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BA LLB (H)
CONSTITUTIONAL LAW – II
PAPER CODE: 206
Unit – I Fundamental Rights – I
a. Definition of ‘State’ for enforcement of fundamental rights – Justifiability of fundamental rights – Doctrine of eclipse, severability, waiver. Distinction between pre-constitutional law and post-constitutional law b. Right to equality – Doctrine of Reasonable classification and the principle of absence of arbitrariness c. Fundamental freedom: Freedom of speech and expression, freedom of association, freedom of movement, freedom to reside and settle, freedom of trade, business and profession – expansion by judicial interpretation – reasonable restrictions
Unit – II: Fundamental Rights – II
a. Right to life and personal liberty – scope and content – (expensive interpretation) b. Preventive detention under the Constitution – Policy and safeguards – Judicial review c. Right against exploitation – Forced labor and child employment d. Freedom of religion
Unit – III: Right to Constitutional Remedies
- Right to Constitutional Remedies – Judicial Review – Writs – Hebeas Corpus, Mandamus, Certiorari, Prohibition and Quo-warranto – Art 32 and 226
Unit – IV: Directive Principles, Fundamental Duties and Social Justice
a. Directive Principles of State Policy – Nature and justifiability of the Directive Principles – Inter-relationship between Fundamental Rights and Directive Principles
- Fundamental Duties b. Social justice under the Indian Constitution – Compensatory discrimination for backward classes – Mandal Commission’s case and other cases – Protective discrimination doctrine
UNIT-I
‘STATE’
ARTICLE 12
The Constitution of India, Article 12 : “In this part, unless the context otherwise requires, “ the State ” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” Tests to decide which “other authorities” could be considered as agencies or instrumentalities of state The cumulative effect of all the following factors has to be seen: 1. “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.” 2. The existence of “deep and pervasive State contro l may afford an indication that the Corporation is a State agency or instrumentality.” 3. “It may also be a relevant factor…whether the corporation enjoys monopoly status which is State conferred or State protected.” 4. “If the functions of the corporation are 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.”
5. “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 AIR 1981 SC 212 : (1981) 1 SCC 449
the territory of India, or under the control of the Government of India. This Court further said referring to earlier decisions that the expression “other authorities” in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. The State itself is envisaged under Article 298 as having the right to carry on trade and business. The State as defined in Article 12 is comprehended to include bodies created for the purpose of promoting economic interests of the people. The circumstance that the statutory body is required to carry on some activities of the nature of trade or commerce does not indicate that the Board must be excluded from the scope of the word ‘State’. The Electricity Supply Act showed that the Board had power to give directions, the disobedience of which is punishable as a criminal offence. The power to issue directions and to enforce compliance is an important aspect, Mathew, J. is more positive in his conception of ‘State’ under Article 12:
The concept of State has undergone drastic changes in recent years. Today State cannot be conceived of simply as coercive machinery wielding the thunderbolt of authority. It has to be viewed mainly as a service corporation:
If we clearly grasp the character of the state as a social agent, understanding it rationally as a form of service and not mystically as an ultimate power, we shall differ only in respect of the limits of its ability to render service. A state is an abstract entity. It can only act through the instrumentality or agency of natural or judicial persons. Therefore, there is nothing strange in the notion of the State acting through a corporation and making it an agency or instrumentality of the State.
The tasks of government multiplied with the advent of the welfare State and consequently, the framework of civil service administration became increasingly insufficient for handling the new tasks which were often of a specialized and highly technical character. At the same time, ‘bureaucracy’ came under a cloud. The distrust of government by civil service, justified or not, was a powerful factor in the development of a policy of public administration through separate corporations which would operate largely according to business principles and be separately accountable.
The Rajasthan Electricity Board case (the majority judgment of Bhargava, J.) is perfectly compatible with the view we take of Article 12 or has been expressed in Sukhdev and
the Airport Authority. The short question that fell for decision was as to whether the Electricity Board was ‘State’. There was no debate, no discussion and no decision on the issue of excluding from the area of State under Article 12, units incorporated under a statute as against those created by a statute. On the other hand, the controversy was over the exclusion from the definition of State in Article 12 corporations engaged in commercial activities. This plea for a narrow meaning was negative by Bhargava, J. and in that context the learned Judge explained the signification of “other authorities” in Article 12: The meaning of the word “authority” given in WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, which can be applicable, is “a public administrative agency or corporation having quasi-governmental powers authorized to administer a revenue-producing public enterprise”. This dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression “other authorities” is wide enough to include within it every authority created by a statute and functioning within the territory of India, or Under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words “other authorities” are used in Article 12 of the Constitution. These decisions of the court support our view that the expression “other authorities” in Article 12 will include all constitutional or statutory authorities on whom powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Article 19(1)( g ). In Part IV, the State has been given the same meaning as in Article 12 and one of the directive principles laid down in Article 46 is that the State shall promote with special care the educational and economic interests of the weaker sections of the people. The State, as defined in Article 12 , is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The State, as constituted by our Constitution, is further specifically empowered under Article 298 to carry on any trade or business. The circumstance that the Board under the Electricity Supply Act, is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word “State” as used in Article 12. The decision in Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly
republic. The development of fundamental human rights in India was due to exposure of students to the ideas of democracy, working of parliamentary democracy and British political parties and was also inspired by the:-
- England Bill of Rights
- Us Bill of Rights
- France Declaration of the Rights of Man and
- Development of Irish Constitution.
The Nehru Committee observed that the first care should be to have Fundamental Rights guaranteed in such a manner which will not permit its withdrawal under any circumstances. The Indian Statutory Commission refused to enumerate and guarantee the demand of Fundamental Rights in the Constitution Act. Their refusal was based on Simons Commission argument that abstract definition of such rights is useless unless there existed the will and means to make them effective. The Indian National Congress at its Karachi session in 1931 again demanded for a written guarantee for Fundamental Rights in any future Constitutional setup in India. This demand was also emphasized at the round table conference at London. A memorandum circulated by the Mahatma Gandhi at the second session of round table conference demanded that the new constitution should include a guarantee to the communities concerned to the protection of their cultures, language, scripts, profession, education and practice of religion and religious endowments and protect personal laws and protection of other rights of minority communities. The Joint Select Committee of the British Parliament did not accept the demand for the constitutional guarantee of Fundamental Rights to British subjects in India. The Committee observed that:-
….there are also strong practical arguments against the proposal which may be put in the form of a dilemma: for either the declaration of rights is of so abstract a nature that it has no legal effect of any kind or its legal effect will be to impose an embarrassing restrictions on the powers of the legislatures and to create a grave risk that a large number of laws will be declared invalid or inconsistent with one or other of the rights so declared….There is this further objection that the state has made it abundantly clear that no declaration of fundamental rights is to apply to state
territories and it would be anomalous if such a declaration had legal force in part only of the area of the federation.
The committee conceded that there were some legal principles which could approximately be incorporated in the new constitution. Accordingly sections 295, 297-300 of Government of India Act 1935 conferred certain rights and forms of protection on British subjects in India.
By the Objective Resolution adopted on January 22, 1947 the constituent assembly solemnly pledged itself to draw up for future governance a constitution wherein “shall be guaranteed and secure to all the people of India justice, social, economical and political, equality of status, of opportunity and before the law : freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality” and wherein adequate safeguards would be provided for minorities, backward and tribal areas and depressed and other classes. Two days after the adoption of the resolution the assembly elected Advisory Committee for reporting on minorities fundamental rights and on the tribal and excluded areas. The advisory committee in turn constituted on Feb27, 1947 five sub-committees which would deal with fundamental rights.
The sub committee on Fundamental Rights at its first meeting on February 27, 1942 had before it proposal of B.N.Rau to divide Fundamental Rights into two classes i.e. justifiable and non justifiable.
An important question that faced the sub committee was that of distributing such rights between the Provincial, the Group and the Union Constitution. In the early sdtages of its deliberation the subcommittee proceeded on the assumption of this distribution and adopted certain rights as having reference only to union and certain rights as having reference both to the union and to the constitutional units. However later it was felt that if Fundamental Rights differed from group to group and from unit to unit or were for that reason not uniformly enforceable, it was felt the Fundamental Rights of citizens of the union had no value. This reorganization leads to the realization that certain Fundamental Rights must be guaranteed to every resident. The sub committee recommended that all the rights incorporated must be binding upon all the authorities whether of the union or of the units. This was thought to be achieved by providing definition in the first clause. The expression the state included the legislature, the government of the union
United Nations General Assembly adopted the Universal Declaration of Human Rights and called upon all member states to adopt these rights in their respective constitutions.
The various stages through which the various clauses on fundamental rights passed were similar to other parts of the constitution. Firstly- the constitutional adviser prepared a draft embodying a decision of the constituent assembly. This draft was considered exhaustively and in detail by the drafting committee, which prepared a revised draft and published it in February 1948. The revised draft was then widely circulated. The comments and suggestions received from all quarters were again considered by the drafting committee and in light of these the committee proposed certain amendments. Discussions in constituent assembly of the draft provisions took place in November and December 1948 and August, September and October 1949. During these meetings the committee considered the various suggestions for amendment made on behalf of Drafting Committee as well as those proposed by the individual members of the assembly. The provisions as passed by the assembly were again scrutinized by the Drafting Committee and incorporated by the drafting changes wherever necessary in the revised draft constitution. The revised draft was again placed before the assembly at its final session held in November 1949.
The fundamental rights were included in the First Draft Constitution (February 1948), the Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26 November
- prepared by the Drafting Committee.
DOCTRINE OF ECLIPSE
"Judicial Review" is defined as the interposition of judicial restraint on the legislative and executive organs of the Government.! It is the "overseeing by the judiciary of the exercise of powers by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution." The concept has its origins in the theory of limited Government and the theory of two laws - the ordinary and the Supreme (i.e., the Constitution) - which entails that any act of the ordinary law-making bodies that contravenes the provisions of the Supreme Law must be void, and there must be some organ possessing the power or authority to pronounce such legislative acts void.
With the adoption of a written Constitution and the incorporation of Part III conferring Fundamental Rights therein, it was inevitable that the validity of all laws in India would be tested on the touchstone of the Constitution. Nevertheless, the Constitution-makers included an explicit guarantee of the justiciability of fundamental rights in Article 13, which has been invoked on numerous occasions for declaring laws contravening them void. Courts have evolved various doctrines like the doctrines of severability , prospective overruling , and acquiescence , for the purposes of effecuating this Article. The Doctrine of Eclipse ("the Doctrine") is one such principle, based on the premise that fundamental rights are prospective in nature. As a result of its operation, " an existing law inconsistent with a fundamental right, though it becomes inoperative from the date of commencement of the Constitution, is not dead altogether ." Hence, in essence, the Doctrine seeks to address the following quandary: If a law is declared null and void for infringing on a fundamental right, and then that fundamental right is itself amended such that the law is purged of any inconsistency with it, does the law necessarily have to be re- enacted afresh, or can it revive automatically from the date of the amendment? In other words, what is the precise nature of the operation of the Doctrine in the face of the general rule that a Statute void for unconstitutionality is non-est and "notionally obliterated" from the Statute Book?
Inherent in the application of the Doctrine to such questions is the predicament of conflicting priorities. What is to be determined here is whether, for the purpose of avoiding the administrative difficulties and expenditure involved in re-enacting a law, a law which was held void on the very sensitive and potent ground of violation of fundamental rights should, under special circumstances be permitted to revive automatically. This also raises some profound questions about legislative competence and the interference of courts in law making. An extremely vital aspect of the Doctrine - which, in India, has thus far been largely overlooked by legal theorists and practitioners alike - is its crucial role in the federal framework. A survey of the principal federations in the Anglo-American world shows that the Doctrine has been used primarily in cases where the enacting legislature undoubtedly had the power to enact a law, but the law was rendered in operative because of supervening impossibilities, arising in the form of other incompatible laws enacted by legislatures having superior powers to enact such laws. A complete demarcation of powers between the federal and state spheres is neither feasible nor desirable in a federal polity.
It was therefore held that Article 13(1) can have no retrospective effect, but is wholly prospective in operation." This interpretation has been upheld in subsequent cases.' The prospective nature of Article 13(1), and the limited connotation accorded to the word "void" in Keshavan, which was expounded by Das, J. in Behram, necessitated the enunciation of the Doctrine of Eclipse in the leading case of Bhikaji Narain Dhakras v. State of Madhya Pradesh, AI.R. 1955 S.C. 781. In this case, the impugned provision allowed for the creation of a Government monopoly in the private transport business. After the coming into force of the Constitution, this provision became void for violating Article 19(1)(g) of the Constitution. However, Article 19(6) was amended in 1951, so as to permit State monopoly in business. It was argued on behalf of the petitioners that the impugned Act, being void under Article 13(1), was dead and could not be revived by any subsequent amendment of the Constitution, but had to be re-enacted. This contention was rejected by a unanimous decision of the Supreme Court, which laid down that after the amendment of Article 19(6) in 1951, the constitutional impediment was removed. The Act, therefore, ceased to be unconstitutional, and became revivified and enforceable. The crux of the decision was the observation that an existing law inconsistent with a fundamental right, though inoperative from the date of commencement of the Constitution, is not dead altogether. According to some authors, it "is a good law if a question arises for determination of rights and obligations incurred before the commencement of the Constitution, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution." In this context, Das, C.J., held:
The true position is that the impugned law became, as
it were, eclipsed, for the time being, by the fundamental
right. The effect of the Constitution (First Amendment) Act,
1951 was to remove the shadow and to make the impugned
Act free from all blemish or infirmity.
He reiterated that such laws remained in force qua non-citizens , and it was only against the citizens that they remained in a dormant or moribund condition. This case was thus the
foundation of the Doctrine, which has since been the subject of judicial contemplation in numerous decisions.
Can the Doctrine be Applied to Post-Constitutional Laws?
In the author's opinion, three questions must be answered, in order to gauge the applicability of the Doctrine to post-Constitutional laws. First, can a post-Constitutional law be revived by a subsequent Constitutional amendment removing the Constitutional bar to its enforceability? Second, if a postConstitutional law violates rights conferred on citizens alone, (and thus becomes void qua them), does it remain valid and operative qua non-citizens like foreigners and companies? Finally, can amending the Act in question so as to remove the blemish revive the law in question, or will it have to be re-enacted as a whole? In Saghir Ahmed v. State of U.P.; A.I.R. 1954 S.C.728, a Constitution Bench of the Apex Court unanimously stated that the Doctrine could not applied to the impugned post- Constitutional law. A legislation that contravened Article 19(1)(g) and was not protected by clause (6) ofthe Article, when it was enacted after the commencement of the Constitution, could not be validated even by subsequent Constitutional amendment. However, the following observation of Das, C.J. in Bhikaji, has generated much perplexity on the issue: But apart from this distinction between pre-Constitution and post-Constitution laws on which, however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution. 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 purpose of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non citizens. In Deep Chand v. State of U.P., A.I.R. 1959 S.C. 648, it was held that there is a clear distinction between the two clauses of Article 13. Under clause (1) a pre-Constitutional law subsists except to the extent of its inconsistency with the provisions of Part III, whereas as per clause (2), no post-Constitutional law can be made contravening the provisions of Part III and therefore the law to that extent, though made, is a nullity from its inception.
the ground of excessive delegation, and pending the decision, the Legislature passed an Amendment Act seeking to remove the defect. The Supreme Court ruled by a majority that when an Act suffers from excessive delegation, it is stillborn and void ab initio. It cannot be revived by an amending Act seeking to remove the vice, and must be re-enacted as a whole. It is submitted that this ruling supports the proposition that an Act held invalid under Article 13(2) would not be revived merely by amending it, but would have to be re-enacted. Hence, we may safely infer that Ambica Mills does not destroy the force of the judicial pronouncements in Deep Chand and Mahindra Jaini, but merely limits the scope of their operation, and that the Doctrine, as of now, cannot be extended to post-Constitutional laws.
Doctrine of Waiver
The Fundamental rights (F.R) under Part III Under Art 12 to 35 of the constitution are conferred to every citizen of India by the constitution. These constitutional rights are not absolute. There are reasonable restriction impose by the constitution. The primary objectives of this F.R are based on public policy. Therefore no individual can waive off such FRs.
The doctrine of waiver of right is based on the premise that a person is his best judge and that he has the liberty to waive the enjoyment of such right as are conferred on him by the state. However the person must have the knowledge of his rights and that the waiver should be voluntary.
In Basheshr Nath vs. Income Tax commissioner AIR 1959 SC 149, Held that In this case the petitioner whose matter had been referred to the Investigation commissioner u/s 5(1) of the Taxation of Income Act 1947 was found to have concealed a settlement u/s 8 A to pay Rs 3 Lakhs in monthly installments, by way of arrears of tax and penalty. In the meanwhile the SC in another case held that section 5(1) is ultra vires the constitution, as it was inconsistence with Art
- So the appellant cannot waive off his FR.
Conclusion- It means "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of
judicial or legislative officers, or by his own deed, acts, or representations, either express or implied.
Doctrines of Severability
Art 13 provides that Act is void which is inconsistent with the Part III of the constitution. Art 13 is having a flexible nature; it does not make the whole Act inoperative. It makes inoperative only such provisions of it as are inconsistent with or violative of fundamental right. Sometimes valid and invalid portion 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 reason is that the valid part cannot survive independently. In determining whether the valid parts of a statue are severable from the invalid parts. In intention of the Legislature is the determining factor. In other words it should be asked whether the legislature would have enacted at all that which survive without the part found ultra virus. The rule of severability applies as such clause (2) as to Clause (1) of Art 13 in Jia Lal v/s Delhi Administration AIR 1962, The appellant was prosecuted for an office u/s 19 (f) of the Arm Act 1878. In fact, section 29 of this Act provides that in certain area in which the petitioner did not obtain any license in which the petitioner was residing, it was not necessary to obtain the said license for possession fire arm. Section 29 was challenged as ultra virus and unconstitutional as offending Art 14 and also section 19(f) of the Arms Act 1878 on the ground that two sections were not severable, on the question of severability the SC held that the section 29 of the Arms
Act 1878 was ultra virus.
Pre–Constitutional law Post–constitutional law
ARTICLE 14
Article 14 declares that "the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India". The phrase "equality before the law" occurs in almost all written constitutions that guarantee fundamental rights. Equality before the law is an expression of English Common Law while "equal protection of laws" owes its origin to the American Constitution.
Both the phrases aim to establish what is called the "equality to status and of opportunity" as embodied in the Preamble of the Constitution. While equality before the law is a somewhat negative concept implying the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law, equal protection of laws is a more positive concept employing equality of treatment under equal circumstances.
Thus, Article 14 stands for the establishment of a situation under which there is complete absence of any arbitrary discrimination by the laws themselves or in their administration.
Interpreting the scope of the Article, the Supreme Court of India held in Charanjit Lai Choudhury vs. The Union of India that: (a) Equal protection means equal protection under equal circumstances; (b) The state can make reasonable classification for purposes of legislation; (c) Presumption of reasonableness is in favour of legislation; (d) The burden of proof is on those who challenge the legislation.
Explaining the scope of reasonable classification , the Court held that "even one corporation or a group of persons can be taken to be a class by itself for the purpose of legislation provided there is sufficient basis or reason for it. The onus of proving that there were also other companies similarly situated and this company alone has been discriminated against, was on the petitioner".
In its struggle for social and political freedom mankind has always tried to move towards the ideal of equality for all. The urge for equality and liberty has been the motive force of many revolutions. The charter of the United Nations records the determination of the member nations to reaffirm their faith in the equal rights of men and women.
Indeed, real and effective democracy cannot be achieved unless equality in all spheres is realised in a full measure. However, complete equality among men and women in all spheres of life is a distant ideal to be realised only by the march of humanity along the long and difficult path of economic, social and political progress.
The Constitution and laws of a country can at best assure to its citizens only a limited measure of equality. The framers of the Indian Constitution were fully conscious of this. This is why while they gave political and legal equality the status of a fundamental right, economic and social equality was largely left within the scope of Directive Principles of State Policy.
The Right to Equality affords protection not only against discriminatory laws passed by legislatures but also prevents arbitrary discretion being vested in the executive. In the modern State, the executive is armed with vast powers, in the matter of enforcing by-laws, rules and regulations as well as in the performance of a number of other functions.
The equality clause prevents such power being exercised in a discriminatory manner. For example, the issue of licenses regulating various trades and business activities cannot be left to the unqualified discretion of the licensing authority. The law regulating such activities should lay down the principles under which the licensing authority has to act in the grant of these licenses.
Article 14 prevents discriminatory practices only by the State and not by individuals. For instance, if a private employer like the owner of a private business concern discriminates in choosing his employees or treats his employees unequally, the person discriminated against will have no judicial remedy.
One might ask here, why the Constitution should not extend the scope of these right to private individuals also. There is good reason for not doing so. For, such extension to individual action may result in serious interference with the liberty of the individual and, in the process; fundamental rights themselves may become meaningless.
After all, real democracy can be achieved only by a proper balance between the freedom of the individual and the restrictions imposed on him in the interests of the community. Yet, even individual action in certain spheres has been restricted by the Constitution, as for example, the
