Constitutional Law Assignment
Constitutional Law Assignment
Constitutional Law Assignment
INTERNAL ASSIGNMENT- I
CONSTITUTIONAL LAW- I
The meaning of State and the Fundamental Rights has been defined in the Part III of Indian
constitution.
The Article 12 of the Constitution explains the definition of State which is applicable to the Part
III and Part IV of the Constitution.
The Fundamental Rights are defined as the basic human rights of all citizens. These rights are
defined in Part III of the Constitution and they are applied irrespective of race, place of birth,
religion, caste, creed or sex.
Fundamental Rights may well be called as the soul of our Constitution. These are the very basic
rights that are universally recognized as fundamental to human existence and indispensable for
human development. It guarantees civil liberties such that all Indians can lead their lives in peace
and harmony as citizens of India.
State under Constitution
The Article 12 states that —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.
The above mentioned article can be interpreted by segregating the definition into 4 main
categories i.e the State includes
1. The Government and Parliament of India. The government means both the Central and
State government.
2. The Government and the Legislature of each States
3. All the local and other authorities within the territories of India
4. All the local and other authorities under the control of the Government of India
The most significant expression used in Article 12 is "Other authority". This expression is not
defined in the constitution. This definition has led to certain criticism regarding what other
authorities can be considered as a State. Some of the case laws are:
1
AIR 1954 Mad 67
2
AIR 1962 SC 1621
3. State Electricity Board, Rajasthan v. Mohan Lal3
In this case Supreme Court held that ‘other authorities’ would include all authorities
created by the constitution or statute on whom powers are conferred by law. It was not
necessary that the statutory authority should be engaged in performing government or
sovereign functions. The court also laid importance that it is not material that some of the
power conferred on the concerned authority are of commercial nature. Thus, the court
observed: “ The circumstances that the Board under the Electricity Supply Act is required
to carry on some activities of the nature of trade or commerce does not, therefore, give
any indication that the ‘Board” must be excluded from the scope of the word ‘State’ is
used in Article 12 of the Constitution.
4. Sukhdev Singh v. Bhagatram4
In this case the Supreme Court following the test laid down in Electricity Board
Rajasthan’s case has held that Oil and Natural Gas Commission, Life Insurance
Corporation and Industrial Finance Corporation are authorities within the meaning of
Article 12 of Constitution and therefore they are `State’. All three Statutory Corporations
have the power to make regulations under the Statute for regulating conditions of service
of their employees.
5. RD Shetty v. The International Airport Authority of India5
In this case court pointed out the corporations that are acting as instrumentality or agency
of government would obviously be subject to the same limitation in the field of
constitutional or administrative as the government itself, though in the eye of the law they
would be distinct and independent legal entities. If the government acting through its
officers is subject to certain constitutional and public law limitations, it must follow a
fortiori, that government acting through the instrumentality or agency of corporations
should equally be subject to the same limitations. Accordingly, International Airport
authority which was created by an Act of Parliament was held to be `State’.
3
AIR 1967 S.C. 1857
4
AIR 1975 SC 1331
5
AIR 1979 SC 1628
6. Som Prakash Rekhi Vs. Union of India & Anr6
The main issue in this case was whether the Bharat Petroleum is State within the meaning
of Article 12 of the Constitution and the court held that whatever its character antecedent
to the Act all the relevant provisions have transformed it into an instrumentality of the
Central Government with a strong indicia of power to make it an "authority". It is a limb
of the Government, an agency of the State, a vicarious creature of statute. Some of the
tests laid down by this Court for deciding whether a body is State within the meaning of
Article 12 are:
(i) 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 the
Government;
(ii) A finding of State financial support plus an unusual degree of control over the
management and policies might lead, one to characterise an operation as State action.
(iii) The existence of deep and pervasive State control may afford an indication that the
Corporation is a State agency or instrumentality.
(iv) Whether the corporation enjoys monopoly status which is State conferred or State
protected is a relevant factor.
(v) If the functions of the corporation are important public functions and related to
governmental functions it would be a relevant factor in classifying the corporation as
instrumentality or agency of the Government.
(vi) If a department of Government is transferred to a corporation, it would be a strong
factor supportive of the inference that it is an instrumentality of the State.
7. Ajay Hasia Etc vs Khalid Mujib Sehravardi & Ors7
In this case court laid down a test to determine whether an individual, corporation, or
society was an instrumentality or agency of the government, and therefore whether it
could be considered a State for the purposes of Article 12 of the Constitution of India.
This test contained 6 factors and they are;
i. Whether the share-capital of the corporation is held by the Government
ii. Whether the financial assistance of the State meets almost the entire expenditure
of the corporation
6
[1980] INSC 218
7
1981 AIR 487
iii. Whether the corporation enjoys a state-conferred or state-protected monopoly
status
iv. Whether there is deep and pervasive state control
v. Whether the functions of the corporation are of public importance and closely
related to Governmental functions
vi. Whether a department of Government has been transferred to a corporation.
Therefore these were certain criticisms that had followed the definition given under the Article
12 of the Constitution and how the judicial system found out solutions and applied them.
The Fundamental Rights in the Indian Constitution are borrowed from the Constitution of the
USA. All people, irrespective of race, religion, caste or sex, have been given the right to move to
the Supreme Court and the High Courts for the enforcement of their fundamental rights. The
fundamental rights were included in the constitution because they were considered essential for
the development of the personality of every individual and to preserve human dignity. There are
six ( 6 ) Fundamental Rights in the Indian Constitution.
i. Article 23
This is article prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable
in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service
for public purpose, and in imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste or class or any of them
ii. Article 24
Prohibition of employment of children in factories, etc
No child below the age of fourteen years shall be employed to work in any factory or
mine or engaged in any other hazardous employment Provided that nothing in this sub
clause shall authorize the detention of any person beyond the maximum period prescribed
by any law made by Parliament.
There are certain case laws which verify the relation between state and the fundamental
rights.
1. A.K. Gopalan v. State of Madras8: It was held by the Supreme Court of India, that any of
the sections of the Preventive detention Act, IV of 1950 has infringed the provisions of
Part III of the constitution barring Section 14 of the Act, restricting the declaration of the
grounds of detention. Section 14 of the Preventive Detention Act, IV of 1950 was
declared Ultra Vires, nonetheless the declaration by the court did not affect the validity of
the act as a whole. Therefore in this way the judiciary upheld the fundamental rights over
state laws.
2. Chintaman Rao v. State of Madhya Pradesh9: In this case, the parent Act authorized the
Deputy Commissioner to prohibit the manufacture of bidis in some areas during certain
periods. When the Deputy Commissioner passed such an order, it was held that the parent
Act was unconstitutional as it violated Article 19(1)(g) of the Constitution which confers
a fundamental right to carry on any occupation, trade or business. Thus the Court,
therefore, struck down the order passed by the Deputy Commissioner.
3. Air India v. Nargesh Meerza10: In this case, a regulation provided that an air hostess
would retire from the service attaining the age of 35 years or on marriage within 4 years
of service or on first pregnancy, whichever occurred earlier. The regulation authorized
the Managing Director to extend the age of retirement to 45 years at his option if an air
hostess was found medically fit. The Regulation did not contain any guidelines or the
policy according to which the discretion conferred on the Managing Director was to be
exercised. The regulation conferred on the Managing Director was unguided and
uncontrolled discretion. The termination of the service of an air hostess on pregnancy was
unreasonable and arbitrary. The regulation was held to be violative of Article 14 as it was
unreasonable and arbitrary.
4. D. S. Nakara v. Union of India 11: In this case a pension scheme provided a higher
pension to government servants retiring before a particular date and lower pension to
those retiring after this date. The Supreme Court held that the provision in violation of
Article 14, of the Constitution and was therefore invalid.
8
AIR 1950 SC 27
9
AIR 1951 SC 118
10
AIR 1981 SC 1829
11
AIR 1983 SC 130
5. John Vallamattom & Anr. vs Union of India 12: In this case the issue was whether Section
– 118 of the Indian Succession Act, 1925 is constitutionally valid? The Supreme Court
held that Section – 118 of the Indian Succession Act, 1925 is unconstitutional as it
violates Article 14 of the Constitution. The rigorous procedure mentioned under Section
118 of the said Act for testamentary disposition of property for religious or charitable
purposes is applicable to Christians only and not to a person belonging to any other
religion. Also, the classification of Christian testators and other religion testators is
extremely reasonable. Testators constitute a homogenous category and they cannot be
divided arbitrarily on any vague basis of classification.
6. Saurabh Chaudri & Ors. Vs Union Of India13: In this case the court held that
The State runs the Universities and has to spend a lot of money in imparting
medical education to the students of the State, along with payment of stipends to
Post graduate students. Hence, Reservation of some seats to a reasonable extent,
would not violate the equality clause.
The criteria for institutional preference have now come to stay. It has worked out
satisfactorily in most of the States for last about two decades.
It goes beyond any civil doubt that institutional preference is based on a
reasonable and identifiable classification.
The provision of such a preference is a matter of State policy which can be
invalidated only in the event of being violative of Article 14 of the Constitution of
India and that sufficient materials were not provided to the court to prove the
contrary.
7. Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay 14: In this case the
Apex Court held that the provisions which direct the employers to pay the unpaid
accumulations to the board by the employers. This will not release the employers from
the liability to pay to the employees which is against Article 19(1) (f) of the Constitution
of India. The State contended that the unpaid accumulations must be considered as the
abandoned property but the court rejected the plea that not eliminating rights will not
make the property to be abandoned. After the First Amendment Act, 1961, the same Act
12
(2003) 6 SCC 611
13
[2003] INSC 551
14
1958 AIR 328
was questioned before the Hon’ble High Court of Bombay which declared the provisions
to be violative of fundamental rights and held the sections under the Act to be
unconstitutional. Then through Civil Appeals, the case reached the Apex court of India
where the Court held that the impugned Sections are valid based on the following
reasoning.
8. State of Bombay v. F.N.Balsara15: In this case the Supreme Court held that the Sec 8 of
the Bombay Prohibition Act, 1949 was ultras vires for infringement of fundamental rights
and concluded its judgement by stating that the violative part is invalid and the rest of the
Act is valid.
9. Govind v. State of Madhya Pradesh16: In this case the Supreme Court upon taking an
elaborate view of the matter in regard to right to privacy vis-`-vis the Madhya Pradesh
Police Regulations dealing with surveillance, opined that the said regulation did not
violate the "procedure established by law". However, a limited Fundamental Right to
Privacy as emanating from Articles 19(a), (d) and 21 was upheld, but the same was held
to be not absolute wherefore reasonable restrictions could be placed in terms of Clause
(5) of Article 19.
10. People’s Union for Civil Liberties v. Union of India 17: In this case it was held that the
unauthorized tapping of telephones by police personnel violated the `right to privacy’ as
contemplated under Article 21. However, it was not stated that telephone-tapping by the
police was absolutely prohibited, presumably because the same may be necessary in
some circumstances to prevent criminal acts and in the course of investigation. Hence,
such intrusive practices are permissible if done under a proper legislative mandate that
regulates their use.
15
AIR 1951 SC 318
16
(1997) 1 SCC 301
17
AIR 1997 SC 568
Analysis
The definition of the State given under the Article 12 of the Indian Constitution has led to
many misunderstandings which further led to the introduction of many case laws that are
vital for the explanation of the expression ‘other authorities’. These case laws has laid
down certain determining tests for what an entity can be considered as a state and as
passing of time the expressions’ meaning or its definition has also evolved. The
fundamental rights have the utmost importance in the constitution as the Article 13 states
and any statute or provisions enforced by the State which are violative of these
fundamental rights are considered as void.
The relation between State and Fundamental Rights is of keeping a check on the State to
avoid any implementation of laws or provisions that are violative of fundamental rights.
This is done in order to maintain liberty and ensure that there is public peace. The case
laws mentioned also supports this statement as many of case laws prevent the State to
make any arbitrary decisions which are related to fundamental rights of the citizens as
well as non-citizen. If State does implement certain laws that infringe the fundamental
rights then it is the duty of the judiciary to check these laws and ensure that the
fundamental rights are upheld.
Conclusion
Addition of Fundamental Rights in the constitution has been appreciated. These days
development of a state is calculated by the rights which it extends to its populace.
Fundamental Rights in the Indian Constitution have been given to the public with the
condition that all succeeding laws enacted dissimilar to these rights could be affirmed
unconstitutional.
Deal of Fundamental Rights as specified in the Constitution has been much criticized.
Some critics have gone to the point of saying that Constitution makers in India have
provided rights with one hand and taken by the other. A division of the Constitution is
dedicated to the fundamental rights, which Indians can benefit from during normal times.
These Rights can, however, be taken away from them during emergencies. The Rights,
along with other things, comprise the right to freedom of assembly, association, faith,
expression, etc.
The courts of law are capable to declare any law, which violates these rights as
unconstitutional if there is a need. Such an action can be in use only if a plea is furnished
by a citizen to review a law or an executive order.