Right to remain silent

• Three students belonging to Jehovah Witness refused to sing the anthem on basis of their religious affiliation but stood respectfully while the national anthem was being sung.
•  Court held that they had not insulted the national anthem and the government circular cannot violate article 19(1)(a), which includes in itself the right to remain silent.

Right to Demonstration

Kameshwar Prasad v State of Bihar(1962)

• Court held that demonstration being visible representation of ideas would be protected as a form of speech provided they are not violent and disorderly.

OK Ghosh v Ex Joseph (1963)

• Article 19(1) (a) included a right to demonstration provided it is not violent or disorderly.

Freedom to Form Association or Union

Jamaat-E-Islami Hind v. Union of India

• The Central government imposed a ban on Jamaat e Islam under the unlawful activities prevention act.
• The court held that there should be a sufficient cause for declaring the association unlawful. The procedure to be followed is that when the central government declares any association unconstitutional it should approach the tribunal and when the tribunal looks into it and confirms then it becomes unconstitutional.
• Also if the Central government thinks it is not credible to give or disclose information to the public as it will disturb the public peace then it shouldn’t but the tribunal can look into the information and see if it is correct and then can declare it unconstitutional.
• Thus a test of factual existence should be followed and this test should determine the meaning and content of the adjudication by the tribunal of the existence of sufficient cause for declaring the association to be unlawful.

Test of Reasonability

• O. K. Ghosh v. Ex. Joseph  – The restriction imposed should be reasonable and be rationally proximate and in nexus with public interest.
• Virendra v. State of Punjab – Absence of provision for review makes the provisions unreasonable.
• Municipal Corporation of Thecity v. Jan Mohd. Usmanbhai – The reasonableness should be determined in an objective manner and from the angle of the general public’s interest and not from the viewpoint of the person upon whom the restriction are imposed.

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Pradeep Jain v Union of India

• Residence requirement of medical college inconsistent with unity and integrity of India
• Though given circumstance reservation on basis of residence could be justified but it should not exceed 50% of the total seats
• No reservation permissible on basis of residence for post graduate courses such as M.S. and M.D.
• Also allowed up to 50% reservation in higher courses for student of same institute seeking admission in post graduate course in the institute itself

Government of A.P. v. P.B. Vijaykumar

• Andhra Pradesh government allowed for reservation of women in following ways:-

o   Preference for women in jobs better suited for them
o   Preference upto 30% for women in jobs for which they are equally suited with man;
o   Direct recruitment to posts reserved exclusively for women was upheld.

• Court held that Article 15(3) is broad enough to cover any special provisions for women including reservation in jobs.

Issues of Reservation

State of Madras v. Champakam Doraijan

• Madras government passed an order which had fixed the proportion of students of each community that could be admitted in the state medical and engineering colleges.
• The government contended that it had a duty under Article 46 to protect people 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.

M. R. Balaji v. State Of Mysore (1962)

• Considered the validity of reservation for OBC for the first time and answered its validity in affirmative
• Matter of national efficiency need to be considered and thus reservation should be less than 50% – Article 335, Constitution
• Caste can be one of criteria with other criteria such as poverty, place of habitation etc.
• The court also held that since Article 15(4) is an exception to 15(1) the reservation cannot exceed 50% as then the rule will eat the exception.
• Since Mysore scheme was entirely based on caste it was struck down

T.Devadasan v. The Union Of India (1964)

• Carry forward rule (vacancies which remained unfilled due to non-availability of reserved category candidates be carried forward to the next year) was implemented for SC and ST
• Reservation thus reached 64% in a particular year and was struck down
• Court reiterated Balaji that reservation should be less than 50%

Mandal Commission Report

• Mandal Commission recognized 4000 classes eligible for reservation
• They wanted proportional reservation for OBC ie 52% and thus a total of 74% reservation (22% for SC & ST)
• Balaji judgment was a hindrance in implementing this

P. Rajendran v State of Madras

• Court determined the test of backwardness which was predominantly based on caste.
• Reservation based only on caste without taking into account social and educational backwardness of the caste in question would be violative of Article 15 (1).
• Caste is also a class of citizens and if the caste as a whole is socially ad educationally backward, reservation can be made in favour of such a caste on the ground that it is socially and educationally backward class of citizens within the meaning of Article 15(4).

State Of Kerala v. N. M. Thomas (1975)

• Developed difference between substantive and formal equality
• Rule 13A which was introduced sometime later, gave temporary exemption from passing the departmental tests for a period of two years. The rule also provided that an employee who did not pass the unified departmental tests within the period of two years from the date of introduction of the test would be reverted to the lower post and further said that he shall not again be eligible for appointment under this rule. Proviso 2 to this rule gave temporary exemption of two years in the case of Scheduled Castes and Scheduled Tribes candidates.
• Found valid as per nexus test, object being removal of backwardness
• As long as legal classification (social, financial, educational backwardness) is valid preference to any extent is valid till goal is achieved (even upto 100%)
• The majority of the court rejected that article 15(4) or 16(4) is an exception to article 15(1) or 16(1). The court asserted that article 16(4) and 15(4) are emphatic assertions and directions to the State to take effective affirmation steps to enforce the concept of equality as lay down in article 14, 15 and 16.

Indra Sahwney v. Union of India (1992)

• Mandal Commission report was not challenged but VP Singh  & Narsimha Rao  government’s memo was challenged
• Concept of ‘creamy layer’ advanced section of OBC to not get reservation was implemented
• Creamy layer not there for SC and ST
• Caste cannot be sole factor but important factor.
•  Caste is a Predominant Test of backwardness among Hindus. While classification on the basis of caste was forbidden by 16(2), the use of caste was permissible for identifying backward classes.
• Reservation impermissible in promotion

o   Analogy was given – a medical student even if he gets seat from reservation still need to pass exam

o   Also reservation for class and in case of promotion it would work for individual rather than class (Certain individual who have already received benefit of reservation will get the benefit of this scheme)

• Reservation cannot exceed 50%
• Reservation cannot be given on exclusively economic state

____________

• Post Indra Sahwney, constitution was amended [Article 16(4)(a)] and reservation in promotion for SC & ST was allowed
• Article 16(4)(a) was again amended in 2001 to have retrospective effect
• Article 16(4)(b) was inserted in 2000 so as to remove 50% rule for ‘carry forward’ rule of filling backlog vacancies of SC & ST
• Also Balaji was focused more on education and Indra Sahwney was focused on jobs

Ajit Singh (II) v. State of Punjab (1999)

• Court discarded the consequential seniority for SC & ST
• Court said a person getting promotion due to reservation cannot get the benefit of seniority as it will lead to double benefits.
• This was nullified by parliament through an amendment made to Article 16(4)

TMA Pai Foundation v. State of Karnataka (2002)

• Unaided private educational institution asserted their right under Article 19(1)(g) [right to occupation] to choose student of their own choice and claimed that state cannot impose restriction on the same
• The court upheld their contention
• This case was upheld in P.A. Inamdar  v. State Of Maharashtra (2005)
• This case was nullified by inserting Article 15(5) through an amendment to the constitution
• Aided or unaided will have to provide reservation if a law is made under Article 15(5) now

M.Nagaraj & Others v. Union Of India (2006)

• Amendment made to constitution (Article 16(4)(a) & (b)) were challenged on ground that they went against concept of efficiency given in Article 335 of constitution and basic structure of constitution
• Court stated that Kesavananda held that fundamental rights could be abridged but not destroyed and these amendments were abridging fundamental rights so as to promote substantive equality through affirmative actions.
• Also held that each time State provides reservation under Article 16(4)(a) it must present quantifiable data regarding backwardness of class

Ashoka Kumar Thakur v. Union of India (2008)

• Upheld Indra Sahwney
• Creamy layer to be excluded for OBC
• Those who have achieved economic advancement also need to be excluded as then they have achieved social advancement.
• Poverty nexus is map for reservation in jobs and educational institutions

U.P.Power Corp.Ltd. v. Rajesh Kumar (2012)

• No quantifiable data was shown regarding backwardness and the fact that efficiency won’t be affected wasn’t proved (Article 335)
• 17^th Constitution Amendment Bill 2012, seeks to do away with this quantifiable data test of Nagaraj

State of Tripura & others v. Jayanta Chakraborty (2017)

• The three-Judge bench made a reference to the Chief Justice under Article 145(3) to constitute a Constitution Bench to decide whether the M. Nagaraj’s judgment needs reconsideration.
• The contention is that a re-look of M. Nagaraj is required on the ground that test of backwardness ought not to be applied to SC/ST in view of Indra Sawhney judgment.

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Article 14

• There are two types of equality:-

o   Formal/Negative/Numerical/Legal Equality – Treat everybody equally
o   Substantive/Equality of Result/Equality in Pact/Actual Equality/Positive Equality – Only equals could be treated equally and if unequal are treated equally then that amounts to an inequality in itself.

• Substantive Equality is achieved by enabling state to remove discrimination.
• Substantive Equality  allows for Compensatory Discrimination /Positive Discrimination/Reverse Discrimination/Protective Discrimination
• Equality Before Law- Nobody is above law
• Discrimination without reason violates equality
• Discrimination with reasonable reason does not violates equality
• Law presumes constitutionality of every action – Person must show inequality
• Formal equality simply requires the absence of any discrimination in the words of law and requires that similar cases must be treated similarly according to one and the same rule.
• Identical treatment in unequal circumstances would lead to inequality –Jagjit Singh v. State (AIR 1954 Hyd. 28)
• Exceptions – Military Office, Governor/President Office, Diplomat
• Equality Before Law– Taken from English Common Law is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual.
• Equal Protection of the Laws – Taken from the 14^thamendment of the American Constitution directing to protect all persons within the territorial jurisdiction of the Union in the enjoyment of their rights and privileges without favouritism or discrimination.

Nexus Test –  State of West Bengal v. Anwar Ali Sarkar (1952)

• Act was passed to provide for speedier trial of certain offences. Case of Anwar Ali was picked up from Thana and was directed to be tried by Special Criminal courts. They argued that they were subjected to discriminatory treatment as the procedure laid down under the Act was more cumbersome and harsh that the procedure of trial under CrPC.
• . The Act did not lay down any policy or guidelines for exercise of executive discretion Speedier trial was too vague uncertain and illusive to afford a basis for rational classification.

o   Classification should be founded on intelligible differentia which distinguishes the persons or things that are grouped together from others left out of the group.
o   The differentia must have a rational relation to the object sought to be achieved by the legislation in question.

Kathi Ranning Rawat v State of Saurashtra (1952)

• Section 11 of Saurashtara Public Safety Measure, 1949 was upheld as constitutional. The court held that the act’s preamble afforded sufficient guidance for making classification and exercising discretion. The government had filed an affidavit explaining the circumstances under which the impugned order was passed.
• The Court held that vice of discrimination consists in unguided and unrestricted power of singling out for different treatment one among a class of persons who are similarly situated.
• Rani was charged for murder and government justified the need for immediate action on basis of maintenance to preserve public safety and order.
• Anwar Ali was distinguished in this case as there was also a need to need to provide for public safety and order.

Reasonableness Test – Magan Lal Chhagan Lal v Municipal Corporation, Greater Bombay (1974)

• Act conferred power on authorities to initiate speedy eviction proceedings against unauthorized occupants of government and corporation premises. The preamble stated “Speedy eviction of unauthorized occupation of government and corporation premises”.
• These laws were challenged on the ground of availability of two procedures for eviction of unauthorized premises one under ordinary civil procedure and another under the special procedure under the above Acts. The law was upheld as making valid classification and providing sufficient guidelines to the executive for exercising discretion
• Reasonableness And Non Arbitrariness Test

o   If legislation itself makes the classification, it will be invalid if the reasonable classification test is not satisfied.
o   If legislation confers discretion to administrative authorities the legislation will be valid if it provides sufficient guidelines for the exercise of discretion by the executive. In such a situation the policy or guidelines can be gathered from the Preamble or surrounding circumstances.
o   If the executive abuses its discretion, the executive action will be struck down as the Supreme Court had struck down the allotment of government accommodation or petrol pumps by Ministers from their discretionary quota as the Minister’s action suffered from arbitrariness

Khyerbari Tea co. Ltd. v. State of Assam

• The validity of taxation was challenged on the ground that it singled out tea and jute as objects of taxation.
• The court held that legislature is free to decide to determine that what articles are to be taxed and what are to be not
• In matter of taxation, State is allowed to choose districts, objects, persons, methods, and rates of taxation as long as it does so reasonably

E. P Royappa v State of Tamil Nadu (1974)

• Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits.
• From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14

Chiranjit Lal Chaudhary v. Union of India

• Right is not limited only to citizens.
• Right covers both juristic and non-juristic persons.
• This case held that even a company has the right to equality against the State.

Air India v Nargesh Meerza (1981)

• termination of services of air hostesses on first pregnancy was held to be arbitrary and infringement of Article 14 and 15. The court, however, did not find any fault of termination of service was on third pregnancy

Ajai Hasia v Khalid Mujeeb (1981)

• a system of selection by oral interview was held to be valid but the allocation of more than 15% for the interview was arbitrary and unreasonable.
• It must now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting the denial of equality.

Mithu v State of Punjab (1983)

• The Court asked: whether there is any intelligible basis for giving differential treatment to an accused who commits the offence murder whilst under a sentence of life imprisonment and if so is such a law is fair? Section 303 of IPC was held to be unreasonable and unfair and hence unconstitutional.

Common Cause v Union of India (1996)

• Allotment of petrol pump by petroleum minister from his discretionary quota was held to be unfair and arbitrary for not following the guidelines for allotment of petrol pumps.

Karnataka State Tourism Development Corporation v STAT (1986)

• the Regional transport authority was required to give preference to those applicants who were approved by Central Ministry of Tourism in granting permit for motor vehicles. The Court invalidated this requirement as arbitrary and unreasonable.

Naz Foundation v Govt NCT of Delhi (2009)

• Delhi High Court struck down Section 377 criminalizing gay sex of IPC as arbitrary and unreasonable and thus unconstitutional.

Centre For Public Interest Litigation v Union of India (2012)

• the court invalidated allocation of 2G spectrum on first-come-first basis on the ground that the allocation or disposal of natural resources must be done by auction so as achieve procedural fairness.

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• The Doctrine of Basic Structure was first used in Kesavananda Bharati. The doctrine has its origins in the tussle between state legislation carrying out land reformations on basis of directive principles of state policy and the fundamental right to property (Article 19(1)(f) & 31 – Repealed).
• Parliament thus in order to carry out the agrarian reforms passed the first amendment act which provided for insertion of Article 31 & 31B and the ninth schedule.
• The first amendment was challenged in Shankari Prasad Case (discussed below) and then started a series of judicial pronouncements and constitutional amendments giving rise to doctrine of basic structure. Post Kesavanadna Bharati cases have helped determine the content of the ambiguous basic structure.

Shankari Prasad v. Union of India (1951)

• First amendment, validity of insertion of 31A & 31B  and agrarian reforms was challenged
• Petitioner contended that Parliament by amending constitution cannot take away fundamental rights
• Argued that Article 13(2) prohibits making of ‘law’ abridging fundamental right and that amendment is ‘law’ for the purpose of Article 13(2)
• Court  held that Parliament can exercise its constituent power and unlike parliament’s legislative power, its constituent power cannot be limited by Article 13(2)
• Also held that amendment is not law for purposes of Article 13(2)

State of West Bengal v. Bela Banerjee

• Held that the law seeking to provide for the acquisition of private property for public purpose had to provide for compensation which must be a “just equivalent” of what the owner had been deprived.
• Just equivalent meant market price and would have been a huge burden on Indian economy which was in its nascent development
• To counter this fourth amendment act was passed which provided that no law on agrarian reforms could be questioned in a court on the ground that the compensation provided by that law is not adequate.

Sajjan Singh v. State of Punjab (1964)

• Seventeenth amendment which a44 new entries to IX^th schedule was challenged
• Petitioner contended that parliament does not have power to abridge right to property or any other fundamental right
• Majority of the court upheld the ruling of Shankari Prasad

IC Golak Nath v. State of Punjab (1967)

• Inclusion of legislation in ninth schedule was challenged
• Majority of 6 judges (5 dissenting) dissented from Shankari Prasad and Sajjan Singh
• J. Subba Rao held Fundamental rights are sacrosanct, inviolable and natural rights of man which cannot be taken away
• Held Fundamental Rights were outside the amendatory process if amendment took away or abridged fundamental rights
• Judgment applied the doctrine of ‘prospective overruling’ (Judgment’s effect was kept prospective and did not applied retrospectively)
• Held Constitution incorporates inherent limitation it is not what Parliament regards at a given moment as conducive to public benefit but what Part III of Constitution declares protected, which determines the ambit of freedom.
• Inherent limitation emanates from Preamble of Constitution
• Article 368 does not contain power to amend but merely provides the procedure for amending constitution. Power to amend Constitution is legislative process and is included within the plenary legislative power of parliament.
• Residuary power of legislation is vested in parliament and it includes power to amend constitution. Whether in the field of statutory law or constitutional law amendment can only be brought about only by law. The imposition of several conditions on amendment of constitution is only a safeguard against a hasty action or protection to the states but does not change the legislative character of the amendment.  The word ‘law’ in Article 13(2) includes constitutional amendment.
• Power to amend constitution cannot be accepted as sovereign power that said power is superior to legislative power and does not contain any implied limitation cannot be accepted. Amending power as sovereign power is sovereign only within the scope of power conferred by Constitution.
• If all provisions guaranteeing fundamental rights must be amended so as to curtail these rights, this could be done only by a Constituent Assembly which might be convoked by Parliament by enacting a law for that purpose in the exercise of its residuary power.
• After this Article 13(4) was inserted nullifying Golak Nath stating that Article 13 does not apply to constitutional amendments.
• Article 368 marginal note was changed to “Power of Parliament to amend constitution” and sub clause 3 was inserted which said that article 368 is not affected by Article 13.

24^th Amendment 1971 (Effectively Nullified Golaknath Judgment)

1. Clause 4 was added to Article 13 providing that nothing in Article 13 shall apply to a Constitutional amendment under Article 368.
2. Clause 3 was added to Article 368 to provide that nothing in Article 13 will apply to amendments made under Article 368
3. Marginal note to Article 368 was changed as power and procedure to amend the Constitution
4. Article 368(1) clarified that Parliament may in the exercise of constituent power amend by way of addition, variation or repeal any provision of the Constitution.

25^th Amendment Act

• Parliament restricted the right to property even further by removing the word ‘compensation’ and substituting it with ‘amount’.
• Also, provided that fundamental rights under Arts. 14, 19 & 31 may be abridged in order to give effect to policies contained under Art. 39 (b) & (c).

29^th Amendment Act

• Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971 were included in the Ninth Schedule.
• Was challenged in Kesavananda Bharati Case.

Kesavananda Bharati v. State of Kerala

• Challenged Kerala Land Reforms Act, 1963 as amended in 1969 (was kept in IX^th schedule) and 24^th,25^th, and 29^th amendment to constitution
• Petitioner contended that:-

o   Parliament having only such constituent power as is conferred on it by the Constitution which is given by people unto themselves , Parliament cannot on its own enlarge its own power so as to abrogate its inherent limitation
o   Being a functionary created under Constitution, Parliament cannot arrogate itself to destroy essential features of Constitution
o   Parliament cannot destroy basic fundamental or human rights which were reserved by people for themselves when they gave themselves the constitution
o   Parliament cannot abrogate the limits of its constituent power by repealing limitations imposed on it and thereby purporting to do what is prohibited by these limitations.

• Constitutional amendment cannot be equated with the expression ‘law’ within the meaning of Art. 13. (Overruling Golak Nath)
• Held that 24^th amendment is constitutional
• Fundamental rights are means to ends
• Held that power under Article 368 is subject to certain inherent limitations and in the exercise of amending power Parliament cannot damage or destroy the basic structure or framework of the Constitution.
• Each judge gave its own elements for basic structure.
• Sikri’s, list of basic features of the Constitution:

o   Supremacy of the constitution
o   Republican and democratic form of government
o   Secular character
o   Separation of powers
o   Federal character of constitution

Post Kesavananda Bharati

• Allahabad High Court invalidated the election of Indira Gandhi and disqualified her for next six years from contesting election on a finding that she had committed corrupt practice during her election.
• To overcome the effect of the High Court order Parliament passed 39th Constitution Amendment Act in 1975 withdrawing the jurisdiction of all courts over the election dispute involving the Prime Minister.

Indira Nehru Gandhi v Raj Narain

• Supreme Court struck down the 39th amendment as violating democracy implicit in free and fair election, equality and rule of law which are the basic feature of the constitution. The exclusion of judicial review damaged the basic structure of the Constitution.

Minerva Mills Ltd v Union of India

• Clauses 4 and 5 were added to Article 368 which validated all existing and future constitutional amendments and removed all limitations on the amending power of the Constitution.
• Amendment made to Article 31 C provided that a law to implement directive principles could not be challenged on the ground of violation of Articles 14, 19 and 31.
• The Supreme Court unanimously invalidated clause 4 and 5 of Article 368 as violating the basic feature of limited amending power. Limited amending power is one of the basic features of the Constitution and Parliament cannot enlarge its limited power by amending the Constitution.
• The majority of judges declared the amendment to Article 31C was declared as disturbing the harmony and balance between Fundamental Rights and Directive Principles which a basic feature of the Indian Constitution.

Waman Rao v Union of India

• Held that any addition to 9th Schedule but after 23rd April 1973 the date of Kesavananda judgment any addition to 9th schedule could be challenged on the ground of violation of Basic Structure.
• Basic structure does not apply retrospectively.

M Nagraj v Union of India

• Supreme Court unanimously upheld the validity of 77th, 81st 82nd and 85th amendment in Article 16 (4-A) (4-B) and proviso to Article 335 holding that these provisions did not destroy the equality code of the Constitution.
• Test of Identity – It is not an amendment of a particular article but an amendment that adversely affects the wider principle of constitutional law such as republicanism, secularism, equality and democracy or other foundational values that changes the identity of the Constitution are impermissible.

I R Coelho v Union of India

• Reaffirmed basic structure doctrine.
• Articles 14, 15, 19 and 21 are parts of basic structure.

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•  Article 13(1) – Deals with Pre-Constitutional Law if unconstitutional void till extent of inconsistency with constitution
• Article 13(2) – Any law to be made now shall be in consonance with constitution.
• Article 13(3)(a) – Law includes ordinance order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.
• Article 13(3)(b) – Laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

Rule of Severability

• It applies to both future and existing law. Court will not entire declare law unconstitutional but only those which are held to be against fundamental right.
• State of Bombay v. F.N. Balsara – Eight Provisions of Bombay Prohibition Act were held to be unconstitutional.
• RMDC v. Union of India – Section 2(d) of Prize Competition Act which was wide enough to prohibit gambling as well as game of skills. The power of the court to strike out invalid provisions of an Act must not be exercised beyond the necessity of the case. But sometimes valid and invalid portions of the Act are so intertwined that they cannot be separated from one another. In such cases, the invalidity of the portion must result in the invalidity of the Act in its entirety. The intention of the Legislature is the determining factor if the valid part of a statute is severable from the invalid parts.

Doctrine of Eclipse

• It says that any law inconsistent with Fundamental Rights is not invalid. It is not dead totally but overshadowed by the fundamental right. The inconsistency (conflict) can be removed by constitutional amendment to the relevant fundamental right so that eclipse vanishes and the entire law becomes valid.
• Deep Chand v. UP – Post constitutional law infringing fundamental right are void ab intitio and doctrine of eclipse cannot apply.
• Bhikhai Narian v. State of MP – CP & Berar Motor Vehicle Act authorised state monopoly in motor vehicle business. Article 19(1)(g) made it void.  Later on impugned law could be validated by a constitutional amendment.
• Schedule IX – Immune to judicial scrutiny, Article 31B – Allows for putting law under Schedule IX and here doctrine of eclipse could be used. All laws put under Schedule IX could be checked for basic structure.
• Ambica Mills Ltd. v. State Of Gujarat – If a post constitutional statute is void because it infringes rights of citizen then that doesn’t mean it is void for non-citizens as well as the law is limited to the void of contravention.
• Shankri Prasad v. Union of India (1951)– Amendment cannot be challenged as they are not law as per Article 13(2).
• Golak Nath v. State of Punjab (1967) – Amendment need to be constitutional.

Keshava Madhava Menon v. State of Bombay (1951)

• Petitioner was prosecuted under a press law for publishing a pamphlet without permission. While prosecution was on going constitution was commenced and he challenged the act as unconstitutional.  Issues arose

o   Whether sections 15(1) And 18(1) read with the definitions contained in sections 2(6) and 2(10) of the Indian Press (Emergency Powers) Act, 1931, were inconsistent with article 19(1)(a)read with clause (2) of that article?  o   And assuming that they were inconsistent, whether the proceedings commenced under section 18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with?

• Since constitutional rights came from date of commencement of constitutionthe question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly prospective in its operation.
• Also Article 13(1) does not make such laws void ab initio for all purposes but to extent of inconsistency with fundamental rights. The voidness of the existing law is limited to the future exercise of the fundamental rights.
• The Court held that every statute is prima facie prospective unless it is expressly or by necessary implication made retrospective.
• J. Fazl Ali (Dissenting)

o   J. K. Gas Plant Manufacturing v. King Emperor – When an Act of Parliament is repealed it must be considered (except as to transactions past and closed) as if it had never existed.
o   Wall v. Chesapeake & Ohio Ry., Company­ – It is well settled that if a statute giving a special remedy is repealed without a saving clause in favour of pending suits all suits must stop where the repeal finds them. If final relief has not been granted before, the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision was rendered. The effect of the repeal is to obliterate the statute
o   Repealed as completely as if it had never been passed, and it must be considered as a law which never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law.
o   Interpret meaning of null and states that how could it be intent of framers to keep laws inconsistent with constitution as functional is beyond him
o   If laws inconsistent can be used to punish people even after commencement of constitution then why such logic is not used for repealed act

Behram Khurshid Pesikaka v. State of Bombay (1955)

• The appellant was charged under Section 66(b), Bombay Prohibition Act, 1949 for driving under the influence of alcohol.
• Prior case, State of Bombay v. F.N. Balsara had already declared section 13(b), Bombay Prohibition Act, 1949, declared to be void so far as it affected the consumption or use of medicinal and toilet preparations containing alcohol, and violated 19.
• Held that the part of the section of an existing law which is unconstitutional is not law, and is null and void. It is notionally obliterated from the Statute book for the purposes of determining the rights and obligations of citizens. However, the same remains good law when a question arises for determination of rights and obligations incurred before 26 January, 1950.

Bhikaji Narain Dhakras v State of M.P. (1955)

• C.P. & Berar Motor Vehicles (Amendment) Act, 1947 was amended which violated Article 19 but the act was passed prior to commencement of Constitution.
• The petitioners contend that the law having become void for unconstitutionality was dead and could not be vitalised by a subsequent amendment of the Constitution removing the constitutional objection, unless it was re-enacted.
• All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of article 13, rendered void “to the extent of such inconsistency”. Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the constitution, as against non-citizens.

Mahendra Lal Jaini v. State of U.P. (1963)

• Article 13(1) recognizes the existence of pre-Constitutional laws which were valid when enacted, and therefore could be revived by the Doctrine of Eclipse.
• Article 13(2) provides for an injunction to the State not to make a law which takes away or abridges the rights conferred by Part III. The legislative power of Parliament and State Legislatures under Article 245 is subject to the other provisions of the Constitution and therefore, subject to Article 13(2).
• Since contravention arises only on passing the law an argument that a later amendment to Constitution removes the contravention would not sustain.

Basheshar Nath v. Commissioner of Income Tax

• Petitioner concealed huge amount of his income and his case was referred to investigative commission under section 5A. In order to escape a heavier penalty he agreed for settlement under Section 8A to pay a sum of Rs 3 lakh
• Meanwhile, SC in another case held that section 5A is unconstitutional and is violative of Article 14
• Petitioner on the basis of unconstitutionality of Section 5A challenged thee enforceability of the settlement
• Respondent argued that petitioner has waived its right to equality by agreeing to terms of the settlement
• Doctrine of Waiver – Held that it is not pen for a citizen to waive his/her fundamental right

State of Gujarat v. Shri Ambika Mills (1974)

• Challenged acts and rules as unconstitutional and declaration to not pay the unpaid accumulations specified in the act and rules.
• Whether, on that assumption, the first respondent could claim that the law was void as against the non-citizen employers or employees under Article 13(2) and further contend that the non-citizen employers have been deprived of their property without the authority of law, as, ex hypothesi a void law is a nullity.
• Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, R. C. Cooper v. Union of India – a Corporation is not a citizen for the purposes of Article 19 and has, therefore, no fundamental right under that article
• The real question, therefore, is, even if a law takes away or abridges the fundamental right of citizens under Article 19(1)(f), whether it would be void and therefore non-est as respects non-citizens
• Keshava Madhava Menon v. State of Bombay (1951) – This decision takes the view that the word ‘void’ in Article 13(1) would not have the effect of wiping out pre- Constitution laws from the statute book, that they will continue to be operative so far as noncitizens are concerned, notwithstanding the fact that they are inconsistent with the fundamental rights of citizens and therefore become void under Article 13(1).
• M. P. V. Sundararamaier v. State of A.P. (1958) – a law if it lacks legislative competence was absolutely null and void and a subsequent cession of the legislative topic would not revive the law which was still-born and the law would have to be re-enacted; but a law within the legislative competence but violative of constitutional limitation was unenforceable but once the limitation was removed, the law became effective.
• Deep Chand v. State of U.P [1959] – a post- Constitution law is void from its inception but that a pre-Constitution law having been validly enacted would continue in force so far as non-citizens are concerned after the Constitution came into force. This is so because prior to commencement of constitution legislature had competence to pass such act but after commencement of constitution legislature does not has the competence to pass unconstitutional laws.
• Mahendra Lal Jain v. State of U.P. [1963] – that it arises from the inherent difference between Article 13(1) and Article 13(2) arising from the fact that one is dealing with pre-Constitution laws, and the other is dealing with post- Constitution laws, with the result that in one case the laws being not still-born the doctrine of eclipse will apply while in the other case the law being still-born there will be no scope for the application of the doctrine of eclipse
• Therefore, the real reason why such law remains operative as against non-citizens is that it is void only to the extent of its inconsistency with the rights conferred under Article 19 and that its voidness is, therefore, confined to citizens, as, ex hypothesi, the law became inconsistent with their fundamental rights alone.
• Article 13(2) uses the expression ‘void’, it can only mean, void as against persons whose fundamental rights are taken away or abridged by a law. The law might be ‘still-born’ so far as the persons, entities or denominations whose fundamental rights are taken away or abridged, but there is no reason why the law should be void or ‘still-born’ as against those who have no fundamental rights.
• Jagannath v. Authorised Officer, Land Reforms, [1972] – this Court has said that a post-Constitution Act which has been struck down for violating the fundamental rights conferred under Part III and was therefore still-born, has still an existence without re-enactment, for being put in the Ninth Schedule.
• If a law is otherwise good and does not contravene any of their fundamental rights, non-citizens cannot take advantage of the void-ness of the law for the reason that it contravenes the fundamental right of citizens and claim that there is no law at all

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     Article includes:-

o   The Government and Parliament of India; (union)
o   The Government and the Legislature of each of the States; (states)
o   All local authorities; and (municipalities, district boards, panchayats, improvement trusts, port trusts, mining settlement boards)
o   Other authorities within the territory of India or under the control of the Government of India.

• Most of the litigation is based on what falls within ‘other authorities’ given in this article
• Pre Rajasthan Electricity Board case, courts took a very narrow interpretation of Article 12.

P.D. Shamdasani v Central Bank of India Ltd. (1952)

• The petitioner sought protection of the Court to enforce his rights in Article 19(1)(f) and 31 against the Central Bank of India Ltd.
•  “The language and structure of Article 19 and its setting in Part III of the Constitution clear show that the article was intended to protect those freedoms against the State action”

Ujjam Bai v. State of U.P (1963)

• An order made by a quasi-judicial body within the jurisdiction of an Act is intra vires and is not liable to be questioned on the ground that it misconstrued provisions or terms, comes within the purview of Article 12
• Every wrong decision does not give rise to breach of fundamental rights
• That an “inclusive” definition is generally not exhaustive is a statement of the obvious and as far as Article 12 is concerned.
• However, if the body is acting under a law that violates Fundamental rights or if they’re acting outside their jurisdictions or if they are not following rules prescribed under a statute , then they are not a State under Article 12 and the decision can be challenged under Article 32.

Evolution of meaning of ‘other authorities’

Rajasthan State Electricity Board v. Mohan Lal (1967)

• Junior officer to the petitioner were promoted so he claimed right to equality against electricity board
• Art. 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities.
• J. Shah – Separate Opinion

o   considering whether a statutory or constitutional body is an authority within the meaning of Art. 12, it would be necessary to bear in mind not only whether against the authority, fundamental rights in terms absolute are intended to be enforced, but also whether it was intended by the Constitution-makers that the authority was invested with the sovereign power to impose restrictions on very important and basic fundamental freedoms
o   authorities constitutional or statutory invested with power by law but not sharing the sovereign power do not fall within the expression “State” as defined in Art. 12.

Sukhdev Singh v. Bhagat Ram (1975)

• the question is whether these statutory corporations are authorities within the meaning of Article 12. The statutes for consideration are LIC Act, ONGC Act and Industrial Finance Corporation Act
• All these provisions indicate at each stage that the creation, composition of membership, the functions and powers, the financial powers, the audit of accounts, the returns, the capital, the borrowing powers, the dissolution of the Commission and acquisition of and for the purpose of the company and the powers of entry are all authority and agency of the Central Government.
• The Oil and Natural Gas Commission is owned by the Government. It is a statutory body and not a company. The Commission has the exclusive privilege of extracting petroleum. The management is by the Government. It can be dissolved only by the Government.
• Matthew J.

o   The fact that these corporations have independent personalities in the eye of law does not mean that they are not subject to the control of government or that they are not instrumentalities of the government. These corporations are instrumentalities or agencies of the state for carrying on businesses which otherwise would have been run by the state departmentally
o   The crux of the matter is that public corporation is a new type of institution which has sprung from the new social and economic functions of government and that it therefore does not neatly fit into old legal categories. Instead of forcing it into them, the later should be adapted to the needs of changing times and conditions.
o   The ultimate question which is relevant for our purpose is whether the Corporation is an agency of instrumentality of the Government for carrying on a business for the benefit of the public.

Sabhajit Tewary v. Union of India (1975)

• Given on same day as of Sukhdev by same bench of Sukhdev
• Council for Scientific and Industrial Research which was only registered under the Societies Registration Act would not come under the term “other authorities” in Article 12.
• Distinction with Sukhdev

o   Sukhdev – The Court held that bodies which were creatures of the statues having important State functions and where State had pervasive control of activities of those bodies would be State for the purpose of Article 12.

o   Sabhajit – The Court held a body which was registered under a statute and not performing important State functions and not functioning under the pervasive control of the Government would not be a State for the purpose of Article 12.

  R. D. Shetty v. Int’l Airport Authority Of India (1979)

• Tender given to party which did not meet the eligibility criteria, so giving up of tender by airport authority was challenged.
• Talks about several characteristics of state which are reiterated in Ajay Hasia case pointwise

Ajay Hasia v. Khalid Mujib (1981)

• Petitioner got good marks in entrance examination but was rejected in interview where hardly any questions were posed to him.
• Contended that the college is run by society which is not a corporation created by a statute but is a society registered under the Jammu & Kashmir Societies Registration Act, 1898 and it is therefore not an ‘authority’ within the meaning of Article 12.
• where a corporation is an instrumentality or agency of the government, it must be held to be an ‘authority’ within the meaning of Article 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the government
• There are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of Government.

o   One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
o    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 governmental character.
o   It may also be a relevant factor…whether the corporation enjoys monopoly status which is the State conferred or State protected.
o   Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.
o   If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.
o   Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government

Som Prakash Rekhi v. Union of India (1981)

• Pension arbitrarily reduced of the employee of Burmah Shell which was later acquired by the Central government
• The true test is functional. Not how the legal person is born but why it is created. Nay more, Apart from discharging functions or doing business as the proxy of the State, wearing the corporate mask there must be an element of ability to affect legal relations by virtue of power vested in it by law 
• There is no good reason why, if government is bound to observe the equality clauses of the Constitution in the matter of employment and in its dealings with the employees, the corporations set up or owned by the government should not be equally bound and why, instead, such corporations could become citadels of patronage and arbitrary action.
• A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit
• merely because a corporation has legal personality of its own, it does not follow that the corporation cannot be an agent or instrumentality of the State, if it is subject to control of government in all important matters of policy

Chander Mohan Khanna v. NCERT (1992)

• Whether NCERT is state for purposes of Article 12?
• This Court came to the conclusion that since NCERT was largely an autonomous body and the activities of NCERT were not wholly related to governmental functions and that the governmental control was confined only to the proper utilisation of the grant and since its funding was not entirely from government resources, the case did not satisfy the requirements of the State under Article 12 of the Constitution.
• For Sabhajit – decision has been distinguished and watered down in the subsequent decisions.

Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (2002)

• This case deals with writ petition against Indian Institute of Chemical Biology which is a unit of CSIR (Sabhajit held that Council of Scientific and Industrial Research is not state for purpose of Article 12, this court also held the same)
• Sabhajit is specific to facts of that case, and Hasia is the ultimate authority
• For Hasia – 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 the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
• There exists a distinction between a ‘State’ based on its being a statutory body and one based on the principles propounded in the case of Ajay Hasia
• Ratio

o   Principles laid down in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must ex hypothesi, be considered to be a State within the meaning of Article 12.
o   The Question in each case will have to be considered on the bases of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government.
o    Such control must be particular to the body in question and must be pervasive.
o   Mere regulatory control whether under statute or otherwise would not serve to make a body a State.

Zee Telefilms Ltd v. Union of India (2005)

• Whether BCCI is state for purposes of Article 12?
• He submitted that this absolute authority of the Board is because of the recognition granted by the Government of India, hence in effect even though it is as an autonomous body the same comes under “other authorities” for the purpose of Article 12.
• It is his further contention that many of the vital activities of the Board like sending a team outside India or inviting foreign teams to India is subject to the prior approval of the Government of India. Hence, the first respondent Union of India has pervasive control over the activities of the Board. Board has also taken financial assistance from state at several instances.
• Held BCCI is not state, as it is not created by a statute, no governmental share in it, autonomous lacking deep and pervasive state control, financial assistance is not taken, monopoly status is not due to government and government is free to make its own board.
• Merely because a non-governmental body exercise some public duty it is not sufficient to hold it as a state for purposes of Article 12.
• Dr. Ambedkar in CAD (Article 12 was introduced in the Draft Constitution as Article 7.)

o   it is quite clear that if the fundamental rights are to be clear, then they must be binding not only upon the Central Government they must not only be binding upon the Provincial Government, they must not only be binding upon the Governments established in the Indian States, they must also be binding upon District Local Boards, Municipalities, even village panchayats and taluk boards, in fact every authority which has been created by law and which has got certain power to make laws, to make rules, or make bye-laws.

• S.B. Sinha Dissenting –

o   K.R. Anitha v. Regional Director, ESI Corporation (2003) – When the law provides for a general control over a business in terms of a statute and not in respect of the body in question, it would not be a ‘State’.
o   Jiby P. Chacko v. Mediciti School of Nursing, Ghanpur (2002) – A school would be a State if it is granted financial aid.

You can grab notes on other provisions of the Constitution and other law subjects from here.

Article 12 –  Concept of State

Article 13 – Rule of Severability, Doctrine of Eclipse etc

Doctrine of Basic Structure – From Shankari Prasad to M Nagaraj and IR Coelho

Article 14 – Nexus Test, Reasonableness Test

Article 15 & 16 – Reservation, Affirmative Action

Article 19 – Civil and Political Liberties

Article 20 – Double Jeopardy

Article 21 – Right to Life

Article 21 – Expansion of ‘right to life’ using writ\Article 21 + 32 – Evolution of Rights through PIL

Article 25 & 26 – Religious Freedom

Article 27 – Prohibition of Taxation for Advancement of Religion

Article 28 – Freedom as to attendance at religious instruction or religious worship in certain educational institutions

Article 29 & 30 – Protection of interests of minorities

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