Article 14 – Constitution of India – Notes

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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December 16, 2017December 16, 2017

Doctrine of Basic Structure – Constitution of India – Notes

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^thschedule 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)

Clause 4 was added to Article 13 providing that nothing in Article 13 shall apply to a Constitutional amendment under Article 368.
Clause 3 was added to Article 368 to provide that nothing in Article 13 will apply to amendments made under Article 368
Marginal note to Article 368 was changed as power and procedure to amend the Constitution
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^thschedule) 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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December 16, 2017December 16, 2017

Article 13 – Constitution of India – Notes

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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December 16, 2017December 16, 2017

Article 12 – Constitution of India – Notes

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.

December 16, 2017December 16, 2017