SCHOOL OF LEGAL STUDIES

INTERNAL ASSIGNMENT- I

CONSTITUTIONAL LAW- I

Name: Shashank S Katagar

SRN No: R20BL031
Course: B.B.A LLB (Hons.)
Topic: State and Fundamental Rights
 INTRODUCTION TO
STATE & FUNDAMENTAL RIGHTS

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.

There are mainly six fundamental rights:

1. Right to Equality (Articles 14-18)

2. Right to Freedom (Articles 19-22)
3. Right against Exploitation (Articles 23-24)
4. Right to Freedom of Religion (Articles 25-28)
5. Cultural and Educational Rights (Articles 29-30)
6. Right to Constitutional Remedies (Article 32)

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. University of Madras v. Shantabai1

In this case the Madras High Court evolved the principle of ‘ejusdem generis’ i.e. of the
like nature. It means that only those authorities are covered under the expression of ‘other
authorities’ which perform the governmental or sovereign functions. Further, it cannot
include persons, natural or juristic. Here governmental or sovereign functions means that
something resembling the work of a government.
2. Smt. Ujjam Bai v. State of Uttar Pradesh2
In this case the court rejected the restrictive interpretation of the expression ‘other
authorities’ which was given by the Madras High Court and held that the ejusdem generis
cannot be applied to interpret the expression because there is no common genus between
Government of India and the State, Legislature of Union and State and local and other
authorities and due to which these bodies cannot be placed under single category.

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.

FUNDAMENTAL RIGHTS under Constitution

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.

1. Right to Equality ( Art 14 – Art 18)

i. Equality before the law (Article 14)
Article 14 treats all people the same in the eyes of the law.
 This provision states that all citizens will be treated equally before the law.
 The law of the country protects everybody equally.
 Under the same circumstances, the law will treat people in the same manner.
ii. Prohibition of discrimination (Article 15)
This article states that there shall be no discrimination on the basis of religion,
race, caste, sex or place of birth. All the people of the country shall have equal
rights to access public places like public parks, roads, museums, wells, bathing
ghats, etc.
 However, the State has powers to make any special provision for women and
children. The State also reserves a right to make special provisions for the
advancements of any socially or educationally backward class or scheduled castes
or scheduled tribes.
iii. Equality of opportunity in matters of public employment (Article 16)
Article 16 provides equal employment opportunities in State service for all
citizens. No citizen shall be discriminated against in matters of public
employment or appointment on the grounds of race, religion, caste, sex, place of
birth, descent or residence. Exceptions to this can be made for providing special
provisions for the backward classes.
iv. Abolition of untouchability (Article 17)
This article states that the practice of untouchability is an offense and anyone
guilty of doing so is punishable by law. The Protection of Civil Rights Act, 1976
lays down the penalties for stopping any person from entering a place of worship
or from taking water from a tank or well.
v. Abolition of titles (Article 18)
Article 18 abolishes titles. The State shall not confer any titles except those which
are academic or military titles.
The article also prohibits citizens of India from accepting any titles from a foreign
State. The article abolishes the titles that were awarded by the British such as Rai
Bahadur, Khan Bahadur, etc. Awards like Padma Shri, Padma Bhushan, Padma
Vibhushan, Bharat Ratna and military honours like Ashok Chakra, Param Vir
Chakra do not belong to this category.
2. Right to Freedom (Art 19 – Art 22)
i. Article 19 guarantees six freedoms. They are:
 Article 19(1)(a) – Freedom of Speech and Expression –
Freedom of speech is an indispensable element of any democratic country. It is the basis
of civilization, and without it, liberty of thought would shrivel. Freedom of speech and
expression provides the right to express one’s opinion freely without any fear through
any medium. The word “press” is also included under this provision.
  Article 19(1)(b) – Freedom of Assembly –
The Constitution allows us the right to hold meetings and take out processions. These
processions and meetings may be restricted in the interest of public order or sovereignty.
This article has also been revived and interpreted by the Apex Court several times.
Section 144(6) of the CrPC, can be imposed by the Government of India in some areas
which make the assembly of five or more people an unlawful assembly.
 Article 19(1)(c) – Freedom of Association or Union –
The Constitution of India declares that all citizens of India shall have the right to form
associations and unions. The Constitution of India declares that no citizen has a
fundamental right under Article 19(1)(c) to be a voluntary association or a cooperative
society. The right to be a member of the same is governed by the provisions of the
statute. So, the right to be or to continue being a member of any society is a statutory
right.
 Article 19(1)(d) – Freedom to move freely throughout the territory of India –
No person can be restricted to move from one part of the State to another. The freedom of
movement under Article 19 allows us to move from one state to another and anywhere
within the State. There are certain exceptions to this freedom too.
 Article 19(1)(e) – Freedom to reside and settle in any part of the territory of India
–
As citizens of India, we can reside in any part of the country, which is subject to certain
restrictions imposed by the State. An Indian Citizen can reside in any state except the
state of Jammu and Kashmir.
 Article 19(1)(g) – Freedom to practice any profession, or to carry on any
occupation, trade or business –The Constitution of India guarantees each citizen
the right to conduct trade, profession, business, or occupation anywhere in the
territory of India. Also, Part 12 (Article 301-307) of the Constitution of India lists
down the provisions relating to trade, commerce, and intercourse. Its objective is
to remove barriers in the way of Interstate and Intra-state commercial and trading
links.
ii. Article 20
 This article deals with the protection of citizens in respect of conviction for
offences. This provides for three types of protection of the individual against the
State.
 Retrospective criminal legislation: This is also known as ex-post facto
criminal legislation. Under this, a person cannot be convicted for an act
that was committed at a time when the act had not been declared by law
as an offence. This means that criminal legislation cannot be given a
retrospective effect. This immunity cannot be used against the provision
of preventive detention, and also does not cover the trial.
 Double jeopardy: This indicates that a person cannot be convicted for the
same offence more than once.
 Prohibition against self-incrimination: This implies that no person
accused of an offence shall be compelled by the State to bear witness
against himself.
iii. Article 21
Article 21 states that no person shall be deprived of his life and personal liberty
by the State except as per the procedure established by law. This article has a
wide scope and its interpretation has undergone many changes over the decades.
 The Supreme Court has interpreted the right to life as the right to a
dignified life.
 This is the most important right in one sense, because, without this right to
life, all other fundamental rights would be meaningless.
 It is this article that differentiates between a police state and a
constitutional state.
iv. Article 22
Article 22 deals with the protection against arrest and detention in certain cases.
The article provides the following safeguards:
Article 22(1) – Any person who is in custody has to be informed as to why he has
been arrested. Further, he cannot be denied the right to consult an advocate.
Article 22(2) – The arrested individual should be produced before a judicial
magistrate within 24 hours of his arrest.
 Article 22(3) – No individual who has been arrested can be kept in custody for
more than the period determined by the judicial magistrate.

3. Right against Exploitation (Art 23 & Art 24)

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.

4. Right to Freedom of Religion (Art 25- Art 28)

i. Article 25 of the Constitution guarantees freedom of religion to all persons in India. It

provides that all persons in India, subject to public order, morality, health, and other
provisions:
 Are equally entitled to freedom of conscience, and
 Have the right to freely profess, practice and propagate religion.
It further provides that this article shall not infringe or violate any existing law
and shall not prevent the state from making any law relating to: Regulation or
restriction of any economic, financial, political, or any secular activity associated
with religious practice.
 Providing social welfare and reform. Opening of Hindu religious institutions of
public character for all the classes and sections of the Hindus.
ii. Article 26
Freedom to manage religious affairs subject to public order, morality and health, every
religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law
iii. Article 27
Freedom as to payment of taxes for promotion of any particular religion. No person shall
be compelled to pay any taxes, the proceeds of which are specifically appropriated in
payment of expenses for the promotion or maintenance of any particular religion or
religions denomination.
iv. Article 28
Freedom as to attendance at religious instruction or religious worship in certain
educational institutions
 This article permits educational institutions that are maintained by religious
groups to disseminate religious instruction. This provides that no religious
instruction shall be provided in State-run educational institutions.
 Educational institutions administered by the State but that were established under
any endowment or trust which requires that religious instruction shall be imparted
in such institutions are exempt from the above clause (that no religious instruction
shall be provided).
 Any person who attends any educational institution recognized by the State or
receiving State aid shall not be required to participate in any religious instruction
that may be imparted in such institution, or also attend any religious worship in
such institutions unless he/she has given consent for the same. In the case of
minors, the guardians should have given consent for the same.

5. Cultural & Educational Rights (Art 29 & Art 30)

i. Article 29
This article is intended for the protection of the interests of the minorities.
 Article 29(1): This provides all citizen groups that reside in India having a distinct
culture, language, and script, the right to conserve their culture and language. This
right is absolute and there are no ‘reasonable restrictions’ in the interest of the
general public here.
 Article 29(2): The State shall not deny admission into educational institutes
maintained by it or those that receive aids from it to any person based on race,
religion, caste, language, etc. This right is given to individuals and not any
community.
ii. Article 30
This right is given to minorities to form and govern their own educational institutions.
Article 30 is also called the “Charter of Education Rights”.
Article 30(1): All religious and linguistic minorities have the right to establish and
administer educational institutions of their choice.
Article 30(2): The State should not, when granting aid to educational institutions,
discriminate against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language.

6. Right to Constitutional Remedies (Art 32)

Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
 (4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

Relation of State and Fundamental Rights

The relation between state and fundamental rights is of to maintain the peace and liberty
among citizens, corporations, legal organization and the state itself.
The article 13 of the Indian constitution mainly states the relation between the laws
enforced by the state and ensures that these law are consistent with the fundamental
rights. Thus, maintaining an important relation between state and the fundamental rights.
The article 13 provides to doctrines:
1. Doctrine of Severability: “All laws in force in India, before the commencement of the
Constitution, which are inconsistent with the provisions of fundamental rights shall to the
extent of that inconsistency be void.”
 As an extension of Article 13, the doctrine states that when some particular
provision of the statute infringes or violates the fundamental rights, but the
provision is severable from the rest of the statute, and then only that provision
will be declared void by the courts and not the entire statute.
 The doctrine essentially lays down that if violative and non-violative provisions
are separated in a way that the non-violative provision can exist without the
violative provision, then the non-violative provision will be upheld as valid and
enforceable.
2. Doctrine of Eclipse: This doctrine says that any law inconsistent with Fundamental
Rights is not invalid. It is not dead totally but overshadowed by the fundamental right.
The inconsistency can be removed by constitutional amendment to the relevant
fundamental right so that eclipse vanishes and the entire law becomes valid.

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.